Snakes and Ladders: Refugee Determination and Bill C-11
by David Matas
Refugee determination systems around the world share two common features,
complexity and unfairness. These features have bedeviled each of the
various forms the Canadian refugee determination procedure has taken through
I. The old system
The old Canadian refugee determination procedure, declared unconstitutional
by the Supreme Court of Canada because of its unfairness, was as a complex
a system as could be imagined. It was a Rube Goldberg device where
the roundabout took precedence over the direct.
Under that old procedure, a person had to violate the Immigration Act to
make a refugee claim. By statute, a person could make a claim only
if the person was before an adjudication tribunal convened to decide whether
a violation of the Immigration Act had taken place.
In order not to create artificial incentives to violate the Act, the Department,
by policy, instituted an in status refugee determination system. However,
the in status system could not supplement the out of status statutory system,
only complement it. So, once the in status procedure was in place,
a person could make two refugee claims, one in status, and a second out of
The immigration inquiry that triggered the out of status claim did not conclude
with the claim and the issuance of a conditional order as now. Rather
the inquiry just adjourned after a decision that there was a violation of
the Immigration Act. The inquiry had to be reconvened after the refugee
determination for determination whether there would be a removal order or
Both in status and out of status refugee claims were done initially by talking
into a tape recorder. The claimant would be convened to an interview
conducted by a senior immigration officer who would tape the interview and
have a transcript prepared. The transcript would be sent to the claimant
for comment and then forwarded to Ottawa to a committee for its advice, the
Refugee Status Advisory Committee. The Committee, after reading the
transcript, would advise the Minister of Immigration, who would decide the
If the decision of the Minister was negative, and it almost always was, the
claimant then could apply for redetermination to the old Immigration Appeal
Board. The application was on paper only. This paper application
was not for a reversal of the decision but only for an oral hearing.
The application was akin to a leave application, but the test for success
was a good deal higher than on a leave application. The Immigration
Appeal Board could grant an oral hearing only if there were reasonable grounds
to believe, on the basis of the paper application, that the claimant, at
the oral hearing, could succeed in the claim.
If the Immigration Appeal Board rejected the paper application, as was most
often the case, or held an oral hearing and then rejected the case, the person
then went back to the immigration adjudicator for a decision on whether a
removal order or departure notice would issue. Of course, beyond all
that there was recourse to the Federal Court.
Most people went through this system without ever appearing in front of anyone
who decided their claim, a feature that attracted the attention of the Supreme
Court of Canada. In addition, if one totals up the steps for a person
who took every step and was rejected at every turn, there were twelve in
all, even where there was no attempt to seek a remedy from the Federal Court.
1. an in status interview,
2. a submission on the transcript of that interview,
3. the advice of the Refugee Status Advisory Committee on the transcript,
4. the decision of the Minister on that advice,
5. an immigration inquiry at which an out of status claim was made,
6. an out of status interview,
7. a submission on the transcript of that out of status interview,
8. the advice of the Refugee Status Advisory Committee on the second transcript,
9. the decision of the Minister on that advice,
10. an application for redetermination to the Immigration Appeal Board,
11. a hearing of the claim by the Immigration Appeal Board, on the assumption
that the application for redetermination was granted, and
12. the resumption of the immigration inquiry before an adjudicator to determine
whether there should be a departure notice or deportation order.
This system, bizarre as it sounds, is similar to refugee determination systems
found elsewhere. Indeed, this earlier Canadian model was inspired by
foreign refugee determination systems. There are even some people in
Canada today nostalgic for the old system and regretful of the Supreme Court
of Canada intrusion into it.
The old system, in addition to all its other faults, suffered from an absence
of integration of the overseas and inland refugee determination systems.
Overseas refugee determinations, done at Canadian visa posts abroad, were
done by different people using different procedures, standards and criteria.
The inland system was so long, drawn out and unfair, that virtually everyone
was being rejected, but virtually no one was being removed. The system
was completely dysfunctional and had to be revamped, even without the decision
of the Supreme Court of Canada ruling it unfair.
II. The present system
The system in the present Act and Regulations is an improvement, but still
both needlessly complex and needlessly unfair. The present Act creates
a bifurcated road. The number of steps depends on which of the two
roads the claimant is required to take.
Under the present Act, first there is a port of entry interview, where claimants
are interviewed on arrival about the substance of their claims without access
to counsel, a procedure the Supreme Court of Canada has decided is constitutionally
valid. Second there is eligibility determination, conducted by a senior
A determination of eligibility puts claimants on one of the two roads.
If the person is eligible, there is the refugee hearing conducted by the
Refugee Protection Division of the Immigration and Refugee Board. If
the claim is rejected, the person can apply for membership in the post claims
refugee determination in Canada class. The decision on membership
in the post claims refugee determination in Canada class is made by a specialized
corps of officers in the Department of Immigration, the post claims determinations
A person can make a claim either in status or at an immigration inquiry.
If the claim is made at the inquiry, then the adjudicator issues a conditional
removal order. If the claim fails, the order becomes effective without
the need to reconvene the inquiry.
Those found not eligible have risk determined differently from those found
eligible. One ground of ineligibility is that the person has committed
an offence with a maximum punishment of ten years or more and has been determined
by the Minister to be a public danger. A person found ineligible to
make a refugee claim is also ineligible to apply for membership in the post
determination refugee claimants in Canada class. It is this public
danger determination procedure that becomes, instead, the risk determination
The public danger procedure starts with a determination in the local immigration
office to seek the advice of the Minister that the person is a public danger.
The person concerned is notified of this determination with an opportunity
to make written submissions that would be forwarded to the Minister.
The written submissions are sent to headquarters where they are analyzed
and advisory opinion given. The Minister or her delegate decides.
As can be seen, in this process, there is never a stand alone risk assessment.
Rather risk assessment is folded into the public danger determination.
The ultimate decision is only that the person is or is not a public danger.
Furthermore, the decision on public danger does not involve the Department's
risk analysis specialists, the post claims determination officers.
In order, to engage their involvement, the person concerned has to make a
second application, this time for permanent residence on humanitarian and
compassionate grounds. It is the policy of the Department, when an
application is made for humanitarian landing and the application has a risk
component, to refer the risk component of the application to the post claim
determination officers for their advice.
The Immigration Act, in general, prevents removal of a rejected refugee claimant
pending consideration of his or her application to the Federal Court.
There are statutory stays of execution of removal orders. However,
persons found ineligible to make a refugee claim on the basis that they are
public dangers are not granted statutory stays. They must apply for
judicial stays. Furthermore, an application for humanitarian landing,
in itself, does not prevent execution of a removal order.
In consequence, the application for a judicial stay of execution of a removal
order becomes part of the process of risk determination. Recourse to
the Federal Court becomes a necessary part of the process rather than a step
to be taken after the process is completed. Unless a person can stay
in Canada pending his or her humanitarian application, the person never gets
recourse to a decision reached on the advice of the post claims determination
officers. The Department does not attempt to remove some people pending
their humanitarian applications. However, as the docket of the Federal
Court shows, for many, it does.
There are some people for whom the public danger process kicks in only after
the person has been determined to be a refugee. Once a person is determined
to be a refugee, the person can not be removed to a country where the person's
life or freedom would be threatened for refugee related grounds. That
country of danger fled is, in most cases, the country of nationality and
the only country to which Canada can remove the person. After acquiring
refugee status, the person may have been convicted of a serious crime in
Canada and become removable because of that conviction. A recognized
refugee issued a removal order has an appeal from that order to the Appeal
Division of the Immigration and Refugee Board.
