Kenney amends controversial refugee bill

By Louise Elliott, CBC News 

Immigration Minister Jason Kenney is bending to opposition pressure and amending his controversial refugee omnibus bill, C-31.

Immigration Minister Jason Kenney, seen here earlier this month on Parliament Hill, is amending his omnibus immigration legislation in response to criticism about some of its measures.(Adrian Wyld/Canadian Press)

The amendment will introduce a 14-day and six-month review of the detention of so-called "mass arrivals" of refugees.

"People have raised concerns about this. We've studied the issue closely as a result of which the government has decided to amend the bill to allow for an initial detention review at 14 days initially, and then subsequently at six months," Kenney told reporters Wednesday.

The bill originally stipulated a judicial review would only be necessary after those refugee claimants designated as "mass arrivals" by the minister had been in detention for one year.

Kenney also introduced another amendment to clarify that the government would not have the power to revoke the permanent residency of successful refugee claimants if conditions improve in their countries of origin, unless it was found they obtained their status through fraudulent means.

'Mass arrivals' not clearly defined in bill

"The government has no intention of removing permanent residency from bona fide refugees if things have changed in their countries of origin," he said.

Even with the amendments Kenney announced Wednesday, the bill still gives the immigration minister sole authority to decide which groups of refugee claimants are "mass arrivals" — a term which is not clearly defined in the bill.

'The minor concessions that the minister has made don't alter my opinion one iota and don't alter the likelihood of major constitutional challenges'—Refugee lawyer Lorne Waldman

The measure was sparked by the arrival of two boatloads of Tamil migrants off the coast of Vancouver in recent years. The bill would allow for those cases to be designated retroactively as "mass arrivals."

Several legal experts have argued that provision would almost certainly generate costly court challenges because it is inconsistent with the UN Convention Relating to the Status of Refugees, the Charter of Rights and Supreme court precedents.

Refugee law professor Peter Showler was among the legal experts who have warned it's not yet clear how much the government has backed down.

While changing the controversial clause was "excellent news," Showler said, he noted that the first review at the 14-day mark won't give migrants enough time to prove their identities.

'Outrageously fast' timelines criticized

He said that several other aspects of the bill remain too punitive.

"We need far more amendments," he said. "Canadians should understand that this bill really dismantles Canada's refugee system."

Showler said the government needs to clarify what exactly would prompt it to release those claimants at the 14-day mark or the six-month mark.

"We need to see more information about that."

He also called the current timelines "outrageously fast" and said they would hamper the ability to make fair decisions.

"The minister has given no hint he's willing to give ground on any of those [timelines]," he said.

'Minor concessions'

Refugee lawyer Lorne Waldman dismissed Kenney's changes as "cosmetic" and said they do nothing to alter the "insidious" nature of the bill overall.

Who is a refugee?

Click to see the formal definition as laid out in 1951 UN convention.

"The minor concessions that the minister has made don't alter my opinion one iota and don't alter the likelihood of major constitutional challenges," he said.

Waldman, who has represented several claimants from the groups of Tamils that arrived by boat in B.C., said other aspects of the bill are unconstitutional and will do irreparable psychological damage to people who are legitimate refugees.

Particularly harsh, he said, is the fact that claimants who are granted refugee status would nevertheless be barred from reuniting with their families for five years. They would also be denied permanent residency status during that time.

The bill also would allow the minister to designate particular countries as "safe," meaning refugee claims from those countries would be fast-tracked without right of appeal.

C-31 'flawed and unconstitutional': NDP

Earlier Wednesday the NDP's immigration critic, Jinny Sims, signalled her party won't support the bill after a parade of legal experts, human rights advocates and refugees themselves warned the bill will violate domestic and international laws.

"Today New Democrats are calling on Conservatives to abandon this legislation and go back to the drawing board," she said.

"We believe that the ultimate result of this bill will be to hurt legitimate refugees. Witness after witness has told the committee that C-31 is fundamentally flawed and unconstitutional."

When asked if her party would support the bill if the detention provision was dialed back, along with clarification about when people could be deported, Sims said [those measures] "would not go far enough to address the fundamental flaws in this bill."

