United Nations High Commissioner For Refugees
 
 

____________________________________________
 
 
 
 

Comments on

Not Just Numbers: A Canadian Framework for Future Immigration

Report of the Immigration Legislative Review Advisory Group
 
 

__________________________________________
 
 
 

March 1998
 
 
 

CONTENTS



INTRODUCTION

COMMENTS

1. ACCESS TO REFUGEE STATUS DETERMINATION PROCEDURES

a. Carrier Sanctions 2

Recommendations 147 & 148

b. Reporting and Filing Deadlines

Recommendation 101

c. Providing "All Necessary Facilities"

Recommendation 102

d. "Safe Third Country"

Recommendations 95 & 96

e. Eligibility for Status Determination

Recommendation 97

(i) The Place of Exclusion in Status Determination

(ii) Eligibility Criteria for Status Determination

(iii) Applicable Standard of Proof

(iv) Danger to the Public

Recommendation 164

(v) Review of Ineligibility Decisions

(vi) Prior Negative Decisions as a Bar

Recommendation 98

2. TREATMENT PENDING STATUS DETERMINATION

a. Provisional Status

Recommendations 103 & 121

b. Conditions for Provisional Status

Recommendations 120 & 122

c. Cooperation as a Condition

Recommendation 122

d. Criminality and Security Checks

Recommendation 99

e. Detention of Asylum Seekers

Recommendations 120 &124

(i) Legal Aspects of Detention

Recommendation 165

(ii) Detention Conditions

3. STATUS DETERMINATION PROCEDURES

Recommendation 94

a. Administrative versus Quasi-Judicial Mechanisms

Recommendations 84 & 85

b. Time Frame for Determinations

Recommendations 105, 107 & 118

c. Acceptance without Interview

Recommendation 106

d. Pending Claims before the IRB

Recommendation 119

4. CRITERIA FOR PROTECTION

Recommendation 87

a. Preserving the Separate Identity of Refugees

b. Criteria for Protection Overseas

Recommendations 82 & 87

(i) "Most in Need of Protection"

Recommendation 89

(ii) UNHCR’s Priorities for Resettlement

(iii) Urgent Cases

Recommendation 93

(iv) Prospects for Integration

Recommendation 88

(v) The Importance of Timely Processing

Recommendations 22, 92 & 117

5. APPEAL FROM A NEGATIVE DETERMINATION

a. Reconsideration of Negative Refugee Status Decisions

Recommendations 108 & 157

b. Review of "Cessation" Decisions

Recommendations 110 & through 112

(i) Consistent Use of Terminology

(ii) The Right to Appeal

Recommendations 112 & 163

(iii) Limitations on "Cessation"

Recommendation 112

c. Risk of Return Review

Recommendation 152

6. STATUS AND RIGHTS OF RECOGNISED REFUGEES

a. The Landing Process

Recommendations 35 & 113 through 116

b. Family Reunification

Recommendations 32 through 34, 37, 40 & 109

c. Travel Documents

7. UNHCR’S ROLE IN REFUGEE PROTECTION IN CANADA

Recommendation 86

CONCLUSION
 
 


INTRODUCTION




The Office of the United Nations High Commissioner for Refugees (UNHCR) welcomes this opportunity to comment upon the report of the Immigration Legislative Review Advisory Group, Not Just Numbers: A Canadian Framework for Future Immigration. The Minister of Citizenship and Immigration of Canada, the Honourable Lucienne Robillard, appointed the Advisory Group to conduct an independent review of Canada’s Immigration Act. UNHCR recognises that the views and recommendations set forth in the report are solely those of the Advisory Group and do not necessarily reflect those of the Minister or the Government of Canada. The Advisory Group’s report, nevertheless, will serve as a significant point of departure for the Government’s review and evaluation of the laws, institutions and policies that govern immigration to Canada, including the protection of refugees.

