The CCR calls for the elimination of provisions in the omnibus Budget Implementation Act, Bill C-97, that significantly reduce the rights of refugee claimants. The proposed changes to the refugee determination system place many people at increased risk of being sent back to face persecution, in violation of the Canadian Charter of Rights and Freedoms and of Canada’s international human rights obligations.
This document outlines key problems with the proposed amendments.
This written submission is provided to the House of Commons’ Standing Committee on Citizenship and Immigration Committee in the context of the study the Committee decided to undertake in February 2018 of the Immigration and Refugee Board’s (IRB) appointments processes, training for board members, particularly as those processes relate to the cultural sensitivity, sexual orientation, gender identity and gender expression sensitivity, and complaints processes.
This is the report of a research project conducted by the CCR and some of its members, on the experiences of claimants in the new refugee determination system (since December 2012). The research focused particularly on claimants' experience of the refugee hearing.
Bill C-31 received Royal Assent on June 28, 2012. Most of its provisions relating to the refugee determination system were implemented on 15 December 2012.
The following are some of the CCR’s concerns.
1. Hasty timelines deny refugees a fair chance to prove their claims
The new system imposes unrealistic deadlines on all refugee claimants. The short timelines will particularly disadvantage the most vulnerable refugees, including survivors of torture and rape, women with claims based on gender persecution, and refugees fleeing persecution on the basis of their sexual orientation.
- Newly-arrived refugee claimants will have 15 days to deliver a written version of the basis of their refugee claim. This is not enough time to seek legal advice and respond to complicated legal requirements.
- Refugee claimants will have their refugee hearing after 60 days. This is not enough time to collect documentary evidence.
2. Some claimants will have fewer rights because they come from a “designated country of origin”
The amendments give the Minister of Citizenship and Immigration broad powers to designate countries of origin. Claimants from these countries will be subject to an even more expedited claim process that denies them a reasonable opportunity to prove their refugee claims (a hearing after 45 days, or 30 days in the case of an inland claim). They will also be denied a right of appeal to the Refugee Appeal Division, and face immediate deportation after a negative decision, even if they seek judicial review of the decision. These provisions increase the risk that mistakes will be made, without the opportunity for them to be corrected, leading to the deportation of refugees to a situation of persecution.
Claimants from designated countries of origin will also be deprived of basic and emergency health care (other than the treatment of conditions raising public health or safety issues).
3. Some claimants will face mandatory detention, fewer rights in the refugee determination system and a long-term bar on permanent status, because they are “designated” as “irregular arrivals” by the Minister of Public Safety
The amended law gives the Minister of Public Safety broad, subjective discretion to designate two or more foreign nationals as a group of “irregular arrivals” based on administrative convenience or suspicion of “smuggling”. The consequences of this designation include:
- mandatory detention for all persons aged 16 or older, with limited right of review;
- no right of appeal to the Refugee Appeal Division
- no access to permanent residence for a minimum of five years, even if accepted as refugees. This means no possibility to reunite in Canada with spouses and children.
On December 5, the Minister of Public Safety announced that he had designated five groups of people. Many children are involved.
Changes already in force
4. One-year bar on access to Pre-Removal Risk Assessment (PRRA) for refused claimants
Since August 15, 2012, refused refugee claimants are not eligible for a Pre-Removal Risk Assessment for a year following refusal. In the case of claimants from a designated country of origin, the ban is for 3 years. This means that they have no opportunity to submit new evidence of risk that becomes available after the refusal and before removal.
5. One-year bar on applications for humanitarian and compassionate consideration
Refused refugee claimants can no longer apply for humanitarian and compassionate consideration for one year following refusal, unless they are invoking best interests of the child arguments or a life-threatening medical condition. Designated Foreign Nationals cannot apply on any ground at all for five years. These changes mean that most people will have no avenue to present compelling humanitarian factors before removal.
Concerns about discourse
The CCR is deeply concerned at the negative way in which refugee claimants are discussed by the government. Making a refugee claim is a legitimate way, in both Canadian and international law, for a person fleeing persecution to seek asylum. Nor is it fair to characterize refused claims as false or abusive. The refugee definition is restrictive and technical. Many people making claims who do not meet the definition nevertheless have a genuine fear of persecution. Their search for protection is genuine. Constant negative references to refugee claimants undermine the independence of Canada’s refugee system and the support of Canadians for those who come to Canada hoping for safety and freedom, and to be treated with dignity.