In these circumstances, the Immigration Act allows for a belated commencement
of the public danger determination procedure. Should the Minister determine
the person to be a public danger, the determination cuts off the person's
appeal to the Appeal Division to the Immigration and Refugee Board.
The Act further allows the removal from Canada of the person to the country
of danger fled.
The challenge in Federal Court of a public danger determination made after
refugee recognition also creates no statutory stay of execution of the removal
order. The person becomes immediately removable to the country of danger
fled pending review by the Federal Court of the Ministerial determination
of danger. So, here, too, an application to Federal Court for a discretionary
stay of execution of the removal order becomes necessary.
Again, with the present system, there is no integration with the overseas
system and the inland system. Indeed, though the inland system has
changed substantially, the overseas system has remained much the same.
There has been a broadening of the risk standards. However, other criteria
remain in place, and the procedure is unchanged.
This lack of integration creates its own perversity. It is a policy
of the Immigration Act to have applications for immigration to be processed
at visa posts abroad, rather than inland. Yet, the refugee determination
system overseas is much more problematic than the system inland.
The system is a good deal less fair. For instance, there is no right
to counsel at refugee interviews, and most visa posts, as a matter of policy,
prevent counsel from attending, even if they are available at the time of
the scheduled interview.
The persons who decide are neither specialized nor expert in refugee matters
and have only cursory training in the field. They are not independent
from government and its immigration and foreign affairs objectives, but rather
part of government and part of that very portion of government that pursues
immigration and foreign policy objectives.
The visa posts impose criteria that are not part of the inland determination.
Examples are medical admissibility, likelihood of successful establishment,
and no durable solution elsewhere.
It is a good deal harder to be recognized as a refugee overseas than inland,
and for all the wrong reasons. The system gives an artificial incentive
for claimants to come to Canada to make their claims, working at cross purposes
with the overall objective of the system to have applications processed at
visa posts abroad.
The present system is fairer than the old one, for at least some people.
For those found to be public dangers, the present system is as unfair as
the old system, and then some. For those who are found to be eligible, there
is a fair hearing before an independent expert tribunal. The system
is not completely fair, because of the denial of access to counsel at the
initial port of entry interview, the absence of an appeal and the impossibility
of reopening to consider change of circumstances, new evidence, or old evidence
not previously available.
As well, the present system is still needlessly complex. It is not as complex
as the old system. However, there are still many unnecessary steps,
consuming time and money to no apparent purpose.
Superficially, this combination of complexity and unfairness is surprising.
It is easy to fathom, if not to commend, a system that is both fair and complex
or simple and unfair. In a system that is both fair and complex, the
complexity can be justified by the fairness. In a system that is both
simple and unfair, there would be at least some who would attempt to justify
the unfairness by the simplicity. However, why has government after
government in Canada and around the world generated refugee determination
systems that are both complex and unfair?
The reason is the intrusion into these systems of yet another objective besides
simplicity and fairness, the objective of control. Governments intrude
into a system that would otherwise be both simple and fair, in order to assert
control over the system.
The reason for that attempt to assert control is that refugee protection
systems impinge upon other government policy objectives. Refugee claimants
who get protection get to stay. Those who get to stay become part of
the local community. The governments wants a say in who gets to stay.
So they intrude into refugee determination systems in order to attempt to
realize their immigration objectives.
As well, a decision that a person is a refugee is a decision that the country
of danger fled is a country of persecution. For some governments, that
is a judgment that they would rather not have made of their allies.
Refugee determination can conflict with foreign policy objectives.
For Canada, immigration and foreign policy concerns are less than for many
others. Canada attempts to promote human rights abroad in a neutral
fashion. Canada is a country of immigration. Recognizing refugees
can support Canada's foreign affairs and immigration policies rather than
As well, it is not that easy to get to Canada. The only country with
which Canada has a land border is the United States, which does not produce
refugees. Every refugee claimant coming to Canada either has to traverse
the United States, or arrive by air or sea.
The number of those arriving by air or sea can be controlled by visa requirements
and carrier sanctions. Canada has visa requirements on every country
producing significant numbers of refugee claimants; denies visas systematically
to everyone who wants to come to Canada to make a refugee claim; and penalizes
commercial carriers who bring to Canada persons who need visas but do not
have them. This interconnected web of visa requirements, visa denials
and carrier sanctions reduces the number of arrivals to Canada to the point
where, even if Canada were to accept as a refugee every refugee claimant
that got to Canada, the numbers would be manageable.
The Canadian policy concerns about immigration numbers from refugee recognition
inland, as a result, are inappropriate. To a large extent, the present
design of the inland refugee determination system manages to avoid an unwarranted
intrusion of immigration considerations into refugee determinations because,
at least for those eligible to make a claim, risk determination is done by
an independent tribunal, the Immigration and Refugee Board, and not the Immigration
Immigration concerns intrude more readily into refugee determination overseas
because those refugees determinations are done by visa officers who otherwise
decide on immigration matters. Many refugees abroad, as well as in
Canada, would not qualify for permanent residence if they were not refugees.
That should not matter and, in general, does not matter to members of the
Refugee Division of the Immigration and Refugee Board. It is, however,
something that tugs at the minds of visa officers. It becomes impossible
for many, if not most, visa officers to separate their refugee protection
tasks from their immigration tasks.
It is this failure to separate refugee determination from immigration that
explains the superficial perversity of a system that works so less well abroad
than in Canada. Officials seem not to care that the system creates
an incentive to get to Canada, because they know that the web of visa requirements,
visa denials and carrier sanctions will prevent the arrival of most of those
who want to come.
The other policy concern that intrudes into Canadian refugee protection unduly
is a concern about criminality. International law says that no-one,
no matter what their crime, should be returned to torture, disappearance
or arbitrary execution. Refugees who are also criminals can be returned
to danger, but only if the danger they face on return is less than the danger
they pose to the community where they seek protection. For Canadian
policy makers, this protection of criminals goes too far. Canadian
law intrudes into refugee protection to prevent it from happening.
I approach the refugee determination system with these objectives in mind:
The system should be fair. It should be simple. It should comply
with international law standards. It should be consistent and integrated,
not working at cross purposes.
III. Bill C-11
The system proposed in Bill C-11, though in some respects an improvement
over the present law, is still not quite right. It is still needlessly
complex and unnecessarily unfair. It suffers from a lack of integration.
And, it does not fully comply with international law standards.
Bill C-11 is maze like in its structure. One has to wonder whether
claimants who enter the system will ever emerge. The patron saint of
the drafters must have been Daedalus, the designer of the Minoan labyrinth.
If the Bill becomes law, the patron saint of the bar will have to become
Ariadne, the women who gave to Theseus the string that allowed him to find
his way out of the labyrinth after he slew the Minotaur.
The proposed system, like the old one, creates a forked road. There
are five different risk determination procedures. Yet, some in danger
on return may be denied access to all of them.
Some claimants are eligible for a quasi-judicial risk determination.
Other claimants are ineligible for the quasi-judicial risk determination
but eligible for an administrative risk determination. A third set
of claimants are ineligible for both statutory risk determinations, but are
entitled to a determination of the application of the principle of non-refoulement
to their case. A fourth set of claimants go down a dead end road.
At the end of this road, there is removal without any form of risk assessment,
except through humanitarian application to the Minister of Citizenship and
Immigration, which may or may not be decided before they have to leave.
