Bill C-31 - What it means |
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REFUGEE DETERMINATION: ELIGIBILITY
(Sections 94-96)
As is currently the case, not everyone who wants to make a refugee claim
will be heard: only those found eligible by Citizenship and Immigration
Canada (CIC). The bill however enlarges the categories of people whose
claims will be found ineligible (i.e. will not be referred for a hearing
to the Immigration and Refugee Board).
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Second claims: Anyone who has ever before made a refugee claim in
Canada will be ineligible to make a new claim. This covers people whose
first claim was refused, abandoned, withdrawn, accepted and found ineligible.
No matter how many years have passed and no matter how much the person's
situation has changed or the circumstances in the country of origin have
changed, the person will not be heard by the Immigration and Refugee Board.
This is an extremely significant change that is inconsistent with Canada's
obligations not to send refugees back to persecution.
The only recourse offered under the bill is a Pre-removal Risk Assessment
and this is only open to claimants who have been outside Canada for at
least a year since their first claim. The Pre-removal Risk Assessment
offers very much less protection than a refugee claim: applicants have
no right to an oral hearing or to an appeal, and the decision is made by
immigration officials, rather than the Immigration and Refugee Board.
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Serious criminality: Claims will be ineligible if the claimants
have been (a) convicted in Canada of a crime punishable by a maximum of
at least 10 years imprisonment, and for which a sentence of 2 years was
imposed; or (b) convicted outside Canada of a crime that would in Canada
be punishable by a maximum of at least 10 years. (Note that being convicted
in another country of using a document to enter the country illegally would
make the person criminally ineligible.)
Currently, claimants are ineligible on grounds of criminality only if the
Minister issues a "danger to the public" certificate. Even the current
restriction is out of line with international standards, since the allegations
of criminality should be considered in the context of a refugee hearing,
where the crimes committed can be weighed against the threat of persecution.
The automatic exclusion of people convicted of crimes outside Canada
is particularly dangerous for refugees. The criminal justice system is
often used as a mechanism of persecution. Not infrequently, people who
are being persecuted are convicted on the basis of trumped up charges for
crimes that they have not in fact committed. Under the proposed system,
such people will have no opportunity to show that they were wrongly convicted.
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The bill provides for automatic referral of claims if Citizenship
and Immigration Canada has not made an eligibility decision within a period
specified in the Regulations (the government is suggesting 3 days). This
measure will reduce delays in the system (sometimes claimants wait months
to have their claim referred). Note, however, that even after the 3 days
are past, CIC will be able to determine the claim ineligible and stop the
person's hearing before the Immigration and Refugee Board.