Nearly 500 Tamil migrants arrived in B.C. aboard the MV Sun Sea in August 2010.(Department of National Defence)

Sims promised to give the government's amendments close consideration in line-by-line study today and tomorrow.

Sims said the bill's many "draconian" measures would only serve to punish the victims while not improving safety.

Michael Bossin, a refugee lawyer and representative of Amnesty International, argued the detention provision would create a legal quagmire.

He argued that if the provisions are ultimately thrown out by the courts there would have to be a huge retroactive clean-up of cases.

"Will that create a huge expensive mess far worse than the one we are in now?" he asked. "Yes you can count on it."

Today, a Commons committee that has been reviewing the bill will move to a clause-by-clause study. That study will be completed Thursday and followed by a vote on the amendments.

In a majority, the government does not require opposition support to pass the bill.

Bill C-31 replaces a former law, the Balanced Refugee Reform Act, which received opposition approval in the last minority parliament but has not yet been implemented.

Refugee bill changes ‘strike the right balance’ on detention concerns: Jason Kenney

Tobi Cohen, Postmedia News

OTTAWA — The federal government is conceding on a number of opposition and stakeholder criticisms of proposed legislation aimed at cracking down on bogus refugee claimants — but those opposed to the bill argue it hasn’t backed down enough.

Just before a Commons committee sat down to review Bill C-31 clause-by-clause Wednesday, Immigration Minister Jason Kenney indicated the government would agree to amend provisions in the Protecting Canada’s Immigration Act that call for “irregular arrivals” who come to Canada en masse, possibly as part of human-smuggling operations, to be subject to automatic detention for up to a year without a review of their case.

Critics have argued the detention provisions, among others, are inhumane and a violation of the Canadian Charter of Rights and Freedoms as well as other international treaties.

Under the amendment, those individuals would be guaranteed an initial review within 14 days and another review within six months.

“We believe this strikes the right balance,” Kenney said upon emerging from a caucus meeting.

“It ensures there will be a review of detention by the independent quasi-judicial Immigration and Refugee Board. It also ensures that we have enough time to truly identify smuggled migrants and ensure that they do not constitute a security risk.”

The government also has agreed to clarify that smuggled migrants who are deemed bona fide refugees will not face detention and it will amend certain language in the bill that some fear could have the unintended consequence of revoking a refugee’s permanent residence due to improved circumstances in their country of origin.

‘The bill concentrates power in the hands of the minister while it punishes refugees’ — NDP

“Some opposition members have raised unreasonable fear amongst refugees that the provision for cessation of protected status and revocation of (permanent residency) in bill C-31 will be applied arbitrarily and create uncertainty for bona fide refugees who have obtained (permanent residency) in Canada,” Kenney said.

“Let me be clear. It’s never been our intention to do that.”

In a bid to prevent rejected asylum claimants from “going underground” to avoid deportation pending a pre-removal risk assessment, Kenney said the government would also amend the bill to push the bar on access to such assessments back to three years as opposed to one.

NDP immigration critic Jinny Sims said she welcomes “any move by the minister to make improvements to the legislation,” but that the ones he’s outlined don’t “go far enough to address the fundamental flaws in the bill.

“The bill concentrates power in the hands of the minister while it punishes refugees and won’t address the problem of human smuggling,” she said at a news conference. She said the NDP wants the government to “abandon” the costly bill and warned it would result in numerous legal challenges and force the government to “go back to the drawing board.”

Joined by legal experts and a representative of the Roma community, which is being targeted in the legislation, Sims noted the NDP planned to put forward more than 20 amendments at committee before the process ends at midnight Thursday. Most of them, however, are likely to be rejected by the committee, which is dominated by Tories.

She added she’d ultimately like the government to maintain its commitment to the Balanced Refugee Reform Act, which was passed with much fanfare during the last Parliament after the then-minority Conservatives reached a consensus with the opposition. The new bill essentially reintroduces elements that were left out in a bid to get it passed and critics have slammed the Tories for using their majority muscle to go back on their word.

Kenney is keen on getting his omnibus bill passed before June 27 when the predecessor legislation is set to take effect. He said the government isn’t “prepared operationally” to implement the Balanced Refugee Reform Act, which would be rendered null and void once the new bill is passed.