A fifth set of claimants, those caught up in extradition proceedings, get
a risk determination by the Minister of Justice.
A. Certificate review
One ground of ineligibility is that the claimant has been determined to be
inadmissible on grounds of security, violating human or international rights,
serious criminality or organized criminality. The Bill provides that
eligibility determination must be made within three days of arrival.
If there is no determination within the three day period the person is deemed
eligible. However, that determination can be suspended and the three day
limit lifted, once an immigration officer refers to the Immigration Division
of the Immigration and Refugee Board a determination whether the claimant
is inadmissible on the grounds of security, violating human or international
rights, serious criminality or organized criminality.
If the three days has passed and the person is deemed eligible, the refugee
protection claim itself can be suspended if an immigration officer refers
to the Immigration Division of the Immigration and Refugee Board a determination
whether the claimant is inadmissible on the grounds of security, violating
human or international rights, serious criminality or organized criminality
[section 103(1)]. The Bill has a clawback provision as well as a suspension
provision. If a person is found eligible, but subsequently found ineligible,
pending proceedings are terminated and any decision already made nullified
The determination whether a claimant is inadmissible on the grounds of security,
violating human or international rights, serious criminality or organized
criminality can be made in three different ways - by an adjudicator, by the
Minister of Citizenship and Immigration alone, or by the Minister of Citizenship
and Immigration in conjunction with the Solicitor General [sections 44(2)
and 77(1)]. The Explanation of Proposed Regulations states that the
Department plans to allow the Minister's delegate to issue a removal order
in cases involving convictions in Canada. In the other cases, the Bill
leaves the Minister free to choose whether or not to decide on an allegation
by way of certificate, in conjunction with the Solicitor General, or refer
the matter to an adjudicator. If the Minister makes the determination
in conjunction with the Solicitor General, she must refer that determination
to the Federal Court Trial Division.
For a claimant caught up in the Ministerial certificate procedure, the pre-removal
risk assessment ceases to be pre-removal, and instead accelerates.
The pre-removal risk assessment application must be made during the Federal
Court security review process or, should the claimant fail at Federal Court,
it cannot be made at all [section 81(c)].
The Federal Court must suspend certificate review pending pre-removal risk
assessment if requested by the Minister to do so. The Court presumably
also has the power to decline suspension of a certificate review pending
pre-removal risk assessment application if requested by the applicant to
If the Minister makes no suspension request and the Federal Court decides
to uphold the certificate before the Minister decides on the pre-removal
risk assessment application, is the pre-removal risk assessment application
terminated without a decision? Is the person concerned foreclosed,
because of the failure of the Minister to ask for suspension of the Federal
Court proceedings, from obtaining a risk review?
The drafting of the section suggests that there is foreclosure and that the
application is terminated without a decision once the Federal Court decides
to uphold the certificate. Elsewhere in the Act, eligibility criteria
speak to the present. If a person was eligible at the time of application,
but ceases to be eligible at the time of the decision, the person is not
entitled to a decision on the merits and is rejected as ineligible.
However, the government officials have indicated that it is their intention
to maintain eligibility for pre-removal risk assessment even after a Federal
Court decision to uphold the certificate as long as the application was made
before the Federal Court decision. The Bill needs to be amended to
reflect that intention.
If the Minister does ask for a suspension of Federal Court proceedings, there
is a double suspension, first of the eligibility or refugee claim determination
pending the Federal Court certificate review, and then of the Federal Court
certificate review, pending the pre-removal risk assessment [section 79(1)].
A protection determination is suspended for a security/criminality determination.
Then this security/criminality determination is suspended for a protection
determination. Surely it would be simpler to just go ahead and make
the protection determination than to start and stop two other proceedings
before a protection determination can be made. Yet, simplicity seems
the farthest thing from the minds of the drafters of the Bill.
One anomaly of this system, and there are many, is that those caught up in
the security certificate review receive judicial review of a negative protection
decision as of right. They do not require leave. Once a certificate
review procedure is suspended for a protection determination and the determination
comes back negative, the Federal Court has the power, without the granting
of leave, to determine whether the decision on the application for protection
was lawfully made [section 80(1)].
Why should those going through the Federal Court security certificate review
procedure, alone amongst refugee claimants, receive judicial review of negative
protection decisions as of right? Judicial review of negative protection
decisions as of right is welcome. I do not suggest that this provision
be removed. But why do others refused protection not also get access
to the Federal Court as of right?
Furthermore, the Bill requires the Court to review the lawfulness of the
pre-removal risk assessment decision, whether the parties request the review
or not, and whether the pre-removal risk assessment favours the person concerned
or not. The Bill contemplates the review in Federal Court of a pre-removal
risk assessment made by the Minister in favour of the person concerned.
Why would the Government want to require the Court to review its own decision
in favour of the person concerned? Normally Court review requires an
adversarial context. Here, there would be none. Yet, according
to the Bill, the review must proceed.
The Bill, in a number of places says one thing, and Department officials,
in informal conversations, say they mean another. Bill C-31 suffered
from the same problem. Bill C-11 picked up some of the misstatements
in Bill C-31, but created a whole set of new ones. The failure of the
Department to reflect its intentions in two successive drafts is an indicator
all of its own of the complexity of the system devised. That system
has seemed to get the better even of those devising it.
Mostly, this commentary ignores the Department's verbal corrections of Bill
C-11, since the Bill speaks for itself, unless and until it is changed.
However, the statement of the Department that an application for pre-removal
risk assessment remains alive after a Federal Court certificate decision,
despite the wording of the Bill, has to be considered now. Since the
pre-removal risk application is to the Minister, the Departmental view that
the application remains alive after the certificate decision will prevail
no matter what the Bill says.
That Departmental view creates its own anomalies. Access to the Federal
Court, for review of the pre-removal risk assessment, would depend on the
Minister. If the Minister asks for suspension of the Federal Court
certificate procedure to consider the pre-removal risk application or, without
suspension, decides the application before the certificate decision, the
person concerned has the benefit of judicial review, as of right, of a negative
decision on the application. If the Minister declines to ask for suspension
of the Federal Court certificate procedure to consider the pre-removal risk
application and decides the application before the certificate decision,
the person concerned has access to the Federal Court from a negative decision
only with leave of the Federal Court.
Yet, another weakness of the drafters is their failure to anticipate that
the Department would ever lose a case. Not every person who goes through
the certificate procedure will end up inadmissible. The Federal Court
will, presumably, decide in favour of persons concerned, in at least some
cases. Yet, a person who succeeds at Federal Court on the certificate
review may have gone through a pre-removal risk assessment application that
the Minister rejected, and review of that rejection in Federal Court, which
upheld the Ministerial rejection. The person then becomes eligible
to make a refugee claim at the Refugee Protection Division of the Immigration
and Refugee Board.
Those ineligible to make refugee claims are those rejected by the Board,
and not those rejected by the Minister under pre-removal risk assessment
[section 101(1)(b)]. It would be unfair to broaden this provision and
deny eligibility to the Board because of an unfounded security/criminality
allegation. Yet, the system of the Bill is to provide for a pre-removal risk
assessment decision and judicial review of that decision before the refugee
claim is heard by the Refugee Protection Division of the Immigration and
Refugee Board, a curious procedure.
B. Eligibility to make a refugee claim
If the eligibility determination has been suspended before the three days
from arrival are passed, the person goes into eligibility determination after
the certificate review procedure is complete. Yet, this eligibility
determination step is unnecessary.
