GENERAL COMMENTS

In March 1998, UNHCR submitted extensive comments on the report of the Immigration Legislative Review Advisory Group ("ILRAG"). Many of the issues and concerns we outlined in that document remain relevant. The following comments are restricted to issues raised in the White Paper proposals, and should be read as complementary to UNHCR's earlier statement. As the White Paper expresses general intent, our comments reflect our preliminary observations only. We look forward to having the opportunity to review and provide more specific comments on the draft provisions of the proposed legislation.

UNHCR supports the Minister's statement of the general principles that will guide the proposed reforms to refugee policy and legislation. We agree that such reforms should adhere to Canada's humanitarian tradition to ensure the protection of refugees.

UNHCR acknowledges the Government of Canada's efforts to achieve a fair and efficient refugee determination process while keeping abuse to a minimum. However, we hope that the increased emphasis on efficiency and control will not result in the erosion of the fundamental refugee protection objectives that are the basis of the Canadian asylum system.

We are pleased that the White Paper proposes to retain and further strengthen the Immigration and Refugee Board (IRB) as the agency responsible for refugee determination in Canada. UNHCR endorses the White Paper's statement that refugee protection and immigration are separate issues which ought to be governed by different consideration and objectives. Refugees have protection needs and concerns that immigrants do not have. These special needs and concerns must be taken into account when legislative provisions are applied to refugees.

We fully support the Minister's proposal to restructure immigration legislation so that provisions relating to the protection of refugees are grouped in a separate section of the Immigration Act . We agree that the separation of refugee and immigration processes will result in greater simplicity, clarity and transparency of the new Act. Further, we believe the refugee protection objectives of the legislation will be enhanced if all levels of the refugee protection process, including eligibility/access determinations, refugee status determination, the right of appeal, and procedures governing removal from Canada, reflect Canada's distinct and separate obligations towards refugees.

The White Paper proposals extend the categories of people who are inadmissible to Canada, and expand existing powers to remove individuals from Canada. Further, some of the proposals, diminish or eliminate important rights of appeal. UNHCR is concerned that many of the proposals are not accompanied by procedural safeguards to ensure the protection of refugee claimants and Convention refugees. We must also express our concern that the White Paper does not address certain important issues relating to the rights of refugees in Canada, in particular the issue of Convention Travel Documents for refugees with status in Canada, and the delays in family reunification of refugees recognized in Canada. We will take the opportunity to address these concerns in more detail in these comments.

We have organized our comments under the headings of Overseas and Inland. The proposals affecting inland protection will be discussed in the order in which they might be encountered by a refugee seeking protection in Canada: (1) access to refugee status determination procedures (2) refugee status determination procedures (3) removal of failed refugee claimants and the expulsion of refugees from Canada and (4) the status and rights of refugees.

1 OVERSEAS

The White Paper contains several important proposals relating Canada's overseas resettlement program which UNHCR believes will enhance Canada's efforts to resettle refugees from abroad.
 

1. RESETTLEMENT: SELECTION OF REFUGEES (p. 43 para. 1)

UNHCR welcomes the Minister's proposal to shift the balance in Canada's refugee resettlement program toward the need for protection, rather than the ability of the refugee to settle. The White Paper acknowledges that many of the refugees who are most in need of resettlement will require more than a year after arrival in Canada to become self-sufficient. UNHCR endorses the objectives of the proposal: to facilitate the resettlement of women at risk, victims of torture, the elderly, people requiring medical treatment, and unaccompanied minors. We believe that this proposal will strengthen the humanitarian basis of Canada's overseas resettlement programs.

The support and cooperation of the Provinces will of course be essential to the success of these proposals, as provincial approval is required for the resettlement of special needs cases, and provincial funding for resettled refugees is currently available only for the first year after arrival in Canada.

We welcome the proposal to establish greater cooperation with non-governmental organizations in identifying, pre-screening and resettling refugees. We are also very pleased that the White Paper proposes to adopt measures to allow refugees who are in urgent need to have immediate entry into Canada.
 

2. RESETTLEMENT: FAMILY REUNIFICATION (p. 43 para. 1)

The White Paper specifically acknowledges the importance of family reunification for the success of the resettlement of refugees. It is UNHCR's position that provisions to facilitate family reunification of refugees should be separate from those relating to immigrants. UNHCR strongly endorses the proposal to establish procedures to allow members of an extended refugee family to be processed together overseas, and where this is not possible, to find ways to reunite the families of refugees as quickly as possible.
 