Among other things, the omnibus bill seeks to quickly deport “bogus” refugee claimants from countries deemed “safe” within 45 days instead of the 1,000 days it currently takes or the 171 days it would take under the Balanced Refugee Reform Act.

The government has argued the move would assist in dealing with a huge spike in European claims, the bulk of them by Hungary’s Roma population. Last year, the number of claims from Hungary nearly doubled to 4,409 — though officials say most were withdrawn, abandoned or rejected.

Claimants from safe countries would be barred from appealing a negative decision to the new Refugee Appeal Division and the bill would eliminate a provision that called for a committee of experts to decide which countries would be placed on the safe list. Under the new bill, that decision would rest with the minister.

According to the bill, those who entered Canada by way of illegal smugglers also would be barred from seeking permanent residency or sponsoring a loved one for five years and certain visa holders would be required to turn over biometric data.

Postmedia News

Amendments to the Protecting Canada's Immigration System Act

Map showing origin countries of refugees /asylum seekers (= people fleeing abroad) in 2007 (Photo credit: Wikipedia)

OTTAWA, ONTARIO, May 09, 2012 (MARKETWIRE via COMTEX) -- Minister of Citizenship, Immigration, and Multiculturalism Jason Kenney today announced that the Government is proposing amendments to Bill C-31, the Protecting Canada's Immigration System Act.

"Over the past few weeks, I've listened to parliamentarians and witnesses," said Minister Kenney. "We have always said that we were open to amendments that make Bill C-31 stronger and help us to fight human smuggling and to protect Canada's immigration system. These amendments do just that, and make for a stronger bill."

For example, some critics feared that the measures originally proposed in Bill C-31 with respect to the cessation of permanent residence status might be used in a way never intended by the Government. Others speculated that the Government would seek to remove permanent residence status from refugees who have become well-established in Canada, but whose rationale for refugee status ceases to exist due to improved conditions in their country of origin. The Government is introducing an amendment to clarify this section and to explicitly limit the application of this section of the legislation.

The proposed amendment would make it clear that where the Immigration and Refugee Board of Canada (IRB) determines that an individual's protected person status has ceased to exist solely due to a change in country conditions, that individual would not automatically lose permanent resident status. This was the original purpose of the provision in the bill, and the new language should make that purpose clearer.

Under the Balanced Refugee Reform Act, individuals with a final negative decision from the IRB were barred from applying for a pre-removal risk assessment (PRRA) for 12 months. This is because a PRRA is duplicative of the IRB decision, and a core purpose of the bill was to reduce redundancy and unnecessary delays in the removal process for failed asylum seekers.

The government is proposing to amend this provision so that the 12-month bar will apply as soon as Bill C-31 receives Royal Assent. There is no reason to delay the application of this provision, and the proposed amendment ensures there will be no such delay. The effect of this proposed amendment will be that individuals who received a negative decision from the IRB, or abandoned or withdrew their refugee claim, or received a negative PRRA decision within the 12 months prior to the date of Royal Assent would be barred from applying for a PRRA until 12 months after that decision.

The proposed amendment would also increase the temporal bar from 12 to 36 months for those from designated countries of origin who have received a previous negative decision from the IRB, abandoned or withdrew their refugee claim, or received a negative PRRA decision. This change will discourage failed asylum seekers from going underground and evading removal for 12 months, and recognises that country conditions and the threat of real persecution in a presumptively safe country are not likely to change in the course of 36 months. There is, however, a provision in the Balanced Refugee Reform Act that would allow the Minister to make exceptions to the bar on PRRA to quickly respond to sudden changes in country conditions.

Under the Protecting Canada's Immigration System Act, the Government had initially proposed mandatory detention without review for up to 12 months for those who arrive as part of a designated irregular arrival. This would allow for the determination of identity, admissibility, or any other investigations to take place before members or irregular mass arrivals are released into the community. Persons would, however, be released from detention before 12 months, if they are found to be genuine refugees.

