Canada’s new Refugee System: The good the bad and the ugly

Introduction:

After years of legislative amendments and delays, the government has finally announced a concrete implementation date of December 15, 2012 for Canada’s new refugee system. After that date people entering Canada or people already in Canada who make refugee claims will be subject to new laws dealing with refugees. The new laws outlined below radically alter the legislative landscape, some for the good, some for the bad and some for the downright ugly.

THE GOOD

Civil Servants

Presently positions at the Immigration and Refugee Board are filled by Governor in Council appointments of usually 3 to 5 year contracts with reappointments not typically exceeding 10 years. Among the many criticisms leveled at such appointments has been the lack of judicial independence owing to fears some members have about making decisions which might offend the government and result in loss of employment.
Under the new legislation members deciding new claims (as contrasted with those who determine pre December 15 claims “legacy” and the RAD) will be civil servants whose terms of service would only be limited by retirement or dismissal for cause. It is hoped that the new appointments will show more judicial independence and make decisions based on the evidence without concern for how such decisions are perceived by the Minister.
Refugee Appeal Division (RAD)

One of the biggest changes included in the new legislation is the implementation of the RAD. This appeal process has been on the books since 2002 when the Immigration and Refugee Protection Act (IRPA) was first introduced, but it has taken more than 10 to finally implement. Presently, the only recourse for a negative refugee claim is for claimants to seek Judicial Review of their negative decision to the Federal Court of Canada. Judicial Reviews are not automatic and only granted by permission of the Court where the Court deems the Review has sufficient merit.
Under the new legislation claimants will now have the right to appeal their negative decisions to the RAD. The RAD will generally consider the appeals by “paper” only without personal appearance by the claimant or counsel. Where the RAD member finds that the appeal is warranted they have the authority to substitute their own decision in place of the first level panel and grant refugee status. This is a power that goes beyond the power of the Federal Court where judges can only send cases back for redetermination if a reviewable error has been made.
However, all the news with respect to the RAD is not good. The government has exempted the following important classes of refugees from accessing the RAD.

1) Claimants making claims at a Port of Entry bordering the USA (exceptions to the 3rd safe country rules)
2) Claimants from countries that have been designated as safe. (DCO)
3) Claimants who have been designated as an “irregular arrival” (DFN)
4) Claimant’s whose cases have been determined to be claims with no credible basis
5) Claimants who are subject to an exception to the Safe Third Country Agreement
6) Claims referred to the IRB before December 15
7) Re-hearings of these claims as a result of judicial review
8) Individuals who withdrew or abandoned their refugee claims
9) Claimants whose refugee protection has been vacated or ceased upon application by the Minister
10) Claims deemed rejected because of an order of surrender under the Extradition Act
11) Claimants with decisions on PRRA applications

The most significant exemption is likely the DCO category. The Minister now has virtually unfettered authority to designate countries as “safe” based on various considerations such as statistics related to success levels at the Board. Obviously, the number of countries which are designated will directly impact the number of refugees who will be denied access to the RAD. Those who are exempt will still have the right to proceed to the Federal Court for Judicial Review as in the past; however the various exemptions, may to a large extent, render the RAD insignificant.
A further limit on the efficacy of the RAD is the fact that the paperwork for such appeals must be “perfected” or completed within 15 days of a claimant receiving their negative written decision. The likelihood the claimant or counsel can review all the relevant evidence, obtain a transcript of proceedings and put together cogent materials for an appeal is limited. By comparison Judicial Reviews to the Federal Court provide claimants with 45 days to prepare materials. It is presumed that the RAD’s short timelines will often result in miscarriages of justice as claimants are unable to assemble or competently prepare the necessary materials within the allotted timeframe.