For more information about the changes to the refugee system, see http://ccrweb.ca/en/refugee-reform
What does it take to win protection? Lessons from the Song Dae Ri case
The case of Song Dae Ri, a refugee claimant from North Korea, has recently attracted the attention of the Canadian public. According to media reports, Mr Ri was denied refugee protection by the Immigration and Refugee Board on the grounds that he was deemed undeserving of Canada's protection because he served in the North Korean government as a trade official.(1) The danger to Mr Ri if returned to North Korea does not appear to be in doubt: he is expected to be executed. His wife has already been executed. Mr Ri’s six-year-old son was accepted as a refugee.
The case illustrates a number of flaws in Canada's refugee determination system.
Broad application of exclusion clauses
Mr Ri has been found to be undeserving of Canada’s protection because of his participation in the North Korean government. The 1951 UN Convention relating to the Status of Refugees excludes people from refugee protection if there are serious reasons for considering that they have committed various categories of serious crimes.(2) Canada gives a very broad interpretation to these provisions, known as exclusion clauses. Refugee claimants in Canada are often denied refugee protection not because they have committed a crime themselves but because they have been in some way associated with others who have committed crimes (for example, young men conscripted into an army that has committed abuses). Mr Ri is not being accused of having himself committed any crime, but has been found guilty by association because of his membership in the North Korean government.(3)
Refugee claims in Canada are heard by the Immigration and Refugee Board (IRB) which is made up of members appointed in a political process. A single Board member hears and decides each refugee claim. The quality of the Board members varies greatly, largely because appointments are made based on partisan political considerations, rather than on who the most competent candidates are. As a result, refugee determination can resemble a lottery: if a claimant happens to appear before one member she may be accepted, while the same claimant might be refused if another member hears the case. In Mr Ri’s case, it is reasonable to suppose that if he had been heard by another Board member he might have been granted refugee protection.
Lack of appeal
Mr Ri has been denied any appeal on the merits of the decision that he is not deserving of Canada’s protection. The Immigration and Refugee Protection Act, as passed by Parliament, includes a right of appeal for refused refugee claimants. However, the government has not implemented this part of the law and has failed to live up to its promises to implement the appeal. As a result, a single board member’s decision that Mr Ri is not deserving of protection goes without review, even though this decision exposes Mr Ri to execution and even though another board member might have decided the case differently. The only way to review a decision on a refugee claim is by applying for judicial review to the Federal Court, but this review is only available if the Court grants permission. In Mr Ri’s case, the Court did not grant permission.
Excessive complexity of the system
Mr Ri’s experience illustrates the unnecessary complexity of the refugee determination system. Instead of having a simple and fair process to determine who should be protected, the Immigration and Refugee Protection Act creates categories of people who can’t have their refugee claim heard or granted by the Immigration and Refugee Board, and then establishes a separate (and flawed) process to review those cases. A person such as Ri who has been excluded cannot be granted refugee protection by the Immigration and Refugee Board, but may be granted a temporary stay of removal in a process called the Pre-Removal Risk Assessment. This assessment itself involves three separate decisions: one to assess the risk to Ri, one to assess the danger he represents to Canada and a third to weigh these two decisions.
This process, already complicated, has recently become yet more confused with the decision by the Prime Minister to send some immigration functions to the newly created Canada Border Services Agency.(4) There are now not only three individual decisions involved, but also two separate departments. The decision on the risk is made by an official at the Canada Border Services Agency, while the decision on danger to Canada and the weighing of the two earlier decisions are made by two separate officials at Citizenship and Immigration Canada.
Perversely, the protection opinion is done by the enforcement agency (Canada Border Service Agency) while the opinion on the enforcement-related matters is done by the department that is supposed to be responsible for protecting refugees and immigrants (Citizenship and Immigration Canada).
Failure to respect the absolute bar on return to torture
Canada is a signatory to the Convention Against Torture which prohibits absolutely the return of any human being to torture. This prohibition reflects the international community’s abhorrence for torture: no one deserves to be tortured, no matter what crimes he may have committed. Canada has however refused to incorporate this absolute prohibition into its domestic law, leaving the door open to returning people to torture and even death. This is wrong in international law. Since Canadian law does not prohibit return to torture and death, Mr Ri faces the prospect of being deported from Canada, even though the government acknowledges that he would likely be executed.