II INLAND

1. ACCESS TO THE REFUGEE DETERMINATION PROCESS

Access to status determination procedures is fundamental to the proper functioning of the international regime for the protection of refugees. While the 1951 Convention and its 1967 Protocol do not specify procedures for refugee determination, UNHCR Executive Committee (EXCOM) calls upon States party to the Convention to establish national procedures for the formal determination of refugee status under these instruments⁽¹⁾. The necessity of establishing such procedures follows from the fundamental elements of the international protection system: the "refugee" definition, the obligation not to expel or return refugees to the frontiers of territories where their lives or freedom would be threatened, and the status and rights that accrue to refugees on the territory of a Contracting State.

UNHCR therefore encourages States to analyze carefully and, where possible, remove the practical and procedural barriers that asylum-seekers may face in their efforts to have access to status determination procedures. UNHCR is concerned that a number of changes proposed in the White Paper may have the effect of limiting access by refugees to the status determination process. These concerns will be discussed in detail below.

a. Filing Deadlines (p. 43 para. 4)

The White Paper proposes a prescribed time frame of 30 days to make a refugee claim, subject to exceptions in compelling circumstances. UNHCR recognizes that States have a legitimate interest in ensuring that decisions are reached expeditiously. However, the passage of time does not alter the fundamental obligations of non-refoulement under the 1951 Convention. EXCOM has stated that the failure to submit an application within a certain time limit "should not lead to an asylum request being excluded from consideration." ⁽²⁾

It is essential that any prescribed time limit with respect to access to determination procedures be accompanied by legislative provisions affording the decision-maker discretion to consider a claim brought after the time limit. UNHCR would recommend that the standard for discretion in reviewing cases brought after the time limit be based on the existence of a reasonable explanation for the delay rather than "compelling circumstances."

b. Comprehensive Front-End Screening Process (p. 43 para. 4)

The White Paper proposes to improve the application of existing eligibility criteria through a more comprehensive front-end screening of refugee claimants. UNHCR is not opposed in principle to this proposal, however, it is our view that an initial screening process should not have the effect of precluding meritorious refugee claimants from having access to a full hearing of their claims.

Given the White Paper's proposal to create new inadmissible classes, and the elimination of the danger to the public review by the Minister, the determination of eligibility may in some cases result in exclusion of an individual from the refugee determination process and removal from Canada. It is the position of UNHCR that the question of exclusion should be examined during refugee status determination, rather than as a threshold inquiry. This permits the decision-maker to properly consider all relevant facts, including mitigating circumstances. For these reasons, UNHCR believes that such decisions are best made by the agency responsible for refugee determination.

In light of the grave consequences that may result from an erroneous ineligibility determination, asylum-seekers who are found to be ineligible for refugee status determinations following the front-end screening must be afforded a right of appeal and a stay of removal pending that determination.

c. Repeat Refugee Claims (p. 43 para. 4)

According to the White Paper, failed refugee claimants who return to Canada after 90 days would have access to a pre-removal risk assessment, and not a full hearing. UNHCR appreciates that repeat claims may be a burden on the present system. We believe, however, that access to refugee status determination procedures should be kept sufficiently flexible to allow for the consideration of new evidence, not previously available, as well as the impact of more recent events bearing upon the validity of the claim, as in the case of a refugee sur place.

d. Manifestly Unfounded Claims (p. 44 para. 1)

The White Paper proposes priority processing for "manifestly unfounded claims," however it is not clear what procedures would be established to achieve "priority processing" of such claims. UNHCR recognizes Canada's need to balance fairness and effectiveness by promoting a system which will protect those who need it while dealing efficiently with those who apply for refugee status for reasons not related to the refugee criteria in the 1951 Convention definition. However, given the potential grave consequences of an erroneous decision that a claim is manifestly unfounded, we believe that basic procedural safeguards must be in place. These include a complete personal interview by a competent official, and whenever possible, by an official of the authority designated to determine refugee status, and access to a review of the negative decision prior to removal from the territory.

UNHCR is particularly concerned with the proposal that the concept of "Safe Country of Origin" would be included in the criteria for determining that a claim is manifestly unfounded; the use of a list of safe countries would not take into account individual reasons for flight, and would introduce a de facto geographical limitation.

e. Undocumented and Uncooperative Claimants (p. 47 para. 5)

The White Paper proposes measures to deal with refugee claimants who do not possess adequate identification. Specifically, refugee claimants "who refuse to cooperate in establishing their identity could be detained because of security concerns." UNHCR acknowledges that the destruction of documents by newly-arrived asylum-seekers is a source of concern, and recognizes that refugee claimants have a responsibility to provide basic information to the authorities and to cooperate in efforts to establish their identity, including providing valid identity documents when possible. However, we believe that measures to deal with undocumented refugees must take into account the very real obstacles many refugees face in obtaining proper identification documents.

