“The principle of non-refoulement – a principle that forbids a country from returning an asylum seeker to a country in which they would likely be in danger of persecution – has been considered the cornerstone of international refugee protection. Canada has implemented the principle of non-refoulement in s. 115(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, which provides:
115 (1) A protected person or a person who is recognized as a Convention refugee by another country to which the person may be returned shall not be removed from Canada to a country where they would be at risk of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion or at risk of torture or cruel and unusual treatment or punishment.
Canada has ratified both the 1951 Refugee Convention and the Protocol relating to the Status of Refugees. In Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3, at para. 72, the Supreme Court explained that “the Refugee Convention . . . expresses a ‘profound concern for refugees’ and its principal purpose is to ‘assure refugees the widest possible exercise of … fundamental rights and freedoms’”.
As submitted by CARL and UNHCR, the principle of non-refoulement applies not only to recognized refugees, but also to asylum seekers whose status has not yet been determined. Refugee protection is not limited to those granted refugee status but applies equally to asylum seekers.
If, under the CLRA, a child is ordered returned to a place from which asylum is sought, the child’s rights to asylum are lost. A person is not permitted to continue a refugee claim once in their home country. Nor is the person entitled to make a second claim should the person return to Canada: Immigration and Refugee Protection Act, at ss. 96 and 101(1)(c)).
Further, art. 22 of the Convention on the Rights of the Child provides:
States Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties.
I adopt the reasoning of the High Court of Justice of England and Wales in F.E. v. Y.E., [2017] EWHC 2165 (Fam), which held at para. 17:
Approaching the matter from first principles I have no hesitation in concluding that where a grant of asylum has been made by the Home Secretary it is impossible for the court later to order a return of the subject child under the 1980 Hague Convention. Equally, it is impossible for a return order to be made while an asylum claim is pending. Such an order would place this country in direct breach of the principle of non-refoulement. It is impossible to conceive that the framers of the 1980 or 1996 Hague Conventions could have intended that orders of an interim procedural nature could be made thereunder in direct conflict with that key principle. [Emphasis added.]
This same reasoning applies to a potential return order under s. 40(3) of the CLRA.
Children are entitled to protection as they seek asylum. The application judge erred by ordering their return under s. 40(3) of the CLRA before the determination of the refugee claim.
The OCL’s submissions (and the mother’s alternate submission) go further to suggest that the entire application, including the mother’s request that Ontario exercise its jurisdiction to make custody and access orders for the children under s. 23 of the CLRA, should have been adjourned pending the refugee determination. I disagree for three reasons.
First, it is the s. 40(3) return order that would engage the non-refoulement principles, not the s. 23 analysis. Section 40(3) empowers the court to make a return order in extra-provincial matters. The section reads:
40. Upon application, a court,
(a) that is satisfied that a child has been wrongfully removed to or is being wrongfully retained in Ontario; or
(b) that may not exercise jurisdiction under section 22 or that has declined jurisdiction under section 25 or 42,
may do any one or more of the following:
1. Make such interim order in respect of the custody or access as the court considers is in the best interests of the child.
2. Stay the application subject to,
i. the condition that a party to the application promptly commence a similar proceeding before an extra-provincial tribunal, or
ii. such other conditions as the court considers appropriate.
3. Order a party to return the child to such place as the court considers appropriate and, in the discretion of the court, order payment of the cost of the reasonable travel and other expenses of the child and any parties to or witnesses at the hearing of the application.
Section 40 confers broad powers on the court and unlike the terms of the Hague Convention, does not require a return of the child to his or her habitual residence absent engagement of the harm exception.
A return order must not be made under s. 40(3) in the face of a pending refugee claim. This is consistent with the submissions of Amnesty, CARL, and the UNHCR, all of whom stressed that it was the execution of the removal order under s. 40(3) that extinguishes the refugee claim. (I would leave to another day how the court should proceed if a return order to a signatory country was sought under the Convention in the face of a pending refugee claim).”