UNHCR appreciates the fact that its comments have been sought at this early stage in the legislative review process. The High Commissioner has been mandated by the United Nations General Assembly to ensure the international protection of refugees and to assist governments in identifying and implementing durable solutions for them. Canada is a signatory to the 1951 United Nations Convention Relating to the Status of Refugees (the "1951 Convention") and its 1967 Protocol. Under the 1951 Convention, State parties undertake to cooperate with UNHCR in the exercise of its functions and to facilitate its duty of supervising the application of the Convention and Protocol. Allowing UNHCR to provide its views on the Advisory Group report is consistent with this undertaking and also reflects the strong cooperation that Canada has extended to the High Commissioner in refugee protection matters world-wide.
 
 

COMMENTS

The Minister mandated the Advisory Group to examine the full range of Canada’s immigration objectives and the legislation and policies designed to achieve them. The Advisory Group’s recommendations extend to virtually every aspect of the Immigration Act and include proposals for major changes in Canada’s approach to refugee protection. UNHCR’s interest in the Immigration Legislative Review process derives from the High Commissioner’s mandate and, thus, is limited to those aspects of the report that directly or indirectly concern refugees. These comments measure the Advisory Group’s recommendations against the international protection standards and the "best practices" followed by States and UNHCR globally.

UNHCR wishes at the outset of these comments acknowledge and welcome the many positive aspects of the Advisory Group report. In particular, UNHCR would endorse the Advisory Group’s basic message that protection and immigration are separate issues that should be governed by different considerations. UNHCR also understands the Government’s interest in ensuring that the resources invested in refugee protection mechanisms yield both fairness and efficiency, while keeping abuse to a minimum. UNHCR would wish to note, however, that the Canadian system, with its resources, expertise and humanitarian focus, is recognised internationally as a model to be emulated.

UNHCR’s more detailed comments on the report are presented in the order in which the Advisory Group’s recommendations might relate to a refugee seeking protection in Canada: (1) access to refugee status determination procedures, (2) treatment pending status determination, (3) status determination procedures, (4) criteria for protection, (5) appeal from a negative determination, and (6) the status and rights of recognised refugees. (A cross-reference key to the Advisory Group’s specific recommendations is attached to these comments as an annex.) A final section considers UNHCR’s role in relation to the Canadian refugee status determination system.

1. ACCESS TO REFUGEE STATUS DETERMINATION PROCEDURES

Access to status determination procedures is fundamental to the proper functioning of the international regime for the protection of refugees. While the 1951 Convention and 1967 Protocol do not expressly address the issue, the necessity of establishing national procedures for the determination of refugee status follows from the foundation elements of the international refugee law regime: the "refugee" definition, the obligation not to expel or return ("refouler") refugees to the frontiers of territories where their lives or freedom would be threatened, and the status and rights that accrue to refugees on the territory of a Contracting State. UNHCR encourages States to analyse carefully and, where possible, remove the practical and procedural barriers that asylum-seekers may face in their efforts to access to status determination procedures.

a. Carrier Sanctions

The Advisory Group recommends that transportation companies continue to be liable for the costs associated with the detention and removal of improperly documented passengers they have brought to Canada. (Recommendations 147 & 148) Without condoning document forgery or discounting the difficulties States are facing in controlling irregular migration, UNHCR would note that refugees often carry the same false documents as irregular migrants or no documents at all. Thus, UNHCR considers that transportation companies carrying asylum-seekers who have at least a prima facie claim to refugee status should be exempted from such sanctions.

b. Reporting and Filing Deadlines

To ensure timely processing of refugee claims, the Advisory Group recommends the imposition of stringent time limits for claimants to report to the proposed Protection Agency (three days) and to submit their claim for protection (ten days). (Recommendation 101) UNHCR recognises that States have a legitimate interest in strengthening the refugee status determination process and ensuring that it reaches decisions expeditiously. This is also in the interest of the refugee. UNHCR considers that the proposed time limits would prove to be unworkable in practice and hopes that careful consideration would be given to their potential impact on asylum-seekers.