By definition, a refugee is a person who has a well-founded fear of persecution and is "unable or unwilling to avail himself of the protection" of his/her country of origin. Many asylum seekers will be unable to obtain valid documents precisely because they have a well-founded fear of persecution from the authorities who issue such documents. It is therefore essential that asylum-seekers not be compelled to approach the authorities of their country of origin. It is also recognized that bringing the application for refugee status to the attention of the authorities could have severe negative consequences for family members and associates who remain in the country of origin. The failure to seek documents in these circumstances should not result in finding that the refugee claimant is uncooperative.

The White Paper does not elaborate on the circumstances in which an individual would be deemed to be uncooperative. We believe that the concept of "refusal to cooperate" must involve elements of willfulness and intention to deceive, and should not extend to individuals who in good faith are simply unable to secure evidence establishing their identity. UNHCR believes that the prolonged detention of undocumented refugee claimants who cooperate with reasonable efforts to establish their identity would not be consistent with international standards.

UNHCR also notes the White Paper proposal to enhance interdiction through measures such as expanding the network of specially trained immigration control officers to intercept improperly documented people before they arrive in Canada. As we have stated above, the very circumstances in the country of origin which create refugees often prevent such individuals from obtaining valid travel and identity documents before attempting to come to Canada. Interdiction procedures must take into account the special situation of refugees. Procedural safeguards must be implemented to ensure that genuine refugees are not denied entry into Canada because of improper documentation.
 

2. REFUGEE STATUS DETERMINATION

a. Consolidated Decision-Making (p. 43 para. 5)

UNHCR supports the proposal to consolidate the refugee status determination, post-determination risk review and risk-related humanitarian review in one protection decision. However, given the potentially grave consequences of an erroneous negative decision and the fact that all three determinations will be made by the same decision-making body, at the same time, it is UNHCR's view that the consolidation of the decision-making process should be made contingent on the establishment of an effective appeal on the merits.

UNHCR has long promoted the need for an appeal on the merits of a negative refugee determination, or any other decision that may result in the loss of refugee status and possible refoulement. UNHCR's EXCOM has termed this right of appeal "a basic requirement" in refugee status determination procedures. EXCOM Conclusion No 8 states "if the applicant is not recognized, he should be given a reasonable time to appeal for a formal reconsideration of the decision, either to the same or different authority, whether administrative or judicial, according to the prevailing system." An effective right of appeal is consistent with due process and constitutes a fundamentally important component of the international protection regime.

UNHCR supports the proposal that the Immigration and Refugee Board, with its expertise and experience in the area of refugee determination, will be granted authority to make the consolidated decision. We are also pleased that refugee determinations will be accompanied by consideration of Canada's obligations not only under the 1951 Convention and 1967 Protocol, but also under other relevant international instruments and the Charter of Rights and Freedoms.

b. Pre-Removal Risk Assessment (p. 43 paras. 3-4)

The pre-removal risk assessment (PRRA) is envisaged for failed refugee claimants who are outside Canada for 90 days and return to make a second refugee claim, and for failed inland refugee claimants in "appropriate circumstances." It is not clear what is meant by "appropriate circumstances." The proposal is also silent on who will make the determination, when it will be made, and what criteria will be used. As a general rule, UNHCR believes that in the absence of an appeal on the merits, all failed refugee claimants should have access to a PRRA.

PRRA is an important safeguard for refugee claimants and would best be made by the authority in charge of refugee status determination (IRB). We believe that it would be important that the proposed PRRA provide for the consideration of new evidence or change in conditions which could have the effect of rendering a previously rejected claimant a refugee sur place.

c. Cessation and Vacation Hearings (p. 44 para. 3)

The White Paper proposes to increase Ministerial applications for vacation and cessation hearings to the IRB. For vacation hearings, the current legislation would be amended to allow the Minister to intervene without first obtaining leave from the Chairperson of the IRB.

Articles 1C and 1F of the 1951 Convention provide for circumstances in which an individual ceases to be a refugee, or is excluded from refugee status. UNHCR is therefore not opposed to an application for cessation or vacation of refugee status, provided that procedural safeguards are in place, including full disclosure to the claimant. In fact, UNHCR would advocate that all refugees who are to be removed from Canada first benefit from a review of the removal decision. This would allow Canada to comply with its obligations of non-refoulement under the 1951 Convention, and provide refugees with the necessary rights of review prior to removal.