Fast Hearing Dates

Presently claimants often wait more than 2 years to have their cases scheduled for hearing dates. This delay is too long and quicker hearing dates is welcomed by most refugee claimants who want to resolve their claims as expeditiously as possible. However, the new legislation swings so far in the opposite direction that many fear the fairness of the process will be compromised by the governments radically shortened time lines.
Under the existing legislation claimants are required to submit their Personal Information Form (PIF) within 28 days of making their claims. The new legislation will require claimants to submit their Basis of Claim or BOC within only 15 days of making their claim. Many claimants struggle with the existing 28 days. It can only be imagined that many claimants will be unable to provide detailed and accurate documentation within only 15 days.
Once the BOC has been submitted the new legislation creates a number of radically shortened time lines for hearing cases.

a) Where claims are made from an inland office and the claimant is from a DOC the Board must hear the case within 30 days of the claim being forwarded to the RPD.
b) Where claims are made at the Port of Entry (POE) and the claimant is from a DOC the Board must hear the case within 45 days of the claim being forwarded to the RPD.
c) Where the claimant is not from a DOC the claim must be heard within 60 days of the claim being forwarded to the RPD.

While these shortened timelines will likely ensure claimants no longer wait two years to have the claims heard, the shorter time frames make it almost impossible for some claimants to properly prepare for the hearing and will likely result in many instances where the Minister is also unable to compile and obtain necessary information to prepare its case in the event of an intervention.
One small example illustrates the conundrum both the Board and claimants may find themselves in under the new timelines. Presently, claimants from China are asked, prior to the hearing, to produce their Resident Identity Card. The purpose of the request is to provide the IRB with an opportunity to review the card and determine whether the card requires a forensic test to determine its authenticity. When such requests are made, which is not uncommon, such testing often takes 2 to 3 months. Under the new legislation there will simply be insufficient time to undertake such tests which will ultimately result in less reliable documentation. Such disadvantages will flow to both the claimant and the decision maker who will be left to make their decision without the benefit of the best evidence.

THE BAD

Designated Countries of Origin (DCO)

The Minister has thus far designated 27 different countries.  The legislation is written in such a way that the Minister has virtually unfettered discretion to designate countries.  It is anticipated additional countries will be added.  There are a number of serious negative consequences for those coming from countries which are DCO and include:

•  faster processing with cases with inland cases being heard within 30 days and POE cases heard within 45 days
•  Exclusion from RAD
•  no eligibility for PRRA for 36 months rather than the usual 12
•  no eligibility for work permits upon arrival in Canada
•  no automatic stay of removal pending a Federal Court Judicial Review

As noted above, the chances that claimants will be able to put forward cogent claims within the present timelines seems dubious. There is simply not enough time to gather the necessary documentation and organize the required paperwork. One presumes that creating a pressure cooker environment for claimant’s will do nothing to enhance the hearing process and more likely than not result in claimant’s rights being trampled on a daily basis.

 

Basis of Claim (BOC)

Initially the government flirted with the idea of abandoning a form and letting claimant’s explain their fears to the intake officer.  When this was determined to be unworkable the government essentially returned to the existing system under a name of BOC.  For the past 20 years claimant were provided with 28 days to file their PIFs (as the BOC was previously known).  The government has now moved to a system which will different time lines depending on where the claim is made.  For those claiming at a Port of Entry (POE) the forms will be due within 15 days of the date the case is referred to the Board.  For those who make their claims inland the forms will be due on the day of the eligibility interview.   This could potentially mean the forms could be due within days after a claimant’s arrival.  These strict timelines will likely ensure that many claimants do not gain assistance for the completion of such documentation which will likely result in confusion and delay at the actual refugee hearing.

Pre Removal Risk Assessment (PRRA)

The government believes that removals of most negative refugee claimants will take place within one year.  As a result refugee claimants who are removed within one year of their negative claim decisions will not be entitled to a PRRA review unless the case fits an exception. 

Humanitarian and Compassionate applications (H&C)

Despite the fact that by definition H&C applications look at a completely different set of criteria, refugee claimants are not entitled to make H&C applications unless they withdraw their refugee claims.  In addition no H&C application can be brought within one year of a negative determination.  The rationale for preventing negative claimant’s from accessing the PRRA within one year is that claimants should not be entitled to repeat risk assessments.  Even if for the sake of argument this point is conceded, clearly no such rationale exists for denying claimants the right to make an H&C application for one year.  It would appear the denial is punitive in nature.