People ineligible because of war crimes, crimes against humanity or serious
non-political crimes committed before entry can be denied refugee protection
under the Convention exclusion clauses. A person ineligible to make
a refugee claim if the person has been found to be a Convention refugee by
another country, and can be returned to that country can be dealt with under
the Refugee Convention clause excluding from the refugee definition those
having the rights and obligations attached to the possession of nationality
of another country.
People who have committed serious crimes in Canada and are a danger to Canada
and people who are security risks can be removed from Canada even if refugees.
Refugee determination in this case assists in the decision whether
to remove by providing an assessment of the gravity of risk faced on return.
People who have passed through a designated safe third country are ineligible
under the present Act, but no country has ever been designated, for good
reason. None ever should be. Safety should always be determined
on a case by case basis, for every country of return.
People already recognized or refused as refugees can be dealt with through
the doctrine of res judicata. The doctrine of res judicata does not
prevent the examination of new evidence. It does prevent the relitigation
of old issues between the same parties on the same evidence. No tribunal
will hear again a case it has already decided simply because a party requests
People who have withdrawn or abandoned claims can be dealt with through the
doctrine of abuse of process. Again the doctrine of abuse of process
does not prevent reconsideration of a case withdrawn or abandoned if there
is good reason for reinstituting the case. It does prevent coming to
court constantly on a whim.
C. Danger opinion at the refugee claim eligibility stage
The criterion of public danger is less prominent, but does not disappear.
Bill C-11 maintains the public danger label at the eligibility stage for
those convicted of an offence outside Canada [section 101(2)(b)], and removes
it for those convicted of an offence inside Canada.
It is impossible to come to any clear conclusion about the treatment intended
by the Government for those who have committed a crime abroad which if committed
in Canada would be punishable by imprisonment for ten years or more, but
are not convicted. The French and English versions of the Bill say the exact
According to the English version, everyone who is inadmissible as a serious
criminal is also ineligible, with two exceptions specifically described.
According to the French version only two specifically described categories
of inadmissible serious criminals are ineligible. One can see, from
this differing manner of description, that any inadmissible serious criminal
that falls outside the two specific described categories is ineligible according
to the English version and eligible according to the French version.
A person who committed a crime abroad which if committed in Canada would
be punishable by imprisonment by ten years or more, but is not convicted
is an inadmissible serious criminal who falls outside the two specific described
categories. Such a person is, accordingly, ineligible according to
the English version and eligible according to the French version.
The English version produces a strange result. By being ineligible,
a person who committed a crime abroad which if committed in Canada would
be punishable by imprisonment by ten years or more is treated more harshly
than a person convicted abroad who is not a public danger and a person convicted
in Canada who has received a sentence of less than two years.
Why should this be so? Why should a person who has committed a crime
abroad but not been convicted and is not a public danger be ineligible to
make a refugee claim when, for the very same offence, if it had led to a
conviction, the person could make a refugee claim? Why should a person
who has committed a crime abroad which would not receive a sentence of at
least two years be ineligible when the person would be eligible if the crime
had been committed in Canada?
For those convicted of an offence inside Canada, matters are worse rather
than better. One double hurdle for ineligibility, a crime with a high
maximum sentence plus a public danger determination, is replaced by another,
a conviction of a crime with a high maximum sentence and a two year minimum
sentence. Some people with a two year minimum sentence are not public
The public danger opinion requirement on top of the conviction for a serious
crime requirement is like a Frankenstein mask covering the face of Dr. Jekyll/Mr
Hyde. Taking away the Frankenstein mask does not make everything pretty
and nice. All it does is reveal the horrors underneath.
Be that as it may, under the Bill once a person is declared ineligible, the
person goes into a different risk determination stream. Risk determination
is made not by the Refugee Protection Division of the Immigration and Refugee
Board, but through pre-removal risk assessment.
E. Pre-removal risk assessment protection and stays
In another one of its puzzling by ways, the Bill distinguishes between allowing
an application for protection and conferring refugee protection. An
application for refugee protection can be allowed, but refugee protection
denied. When an application for refugee protection is allowed, but
refugee protection denied, the person is granted a stay of the removal order
Those benefitting from pre-removal risk assessment protection are divided
into two groups. The decision to allow the application for protection
made by a member of the first group results in the conferral of refugee protection.
The decision to allow the application for protection made by a member of
the second group does not result in the conferral of refugee protection but
only in staying removal to the country of danger fled.
The certificate system kicks in at the end as well as at the beginning. I
mentioned earlier that, if a person is caught up in the certificate procedure,
the Minister may request the procedure be suspended for a pre-removal risk
assessment [section 79(1)]. As well, if a person goes into pre-removal
risk assessment that is truly pre-removal, he or she may be sent into the
Is it going to be possible to design an organogram of the Bill C-11 system?
If such an organogram is ever devised, it should come with a warning that
any one who looks at it is advised to take Gravol first.
As mentioned, ineligibility to make a refugee claim for a conviction abroad
requires a public danger determination. However, as can be seen, when
a person applies to the Minister for refugee protection under the pre-removal
risk assessment procedure, denial of protection for a crime abroad does not
require a public danger determination.
The Government inserted the public danger determination as a requirement
for a finding of refugee claim ineligibility for crimes abroad because its
absence in the predecessor bill, Bill C-31, generated the "Nelson Mandela"
problem. Many political refugees are convicted abroad, for political
reasons, of common crimes that are also crimes in Canada. The removal
of the public danger hurdle from Bill C-31 meant that all these political
convicts would have, with that Bill, become ineligible to make a refugee
claim. If one looks at the people who could have been victimised if
that proposal had always been Canadian law, it includes not only Nelson Mandela,
but significant elements of virtually all democratic regimes that succeeded
A person convicted abroad on trumped up political charges can get protection
status from the Refugee Protection Division of the Immigration and Refugee
Board but not from the Minister under pre-removal risk assessment.
Having tried, with Bill C-11, to avoid the "Nelson Mandela" trap at the level
of ineligibility, why does the Government fall into it at the level of pre-removal
risk assessment determination of protection? If it is inappropriate
to deny eligibility to a person convicted abroad on trumped up political
charges, it is equally inappropriate to deny such a person protection at
the level of pre-removal risk assessment.
Serious criminality has three components, conviction in Canada, conviction
abroad, and commission of a crime abroad that if committed in Canada would
constitute an offence punishable by ten years imprisonment or more [section
36]. A person who has committed a crime abroad is, at this stage, treated
better than a person convicted abroad of a trumped up political charge.
A person found inadmissible by the Immigration Division of the Immigration
and Refugee Board on the basis that person has committed a crime abroad that
if committed in Canada would constitute an offence punishable by ten years
imprisonment or more is eligible for refugee protection at the stage of pre-removal
risk assessment. A person convicted abroad of a trumped up political
charge is eligible only for a stay of removal, and not refugee protection.
I do not meant to suggest that the public danger procedure should be expanded.
Rather, the whole eligibility step should be dropped.
If the present system is maintained, refugee claimants should do more than
retain a lawyer. They should learn to play Nintendo's Super Mario Brothers
or some other video game to get a sense of the pitfalls and complexity they
F. Public danger and pre-removal risk assessment
Piling fine distinction on fine distinction, the Bill provides that a person
may be in need of protection, yet be denied both protection and an application
for protection. The Bill states for those who fall within the security/criminality
sub-group, an application for protection shall take into account public danger
and national interest factors [section 113(d)]. Presumably what that
means is that the person can be refused both protection and the application
for protection on public danger or national interest grounds, even though
the person is in need of protection.
