BILL C-11 BRIEF

25 March 2001

Summary

Introduction

• The heavy enforcement emphasis with which Bill C-11 was presented promotes negative stereotypes about refugees and immigrants and caters to xenophobia and racism within Canadian society.

• Bill C-11 is a framework legislation that leaves many of the key rules to regulations. This is a concern since it gives wide powers to change the rules without any parliamentary oversight.

• Bill C-11 tends to give more discretionary powers to immigration officers and reduce individual protections. The CCR calls for the opposite.

• A separate Refugee Protection part to the bill is welcome. The CCR would like however to see it cover more of the refugee programs, notably the refugee resettlement program and applications for permanent residence by refugees (currently dealt with in the bill under Part 1, Immigration to Canada).

• The use of the term "foreign national" for all non-citizens, including permanent residents, promotes a view of non-Canadians as "aliens" and undermines the status of permanent residents as members of Canadian society.

• Bill C-11 makes more reference than the current Immigration Act to Canada's human rights obligations (for example, by protecting people from return to torture, as guaranteed by Article 3 of the Convention Against Torture, and by referring to the best interests of the child). However, the bill is not consistent in ensuring that its provisions meet human rights obligations. The CCR urges the incorporation of relevant international human rights instruments.

• The bill should be amended to exclude the possibility of setting quotas or numerical limits on refugee categories.

• The inclusion in Bill C-11 of an exemption from inadmissibility for resettled refugees on the basis of excessive medical demand is welcome.

• The proposal to reduce the impact of the "successful establishment" criterion is positive, but is incomplete. The CCR recommends that the successful establishment criterion be completely eliminated.

 
• The bill provides for no review mechanism for refused applicants for refugee resettlement and imposes a leave requirement on applications to the Federal Court for judicial review. The CCR recommends that refugee applicants overseas have access to the Refugee Appeal Division of the Immigration and Refugee Board.

The bill increases the bars to access to the refugee determination system, notably by denying any second claims as well as claims where there are issues of criminality or security. The CCR recommends that all claimants be granted access to the Immigration and Refugee Board and that any issues of eligibility be addressed there. Only eligibility issues that are consistent with the Convention relating to the Status of Refugees should be retained. Second claims should be addressed through the introduction of a re-opening mechanism.

• The CCR welcomes consolidation of decision-making at the Immigration and Refugee Board (risk review is moved from Citizenship and Immigration Canada where it is currently done). Also positive is the inclusion of protection for people at risk of torture, as required under the Convention against Torture.

 
• However, the Convention prohibits the return of anyone to torture, while the bill makes some exceptions. The definition of risk review is also restrictive in excluding risks faced generally in the country of origin. As well as amending these points, the CCR recommends including a provision to protect stateless persons.

 
• Under Bill C-11, most refugee hearings will be before a single board member, with no possibility of oral hearing at appeal. This means that a refugee will be heard by only one person. This reinforces longstanding concerns of the CCR with respect to the appointment process of board members. A transparent, professional and accountable selection process is urgently required.

 
• The CCR welcomes the introduction of an appeal for refugee claimants. The lack of an appeal on the merits is one of the fundamental flaws of the current refugee determination system. The CCR however calls for the appeal to be strengthened by allowing oral hearings where credibility is at issue, by allowing new evidence to be introduced, by clarifying the independence and hierarchical superiority of the Refugee Appeal Division and by allowing appeals from claimants whose claim has been declared abandoned.

 
• The introduction into the bill of a Pre-removal Risk Assessment is a welcome acknowledgment of the need to review potential risks faced by people about to be removed. However, the categories of people who will have access are restricted (and due to some drafting problems, unclear). Access should be expanded to cover anyone who might be at risk. In the interests of both fairness and efficiency, the Pre-removal Risk Assessment should be conducted by the Immigration and Refugee Board, not Citizenship and Immigration Canada.

 
• The bill provides for suspension of the removal of persons found to be at risk but where there are issues of criminality or security, they are to be left in limbo. People who have committed crimes against humanity should be prosecuted in Canada. Other people should be allowed to apply for permanent residence (some of them may be people who have been convicted in a sham trial of crimes they did not commit).

 
• The bill provides for refoulement to torture or persecution in ways that are not consistent with international human rights obligations. The prohibition on return to torture is absolute. Refoulement of refugees is only allowed in cases where the refugee presents a danger to the public, not in cases where it is considered contrary to the national interest. These provisions should be corrected to comply with international instruments.

• Specific provisions need to be included to prohibit refoulement to countries or parts of a country where a person is at risk, in cases where the person is not found to be in need of protection because of dual or multiple nationalities or because of the existence of an internal flight alternative.

