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On March 30, 2010, the government introduced Bill C-11 that will divide refugee claimants into two streams. The goal is to speed up both determinations and removals.
For years many Canadians including politicians have described Canada’s refugee system as broken. Since the current procedures were enacted in 1989, Bill C-11 constitutes the first major overhaul of Canada’s refugee determination process. The purpose of the bill is to vastly reduce the time that it takes to decide whether or not a claimant is a genuine refugee and to speed up removals of failed claimants.
Citizenship and Immigration Minister Jason Kenney told the National Post editorial board that the proposed legislation is an attempt to stop the “gaming of the system” by which people come to Canada and make false refugee claims knowing that the longer they get to stay, the less likelihood they will ever be removed.
Canada’s Current Refugee Determination System
When a foreign national, either at a port of entry or within Canada tells an immigration officer that they want to make a refugee claim, they are given a form to fill out. The claimant then has 28 days to complete the form and file it with the Immigration and Refugee Board (IRB). After the form is received, a date for a hearing is scheduled to be heard before a member of the Refugee Protection Division of the IRB. Under existing legislation, members of the Refugee Protection Division are appointed for fixed terms by the government of the day.
After the matter is heard and a decision rendered the successful applicant, together with any accompanying spouse and dependants, can apply to become a permanent resident of Canada. Those who are unsuccessful do not have the right to appeal that decision but they can apply for leave to seek judicial review of that decision in the Federal Court of Canada. Failed refugee claimants who apply to Federal Court do not automatically have the right to remain in Canada; however an application can be made to a justice of the Federal Court to stay the removal order until such time as that court decides the matter.
Currently, the average time between a person’s initial claim to be a Convention refugee and the time a determination is made is 19 months. The time that it now takes to remove a failed refugee claimant from Canada is close to five years after their initial claim is made.
The Refugee Protection Division currently has a backlog of 60,000 cases that are scheduled to be heard. Part of the backlog is due the reluctance of the current Conservative government to fill vacant positions on the board.
At the present time there are about 15,000 failed claimants who are waiting to be removed from Canada. It is also estimated that there are 38,000 unsuccessful refugee applicants whose whereabouts are unknown. It is not known whether they have left Canada or remain underground.
The Balanced Refugee Reform Act
Bill C-11 or the Balanced Refugee Reform Act as it will be known if passed will require refugee claimants to be interviewed by an immigration officer within eight days of making their claim. This replaces filling out a form and filing it within 28 days. If the claimant is found by the officer to be eligible to make a refugee claim, the matter will be set down for a hearing before the Refugee Protection Division within 60 days. The proposed legislation will replace government-appointed fixed term members on the board with career public servants.
The most controversial aspect of Bill C-11 is that refugee claimants will be divided into two different streams. The government will be able to designate certain countries as being “safe”. These safe countries will be those that are democratic, seen to have good human rights records, and be characterized as non-refugee producing countries. Examples of countries that the government would designate would be the United States and European Union countries.
Claimants who come from designated safe countries will not be able to appeal negative decisions of the Refugee Protection Division. Other claimants will be able, for the first time, to appeal to the newly created Refugee Appeal Division. The appeal will be based on the record of the Refugee Protection Division and the only evidence that will be allowed will be new evidence of events that happened after the initial hearing.
Failed claimants will still be able to apply for leave for judicial review in Federal Court of their final Immigration and Refugee Board decision. To that end, the bill will increase the number of justices who sit on the Federal Court of Canada.
Criticism of the Proposed Legislation
Although many applaud the government’s attempt to streamline the system; to remove failed claimants more quickly as well as grant speedier landing to those found to be refugees, there has been vocal criticism of some of the bill’s provisions. The main criticism is of the ability of Canada to designate some countries as safe. Many refugee advocates and lawyers feel that each person’s case should be determined solely on its own merits, equally and not according to their country of origin. The two streams could result in unfair hearings to those who have claims from countries that are already presumed not to produce genuine refugees.
Another complaint is that the time periods involved; eight days to be interviewed and another 60 days for the hearing will not allow the claimant sufficient time to obtain competent counsel to assist them and to adequately prepare for the hearing.
It is estimated that, if enacted, the legislation will cost taxpayers $540 million over five years.
Sources:
National Post
The copyright of the article Convention Refugee Claims in Canada in Law, Crime & Justice is owned by Arthur Weinreb. Permission to republish Convention Refugee Claims in Canada in print or online must be granted by the author in writing.
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