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< Back to current issue of Immigration Daily

Canada's New Refugee System

by Nolan Rappaport

Background. Canada is a signatory to the 1951 United Nations Convention Relating to the Status of Refugees and its Protocol.[1] The Convention prohibits signatories from returning people to territories where they will face persecution on account of race, religion, nationality, membership in a particular social group or political opinion. Canada also is signatory to the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.[2]

Canada welcomes one out of every ten resettled United Nations Convention refugees worldwide. This is more, per capita, than any other country, the second most in absolute terms after the United States.[3] By 2013, Canada expects to be resettling as many as 14,500 refugees a year. [4]

Comments. The ceiling for refugee admissions to the United States was 80,000 for FY 2011.[5] The United States aims to consider for resettlement at least half of the refugees referred by the United Nations High Commissioner for Refugees for resettlement worldwide each year, depending on the availability of funding.
Rick Dykstra (Parliamentary Secretary to the Minister of Citizenship and Immigration). In 2011, Canada received 5,800 refugee claims from nationals of democratic, rights-respecting member countries of the European Union. Virtually all of these claims were abandoned, withdrawn or rejected. These bogus claimants come here to exploit Canada's generous asylum system, which includes expensive taxpayer-funded health care, welfare and other social benefits. The cost to Canadian taxpayers for these unfounded claims is at least $170 million per year. [6]

Enactment of the Protecting Canada's Immigration System Act. On June 29, 2012, the Canadian Minister of Citizenship, Immigration and Multiculturalism,[7] Jason Kenney,[8] welcomed the final passage and royal assent of the Protecting Canada's Immigration System Act.[9] According to Minister Kenney, it will establish faster protection for those who genuinely need it by reducing the time it takes to review and decide a refugee claim, faster removal of those who do not really need protection, and limited access to appeal mechanisms for failed refugee claimants who come from generally non-refugee producing countries. Between the reforms of the Balanced Refugee Reform Act [10] and the Protecting Canada's Immigration System Act, the provinces and territories are expected to save somewhere in the range of $1.65 billion over five years in social assistance and education costs. [11]

Overview of Canada's New Refugee System

In an effort to make the refugee system faster and fairer, the new system establishes differentiation between groups of refugee claimants. This includes the following groups of claimants who will receive expedited processing:

  • Claimants from designated countries of origin. Nationals from countries designated by the Minister of Citizenship and Immigration for having low refugee claim success rates.
  • Claimants whose claims are manifestly unfounded. Foreign nationals whose claims for protection were rejected by the Refugee Protection Division because they were clearly fraudulent.
  • Claimants whose claims have no credible basis. Foreign nationals whose claims for protection were rejected by the Refugee Protection Division because there was no credible or trustworthy evidence on which the claim could have been accepted.
Comments. The United States does not treat all persecution claimants the same way either. United States Customs and Border Protection officers must summarily exclude aliens arriving at our border without proper documentation, unless they express a fear of persecution if repatriated. Aliens with persecution claims are interviewed by an asylum officer. If the officer determines that an alien does not have a credible fear of persecution, the officer orders the alien's removal from the United States without an asylum hearing. The alien can have the officer's determination reviewed within seven days by an immigration judge, but the review will be limited to the credible fear issue.[12] Other groups receive more favorable treatment. The Lautenberg Amendment, which is a provision of the FY 1990 Foreign Operations Appropriations Act, established a presumption of eligibility for refugee status for certain categories of people from the Former Soviet Union and Southeast Asia. Today, the Lautenberg Amendment also facilitates the resettlement of Jews, Christians, Baha'is, and other religious minorities fleeing Iran. [13]
Criteria for Country Designations. When the number of claims from a country reaches a certain threshold, which is established by ministerial order, the rate of rejected, withdrawn, and abandoned claims is considered in determining whether the country should be designated. For claimants from countries with a low number of claims, a qualitative checklist will be used, which includes such things as the existence of an independent judicial system recognition of basic democratic rights and freedoms, including mechanisms for redress if those rights or freedoms are infringed; and the existence of civil society organizations. The Minister of Citizenship, Immigration and Multiculturalism makes the final decision on whether to designate a country. [14]

Faster Decisions. The Canadian refugee process begins with an interview. If the officer conducting the interview decides that a refugee claim is eligible, he will refer it to the Refugee Protection Division of the Refugee Board for a hearing. Under reforms made by the Balanced Refugee Reform Act, the estimated processing time for an applicant from a designated country was 171 days; for other applicants it was 291 days. The time taken for hearings on refugee claims under the Protecting Canada's Immigration System Act is expected to drop to no more than 30 to 45 days for claimants from designated countries and to 60 days for all others. [15]

Comments. I hope those deadlines are flexible. I know from spending twenty years writing decisions for the United States Board of Immigration Appeals that it is impossible to predict how long it is going to take to evaluate persecution claims.
Refugee Appeal Division. A new Refugee Appeal Division at the Refugee Board will provide most claimants with an opportunity to appeal the denial of their claims by the Refugee Protection Division, and to introduce new evidence that was not reasonably available at the time of the hearing. The appeal will be paper-based, with oral hearings only in exceptional situations. Decisions on appeals are expected within 90 days when no oral hearing is held. Appeals that are determined to have a manifestly unfounded claim, or a claim without a credible basis, will not have access to the Refugee Appeal Division. Refugee claimants who arrive as part of a designated irregular arrival will not have access either. All failed refugee claimants, however, will continue to have the option of asking the Federal Court to review a negative decision. [16]

