Refugee and protection claims in Canada – what is Internal Flight Alternative (IFA)?
The refugee protection system in Canada is one that finds grounding in the 1951 Refugee Convention and its 1967 protocols. The core principle is non-refoulement, which asserts that a refugee should not be returned to a country where they face serious threats to their life or freedom. This is now considered a rule of customary international law.
When evaluating refugee claims in Canada, the law circles around section 96 and section 97 of the Immigration and Refugee Protection Act:
96 A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or
(b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country.
Person in need of protection
97 (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally
(a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,
(iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide adequate health or medical care.
There are many factors which are assessed in refugee claims in Canada. This blog is going to look at Internal Flight Alternatives, or “IFA.” An Internal Flight Alternative is another way of saying that you may not be safe in the place, city, or town that you came from, but there are other locations in your country of origin that are practical for relocation. The question of whether an IFA exists is an integral part of the refugee definition. The RPD and/or the RAD must be satisfied, based on the evidence assessed, on a balance of probabilities, that there is not a serious possibility of the Appellants being persecuted in the proposed IFA. Further, conditions in the proposed location must be such that it would not be unreasonable, in the circumstances, for the Appellants to seek refuge there.
The considerations for IFA were summarized by Justice Kelen of the Federal Court of Canada in Farias v. Canada (Minister of Citizenship & Immigration), 2008 FC 1035:
34 For ease of reference, I summarize a checklist of legal criteria for determining whether an IFA exists. The checklist is as follows:
- If IFA will be an issue, the Refugee Board must give notice to the refugee claimant prior to the hearing … and identify a specific IFA location(s) within the refugee claimant’s country of origin ….
- There is a disjunctive two-step test for determining that there is not an IFA. See, e.g., Rasaratnam, Thirunavukkarasu,…Urgel…
i. Either the Board must be persuaded by the refugee claimant on a balance of probabilities that there is a serious possibility that the refugee claimant will be persecuted in the location(s) proposed as an IFA by the Refugee Board; or
ii. The circumstances of the refugee claimant make the proposed IFA location unreasonable for the claimant to seek refuge there;
3. The applicant bears the burden of proof in demonstrating that an IFA either does not exist or is unreasonable in the circumstances…
4. The threshold is high for what makes an IFA unreasonable in the circumstances of the refugee claimant: …. whether an IFA is unreasonable is a flexible test taking into account the particular situation of the claimant. It is an objective test;
5. The IFA must be realistically accessible to the claimant, i.e. the claimant is not expected to risk physical danger or undue hardship in traveling or staying in that IFA. Claimants are not compelled to hide out in an isolated region like a cave or a desert or a jungle…
6. The fact that the refugee claimant has no friends or relatives in the proposed IFA does not make the proposed IFA unreasonable. The refugee claimant probably does not have any friends or relatives in Canada. The fact that the refugee claimant may not be able to find suitable employment in his or her field of expertise may or may not make the IFA unreasonable. The same may be true in Canada.
Fighting a refusal on the basis of an IFA to the Refugee Appeal Division requires strong arguments addressing the above. The best way to avoid the refusal, however, is to prepare for IFA to be a potential issue in your claim for the very beginning. It is always good practice to do some legal research to get a sense of what kinds of cities or locations are being proposed as an IFA in advance of your hearing – that way, you are better prepared to explain why a potential IFA location is unreasonable or unduly harsh, if that is the case!