The CCR is firmly opposed to the proposed expansions in powers of detention, which permit detention on the basis of administrative convenience and suspicion, broader powers of detention on the basis of identity, increased scope for detention without warrant, and link between mode of arrival and likelihood of detention. The CCR recommends that the only grounds for detention be danger to the public and flight risk.

Permanent residence applications made by refugees should be addressed under Part 2, Refugee Protection.

 

People accepted by the Immigration and Refugee Board or in the PRRA as refugees or persons in need of protection should be granted permanent residence automatically, by operation of law.

The CCR welcomes various proposals for facilitating family reunification, but regrets that they are not incorporated into the bill. Family unity is a right and should be protected as such in the bill. In particular, spouses and children of recognized refugees in Canada should have the right to travel to Canada for processing here. Economic status (e.g. receipt of social assistance) should never be a bar to family reunification.

• The bill increases powers for collecting on debts associated with a sponsorship undertaking. There needs to be some mechanism for reviewing humanitarian circumstances before proceeding against sponsors.

 
• The length of spousal sponsorships is to be reduced from 10 years to 3 years, a very positive move. This should be extended to cover fiancé-e-s and children.

The bill expands the categories of inadmissibility, introducing some new categories that throw a very wide net (e.g. engaging in organized crime and misrepresentation). The CCR calls on the contrary for the current inadmissibility categories to be narrowed.

 

The current provisions for removing people on the basis of alleged security risk are unfair, both in terms of the broad definitions used and the lack of procedural protections for the individuals.

 

Bill C-11 continues to refer to "terrorism" without defining it and to "being a member of an organization" without requiring that the individual constitute a security risk.

 

Permanent residents accused of security issues lose access to the Security Intelligence Review Committee (SIRC). The CCR calls for the definition to be narrowed, access to SIRC to be granted to permanent residents and others, and the inclusion of a right of appeal from a Federal Court decision on a security certificate. The provisions calling for mandatory detention of non-permanent residents should be deleted.

 

The CCR recommends that some kind of "returning resident's permit" be re-instated so that permanent residents going abroad can be assured in advance that their situation meets the requirements of the law and that they will not lose their status.

• All permanent residents should have a right to an oral hearing before the Immigration Appeal Division. This includes people who are inadmissible on the basis of criminality, security, serious human rights violations and organized crime. These categories are very broad and include people who have been convicted of no crime. Even in cases where they have committed a crime, humanitarian circumstances need to be considered (e.g. if the person has lived since infancy in Canada).

 
• Powers of immigration officers to examine non-citizens, including permanent residents, are extended to within Canada (instead of being limited to the border, as is currently the case). The CCR opposes this change, which treats all non-Canadians as if they are constantly at our borders, instead of members of Canadian society.

• The government has announced its intention of increasing interdiction measures, i.e. measures designed to prevent improperly documented travellers from reaching Canada. The CCR is deeply concerned about the impact of these measures on refugees, who often have no choice but to use illegal means of travel in fleeing persecution. The CCR calls for the bill to circumscribe the activities of immigration officers involved in interdiction overseas and to include the obligation to protect refugees.

• Carrier sanctions (i.e. fines on transporters, such as airlines and shipping agencies) should not be imposed when persons brought into Canada are subsequently determined to be refugees, since organizations should not be penalized for enabling refugees to flee persecution. There should be no carrier sanctions for bringing stowaways into Canada, since they provide an incentive for throwing stowaways overboard.

 
• Bill C-11 exempts from penalties for illegal entry people who are subsequently found to be refugees. While this is welcome, it does not go far enough: it does not cover people who are interdicted overseas and as a result not recognized as refugees; nor does it cover people who, motivated by humanitarian concerns, assisted refugees to enter Canada.

• The CCR is very concerned at the significant increases in scope of offences and penalties associated with enforcement of the Act.  They treat offences against the border as exceptionally serious crimes, which in the view of the CCR, is not at all justified. It is important to note that while most white people have the luxury of travelling wherever they want legally, many members of racialized minorities do not. The escalation of the offences and penalties, which in itself sends the message that Canada is threatened by foreigners, will have particular impact on these communities.

• The problem of human trafficking (the holding in bondage of human beings) is addressed in the bill through increased penalties for traffickers. The CCR is however concerned that there are no provisions to protect the rights of those trafficked.

• The CCR emphasizes the importance of approaching the bill with gender and anti-racist analyses. While from these points of view there are some positive aspects in the proposals, there are also many points of concern.