IMMIGRATION AND REFUGEE LAW

Refugee Law 

Changes to federal refugee legislation and policy came  into effect on December 15, 2012, producing fundamental challenges for those making refugee claims in Canada.

The new rules purport to make the refugee determination process more timely and to permit more summary disposition of unfounded or fraudulent claims. Doubtless these effects will occur. The question will be whether these occur at the expense of the rights of legitimate refugee claimants.

The most pertinent features of the new legislation provide:

  •  That the previous system of asylum claimants completing a Personal Information Form 28 days after their claim is received is replaced by an interview with a government employee, based on a “Basis of Claim” form no more than 15 days after the claim.  This creates a risk that all relevant information in support of claims will not be presented.
  • Initial Immigration and Refugee Board (IRB) hearings will be by Public Servants rather than Government-in-Council appointees. This may affect the objectivity and independence of claims dispositions.
  • Hearings will normally occur within 60 days of the person being declared eligible to make a claim (normally at port of entry or when the person files a claim at an immigration office), rather than in an average of 18 months as occurred previously. While addressing delays is a good thing, it is possible that such a short deadline might make the investigatory work and other preparations for hearings very difficult.
  • The government can establish “Designate Countries of Origin” (DOC’s) as presumed safe destinations for return, in which case the refugee claims procedure would be even more quickly completed [e.g. 30 – 45 days from initial interview to hearing]. This would place even more pressure on claimants and their representatives.
  • The government can declare that certain claims are “manifestly unfounded”, leading to quicker deportation in cases of fraudulent claims. Such decisions raise issues of the accuracy and thoroughness of evidence on which they are based.
  • An Appeal Division of the Immigration and Refugee Board is established, to which claimants who are turned down can apply, but must do so very soon after they receive a negative IRB decision. The right to appeal is denied in certain cases, for example,  claimants from DCO’s and those whose cases are declared manifestly unfounded.
  • Where a claim is rejected, claimants are generally not able to undergo Pre-Removal Risk Assessments or to apply for temporary residency permits until one year after the decision. This will create issues where new information or circumstances arise that make return to the home country more dangerous.
  • Requests for asylum on humanitarian and compassionate grounds are limited, principally by prohibiting consideration of grounds for refugee claims in the H&C process

Concurrent with restrictions on claims from persons in Canada, the government has announced its intention to increase the timeliness and numbers of  admissions of refugees granted refugee status abroad. To date there is no clear evidence that this is occurring.

Claims that were made prior to the new legislation will be adjudicated mostly on the basis of the current rules.  

I attach, below, a description of the new process that was provided by the Canadian Council for Refugees.

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Canadian Council for Refugees

Overview of C-31 refugee determination process

Revised 21 February 2013

This is an overview of Canada’s refugee determination system following changes that came into force 15 December 2012.

  1. 1.     Making the claim

There are slightly different processes depending on whether the claim is made at a Port of Entry (POE) or inland:

A.  Port of Entry (on arrival at airport, land border or seaport)

A CBSA officer will determine whether claim is eligible. As part of the process, the person will complete:

  • IMM0008
  • Schedule A
  • Schedule 12 (Additional Information – Refugee Claimants Inside Canada)

The eligibility criteria are mostly not changing: claims are ineligible if the person made a previous claim in Canada, if the person has refugee status in another country, if the person is barred under the Safe Third Country Agreement, or if the person is inadmissible on security or certain criminality grounds.  However, the grounds for ineligibility on the basis of serious criminality have expanded (for convictions both in Canada and outside Canada).

If the claim is found eligible, the person will be given:

–       a refugee claimant identity document, which includes the Interim Federal Health Program

–       a date for a refugee hearing at the Immigration and Refugee Board

–       a Basis of Claim (BoC) form to be completed in 15 days

–       a conditional removal order

B.  Inland claims

The person downloads from the web or goes to a CIC office and is given:

  • IMM0008, Schedule A and Schedule 12
  • a Basis of Claim (BoC) form

The person brings the completed forms to a CIC office where refugee claims can be made (or calls the call centre, depending on the office). The person receives a date for an interview.

At the interview a CIC officer will determine whether the claim is eligible. If the claim is found eligible the person will be given:

–       a refugee claimant ID paper, which includes the Interim Federal Health Program

–       a date for a refugee hearing at the Immigration and Refugee Board

–       a conditional removal order.

  1. 2.     Designated Countries of Origin (DCO) and Designated Foreign Nationals (DFN)

The refugee claim process will be significantly different for claimants in two categories:

  • Designated Countries of Origin (DCO)

The Minister of Citizenship and Immigration can designate countries of origin. The nationals of these countries then have reduced rights in the refugee process. Countries can be designated on the basis of quantitative factors (a rejection rate of at least 75%, (including withdrawn and abandoned), or a withdrawn and abandoned rate of at least 60%), or on the basis of the Minister’s opinion that the country has an independent judiciary, democratic rights, etc.

The following countries have been designated: Australia, Austria, Belgium, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Israel, Italy, Japan, Latvia, Lithuania, Luxembourg, Malta, Mexico, Netherlands, New Zealand, Norway, Poland, Portugal, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, United Kingdom, United States of America.