Opposition members have asked for amendments to this detention review schedule, so that these individuals would receive a review of their detention much sooner than initially proposed. They have, for example, suggested that a first detention review should occur within 14 days of detention, with subsequent reviews every 30 days. Other witnesses and critics of this provision of Bill C-31 have suggested other time periods, including an initial review shortly after detention, followed by subsequent reviews at least every 6 months.

After listening to parliamentarians, the Government is proposing a compromise, which would see a first detention review within 14 days and subsequent reviews after every 180 days. As before, a person would be released before this time, upon being found to be a genuine refugee. As an additional safeguard, the government will also propose an amendment to allow the Minister of Public Safety, on his own initiative and at any time, to release a detained individual when grounds for detention no longer exist.

"I believe that these amendments show that the Government is open to reasonable suggestions that improve our Bills," said Minister Kenney. "We have listened to parliamentarians on Bill C-31 and, as a result, we have a stronger bill that will continue to protect genuine refugees, while ensuring that bogus asylum seekers are detained, processed, and swiftly removed, and sending the message to human smugglers that targeting Canada will no longer pay."

Follow us on Twitter at www.twitter.com/CitImmCanada

Photos of Minister Kenney available at: www.cic.gc.ca/english/department/media/photos/high-res/index.asp .

Building a stronger Canada: Citizenship and Immigration Canada (CIC) strengthens Canada's economic, social and cultural prosperity, helping ensure Canadian safety and security while managing one of the largest and most generous immigration programs in the world.

        
        Contacts:
        Ana Curic
        Minister's Office
        Citizenship and Immigration Canada
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        Media Relations
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        Citizenship and Immigration Canada
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SOURCE: Citizenship and Immigration Canada

Accelerated Labour Market Opinion Fact Sheet

Before submitting an application under the Accelerated Labour Market Opinion (A-LMO) Initiative, employers must read and understand all of the requirements as described in this Fact Sheet.

Effective April 25, 2012, Human Resources and Skills Development Canada (HRSDC)/Service Canada is implementing a new A-LMO Initiative, in an effort to respond to the needs of eligible employers for timely Labour Market Opinion (LMO) processing while enhancing employer compliance.

The A-LMO Initiative introduces efficiency measures by reducing the amount of paper-burden on employers in the application process, and by introducing attestations for specific assessment criteria. An A-LMO application does not exempt employers from criteria assessed in the regular LMO process. HRSDC/Service Canada will continue to provide an A-LMO based on:

• the genuineness of the job offer;
• the wage offered; and
• whether the job offer is likely to fill a labour shortage.

If the employer meets all the eligibility criteria to participate in the A-LMO Initiative,HRSDC/Service Canada will then verify if the employer has agreed to all of the attestations and issue a positive A-LMO within 10 business days.

Employer Eligibility

The A-LMO Initiative applies only to higher skilled positions such as: management, professional and technical occupations (classified under the National Occupational Classification (NOC) skill type 0, and skill levels A and B). However, at the present time, employers hiring in the film and entertainment and agriculture sectors, must apply under the regular LMO process.

To be deemed eligible for the A-LMO Initiative, employers must meet all of the Program requirements for higher skilled positions, including:

• researching and understanding the wages posted on the Working in Canada (WiC) Web site for the occupation they are requesting an A-LMO. Employers have some flexibility to base the wage paid to the TFWs on what they pay their Canadian and permanent resident employees.
  
  NOTE:
  A wage up to 15% less than the posted wage will be accepted provided that the wage is the same wage paid to Canadian or permanent resident employees in the same occupation. Employer opting to pay less than the posted wage may be subjected to a compliance review. HRSDC/Service Canada will issue a negative A-LMO if the wage offered to the TFW is more than 15% below the posted wage.
• meeting the advertisement and recruitment efforts in order to hire Canadian citizens and permanent residents, prior to offering the job to a temporary foreign worker (TFW) and submitting an A-LMO application.

In addition, employers must:

• have been issued at least one positive LMO in the previous two years;
• have a clean compliance record with the Temporary Foreign Worker Program (TFWP)within the last two years;
• have agreed to all of the attestations included in the A-LMO application, consenting to participate in a post A-LMO compliance review;
• not have been the subject of an investigation, infraction or a serious complaint, and
• not have any unresolved violations or contraventions under provincial laws governing employment and recruitment.

