Exclusion clause guidelines

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Resolution number: 
7
May 2001
Whereas: 
  1. The UNHCR exclusion clause guidelines of December 1996 provide that: a) in principle, the applicability of the exclusion clauses should be considered only after the adjudicator is satisfied that the individual fulfils the criteria for refugee status (guidelines 9). b) an assessment of a claim requires that the nature of the crime and the claimant’s role in it be weighed against the gravity of the persecution feared (guideline 9). c) the exclusion clauses need to be interpreted restrictively (guideline 8);
  2. The Federal Court has said that: a) it is not legally necessary to decide inclusion before exclusion, but it is desirable to do so. b) the refugee definition does not require that the gravity of the crime be balanced against the gravity of the persecution feared. c) the Board must be extremely cautious in its application of the exclusion clauses, but also that the standard of proof is less than the balance of probabilities;
  3. The Immigration Act gives the Chairperson of the Immigration and Refugee Board power to issue guidelines to the Board;
Therefore be it resolved: 

That the CCR ask the Chairperson of the Immigration and Refugee Board to issue guidelines to its Refugee Division on the exclusion clauses that would include the principles that:

  1. Inclusion should precede exclusion;
  2. The gravity of the offence should be balanced against the gravity of the persecution feared;
  3. The standard of proof should be higher than a balance of probabilities.
Subject: 
Working Group: 
Inland Protection