II.
Canadian Legal Framework
There are no clear legislative provisions in the IRPA, or any specific jurisprudence discussing
Article 25 of the 1951 Refugee Convention. However, with respect to Article 25(2), the travaux
préparatoires of the 1951 Refugee Convention observed that in common law jurisdictions, such
as Canada, personal affidavits would be acceptable in lieu of original documents.446 Although
such affidavits would not be given the “same validity” as instruments issued by the national
authorities, they are to be given credence in the absence of proof to the contrary.447 In Canadian
jurisprudence on this matter involving refugees, this principle has also been observed “when a
refugee claimant swears to the truth of certain allegations, a presumption is created that those
allegations are true unless there are reasons to doubt their truthfulness.”448
In addition, when the CBSA is attempting to establish a foreign national’s identity, they may
contact authorities in the individual’s country of origin or last habitual residence. This may be so
the foreign national can be released from detention or to obtain a travel document in order to
remove the foreign national from Canada.449 With respect to assistance gathering documentation
specifically on family position, social position or professional certifications, no legislative or
policy guidelines were found.
Article 25(5) of the 1954 Convention makes it clear that although “the issuance of identity
papers and travel documents is ordinarily included in ‘administrative assistance,’” it is not
applicable to these two services.450 Nonetheless, Guy Goodwin-Gill is of the opinion that Article
25 of the 1951 Refugee Convention may need to be read together with Articles 27 and 28, “as
part of single system of protection of the person’s entitlement to identity and documentation,
since practically speaking the issuance of identity documents under Article 27 may be contingent
on the issuance and acceptance of the necessary antecedent documents under Article 25, relating,
for example, to births and deaths, marriages and civil status generally.”451
III.
Assessment
The IRPA and the IRPR do not explicitly address the content of Article 25, nor is there
jurisprudence or any clear policy guidelines on the issue of the right to administrative assistance
in Canada. This is despite Canada being a State Party to the 1951 Refugee Convention, which
contains the same Article 25 provision. Although this could be considered a possible gap in the
Canadian legal framework, the content of Article 25 is unique as it addresses issues for stateless
1951 Convention travaux préparatoires, supra note 61 at 59 & 61.
Robinson Commentary to the 1954 Convention, supra note 11 at 48.
448
Maldonado v. Minister for Employment and Immigration (1980) 2 FC 302 at 305; cited in UN High
Commissioner for Refugees (UNHCR), Opinion: The 1951 Convention relating to the Status of Refugees and the
Obligations of States under Articles 25, 27 and 28, with particular reference to refugees without identity or travel
documents, May 2000, at paras. 30-37, available at: http://www.refworld.org/docid/51af00184.html [Guy GoodwinGill Opinion]
449
Citizenship and Immigration Canada, ENF 10 Removals (31 March 2013), at 50, available at:
http://www.cic.gc.ca/english/resources/manuals/enf/enf10-eng.pdf; and IRPR, supra note 21 at s. 244(c) & 247.
450
Robinson Commentary to the 1954 Convention, supra note 11 at 48.
451
Guy Goodwin-Gill Opinion, supra 448 at para. 37.
446
447
94
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