The need to redefine the criteria of well-founded fear for unaccompanied minors seeking asylum in Canada

• Main Author: Chester, Josephine V.S.
• Other Authors: Lebel-Grenier, Sébastien
• Language: English
• Published: Université de Sherbrooke 2009
• Online Access: http://savoirs.usherbrooke.ca/handle/11143/5317

Unaccompanied minors are children under the age of 18 who do not have their parents or legal guardian present at the time they make a refugee protection claim in Canada. like adult refugee claimants, unaccompanied minors seeking asylum in Canada have to prove both subjective and objective fear for the well-founded fear to be accorded Convention refugee status under section 96 of the Immigration and Refugee Protection Act (IRPA ). However, a child refugee claimant may not be able to express subjective fear of persecution in the same manner as an adult refugee claimant. Inference of lack of subjective fear that can be drawn from the pre-application conduct of unaccompanied minors could lead to negative refugee determination. Unaccompanied minors, being not able to establish their subjective fear, though there may be objective evidence of a risk of persecution, may face denial of refugee protection. They require special consideration in their asylum claim, not only for procedural questions but also for substantive issues. My objective is to demonstrate that the requirement of subjective fear for the well-founded fear in section 96 of the IRPA has to be eliminated in the case of unaccompanied minors. This will be met by showing that unaccompanied minors' right to equality under section 15 of the Canadian Charter is violated by requiring them to prove both their subjective fear and objective fear, and that this violation is not reasonable and not demonstrably justified in a free and democratic society under section 1 of the Charter. Moreover, the need for unaccompanied minors to prove objective fear alone for their well-founded fear will be justified philosophically with the principle of the best interests of the child and the legal theory of Ronald Dworkin.