Absence of provisions for family unity for refugee children
A person who is recognized as a refugee in Canada can include their spouse or common-law partner and dependent children in their application for permanent residence. This means that if a parent is accepted as a refugee and the children are refused refugee status, the children do not face deportation. However, the reverse does not apply: the law does not allow a child to include his or her parents in the application for permanent residence. Mr Ri’s six-year-old son has been accepted as a refugee but he cannot include his father on his permanent residence application and thus faces the prospect of being separated from his one remaining parent (and orphaned, since his father is threatened with execution). Similarly, if an unaccompanied child comes to Canada and is recognized as a refugee, there is nothing in the law to allow that child to be reunited in Canada with his or her parents and siblings.
1. The Canadian Council for Refugees' knowledge of this particular case is drawn from media reports.
2. The Refugee Convention states that its provisions "shall not apply to any person with respect to whom there are serious reasons for considering that: a) He has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; c) he has been guilty of acts contrary to the purposes and principles of the United Nations." (Article 1F). Mr Ri was excluded based on paragraph a).
3. Canada doesn't follow UNHCR Guidelines on the Application of the Exclusion Clauses (4 September 2003) which recommend that decision-makers first consider the persecution that the claimant would face, and only then consider whether the exclusion clauses may apply. This allows a balancing of the consequences of exclusion against the gravity of the offense. In the Canadian process, the reverse occurs, with the arguments on exclusion being considered first. The guidelines also make clear that exclusion is only justified if there is shown to be individual responsibility for the crimes committed: "In general, individual responsibility flows from the person having committed, or made a substantial contribution to the commission of the criminal act, in the knowledge that his or her act or omission would facilitate the criminal conduct." (Para. 18)
4. This was done in a series of Orders in Council adopted 12 December 2003.
CCR ESSENTIAL PRINCIPLES
14 July 2004
1. International obligation to protect refugees
As a party to the 1951 Convention relating to the Status of Refugees, Canada is obliged to protect refugees from persecution. Refugee protection is not an act of charity but an obligation under international law.
2. Refugee protection as goal
The refugee determination system must have as its primary goal the protection of refugees. The system must be designed so that all refugees receive protection.
3. Respect for international human rights obligations
The refugee determination system must fully respect Canada’s international human rights obligations.
4. Compliance with the Canadian Charter of Rights and Freedoms
All persons in Canada, regardless of their immigration status or lack thereof, are entitled to full protection under the Canadian Charter of Rights and Freedoms. The refugee determination system must therefore fully comply with the Charter.
5. Respect for human dignity
The refugee determination system must respect the fundamental human dignity of all refugee claimants, whether or not they are found to need Canada=s protection.
6. Humanitarian considerations
The refugee determination system must include access to remedies for refugee claimants who, while not meeting the definitions of refugee or persons in need of protection, deserve to remain in Canada, on humanitarian grounds or because their removal would be contrary to Canada’s international human rights obligations.
7. Increased resettlement does not justify reducing the rights of claimants or restricting access
Enhanced resettlement must not be at the price of a deterioration in the protection of the rights of those who make a refugee claim in Canada. Nor may resettlement be used as a trade-off for restricting access to asylum in Canada. Canada can and should resettle more refugees. However, refugee claimants in Canada engage our international human rights obligations, notably the obligation of non-refoulement. Canada is obliged to uphold international human rights norms when its actions block access to asylum through measures such as interdiction and safe third country agreements. Increased resettlement does not affect these obligations.
8. Efficiency as secondary goal
Efficiency of process is as a rule in the interests of both claimants and the government. Claimants have a right to a hearing within a reasonable period of time. What constitutes a reasonable period of time depends on the individual claimant’s circumstances (for example, whether the claimant is separated from family). Efficiency must not, however, be made a goal above claimants’ rights.
9. Family reunification
The refugee determination system must respect the right of families to be together.
10. Detention a last resort
Refugee claimants should not be detained except as a last resort, and only where there are no reasonable alternatives to detention. Claimants who are detained must have access to legal counsel and resources to assist them in establishing their claim and their identity.
11. Separated children
Special procedures should be in place to protect the interests of separated children making refugee claims.
All government institutions involved in the refugee determination system must provide transparency. Decision-making should not take place in secret. The public should have access to any information that is used in making decisions, and be able to feed relevant human rights data into the system.