We believe that doctrinal confusion might be avoided if the legislation used the terms "cessation" and "exclusion" consistently with their meaning in the 1951 Convention. Further, given the serious consequences that may result from vacation or cessation of status, the process should afford adequate procedural protections, including the right to appeal a negative decision.

d. Improved Information on Security Issues (p. 48 para. 3)

The proposal to enhance the exchange of criminal and security information with other countries should be implemented with caution. It is the position of UNHCR that communication regarding asylum-seekers and refugees with the authorities of the country of origin would be contrary to the principles of refugee protection, as this could seriously compromise the security of the asylum-seeker/refugee or their family members remaining in the country of origin.
 

3. REMOVAL FROM CANADA

(p. 47 para 3-4, p.48 para 1, p.53 paras 3-4)

UNHCR recognizes and respects Canada's objective of maintaining and protecting the health, safety and good order of Canadian society, through measures relating to the exclusion of individuals from refugee status, or the removal of Convention refugees from Canada. However, it is important that proposed reforms to enhance security be consistent with Canada's international obligations under the 1951 Convention.

Article 1F of the 1951 Convention specifically provides that certain categories of persons shall be excluded from international protection obligations, notably, persons for whom there are serious grounds for considering that they have committed a crime against peace, a war crime, a crime against humanity, a serious non-political crime outside the country of refuge and prior to admission, or are guilty of acts contrary to the purposes and principles of the United Nations.

Articles 32 and 33 of the 1951 Convention further allow the expulsion of Convention refugees on grounds of national security or public order, and where there are reasonable grounds for regarding such individuals as a danger to the security of the country in which they are, or when such individuals have been convicted, by a final judgment, of a particularly serious crime and constitute a danger to the community of that country. However, Article 32 requires that expulsion shall only be pursuant to a decision reached in accordance with due process of law. A refugee shall be allowed to submit evidence and to appeal to the competent authority, except where there are compelling reasons of national security.

UNHCR considers it to be appropriate for Canada to take the opportunity, at this stage of the legislative review, to harmonize the language relating to the standard of proof set out in the exclusion and removal provisions of the Canadian legislation with the language of the 1951 Convention, in order to avoid the perception that under Canadian law, exclusion and removal are governed by a lower or different standard of proof.

The White Paper also proposes to adopt measures to enhance removal capacity (p. 48 para 1). UNHCR is concerned that the proposal to transfer the power to issue removal orders from IRB Adjudicators to senior immigration officers in uncontested cases and straightforward criminal cases may, in certain cases, result in refoulement of genuine refugee claimants at the port of entry. If refugee claimants are found to be ineligible under the proposed broadened inadmissible category, and are issued a removal order by a senior immigration officer, they would have no right to appeal the removal order.

Proposals to strengthen the inadmissibility provisions of the Immigration Act will include the creation of new classes of inadmissible people (p. 47 para. 4).

Specifically, it is proposed that admission would be denied to members of a government against which Canada has approved sanctions pursuant to a resolution of the United Nations or other multilateral body. We believe that potential exclusion of refugee claimants on this basis is too broad, particularly in light of the many reasons for which a multilateral body may impose sanctions upon a state. The international standard for exclusion advanced by UNHCR requires an individualized determination, rather than one based solely upon status or affiliation.

The White Paper proposes to expand the existing "danger to the public" provisions by creating broader category of "serious criminals" who could be expeditiously removed from Canada without any right of appeal (p. 53 para 3). While the proposal does not define the term "serious criminals", it states that the category would include people convicted of serious crimes, war criminals and people who have committed crimes against humanity, terrorists, people who are a danger to national security, and members of criminal organizations. The category of "serious criminals" would therefore consolidate the Convention grounds for exclusion and refoulement, and would add to these grounds "people convicted of serious crimes" and  "members of criminal organizations".

We caution that the proposal to make " members of criminal organizations" ineligible for status determination, or to deny such individuals protection against refoulement should involve an individual determination based on all relevant facts. Membership per se should not be decisive or sufficient cause for exclusion of an individual from refugee status. It would therefore also be important that a finding that an individual is a "terrorist" not be based solely on membership in a terrorist organization, particularly in view of the absence of any international consensus on the definition of terrorism, or criteria for designating terrorist organizations.

UNHCR would stress that the inadmissible categories be defined in a manner that is consistent with the relevant provisions contained in the 1951 Convention, and that the burden of proof to establish inadmissibility remain on the Government. As a matter of principle, UNHCR advocates the need for an appeal on the merits of a decision that may result in the denial or loss of refugee status, or refoulement. We emphasize that 1951 Convention and 1967 Protocol establish basic principles which should be followed before removing individuals to a country in which they have a well-founded fear of persecution.