The Government cannot seem to make up its mind whether to retain or
abandon the public danger criterion. For the three categories of serious
criminals - those convicted inland, those convicted abroad, and those who
have committed an offence abroad but not been convicted - the application
of the public danger criterion escalates as we move through the system.
At the stage of eligibility to make a claim to the Refugee Protection Division
of the Immigration and Refugee Board, the public danger criterion applies
to only one category of serious criminal, those who have been convicted abroad.
At the stage of pre-removal risk assessment, the public danger criterion
applies to two categories of serious criminals, those convicted in Canada
and those convicted abroad, but not to those who have committed a crime abroad
without a conviction [sections 112(3) and 113(d)(i)]. At the stage
of application of the principle of non-refoulement, the public danger criterion
applies to all three categories of persons inadmissible as serious criminals
What about E? One of the exclusion clauses in the Refugee Convention,
Article 1E, provides that the Convention does not apply to a person who has
the rights and obligations attached to nationality in a country of previous
residence. The Bill provides that a person referred to in Article 1E
is not a Convention refugee or a person in need of protection. That
provision is in section 98 of the Bill.
Those who apply for pre-removal risk assessment are assessed according to
different risk criteria, depending on whether they are eligible for protection
or a stay only. Those eligible for protection are assessed according
to the full range of risk criteria, according to sections 96 to 98 of the
Bill [section 113(c)]. Those eligible for stays only are assessed according
to a limited range of risk criteria, according to section 97 only [section
Since Article 1E falls within section 98 and not section 97, Article 1E becomes
irrelevant to whether a stay would be granted. What that means is that
a person could have all the rights of nationality in another country, could
be returned there, would be safe there, and could still benefit from a stay
Why should this be so? In particular, why should it be so only for
those who have done something wrong enough to put them into the stay category,
and not also for those who have done nothing wrong at all? Why does
the Bill here treat wrongdoers better than those who have done nothing wrong?
Presumably this is an unintended consequence. Yet, when a second draft
of a Bill produces unintended consequences, the problem is not just the specific
consequences. It is the structure itself.
When a clock chimes thirteen, one has to wonder not only about the thirteenth
chime, but, as well, all the chimes that preceded it. The drafters
have produced a system that, even after two tries, they cannot conceptualize
in an orderly coherent way. At some point one has to accept that the
problem is not with the drafters or the specific details, but the overall
G. Public danger and removal
The public danger system remains intact for removal to the country of danger
fled. Those subject to stays on grounds of serious criminality can
be removed to the country of danger fled where there is a public danger determination.
Similarly, those subject to stays on grounds of security, violating human
or international rights or organized criminality can be removed to the country
of danger fled where there is a national interest determination, where the
Minister determines that it would be in the national interest to allow return
to the country of danger fled [section 115(2)].
The survival of the public danger system at the eligibility stage and pre-removal
risk assessment, in attenuated form, and at the removal stage, in its present
form is troublesome. Many, if not most, of those labelled public dangers
were not public dangers in the objective sense of likelihood to reoffend.
It is quite common to see people labelled as public dangers under the present
system who have committed only one offence; who have been out on bail before
sentencing on the ground that the courts thought that they were no danger;
who have been granted parole by the National Parole Board on the ground that
they were not dangerous; who were released by immigration adjudicators from
immigration detention on the ground that they were not dangers to the public;
who had completed a succession of rehabilitation programs and accumulated
testimony from penologists and criminologists that they were not dangers
to the community.
The public danger label, rather than a true determination of public danger,
is a form of venting of public anger against foreigners for past crimes.
It is a modern form of forfeiture.
At one time criminals used to forfeit all civic rights as a penalty for their
crimes. Today we consider forfeiture as cruel and inhuman punishment.
It is indeed a form of dehumanization. So we cease to practice it against
our own citizens.
However, we continue to practice it against foreigners, as the public danger
procedure attests. The public danger procedure is a continuing indication
of our inability to accept that foreigners are human beings with basic human
rights. Foreigners who commit crimes with high maximum sentences forfeit
the right to make a refugee claim as well other rights.
Some of the problems of the public danger procedure can be alleviated by
increased due process. The Federal Court has imposed increasing standards
in application of the Baker decision in the Supreme Court of Canada.
There is jurisprudence now in support of disclosure of the Ministerial Opinion
Request (the field report) and the Recommendation for a Danger Opinion (the
headquarters report) with an opportunity to comment before a decision is
made. There is other jurisprudence now in support of the giving of
reasons for a public danger determination.
One has to ask why the Bill proposes dramatically different procedures for
public danger or national interest determinations, on the one hand, and for
certificate review of serious criminality, organized criminality, human or
international rights violations, or security determinations, on the other
hand. For serious criminality, organized criminality, human or international
rights violations, or security determinations, a joint Ministerial certificate
goes automatically to the Federal Court. The Federal Court holds an
oral hearing where live witnesses testify on the substance of the issue.
The person concerned has a right to be heard. There is full disclosure
of the information on which the Government relied to sign the certificate,
subject to considerations of safety and national security. If the judge
comes to the conclusion that the certificate is not reasonable, the certificate
is to be quashed and the issue is at an end.
In contrast, for a public danger or national interest determination, there
is no right of access to the Federal Court, but only the power to ask for
leave to access the Federal Court. If leave is granted, there is no
trial where witnesses are heard, but only a review where oral legal submissions
are made. As just indicated, the Government has taken in Court the
position that there is no duty to disclose the Ministerial Opinion Request
(the field report) and the Recommendation for a Danger Opinion (the headquarters
report) with an opportunity to comment before a decision by the Minister
is made. If the applicant succeeds in Federal Court, the issue goes
back to the Minister for redetermination. The Court does not have the power
to end the public danger/national interest dispute.
H. Application of the principle of non-refoulement
A foreign national recognized as a Convention refugee by another country
to which the foreign national may be returned can not be removed from Canada
to a country where the person would be at risk of persecution for listed
reasons [section 115(1)]. Such a person is not eligible to make a claim
for refugee protection to the Refugee Protection Division of the Immigration
and Refugee Board [section 101(1)(d). The person is eligible to apply
for pre-removal risk assessment, but would not fall within the definition
of person in need of protection in section 97(1) of the Bill. The Bill
allows for expansion of that definition through regulation [section 97(2)]
but presumably that power does not extend to this group, since the Bill,
in section 115(1), identifies this group as distinct from protected persons.
So, risk determination for this group has to be done by some procedure separate
from the Refugee Protection Division procedure and the pre-removal risk assessment
Similarly, it sometimes happens that a person is recognized as a refugee
from one country of nationality and the Government proposes removal to another
country of nationality. There have been in recent years a number of
country fragmentations or dismemberments. The person has been recognized
by Canada as a refugee from the predecessor country. The person is,
nonetheless, returnable to one of the fragments, a fragment in which the
person claims he or she is at risk. The Bill here too [section 115(1)]
prevents return to risk but excludes the person from the definition of person
in need of protection under pre-removal risk assessment.
What is the procedure for risk determination in these circumstances?
The Bill does not say. Rather than devise a third risk determination
procedure, it would be preferable for the risk determination for these two
groups to be done by the existing procedures. Ideally, the Refugee
Protection Division procedure should be used.