The consequences for claimants who do not meet these deadlines are not specified, although the Advisory Group allows that extensions would be possible due to a change in circumstances. (Recommendation 101) UNHCR would recommend that the rules of procedure afford decision-makers the discretion to assess whether an asylum-seeker has established reasonable grounds for submitting a claim out of time. The passage of time does not alter the fundamental obligation of non-refoulement under the 1951 Convention. The UNHCR Executive Committee has observed that the failure to submit an application within a certain time limits "should not lead to an asylum request being excluded from consideration." Conclusions on the International Protection of Refugees adopted by the Executive Committee of the UNHCR Programme, No. 15 (XXX) (1979) ["EXCOM Conclusions"].

UNHCR would stress that the preparation and submission of a claim to refugee status may not be possible within such tight time constraints. Asylum-seekers may not be aware of or able to comply with the proposed time limits for a variety of legitimate reasons, including a lack of information and language barriers. Claimants also must have the possibility to assemble supporting documentation, including materials forwarded to them covertly from their country of origin. Moreover, survivors of persecution at the hands of government officials may have a residual fear or mistrust of government officials in the days immediately following flight. In particular, individuals who have been subjected to torture and sexual abuse frequently are psychologically and emotionally unprepared to relate their traumatic experiences to strangers in an official setting, without appropriate professional help and counselling. Subsequent additions to a claim detailing serious incidents of persecution may be disregarded by the decision-maker as lacking credibility.

UNHCR would also point out that, if the time periods recommended by the Advisory Group begin to run upon the asylum-seeker’s entry to Canada, claims arising from subsequent events in the country of origin might not be considered, as in the case of a refugee sur place.

c. Providing "All Necessary Facilities"

The Advisory Group recommends that "[o]n submission of a completed protection claim, the claimant should be given access to NGOs, legal counsel and competent interpreters, and assistance with arranging shelter, medical examinations, and applications for social assistance." (page 92) The Advisory Group’s objective in delaying access to such essential services until after submission of the completed protection claim is not clear. Refugee status determination is a complex legal and factual inquiry. Most asylum seekers will need advice from legal counsel or trained refugee advocates in preparing their claim, particularly in a country having a highly-developed legal system such as Canada. In this regard, the UNHCR Executive Committee has called upon States to provide asylum-seekers with access to "the necessary guidance as to the procedure to be followed" and "the necessary facilities, including the services of a competent interpreter, for submitting his case to the authorities concerned." EXCOM Conclusion No. 8 (XXVIII) (1977). The Advisory Group elsewhere recommends comprehensive assistance be made available to protection claimants at the port of entry. (Recommendation 102) UNHCR would recommend that such assistance be provided without delay, in order to assist asylum-seekers in preparing their protection claims. Asylum-seekers should also be provided, of course, with the opportunity to contact UNHCR.

d. "Safe Third Country"

The Advisory Group recommends that the "safe third country" provision in the Canadian Immigration Act be implemented by regulation, in order to prevent Canada from becoming a "repository" for asylum-seekers frustrated in their efforts to gain access to refugee status determination procedures elsewhere. (Recommendations 95 & 96) The UNHCR Executive Committee has counselled States that "[t]he intentions of the asylum-seeker as regards the country in which he wishes to request asylum should as far as possible be taken into account." EXCOM Conclusion No. 15 (XXX) (1979). UNHCR nevertheless considers that States may legitimately establish mechanisms designed to allocate responsibility for examining asylum claims, provided that the procedures incorporate adequate safeguards.