Exclusion or expulsion are the most extreme sanctions in international refugee law. As with any exception in human rights law, exclusion must be applied restrictively with due regard for the potentially grave consequences that may follow. Furthermore, exclusion must be an individualized determination made by competent officials, preferably the agency responsible for refugee status determination. Similarly the denial of protection against refoulement to a Convention refugee on grounds of national security or public order must be approached with caution, using a balancing approach weighing risk and criminality.

UNHCR would propose that, should Canada expand the scope of the existing "danger to the public" provisions, procedural safeguards should be established that would allow Convention refugees, and other persons who may have a well-founded fear of persecution in their country of origin, the opportunity to present their case and allow the competent authority to make a determination based on all relevant facts available. These safeguards must include the right to appeal a removal order. UNHCR cannot, therefore, support the proposal to eliminate the right of appeal to the Immigration Appeal Division (IAD) for "serious criminals."
 

4. STATUS AND RIGHTS OF REFUGEES

UNHCR applauds Canada's tradition of giving refugees prospects for landed immigrant status and eventually citizenship, and according to Convention refugees who do not have landing the right to engage in gainful employment or obtain social welfare benefits. However, we are concerned that landing remains a precondition for sponsorship of members of the family class as well as for the issuance of Convention Travel Documents. This continues to create a hardship for Convention refugees who are unable to obtain landing because of their inability to produce satisfactory personal identity documents. We note that the White Paper proposes to reduce from five years to three years the period undocumented Convention refugees must wait before obtaining landing.

We view this as a positive development. However, it remains the position of UNHCR that refugees should not be compelled to seek identity documents from their country of origin, and the issuance of travel documents and the ability to sponsor family members should not be contingent on landing. We elaborate upon these issues below.

a) Family Reunification (p. 43 para. 1)

UNHCR welcomes Canada's strengthened commitment to family reunification as a means of assisting social integration and the building of communities. Refugees will benefit from the very positive proposals to expand the family class. The Minister's proposal to broaden the definition of dependent child to better reflect contemporary social realities of longer child dependency is welcomed. However, UNHCR believes that it would still be important to retain a discretionary provision in its legislation that would allow for the consideration of special circumstances, unrelated to attendance in full-time studies, that may cause the children of Convention refugees to remain dependent upon their parents after reaching the age of 22.

As we have noted above, we view as very positive the proposal to establish procedures to allow members of an extended family to be processed together overseas and, where this is not possible, providing a mechanism for the speedy reunion of families. The White paper does not, however, propose the creation of any such a mechanism for Convention refugees recognized inland. In UNHCR's experience, early family reunification is critically important for the successful integration of refugees, and in its view, family reunification should follow upon recognition of refugee status.

Under the current system, a recognized refugee must obtain permanent resident status before being entitled to bring family members to Canada. The delays which may be involved in obtaining permanent resident status, particularly in the case of undocumented refugees, prevent prompt family reunification and may create significant hardships for refugees and their families. UNHCR would therefore recommend that a mechanism for the prompt reunion of family members also be made available for Convention refugees recognized inland. This would be consistent with the White Paper's statement that different objectives must govern the treatment of refugees, as persons in need of protection, than those governing immigrants.

b. Convention Travel Documents

Neither the current legislation nor the White Paper address the issue of Convention Travel Documents for refugees recognized inland. At present, Canada's practice is to issue Convention Travel Documents only to refugees who have permanent resident status. Refugees, by definition, do not enjoy the protection of their country of origin and cannot avail themselves of a national passport for travel purposes.

The 1951 Convention requires Contracting States to issue Convention Travel Documents to refugees lawfully staying on their territory, absent compelling reasons of national security or public order. It is UNHCR's view that refugees and refugee claimants should not be obliged to contact their countries of origin in order to obtain travel documents. Canada's current practice of making permanent resident status a precondition to the issuance of Convention Travel Documents is not consistent with its obligations under the 1951 Convention. UNHCR would hope that the Government of Canada will address this issue in the present law reform initiative.

CONCLUSION

UNHCR Branch Office in Ottawa appreciates the opportunity to comment on Building on a Strong Foundation for the 21st Century:New Directions for Immigration and Refugee Policy and Legislation (the "White Paper"). We trust that Citizenship and Immigration will find these comments useful, and hope that they will be reflected in the proposed legislative amendments. We look forward to UNHCR's continued participation in this very important legislative review.
 

1.  Conclusions on the International Protection of Refugees adopted by the Executive Committee of the UNHCR Programme, No. 8 (XIII) (1977) [EXCOM Conclusions]

2.  Conclusions on the International Protection of Refugees adopted by the Executive Committee of the UNHCR Programme, No. 15 (XXX) (1979) [EXCOM Conclusions]