Irregular Arrivals

Under new legislation the government has created a set of laws which they say target smuggling rings.  The laws have been applied recently for the first time against a number of Romanian claimants.  These new laws empower the Minister of Public Safety to designate a group of 2 or more claimants an irregular arrival where the Minister is of the view that claimants have arrived with documents supplied by a smuggler or the Minister is of the view that an investigation regarding the individuals cannot be carried out quickly. 

As a result of being so designated a claimant would be entitled to a detention review after 14 days and then every 6 months thereafter.  As was the case in the recent use of this designation, the Minister’s designation can be retroactive which would result in the automatic arrest of the person designated irregular.  In such cases officers must arrest and lack discretion.

There are many potentially disturbing aspects to these irregular designations.  First, the legislation is worded in such a general way that it would apply to most refugees coming to Canada.  Given this very general wording, and assuming it is not used in every case, it leaves open the possibility that the use of the legislation will be arbitrary.  Given the very severe consequences of incarceration for very lenghty periods of time without review, it is likely these provisions will be targeted for review by refugee advocates.

If the claimant designated as an irregular arrival is determined to be a Convention Refugee, such claimants are barred from making applications for permanent residence for 5 years, nor are they entitled to be issued refugee travel documents.  The inability to apply for permanent residence results in a prohibition against applying to sponsor one’s family to come to Canada for the 5 years following a successful claim. 

In addition to the severe nature of these provisions is the fact that the provisions make no distinction between legitimate and illegitimate claimants.  Legitimate refugee claimants often do not have the benefit of having a choice over who they employ to bring them to Canada.  In fact one imagines most legitimate refugee claimants have to resort to such people when fleeing their countries.  If the claimant travels alone that would appear to except them from the legislation.  However, if the claimant arrives with his spouse, that could lead to a designation.  Again, the legislation appears arbitrary and punitive and it is hoped will not stand up to Judicial scrutiny.

THE UGLY

The government has indicated that the primary objective of the new legislation is to ensure that Canada’s refugee system is not exploited by economic refugees and criminals. If the time lines are adhered to and enforcement is effective the government may accomplish the goal of significantly reducing refugee claims made in Canada. However, in the process there is likely going to be unintended consequences. First, if the system does dissuade economic refugees from making refugee claims, it by no means suggests that such people will stop coming to Canada illegally. The difference will likely be that such individuals will now arrive and go immediately into the underground economy. Second, as word spreads that Canada’s refugee system has moved from being one of the world leaders in providing refugee protection to a system that is systemically rigged to prevent claimants from putting their claims together effectively, Canada’s reputation as a haven for the persecuted will suffer on the world stage. Presumably, many legitimate claimants who, in the past, would have chosen to make claims in Canada, may now choose other countries which provide a fairer opportunity to advance their claims. Canada’s “fix” to the refugee system may actually result in the radical decline of refugee claims in Canada. If this is the measure of success, the new legislation may well turn out to be a great triumph.
For those intimately involved in the refugee process, Board Members, Lawyers and the various administrators who are “in the trenches” dealing with claims on an everyday basis, most recognise that the existing system did not require the radical overhaul the government has introduced.
The so called backlog of cases was either manufactured by or a result of the present government’s failure to appoint Board Members to hear cases for approximately one year. As a result of having insufficient decision makers, claims which were being heard within one year, now take up to 2 years to be heard. The same government that often sites “endless” appeals, for overhauling the system, is now introducing an additional appeal level. Finally, the prior legislation took many years to work its way through the courts and arrive at a settled juris prudence. That process will now begin anew and will again take many years to resolve.
In light of the chaos and uncertainty the new legislation has created, one wonders why the government didn’t simply make the existing system work by appointing more decision makers to significantly reduce wait times. The RAD was already in the legislation such that the appeal division could have been implemented without an overhaul. Instead, the path chosen involves introducing massive uncertainty. Will the new legislation actually work? Can claims actually be heard within the strict timelines? Will the new legislation stand up to judicial review? Time will tell, however one wonders why such a radical surgery was undertaken when a little judicious tweaking would have corrected any shortcomings of the existing legislation.