  • Designated Foreign Nationals (DFN)

The Minister of Public Safety can designate groups of people as “irregular arrivals” in particular circumstances, including if the Minister considers that the group cannot be examined in a timely manner or suspects that the group might have been smuggled for profit. Individuals in the group are subject to many extreme measures, including mandatory detention (for all over 16 years of age) and a bar on applying for permanent residence for five years even if they accepted as persons in need of protection by the Immigration and Refugee Board (IRB). They also face a reduction of their rights and some differences in terms of the refugee claim process.

Five groups of claimants from Romania who entered at the US-Quebec border were designated on 4 December 2012.

  1. 3.     Basis of Claim (BoC) form

The Basis of Claim form replaces the “Personal Information Form” (PIF). It covers many of the same questions as the PIF, including detailed biographical information. It asks questions about the basis of the claim through several questions (rather than asking for a narrative as in the PIF).

The form must be completed in English or French.

POE claimants must submit the completed BoC (and all attached documents), and provide a copy, to the IRB within 15 days of their eligibility determination.

Inland claimants must bring two copies of the BoC to their eligibility interview (and all attached documents) which will be held at a CIC office.

For POE Claimants, if the BoC is not submitted by the 15 day deadline, an abandonment hearing is scheduled 5 days after the original due date to submit the BoC.


  1. 4.     Refugee Hearing at the IRB (Refugee Protection Division)
POE claimants will be given a date for their refugee hearing:

–       45 days after eligibility if the claimant is from a DCO

–       60 days after eligibility for other claimants

Inland claimants will be given a date for their refugee hearing:

–       30 days after eligibility if the claimant is from a DCO

–       60 days after eligibility for other claimants

 

 

There will be very limited opportunity for changing the date of the hearing (only in a few specific circumstances and only by a few days).

Claimants must submit any documentary evidence at least 10 days before their refugee hearing.

CIC can participate in refugee hearings, for example to challenge the claimant’s credibility. They will usually participate only by submitting written documents, but they will sometimes participate in the hearing. The CBSA will continue to participate in some hearings in order to argue that the claimant should be excluded from refugee protection (for example, on the basis of war crimes, crimes against humanity or serious criminality).

The Board member hearing the claim will be a civil servant but still a member of the Refugee Protection Division. There will be no Tribunal Officer present at the hearing. Apart from those changes, it is not expected that the hearings will be significantly different from current hearings, in form at least.

In most cases the Member will probably give the decision orally at the end of the hearing. All claimants will receive a written notice of decision after the hearing.

  1. 5.     Appeal at the IRB (Refugee Appeal Division – RAD)

Claimants cannot appeal to the RAD if:

  • They are from a DCO
  • They are “designated foreign nationals” (DFN)
  • They made their claim at the US-Canada border and qualified for an exception to the Safe Third Country Agreement
  • the RPD decided that their claim is manifestly unfounded (MUC)
  • the RPD decided that their claim had no credible basis.

 

Claimants have 15 days from the date they received the written negative RPD decision to file an appeal to the RAD. It should be noted that this is 15 calendar days, not working days as in the proposed version. To file an appeal, the claimant must provide to the IRB 3 copies of a written notice of appeal (there will be a form, but it is not yet ready).

Claimants then have a further 15 days to submit all their arguments and documents for their appeal. They must provide two copies of all these documents to the IRB.

In summary, starting from date of written decision from RPD, claimants have:

  • 15 calendar days to submit notice of appeal
  • 30 calendar days to submit all arguments and documents (known as “perfecting the appeal”)

In addition to arguing that the first decision was wrong, claimants can submit new evidence at the appeal (but only evidence not available at the initial hearing).  In most cases, submissions will be entirely in writing, but in some cases the Refugee Appeal Division can hold a hearing.

The Minister can appeal positive decisions. It is not known how often the Minister will do so.

Post-rejection

 

  • Federal Court

All refused claimants can seek judicial review at the Federal Court. Those who can appeal to the RAD must first do so. Claimants who are not allowed to appeal to the RAD (see list above) can seek judicial review at the Federal Court, but they do not have an automatic stay of removal.

  • PRRA

Claimants are not eligible for PRRA for 12 months following rejection at the RAD (or at the RPD if they didn’t go to the RAD). Persons from DCO must wait 36 months.

  • H&C (humanitarian and compassionate consideration)

Claimants cannot make an application for H&C for 12 months following rejection at the RAD (or at the RPD if they didn’t go to the RAD). There are two exceptions: for humanitarian applications invoking the best interests of the child or medical conditions.

NB a claimant cannot make an H&C application (even based on best interests of the child or medical conditions) while the refugee claim is pending.


Acronyms

BoC     Basis of Claim

DCO   Designated Country of Origin

DFN    Designated Foreign National

H&C   Humanitarian and compassionate consideration

MUC  Manifestly unfounded claim

POE    Port of Entry

RAD   Refugee Appeal Division

RPD    Refugee Protection Division


For updates and additional resources: http://ccrweb.ca/en/refugee-reform

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