UNHCR’s principle concern is that refugees receive protection somewhere and that the responsibility sharing arrangements do not lead directly or indirectly to refoulement. The Advisory Group’s report recommends that the Minister be guided in prescribing a country as "safe" that are essentially the same as those advocated by UNHCR, including:

A State returning a particular asylum-seeker on the basis of a "safe third country" provision also should inform the receiving State of the reason why the individual is being returned, in order to ensure that his or her asylum claim will receive due consideration. UNHCR would agree with the Advisory Group that the conclusion of formal agreements between States may be necessary to ensure that "safe third country" provisions operate consistently with the principles of international protection. UNHCR would urge that consideration be given to formally incorporating these safeguards into any regulations promulgated to implement the Immigration Act’s "safe third country" provision.

e. Eligibility for Status Determination

The Advisory Group recommends that the Protection Agency be given immediate jurisdiction over all protection claims. (Recommendation 97) Protection Officers would be responsible for determining whether an individual is eligible for access to the status determination procedures, except where the applicant arrives in Canada from a "safe third country" or within the year after having been found not to be in need of protection. As discussed further below, UNHCR would recommend that the proposed Protection Agency also have jurisdiction where previously rejected claimants seek to reopen their claims on the basis of new information or more recent developments in the country of origin.

UNHCR concurs that the agency responsibility for refugee status determination is best positioned to rule on these questions. Under the present ImmigrationAct, a finding of ineligibility may be based upon, inter alia, "reasonable grounds to believe" that a person has committed serious criminal acts outside of Canada, war crimes or crimes against humanity. Similarly, the 1951 Convention excludes from its protection persons for whom there are "serious reasons for considering" that they have committed a crime against peace, a war crime, a crime against humanity, a serious non-political crime outside the country of refuge and prior to his admission or is guilty of acts contrary to the purposes and principles of the United Nations. The 1951 Convention’s exclusion clauses relate to acts of a very serious nature, and such issues should in every case be examined by officials trained in refugee law.

(i) The Place of Exclusion in Status Determination

UNHCR would suggest taking the further step of merging certain issues now treated as questions of eligibility into the refugee status determination process itself. Exclusion is the most extreme sanction in international refugee law. As with any exception in human rights law, exclusion must be applied restrictively and with due regard to the potentially grave consequences that may follow. UNHCR considers that examining the question of exclusion during refugee status determination, rather than as a threshold inquiry, permits the decision-maker to properly consider all relevant factors, including mitigating circumstances. In the context of exclusion for criminality, for example, UNHCR has stated:

[I]t is also necessary to strike a balance between the nature of the offence presumed to have been committed by the applicant and the degree of persecution feared. If a person has a well-founded fear of very severe persecution, e.g., persecution endangering his life or freedom, a crime must be very grave in order to exclude him. UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status 37 (1992 Edition) ("UNHCR Handbook"). Asylum-seekers should be given every opportunity to fully explain the grounds of their claims. UNHCR considers that the requirements of fairness and due process are best fulfilled when the 1951 Convention’s inclusion clauses (i.e., the "refugee" definition) are applied to a claim before consideration of the exclusion aspects.

(ii) Eligibility Criteria for Status Determination

The Advisory Group proposes to maintain the eligibility criteria set forth in the Immigration Act. (page 90) In addition to merging certain aspects of the eligibility question into the refugee status determination process, UNHCR would also suggest clarifying some of the eligibility criteria that are inconsistent with the broadly accepted international doctrine on exclusion. For example, the present Immigration Act provides that persons who were senior officials in the service of a government that has engaged in terrorism, systematic or gross human rights violations, war crimes or crimes against humanity are ineligible for refugee status determination. UNHCR would agree that senior officials of repressive regimes may indeed be excludable, either because of their own actions or due to complicity in acts committed by others. Exclusion, however, must be an individualised determination and not based solely upon status or "guilt by association." UNHCR has similar concerns about the provisions rendering members of terrorist organisations ineligible for status determination, as membership per se in such an organisation should not be a decisive or sufficient cause for excluding a person from refugee status. Moreover, UNHCR would note the absence of any international consensus on the definition of terrorism or criteria for designating terrorist organisations. While fully supporting Canada’s efforts to identify and exclude war criminals

and other individuals who are undeserving of international protection, UNHCR considers that the concept of individual responsibility should be reflected in legislative provisions governing exclusion.