The government bears responsibility for the ability of the system to meet all the above general principles. This responsibility is a serious one, since claimants’ life, liberty and security of the person are at stake. The government must have in place mechanisms, such as an Ombudsperson, to ensure that the system functions correctly and to protect individuals whose cases are dealt with incorrectly or unfairly.
14. Access to refugee determination system
All those who make a refugee claim in Canada or at a Canadian port of entry should have access to an oral hearing.
15. Access to consideration on all grounds of protection
All claimants have the right to be considered on all grounds of protection. In the case of the 1951 Convention refugee definition, issues of inclusion should be considered before any issues of exclusion (i.e. the risk to the individual should be assessed before any consideration of whether they do not deserve protection). In the case of other grounds of protection (Convention against Torture and International Covenant on Civil and Political Rights), there are no exclusion clauses and none should be applied.
16. Access to protection for interdicted asylum seekers
Canada bears a responsibility towards asylum seekers whom it interdicts outside Canada. The international obligation of non-refoulement requires that Canada ensure that interdicted asylum seekers have access to protection.
17. Independence of decision-makers
Refugee determination must be undertaken by decision-makers who are fully independent, both individually and institutionally. Among the criteria that must be met before decision-makers can be considered independent are that they are appointed for a fixed term, through a non-political process of appointment and reappointment, and that they work within an independent quasi-judicial tribunal.
18. Quality of decision-makers
Decision-makers must have all the competencies necessary to make crucial and complex refugee determinations in a sensitive manner.
Unless accepted through an expedited process, claims must be determined by a qualified, independent decision-maker through an oral hearing (not an interview), where claimants have full opportunity to present their case, be represented by counsel, and hear and respond to any questions about their claim.
20. Non-adversarial hearings
The refugee hearing should be non-adversarial, when there is no exclusion clause at issue.
21. Adequate preparation time
All refugee claimants should have adequate time to prepare their case.
22. Treating each individual claim on its merits
Each claim should be examined on its individual merits. The system should not reduce procedural guarantees or bias decision-makers against claims based on group characteristics (for example, “safe country of origin” or “manifestly unfounded” categories).
Refugee claimants should be assured adequate legal aid coverage. Given that refugee claimants are sometimes poorly represented by incompetent or unscrupulous counsel, the refugee hearing process should as far as possible avoid penalizing claimants who are poorly represented.
The refugee hearing should be designed to be as sensitive as possible towards claimants. In particular, sensitivity needs to be shown towards claimants who are women, children, survivors of torture, elderly and people with disabilities.
25. Quality of interpretation
The refugee hearing process depends on the quality of the interpretation. Interpreters should be held accountable through accreditation, licensing and codes of conduct.
Effective refugee determination depends on decision-makers having access to comprehensive, accurate, up-to-date, neutral and open information about the conditions in the countries fled. The system must make this information available. However, in making determinations, a balance is needed between the reliance on documentation and the recognition that it is frequently not possible to verify individual claims. Board members should be encouraged not to seek to corroborate each element of an individual claim.
All information used in a refugee determination must be disclosed to the claimant in advance of the hearing.
Written reasons must be given for decisions.
APPEAL AND REOPENING
29. Appeal on the merits
The refugee determination system must offer refused refugee claimants an appeal on the merits. An appeal must offer a transparent process, competent and sensitive decision-makers and accountability. The appeal process must include the possibility of an oral hearing. The appeal process should be designed to be as sensitive as possible to the realities of the claimant. This includes taking into account that competent (or any) counsel is not always available. For these reasons, it is important that there be flexible time limits.
The body making refugee determinations should have ongoing jurisdiction up to the time of removal to reopen a refused, abandoned or withdrawn claim in the event of a change of circumstances or new information becoming available.
31. Review by the courts
Refused refugee claimants must have access to the courts, without leave, for judicial review of the decision.
32. Stay of removal
There should be a stay of removal pending determination of the appeal or review of the refugee determination decision.
33. Process of reform
Before moving towards the implementation of any reform to the system, the government should make public the model or models they are considering, giving a reasonable opportunity for those interested to respond.
34. Maintaining strengths of existing system
Despite the flaws in the refugee determination process in place in Canada since 1989, the system has many significant strengths that have earned it high international standing and served many refugee claimants well. The known advantages of the current system should not be sacrificed in favour of unknown and uncertain hypothetical benefits of a different system.