Kadya, a citizen of Somalia, made a refugee claim in Canada and was found to be a protected person. Kadya’s application for Permanent Residence as a protected person has been submitted to the Case Processing Centre in Vegreville, Alberta and is still in process. Kadya’s sister, Jabba, is in the United States without status. She wants to drive to the Canadian border and make a claim for refugee protection in Canada. Kadya has come to you for advice because she believes that the Safe Third Country Agreement will prevent her sister from making a claim for refugee protection in Canada.
QUESTION: Is Jabba eligible to make a claim for refugee protection in Canada?
Jabba has a sister (Kadya) in Canada who has been found to be a protected person so her situation falls under one of the four exceptions. Read Article 4 of the Safe Third Country Agreement where it lists four exceptions.
ARTICLE 4
1. Subject to paragraphs 2 and 3, the Party of the country of last presence shall examine, in accordance with its refugee status determination system, the refugee status claim of any person who arrives at a land border port of entry on or after the effective date of this Agreement and makes a refugee status claim.
2. Responsibility for determining the refugee status claim of any person referred to in paragraph 1 shall rest with the Party of the receiving country, and not the Party of the country of last presence, where the receiving Party determines that the person:
a. Has in the territory of the receiving Party at least one family member who has had a refugee status claim granted or has been granted lawful status, other than as a visitor, in the receiving Party’s territory; or
b. Has in the territory of the receiving Party at least one family member who is at least 18 years of age and is not ineligible to pursue a refugee status claim in the receiving Party’s refugee status determination system and has such a claim pending; or
c. Is an unaccompanied minor; or
d. Arrived in the territory of the receiving Party:
i. With a validly issued visa or other valid admission document, other than for transit, issued by the receiving Party; or
ii. Not being required to obtain a visa by only the receiving Party.
3. The Party of the country of last presence shall not be required to accept the return of a refugee status claimant until a final determination with respect to this Agreement is made by the receiving Party.
4. Neither Party shall reconsider any decision that an individual qualifies for an exception under Articles 4 and 6 of this Agreement.
Jabba has a sister (Kadya) in Canada who has been found to be a protected person so her situation falls under one of the four exceptions. Read Article 4 of the Safe Third Country Agreement where it lists four exceptions.
ARTICLE 4
1. Subject to paragraphs 2 and 3, the Party of the country of last presence shall examine, in accordance with its refugee status determination system, the refugee status claim of any person who arrives at a land border port of entry on or after the effective date of this Agreement and makes a refugee status claim.
2. Responsibility for determining the refugee status claim of any person referred to in paragraph 1 shall rest with the Party of the receiving country, and not the Party of the country of last presence, where the receiving Party determines that the person:
a. Has in the territory of the receiving Party at least one family member who has had a refugee status claim granted or has been granted lawful status, other than as a visitor, in the receiving Party’s territory; or
b. Has in the territory of the receiving Party at least one family member who is at least 18 years of age and is not ineligible to pursue a refugee status claim in the receiving Party’s refugee status determination system and has such a claim pending; or
c. Is an unaccompanied minor; or
d. Arrived in the territory of the receiving Party:
i. With a validly issued visa or other valid admission document, other than for transit, issued by the receiving Party; or
ii. Not being required to obtain a visa by only the receiving Party.
3. The Party of the country of last presence shall not be required to accept the return of a refugee status claimant until a final determination with respect to this Agreement is made by the receiving Party.
4. Neither Party shall reconsider any decision that an individual qualifies for an exception under Articles 4 and 6 of this Agreement.