(iii) Applicable Standard of Proof

UNHCR considers that the legislative review process may provide a useful opportunity to harmonise the standards of proof contained in the Immigration Act with those of the 1951 Convention. While the distinction between "reasonable grounds to believe" and "serious reasons for considering" may appear slight, UNHCR would prefer to see the language of the 1951 Convention utilised, in order to avoid any argument or implication that exclusion under Canadian law is governed by a lower or different standard of proof.

(iv) Danger to the Public

The Advisory Group proposes that the determination of ineligibility on the basis of criminality remain a two-stage process. The proposed Protection Agency would first be required find reasonable grounds to believe that the individual concerned had committed a serious criminal offence, as defined in the relevant section of the Immigration Act. The Minister of Citizenship and Immigration would also have to be of the opinion that the individual in question "constitutes a danger to the public in Canada". The Advisory Group recommends that the criteria governing the Minister’s opinion that an individual is a danger to the public be established by regulation, rather than by administrative memorandum, as is currently the practice. (Recommendation 164) UNHCR would encourage such efforts to increase the transparency of the applicable criteria.

(v) Review of Ineligibility Decisions

As noted above, UNHCR considers that substantive aspects of the present eligibility process should be fully absorbed into the refugee status determination procedures. If eligibility is retained as a separate question, UNHCR would urge that asylum-seekers found to be ineligible for refugee status determination be afforded a right of appeal, in recognition of the grave consequences that may follow an erroneous decision.

(vi) Prior Negative Status Determination as a Bar

The Immigration Act also presently provides that an individual who has been denied Convention refugee status since last coming to Canada is ineligible to make another claim. A rejected asylum-seeker who leaves Canada for fewer than ninety days is also barred from reapplying for refugee status upon his or her return. The Advisory Group recommends extending this period from ninety days to one year. (Recommendation 98) UNHCR is sensitive to the burden imposed by repeat claims; however, the criteria for access to refugee status determination procedures should be sufficiently flexible to allow for the reopening of a claim when more recent events or new information gives it greater validity, such as in the case of a refugee sur place. Assessing the potential impact of subsequent developments or new facts requires expertise in refugee law. For this reason, UNHCR would recommend that previously rejected asylum-seekers who seek to reopen their claim based upon new facts be referred to the agency charged with responsibility for refugee status determination.

2. TREATMENT PENDING STATUS DETERMINATION

Asylum-seekers must be treated with dignity and accorded basic human rights. Most importantly, as the UNHCR Executive Committee has stated, asylum-seekers must be protected from involuntary return to situations of danger, or refoulement. EXCOM Conclusion No. 6 (XXVIII) (1977).

a. Provisional Status

The Advisory Group recommends granting "provisional status" to asylum-seekers pending determination of their claim to refugee status. (Recommendations 103 & 121) UNHCR notes with satisfaction that persons enjoying provisional status would have the right to work and access to other social benefits. UNHCR shares the view that asylum-seekers should, to the extent possible, should be afforded access to adequate shelter, medical care, education for children (at least to the primary level) and sufficient means to meet their basic needs, either through assistance or by allowing able-bodied individuals to work. The provisional status proposed by the Advisory Group apparently would allow asylum-seekers to meet their basic humanitarian needs and even achieve a level of self-sufficiency while awaiting a decision on their claim.

b. Conditions for Provisional Status

The Advisory Group recommends that provisional status be made contingent upon satisfying several mandatory conditions. (Recommendation 122) UNHCR concurs that States may legitimately insist that asylum-seekers cooperate and comply with established procedures for the determination of refugee status and requirements designed to protect important interests, such as public health and security. The mandatory conditions proposed by the Advisory Group, however, include compliance with the tight time limits for reporting and filing claims. In addition, provisional status would not be available to persons deemed likely to pose a danger to the public, unlikely to appear for removal or who fail to cooperate with efforts to obtain documents that would enable their departure from Canada, if subsequently required.