Work Permits. A refugee applicant may be able to apply for employment authorization while waiting for a decision on his claim. Usually, only people who cannot live without public assistance are eligible for employment authorization. [17] To reduce the attraction of coming to Canada to make an unfounded claim, designated country claimants will be ineligible to apply for a work permit until the Refugee Board approves their claim or their claim has been in the system for more than 180 days and no decision has been made. [18]

Pre-Removal Risk Assessment. An unsuccessful claimant facing removal may be eligible for a pre-removal risk assessment. In this process, consideration can be given to facts that were not presented at the hearing because they were unknown at the time. The assessment is a paper review evaluating the risks that the individual would face if he is returned to the country of origin. No pre-removal risk assessment will be permitted for one year following a final negative refugee claim decision from the Refugee Board or a final negative risk assessment decision. For claimants from designated countries, the bar on accessing the assessment is 36 months. An exception is permitted in the event of a sudden change in country conditions. [19] Timely Removals. Timely removals will reduce costs and deter abuse. Making an unfounded asylum claim will no longer be seen as an automatic way to stay in Canada for long periods. Most failed asylum claimants will be removed from Canada within 12 months of a final decision from the Refugee Board. [20] Humanitarian and Compassionate Consideration Application. In exceptional cases, people who normally would not be eligible to become permanent residents of Canada may be able to obtain such status on humanitarian and compassionate grounds. Factors that are looked at include how settled the person is in Canada; general family ties to Canada; the best interests of any children involved; and what could happen to the applicant if the request is not granted. A humanitarian and compassionate consideration application cannot be submitted while a refugee claim is pending. Refugee claimants have the option of withdrawing their refugee claim in order to apply for humanitarian and compassionate consideration, but this must be done prior to substantive evidence being heard at the hearing before the Refugee Board. Failed refugee claimants will be barred from requesting humanitarian and compassionate consideration for one year following a final negative Refugee Board decision. Exceptions are permitted, for instance, in cases where removal would put the applicant's life at risk because of inadequate health or medical care in his country, or where removal would have an adverse effect on the best interests of a child directly affected. [21] Ending the Abuse of Canada's Immigration System by Human Smugglers. The Government is cracking down on human smugglers by enabling the Minister of Public Safety to designate the arrival of a group of smuggled aliens as an irregular arrival; imposing mandatory minimum prison sentences on convicted smugglers; and holding ship owners and operators to account for the use of their ships in human smuggling operations.[22] Detention of Participants of an Irregular Arrival. Irregular arrivals present many challenges for authorities in identifying the aliens involved. The aliens often do not have valid documents; they rely instead on fraudulent or fraudulently obtained documents. Also, some of them have destroyed or not brought their real documents in order to hide their identity. In these situations, authorities may not be able to identify potential security and criminal threats, such as, human smugglers and traffickers, terrorists, or individuals who have committed crimes against humanity. It is an unacceptable risk to release individuals whose identities have not been determined and who could potentially be inadmissible on the grounds of criminality or national security.

Comments. The same concerns may apply to legalization applicants if the United States has a large-scale legalization program.
Aliens 16 years of age or older arriving as part of a designated irregular arrival will be detained until a final positive decision by the Refugee Board is made on their refugee claims or they are ordered released by the Refugee Board or by the Minister. The Refugee Board is required to review a person's detention within 14 days and then every six months thereafter. The detained alien is allowed to make a request to the Minister of Public Safety for early release from detention. The Minister has the authority to order the alien's release if, in his opinion, exceptional circumstances exist that warrant release. [23]

_________________________________________________________________

Footnotes

[1] 1951 United Nations Convention Relating to the Status of Refugees and its protocol

[2] United Nations Convention against Torture

[3] House rises after session focused on economy, jobs

[4] The refugee system in Canada

[5] Refugee Admissions in FY 2010 and FY 2011

[6] Rick Dykstra

[7] Citizenship, Immigration and Multiculturalism

[8] Biography of Jason Kenney

[9] Protecting Canada's Immigration System Act

[10] Balanced Refugee Reform Act

[11] News Release - Legislation to Protect Canada's Immigration System Receives Royal Assent

[12] Asylum Interviews at Sec. 235(b)(B).

[13] Lautenberg Amendment

[14] Designated Countries of Origin

[15] Faster Decisions

[16] Refugee Appeal Division

[17] Employment

[18] Work Permits

[19] Pre-Removal Risk Assessment

[20] Timely Removals

[21] Humanitarian and Compassionate Consideration

[22] Human Smugglers

[23] Detention


About The Author

Nolan Rappaportwas an immigration counsel on the House Judiciary Committee. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals. He also has been a policy advisor for the DHS Office of Information Sharing and Collaboration under a contract with TKC Communications, and he has spent time in private practice as an immigration lawyer at Steptoe & Johnson. He is retired now, but he welcomes part time and temporary work


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