A determination of risk in the country that has previously granted protection
takes us beyond the Refugee Convention. Under the Refugee Convention
a person can claim refugee status only from his or her country of nationality,
or, if the person has no country of nationality, from his or her last country
of habitual residence. A person, under the Refugee Convention, cannot
claim protection from a country which has granted the person refugee status
and to which the person can be returned.
The rule of ineligibility for this group under the present Act makes some
sense under the present Act because of the limitation of the Refugee Convention.
If the rule did not exist, the Refugee Division could not deal with the problem
of danger in a country which has granted the person refugee status and to
which the person could be returned. All the Refugee Division could
do is determine the person to be a refugee from the country of nationality
or, if the person had no country of nationality, from the country of habitual
The Refugee Convention clause excluding from the refugee definition those
having the rights and obligations attached to the possession of nationality
of another country is not quite the same as the provision rendering ineligible
those who have Convention refugee status in a country to which the person
can be returned. A person may be a Convention refugee in a country
and returnable to that country but, nonetheless, have a good deal fewer rights
than nationals of that country.
The case of Kroon in the Federal Court Trial Division [Kroon v. M.E.I., IMM-3161-93,
January 6, 1995, McKay J.] appears to suggest that the assessment of whether
a claimant is excluded from the refugee definition on the basis that the
claimant has the rights and obligations attached to the possession of nationality
of another country includes an assessment whether the claimant has a well
founded fear of persecution in that other country. It is arguable that
the ineligibility clause in both the present Act and the Bill C-11 could
be read the same way, that a determination whether a person can be returned
to a country where the person is a Convention refugee includes an assessment
whether the person has a well founded fear of persecution in that country.
However, no court has interpreted the ineligibility provision that way.
In any case, the purpose of an eligibility clause is to determine whether
the person should have a risk assessment and not to make a risk assessment.
Risk assessment should be done by the risk assessors and not the eligibility
The only mechanism under the present Act for dealing with danger in a country
which has granted the person refugee status and to which the person can be
returned is the procedure for executing removal under section 53 of the Act.
Given the fact that the Refugee Division is applying the Refugee Convention
and nothing but, there is a certain logic to this way of doing things.
The logic for the current procedure disappears with the creation of the Refugee
Protection Division of the Immigration and Refugee Board, which has an expanded
risk jurisdiction. Yet, the old procedure remains. The drafters here
seem to have lost sight of the purpose of expanding the jurisdiction of the
Refugee Protection Division of the Immigration and Refugee Board to deal
with the full range of risk issues. There is no particular reason why
this risk issue, risk in a country which has granted the person refugee status
and to which the person can be returned, cannot now be dealt with by the
Refugee Protection Division of the Immigration and Refugee Board.
Removing the ineligibility requirement would allow the person to establish
in Canada the Convention refugee claim already established in another country.
Risk in the country that recognized the person as a refugee and to which
the person could be returned would not be relevant. Presumably, a person
found to be a refugee by another country would also be found to be a refugee
by Canada. The person could then proceed to landing. The problem
of risk in the country that recognized the person as a refugee and to which
the person could be returned would be circumvented rather than addressed.
Yet, it should be addressed. However, to do that, we need an amendment
to the definition of "a person in need of protection" in the Bill.
That definition restricts its scope in the same manner as the Refugee Convention.
A person in need of protection must be a person whose removal to his or her
country of nationality or nationalities, or, if he or she does not have a
country of nationality, his or her country of habitual residence, would subject
the person to danger. If a person becomes eligible without changing
the definition, the substantive refugee claim would end up addressing only
danger in the country of nationality or nationalities, or, if the person
does not have a country of nationality, the country of habitual residence.
The recommendation about eligibility needs a companion recommendation amending
the definition of protection to read as follows, "A person in need of protection
is a foreign national in Canada whose removal to any country to which the
person can be removed would subject them personally....". The new proposed
definition does not have as a restriction that the person has already been
recognized as a refugee by the country to which the person can be removed.
It is appropriate to consider any country to which the person can be removed.
The Bill, unlike the present Act, does not provide for landing of recognized
refugees. Instead, it provides, in section 12(3), that Convention refugees
or persons in similar circumstances may be selected as permanent residents.
The Act further provides for regulations that would set out selection criteria.
A person who is returnable to one country in safety but not another need
not be landed, and the selection criteria could say so.
The principle of non-refoulement, section 115(1), does not apply if the person
is found neither to be a Convention refugee by another country nor a protected
person in need of protection by Canada. A person can be denied protection
under the Bill, as indeed under the present Act, because the person has dual
nationality and is at risk in only one country. However, once denied
protection, there is nothing requiring the person to be returned only to
the country of nationality where the person is not at risk. The law
allows return of the person to the country of nationality where the person
is at risk.
The redraft proposed of section 97(2) deals with this problem by requiring
the Refugee Protection Division to consider risk in all countries to which
a person could be returned. For each country, the Refugee Protection
Division would state that there is risk or no risk on return.
If there is a country to which the person could be returned without risk
and another country to which the person could returned where the person would
face a risk, the Bill would require, with the change proposed, that the person
be returnable only to the risk free country and not to the country of danger.
The change proposed in section 97(2) would accomplish that result without
the need also to change section 115(1).
A comparable problem is the situation where a person is in danger in part,
but not all of the country of nationality. In that situation, the person
need not be offered protection in Canada, but should not be returned to the
part of the country in which the person is in danger. Now nothing stops
that forced return to danger. Indeed, it sometimes happens that a person
is denied protected status in Canada because there is a part of the country
in which the person would be safe, and the person is returned to another
part of the country in which the person is not safe. The Bill needs a prohibition
of return of a person to any part of the country in which the person is not
I. No risk assessment
As problematic as fragmentation of the refugee determination system is, even
more problematic is the situation of those who are unable to squeeze into
any one of the fragments. The pre-removal risk assessment is not available
to all those who cannot seek a determination by the Refugee Protection Division
of the Immigration and Refugee Board. There are six groups who are
ineligible for both refugee determination and pre-removal risk assessment.
One group is those who came to Canada through a designated safe third country.
A second group is those who omitted to make a refugee protection claim before
a removal order was made.
The Bill makes a distinction between a claim for refugee protection and an
application for refugee protection. A claim for refugee protection
is made to the Refugee Protection Division of the Immigration and Refugee
Board. An application for refugee protection is made to the Minister
under the pre-removal risk assessment procedure. A person under a removal
order cannot make a claim for refugee protection [section 99(3)]. Nor
can such a person make an application for refugee protection where "the prescribed
period has not expired" [section 112(2)(c)].
The third group is those determined to be ineligible. A removal order
comes into force after a determination of ineligibility [section 49(2)(a)
A fourth group is those who have abandoned or withdrawn their claims before
the Refugee Protection Division of the Immigration and Refugee Board.
A removal order also comes into force after notification of withdrawal or
abandonment [section 49(2)(d)].
The fifth group are all those who either
a) were rejected as refugees,
b) were found ineligible to make a claim,
c) abandoned a claim or
d) withdrew a claim,
and who they have left Canada and then returned. People in this fifth
group cannot apply for pre-removal risk assessment, where the return is within
six months of the departure.
There are many situations where risk review that is excluded would be essential.
For instance, a person may withdraw a refugee claim in order to go back home
to visit surreptitiously a dying parent. The parents dies and the person
returns to Canada.
To take another example, a refugee claim is rejected and the person is returned
home. Within six months, there is a coup and the person is thrown into
danger that did not exist before. The person flees to Canada a second
As a third example, a person marries an American and withdraws his Canadian
claim to go to the US. However, the relationship collapses and the
person returns to Canada.
