- Note 1
For the purpose of these
Guidelines, child refers to any person under the age of 18 who is the subject of proceedings before the
CRDD.
Section 69(4) provides special protection to refugee claimants under the age of 18 in the form of a designated representative in proceedings before the
CRDD. Section 69(4) of the
Immigration Act, as enacted by
R.S.C. 1985 (4th Supp.), c. 28, s.18, provides in part as follows:
Where a person who is the subject of proceedings before the Refugee Division is under eighteen years of age the Division shall designate another person to represent that person in the proceedings.
The age of8 is consistent with the provisions of the
Convention on the Rights of the Child (hereafter the CRC) which provides in Article that for the purposes of the present Convention, a child means every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier.
Return to note 1 referrer
- Note 2
Ibid.
Return to note 2 referrer
- Note 3
The CRC was adopted by the United Nations General Assembly on 20 November 1989. It was signed by Canada on 28 May 1990 and ratified on 13 December 1991, and came into force on 12 January 1992.
Return to note 3 referrer
- Note 4
See Article 22 of the CRC:
State 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
Return to note 4 referrer
- Note 5
"Refugee Children - Guidelines on Protection and Care",
UNHCR, Geneva 1994.
Return to note 5 referrer
- Note 6
Rule 10(2) of the
Convention Refugee Determination Division Rules, SOR/93-45. These Rules also provide for claims to be heard separately if a joined hearing is likely to cause an injustice."
Return to note 6 referrer
- Note 7
See Article 3(1) of the CRC:
In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
See also
UNHCR Executive Committee Conclusion XXXVIII Refugee Children, 1987:
The Executive Committee [s]tressed that all action taken on behalf of refugee children must be guided by the principle of the best interests of the child.
Return to note 7 referrer
- Note 8
In determining the child's fear of persecution, the international human rights instruments, such as the
Universal Declaration of Human Rights, the
International Covenant on Civil and Political Rights, the
International Covenant on Economic, Social and Cultural Rights and the
Convention on the Rights of the Child, should be considered in determining whether the harm which the child fears amounts to persecution.
Return to note 8 referrer
- Note 9
For female child refugee claimants, reference can also be made to the Chairperson's
Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution, Immigration and Refugee Board, Ottawa, Canada, March 9, 1993.
Return to note 9 referrer
- Note 10
Madame Justice McLachlin of the Supreme Court of Canada, in
Gordon v. Goertz (S.C.C.,
no. 24622), Lamer, LaForest, L'Heureux-Dub, Sopinka, Gonthier, Cory, McLachlin, Iacobucci, Major, May 2, 1996, had occasion to discuss the interpretation to be given to the phrase best interests of the child and the difficulty with giving the phrase a concrete definition:
The best interests of the child test has been characterized as indeterminate and more useful as legal aspiration than as legal analysis The multitude of factors that may impinge on the child's best interest make a measure of indeterminacy inevitable. A more precise test would risk sacrificing the child's best interest to expediency and certainty.
Return to note 10 referrer
- Note 11
See
note 1.
Return to note 11 referrer
- Note 12
Although legal counsel for the claimant may also be appointed as the designated representative, the roles of the two are distinct.
Return to note 11 referrer
- Note 13
Section 69(1) of the
Immigration Act, as enacted by
R.S.C. 1985 (4th Supp.), c. 28, s.18, provides as follows:
In any proceedings before the Refugee Division the person who is the subject of the proceedings may, at that person's own expense, be represented by a barrister or solicitor or other counsel.
Return to note 13 referrer
- Note 14
Section 69(1) of the
Immigration Act, as enacted by
R.S.C. 1985 (4th Supp.), c. 28, s.18, provides as follows:
In any proceedings before the Refugee Division the person who is the subject of the proceedings may, at that person's own expense, be represented by a barrister or solicitor or other counsel.
Return to note 14 referrer
- Note 15
UNHCR Executive Committee Conclusion XXXVIII Refugee Children, 1987:
The Executive Committee underlined the special situation of unaccompanied children and children separated from their parents, who are in the care of other families, including their needs as regards determination of their status.
Return to note 15 referrer
- Note 16
An unaccompanied child claimant is by virtue of that status a child who may be at risk and the authority responsible for children at risk should be notified. Because
CRDD proceedings are held in camera and disclosing information about the refugee claim of the child would involve releasing private information, the provisions of the
Privacy Act (S.C. 1980-81-82-83, c.111, Sch. II "1") must be complied with.