If the employers do not meet the A-LMO eligibility criteria, HRSDC/Service Canada will inform them that their applications will be assessed under the regular LMO process, and will direct them to the TFWP Web site for information related to the Program requirements.

Accelerated Labour Market Opinion Compliance Review

As part of the A-LMO application, employers must provide their consent to participate in a post-LMO compliance review. By consenting, employers agree to allow HRSDC/Service Canada to perform a compliance review of the positive A-LMO or any other positive LMOissued to the employer in the previous two years.

During the review, employers will be required to submit documentation to demonstrate compliance with the terms and conditions of the positive LMO or A-LMO letters and their annexes. Up to 20% of positive A-LMOs will be selected for a compliance review. These reviews may be based on random selection, or in response to information received subsequent to the issuance of an A-LMO.

Employer Compliance

To be compliant, employers must meet all the terms and conditions set out in the positiveA-LMO or LMO letters and their annexes. Compliance includes, but is not limited to the fact that the:

• employer provided wages, working conditions, and an occupation to the TFW that are substantially the same as those offered in the LMO or A-LMO application;
• employer provided wages and working conditions that are the same as those offered to Canadian citizens and permanent residents in the same occupation and work location;
• employer performed the minimum recruitment efforts required by the Program;
• employment of a TFW filled a labour shortage;
• employment of a TFW did not adversely affect the settlement of a labour dispute; and
• employer agrees to abide by the relevant federal/provincial/territorial laws that regulate employment and recruitment.

Documentation required to demonstrate compliance

Employers must always review the positive A-LMO and LMO letters and annexes to understand all the terms and conditions in which they must be compliant. They should also contact HRSDC/Service Canada if they discover discrepancies or if they are thinking of making any changes to the terms and conditions set out on the positive A-LMO andLMO letters and annexes. To demonstrate compliance through a review, employers may be required to submit the following documents:

• payroll information for the TFW and potentially for Canadian citizens and permanent residents;
• collective bargaining agreements;
• time sheets;
• job descriptions;
• copies of recruitment advertising;
• proof of no labour dispute;
• copies of the TFW’s work permit; and
• proof of registration with provincial/territorial workplace safety, where applicable.

Employers should retain all documents related to their A-LMO application and attestations, as well as any documents related to other positive LMOs, for up to 6 years. Failure to provide the requested documentation will result in the employers’ ineligibility to participate to the A-LMO Initiative.

Non-compliant employers

When non-compliance is determined, employers will have an opportunity to provide justification as well as to take corrective action, where applicable. HRSDC/Service Canada will work with the employer to implement the appropriate corrective action and may request proof to this effect in order for the employer to be deemed compliant.

Employers found non-compliant with the A-LMO Initiative, will be subject to consequences which will include:

• ineligibility to use the A-LMO Initiative;
• possible revocation of other LMOs for which work permits have not been issued yet;
• sharing the compliance review finding with HRSDC/Service Canada federal and provincial partners, for further investigation; and
• greater scrutiny of any pending or subsequent LMO applications.

How to Apply

Employers who want to hire TFWs using the A-LMO Initiative can apply online or send a paper application. Employers must ensure that they have met all of the Program requirements for the higher skilled positions.

NOTE:
The Initiative is currently not implemented in the province of Quebec.

Online A-LMO Process

The TFW Web Service has been adapted to offer Web Service users access to the onlineA-LMO application process. The registration forms for the Web Service will include an option which allows users to be considered for the A-LMO Initiative. Once the registration is completed and mailed or faxed to the nearest Service Canada Centre, it will be reviewed to determine if the employer’s organization is eligible for access to both the Web Service and the online A-LMO process.

A-LMO Paper Application

Employers must complete, sign and submit the A-LMO application to the Service Canada Centre responsible for their area.

NOTE:
Employers who have previously submitted an LMO application, for which an opinion has not been issued yet, may now take advantage of the new A-LMO Initiative. They can withdraw their LMO application and resubmit an A-LMO application, provided that both applications are for the same position. To withdraw your previous application, please inform HRSDC/Service Canada in writing when applying for your A-LMO.

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