In each of these cases, if the person returns to Canada within six months,
there should be some form of risk review available before removal.
The Bill provides none.
The sixth group denied any form of risk assessment is those whose refugee
determinations are vacated. Once a refugee claim is vacated, the claim
is deemed to be rejected, presumably as of the date of the vacating [section
109(3)]. A person who makes an application under the pre-removal risk
assessment procedure may present only new evidence that arose after or was
not reasonably available at the time of the rejection [section 113(b)].
The Bill does not allow for consideration by anyone anywhere of evidence
or risk that arises between the original refugee recognition and the subsequent
This problem could be solved by having the deeming provision in the vacating
section state that rejection is deemed to be as of the date of the original
decision. However, that solution would create another problem, that
the date to apply in Federal Court for judicial review would have long passed
before the actual decision was made. The more obvious solution would
be to allow evidence to be admitted at the vacating hearing about the danger
the person concerned faces at the time of the hearing.
J. Humanitarian applications
When all else fails, a person can still make a humanitarian application.
The Bill gives the Minister power to allow a person to stay on humanitarian
grounds [section 25]. Presumably humanitarian applications with a risk
component would be referred to pre-removal risk assessment officers for their
advice just as today's humanitarian applications with a risk component are
referred to post claims determination officers for their advice.
However, whether the possibility of a risk assessment through a humanitarian
application would remain once the present Bill becomes law is not altogether
clear. The Bill gives a regulatory power to limit the eligibility for
humanitarian applications and the scope of those applications once made [section
26]. The Explanation of Proposed Regulations has said nothing about
how this regulatory power would be exercised. Various immigration officials
have nonetheless been heard to mutter that this power would be used to prevent
humanitarian applications being used to consider risk on return.
K. Judicial Stays
The Bill maintains the stay problem that exists in the present system.
Once a person has to resort to a humanitarian application to get a risk
assessment, the person must apply for a judicial stay of execution of a removal
order to remain in Canada pending determination of this humanitarian application.
There is not much sense in seeking protection in Canada if your efforts are
being made after you have already been returned by Canada to the country
of danger fled.
The present law, as mentioned, provides, as a general rule, for statutory
stays of execution of removal orders pending determination of applications
before the Federal Court. The Bill does not. The Department
has indicated, in its Explanation of Proposed Regulations, that it intends
a regulatory stay that parallels the present statutory stay. However,
it also has indicated that this regulatory stay is subject to a two year
sunset clause to allow for further consideration once the Refugee Appeal
Division has established a record of decisions.
As if the system were not complex enough already, the Bill asks Parliament
to give the Government the power to add one more step, application for judicial
stays. When and if the Government uses the power given by the Bill
to remove regulatory stays, some of those caught up the system, on top of
everything else, will have to apply for a judicial stay of execution of a
removal order to remain in Canada pending an application for leave and judicial
review of a negative refugee determination by the Refugee Appeal Division
of the Immigration and Refugee Board.
At present, a person subject to extradition proceedings can make a refugee
claim. The Bill proposes to change that. Any claim that is made
is suspended during extradition proceedings. If a person is ordered
surrendered, the order of surrender is deemed to be a rejection of the claim
for refugee projection [section 105].
The Extradition Act provides that the Minister of Justice must refuse to
make a surrender order in three specific situations. One is that the
surrender would be unjust or oppressive. The second is that the request
for extradition is made for the purpose of prosecuting or punishing the person
by reason of their group identity or status. The third is that the
person's position may be prejudiced by reason of their group identity or
status [section 44(1)].
The Refugee Protection Division of the Immigration and Refugee Board is eminently
qualified to advise the Minister of Justice whether or not a situation has
arisen where the Minister must refuse surrender. However, the Board
cannot give this advice. The Extradition Act provides for no risk determination
procedure. The Immigration Act says that none of the procedure set
up there apply. So, we have a standard without a procedure. The procedure
that is in place for applying the standard is not allowed to do its work.
The extradition provision has a second flaw, failure to have regard to the
consequences of the trial abroad. Again, here the drafters fail to
have regard to the possibility that the person concerned might succeed.
Suppose a person is extradited for trial abroad, and then acquitted, say
on the ground of mistaken identity. Why should that person still suffer
Canadian Immigration Act consequences?
Once a person has been acquitted abroad for the offence for which the person
was extradited from Canada, the extradition should cease to have Immigration
Act consequences. The only exception should be an acquittal resulting
from proceedings abroad undertaken for the purpose of shielding the person
concerned from criminal responsibility for crimes for which the person was
extradited or surrendered, or that otherwise were not conducted independently
or impartially in accordance with the norms of due process recognized by
international law and were conducted in a manner which, in the circumstances,
was inconsistent with an intent to bring the person concerned to justice
[See Statute of the International Criminal Court article 20(3)].
M. Steps summary
It is difficult to set out sequentially the steps for refugee determination
in Bill C-11 because of its loops and feedbacks, its snakes and ladders.
These steps nonetheless seem to be these:
1. Eligibility determination or suspension of eligibility determination for
2. Suspension of refugee claim determination for admissibility determination.
3. Admissibility determination by an adjudicator or the Minister and
the Solicitor General through issuance of a certificate.
4. Commencement of Federal Court review of the Ministerial certificate.
5. Suspension of Federal Court review for pre-removal risk assessment.
6. Resumption of Federal Court review of the Ministerial certificate and
the pre-removal risk assessment decision.
7. Resumption of the eligibility or claim determination.
8. Claim determination by the Refugee Protection Division of the Immigration
and Refugee Board.
9. Claim determination by the Refugee Appeal Division of the Immigration
and Refugee Board.
10. Eligibility determination for pre-removal risk assessment.
11. Decision on the application for pre-removal risk assessment.
12. Public danger or national interest determination (This determination
may have been made at the time of determining eligibility to make a refugee
claim to the Refugee Protection Division of the Immigration and Refugee Board
or at the time of determining the merits of a pre-removal risk assessment
13. Determination of the applicability of the principle of non-refoulement.
14. Application to the Minister for humanitarian and compassionate consideration.
15. Application to Federal Court for a stay of execution of the removal order.
The Honourable Lucienne Robillard, when she was Minister of Citizenship and
Immigration, initiated the current reform proces. She appointed a legislative
review advisory group and then responded to their report. Her response,
titled "New Directions for Immigration and Refugee Policy and Legislation",
came out in 1998. In that response, she wrote: "No comprehensive review
of the legislation has been udertaken durng the past two decade. The
Act has been amended on an ad hoc basis, more than 30 times, resulting in
a complex patchwork of legislative provisions that lack coherence and transparency.
The logic and key principles of the Act have become difficult to discern
for both immigrants and Canadians....More piecemeal changes would only compound
the current problem [page 3]."
A complex patchwork that lacks coherence and transperency, legislation whose
logic and key principles are difficult to discern, these are descriptions
that fit the refugee component of the present Bill. The drafters of
the Bill have lost sight of the purpose of the present reform. Even
though the changes, this time, are comprehensive and not piecemeal, the Bill,
all the same, manages to compound the current problem rather than resolve
N. Overseas determination
The Bill, like all its predecessors, does little to address the connection
between the refugee determination overseas and refugee determination in Canada.