Return to note 16 referrer
- Note 17
An appropriate interpreter is vital to the processing of a refugee claim. It is important that the child trust the interpreter and that the interpreter be right for the child. The cultural and linguistic background, age, gender and other personal characteristics of an interpreter may be factors for consideration in selecting an appropriate interpreter for the child. See
Working with Unaccompanied Minors in the Community: a family-based approach,
UNHCR, 1994.
Return to note 17 referrer
- Note 18
In the context of interviewing children in emergency situations, the International Social Service in
Unaccompanied Children in Emergencies, J. Williamson, A. Moser, 1987, indicated that persons interviewing unaccompanied children need experience in working with children and an understanding of how refugee situations affect children.
Return to note 18 referrer
- Note 19
The
UNHCR document
Refugee Children - Guidelines on Protection and Care, note 5 above, provides that the refugee status determination must be made quickly Keeping children in limbo regarding their status, hence their security and their future, can be harmful to them. (Page 100.)
Return to note 19 referrer
- Note 20
A child refugee claimant has a right to be present at his or her refugee proceedings. Section 69(2) of the
Immigration Act, as enacted by
R.S.C. 1985 (4th Supp.), c. 28, s.18, provides that:
69(2) Subject to subsections (3) and (3.1), proceedings before the Refugee Division shall be held in the presence of the person who is the subject of the proceedings, wherever practicable.
Return to note 20 referrer
- Note 21
Section 69.1(5)(a)(i) of the
Immigration Act, as enacted by
R.S.C. 1985 (4th Supp.), c. 28, s.18, provides that:
69.1(5) At the hearing into a person's claim to be a Convention refugee, the Refugee Division
(a) shall give
(i) the person a reasonable opportunity to present evidence, question witnesses and make representations
Further, Article 12 of the CRC provides that:
- State Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the view of the child being given due weight in accordance with the age and maturity of the child.
- For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceeding affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.
Return to note 21 referrer
- Note 22
In the case of a nine-year-old citizen of Russia (CRDD V93-02093, Brisson, Neuenfeldt, May 4, 1994), the
CRDD panel agreed that given the young age of the claimant, she would not be asked to swear an oath or make a solemn affirmation. When asked, the child indicated that she understood the necessity of telling the truth during her hearing and added that it was not nice to tell a lie. The
CRDD found her evidence to be truthful.
Return to note 22 referrer
- Note 23
The
UNHCR document
Refugee Children - Guidelines on Protection and Care, note 5 above, states that arrangements should be made to have a trusted adult accompany the child during the interviewing process, either a family member of the child, a friend or an appointed independent person. (Page 102.)
Return to note 23 referrer
- Note 24
As stated by the
CRDD in T92-09383, Wolpert, Hunt, May 4, 1993, [a] child might well not 'know' certain things: he is not privy to an adult's world.
Return to note 24 referrer
- Note 25
See
note 9.
Return to note 25 referrer
- Note 26
With respect to the assessment of evidence of a child claimant, the
CRDD panel in V92-00501, Burdett, Brisco, April, 1993, said as follows:
I agree that a claimant who is a child may have some difficulty recounting the events which have led him or her to flee their country. Often the child claimant's parents will not have shared distressing events with the claimant, with the intention of protecting the child. As a result, the child claimant, in testifying at his or her refugee hearing, may appear to be vague and uninformed about important events which have led up to acts of persecution. Before a trier of fact concludes that a child claimant is not credible, the child's sources of knowledge, his or her maturity, and intelligence must be assessed. The severity of the persecution alleged must be considered and whether past events have traumatized the child and hindered his or her ability to recount details.
Return to note 26 referrer
- Note 27
The
UNHCR document
Refugee Children - Guidelines on Protection and Care, note 5 above, provides that where a child is not mature enough to establish a well-founded fear of persecution in the same way as an adult it is necessary to examine in more detail objective factors, such as the characteristics of the group the child left with[,] the situation prevailing in the country of origin and the circumstances of family members, inside or outside the country of origin. (Page 100 - 101.) The same point is made in the
UNHCRHandbook on Procedures and Criteria for Determining Refugee Status (Geneva, January 1979) which states in paragraph 217 that it may be necessary to have a greater regard to certain objective factors.
Return to note 27 referrer
- Note 28
Yusuf v.
M.E.I. [1992]
F.C. 629, per Hugessen, J.A.
Return to note 28 referrer