Indeed, the Bill, although it provides a common definition for refugee protection,
puts claimants outside Canada through the procedures and provisions of Part
I of the Act dealing with immigrants and not through Part II of the Act dealing
The Bill increases the variations between inland and overseas determinations
by adding an appeal to the inland determination. While that addition
is welcome, it makes the absence of any internal appeal or review of a negative
visa office decision even more glaring. It makes even more dramatic
the incentive the system gives to all claimants to come to Canada to get
a fair refugee determination.
The Departmental Explanation of Proposed Regulations states that the Government
intends to relax the criteria for determining successful establishment.
While that is welcome, there is no criterion of successful establishment
for those arrive in Canada to make a claim. As long as the criterion
of successful establishment exists, even in relaxed form, it will create
an incentive for claimants to come to Canada.
1. The ineligibility step before refugee determination should be abolished.
Everyone in Canada should be eligible to make a refugee claim.
The eligibility step is unnecessary for most claimants, since most claimants
are eligible. The step just takes up time and money. Bill C-11
provides that a person not determined eligible within three days of arrival
is deemed eligible, subject to subsequent pull back. Why wait three
days? Why not just deem everyone eligible from the moment the person
makes a claim, subject to subsequent pull back?
2. The power to suspend an eligibility determination, to suspend a
refugee determination while ineligibility allegations are decided and to
determine ineligible a claim previously found eligible also be abolished.
Every consideration relevant to eligibility can be decided through the refugee
claim determination procedure.
3. The pre-removal risk assessment procedure should be abolished, and replaced
by a re-opening jurisdiction in the Refugee Protection Division of the Immigration
and Refugee Board paralleling the existing re-opening jurisdiction of the
Appeal Division of the Immigration and Refugee Board (and not the re-opening
jurisdiction proposed for the Immigration Appeal Division by section 71 of
the Bill). That is to say, there should be a power to reopen, on application,
where there is a change of circumstances in the country of claim, new evidence
in support of the claim or old evidence not previously available.
4. It should not be necessary to apply to the Federal Court for a discretionary
stay of execution of the removal order where a person is seeking his or her
one and only risk review through a humanitarian application.
5. A person going through extradition proceedings should be eligible to make
a refugee claim.
6. There should be a right to counsel at port of entry refugee interviews.
7. As long as pre-removal risk assessment remains, the Bill should require
an oral hearing under this procedure, at the very least, for those who had
no oral hearing from the Refugee Protection Division of the Immigration and
8. Even if the pre-removal risk assessment remains and considers change of
country conditions, the Bill should allow a reopening jurisdiction in the
Board to consider new evidence or old evidence not previously available.
It is difficult for an instance that has not made the original determination
to decide whether or not new evidence or old evidence not previously available
would change that determination.
9. In order to ensure a refugee determination procedure that brings to its
task no bias, or reasonable apprehension of bias, the Bill should legislate
a transparent, professional and accountable selection procedure for members
of the Immigration and Refugee Board.
10. The Bill does not allow appeals from a decision on abandonment [section
110(2)]. The Bill should allow for appeals from abandonment decisions.
Abandonment can be hotly contested. A claimant may not show up for
a prior hearing because he or she never received notice of the hearing.
The Board must then decide whether what the claimant did to maintain contact
with the Board in order to receive notice was reasonable in the circumstances.
An appeal from a contested abandonment decision where risk is at issue, is
as appropriate as an appeal from the risk decision itself.
11. A person should be allowed to make a refugee claim whether the person
is under a removal order or not. The Bill now prohibits such a claim
[section 99(3)], as does the present Act. The Bill allows for such a person
to apply for pre-removal risk assessment only after a designated period [section
112(2)(c)]. Often whether such a claim is made or not depends on the
person's awareness of his or rights at the time of removal proceedings.
A removal order can be made on arrival, at the port of entry, before the
claimant has had access to counsel. The denial of substantive rights
should not depend on procedural vagaries.
12. A person subject to vacating proceedings should be allowed to submit
evidence which arose or was not reasonable available at the time of the original
hearing that the person is in need of protection.
13. A person subject to a public danger or national interest determination
should have access to the Federal Court as of right. The Court should
hold a hearing where the person concerned has a right to be heard.
The Court should be able to quash the public danger or national interest
determination where the judge is of the opinion that it is not reasonable.
14. All negative protection decisions should be reviewable by the Federal
Court as of right. There should be no leave requirement.
15. Once a person has been acquitted abroad for the offence for which the
person was extradited from Canada, the extradition should cease to have Immigration
Act consequences. The only exception should be an acquittal resulting
from proceedings abroad undertaken for the purpose of shielding the person
concerned from criminal responsibility for crimes for which the person was
extradited or surrendered, or that otherwise were not conducted independently
or impartially in accordance with the norms of due process recognized by
international law and were conducted in a manner which, in the circumstances,
was inconsistent with an intent to bring the person concerned to justice.
C. Compliance with international law
16. As long as the eligibility stage remains, and the pre-removal risk assessment
stage remains, everyone who is ineligible for consideration by the Refugee
Protection Division of the Immigration and Refugee Board should be eligible
for consideration under the pre-removal risk assessment procedure.
No one at risk should be removed from Canada without assessment of that risk.
17. The definition of risk should be amended to delete the phrase "the risk
would be faced by the foreign national in every part of that country and
is not faced generally by other individuals in or from that country" [section
97(1)(b)(ii)]. The Bill in Part I, Division 5 on "Loss of Status and
Removal" gives a regulatory power to allow stays of removals. This
power could be used to allow stays of removals of nationals to designated
countries [section 53(d)]. This power now exists by regulation [Regulation
27(1)(b)]. The power can be used to prevent removal to generalized risk,
and has, in fact, been used for that purpose over the years.
However, the risk may not be so general as to put everyone at risk, but general
enough to be faced "generally by other individuals in or from that country",
that is to say those similarly situate to the claimant. As well,
the Ministerial suspension of removals, because it is not based on the application
of individuals may be unresponsive to the testimony that individual refugee
claimants have to give.
18. For generalized risk, in addition to gaps in protection coverage, there
are failings in due process. The present power to prevent removal to
generalized risk has been exercised in an opaque and arbitrary fashion, behind
closed doors. Individuals are faced with a decision which they do not
request and to which they do not contribute.
There needs to be an open and fair procedure to invoke the power to prevent
removal to generalized risk. This procedure should be part of the refugee
protection determination process. Every claimant should be able to
request a determination that the risk the person faces would be faced by
the person in every part of that country and is faced generally by other
individuals in or from that country.
19. The definition of protection should read: "A person in need of protection
is a foreign national in Canada whose removal to any country to which the
person can be removed would subject them personally....".
20. Where a person is at risk in one part of a country of removal and not
another, there should be a prohibition on removal to the part of a country
in which the person concerned would be at risk.
21. The Bill should prohibit the removal of anyone to torture, arbitrary
execution, or disappearances. As mentioned earlier, international law
prohibits such removal. At present the Bill prohibits the removal to
danger of those conferred protection, but with exceptions for criminality
or security [section 115(2)].
D. Integration with the system overseas
22. Refugee determinations overseas should be done by the Refugee Protection
Division of the Immigration and Refugee Board, using the same procedures
as in Canada.
23. Even if visa post determinations are done, as now, by visa officers,
visa officer determinations should be done in a manner that approximates
more closely the procedure in Canada. In particular, the Bill should
recognize that, for visa post refugee determinations, there is a right to
c) full disclosure
d) reasons, and
e) internal review of a negative decision on request.
David Matas is a lawyer in private practice in Winnipeg, Manitoba.