The Advisory Group report indicates that a person who does not have provisional status or a "resolved status," such as temporary protected status or landed immigrant status, would have no status at all. (page 105) Persons without status would "be subject to arrest, detention and removal from Canada." (Recommendation 120) The scope and intent of this recommendation is not entirely clear. UNHCR would wish to ensure that asylum-seekers who are deemed ineligible for provisional status are not subject to removal from Canada, and possible refoulement, without having access to refugee status determination procedures.

c. Cooperation as a Condition

The Advisory Group also recommends that an asylum-seeker’s provisional status be contingent upon cooperation "in providing evidence of his or her identity and/or in applying to the relevant authorities for documentation which would enable return to the country from which he or she seeks entry or some other country." (page 105) The purpose of the requirement is to facilitate the applicant’s departure or removal from Canada. (Recommendation 122) By definition, a refugee is a person who has a well-founded fear of persecution and "is unable or, owing to such fear, is unwilling to avail himself of the protection" of their country of origin or State of last habitual residence. Thus, it is essential that asylum-seekers not be compelled to approach the authorities of their country of origin or other country from which they are seeking protection, either directly or indirectly, while their claim remains pending.

On a more practical level, UNHCR is also concerned that an application for a travel document, apparently to be submitted on the asylum-seeker’s behalf by the Government, would alert the authorities in the country of origin that the individual concerned was seeking refugee status in Canada. Bringing the application for refugee status to the attention of the authorities could have severe negative consequences for family members and associates of the asylum-seeker who remain in the country of origin. The family members of a refugees abroad frequently are subjected to pressure and abuse, as a means of compelling the refugee’s return or silence. For these reasons, asylum-seekers who have the most to fear will be precisely those least likely to cooperate. UNHCR strongly urges that asylum-seekers not be required to approach the authorities of any State where they claim to fear persecution until after the final negative disposition of their claim.

d. Criminality and Security Checks

The Advisory Group recommends that the statutory criminality and security checks be initiated for persons seeking protection in Canada upon their arrival. (Recommendation 99) UNHCR understands and supports Canada’s efforts to ensure that excludable persons, such as war criminals, do not benefit from international protection. The criminality and security checks, however, may involve contacts between Canadian diplomatic and security officials and their counterparts in the country of origin. As described above, such contacts alert these authorities to the claimant’s presence in Canada and may jeopardise the security of relatives and associates left behind. To avoid such negative consequences, UNHCR would recommend against conveying information regarding individual asylum-seekers or making case-specific inquiries with the authorities of any country where the applicant claims to fear persecution.

e. Detention of Asylum-seekers

The Advisory Group recommends that persons who do not meet the criteria for provisional status, or who fail to abide by the conditions should be subject to mandatory detention. (Recommendations 120 & 124) UNHCR is also concerned that many refugee status claimants may not be able to comply with the strict reporting and filing deadlines recommended by the Advisory Group. Moreover, as noted above, persons with genuine fears are also likely to resist the cooperation requirement. For these reasons, UNHCR would thus urge that asylum-seekers not be subject to mandatory detention.

The detention of asylum-seekers is inherently undesirable and should normally be avoided. The Universal Declaration of Human Rights affirms that everyone has the right to seek and enjoy in other countries asylum from persecution, and the exercise of this right should not be at the expense of an asylum-seekers right to liberty. Asylum-seekers may already have suffered persecution and other severe hardships in their country of origin or during flight. They should be protected against any form of harsh treatment. Detention may have a particularly severe impact upon vulnerable asylum-seekers, such as single women, children, unaccompanied minors and persons having special medical or psychological needs, including victims of torture. The detention of parents also will directly affect their minor children. UNHCR recommends that States should apply viable alternatives to detention, such as reporting obligations and guarantor mechanisms, unless clear evidence suggests that detention is necessary.

(i) Legal Aspects of Detention

UNHCR considers that the detention of asylum-seekers should not have a punitive purpose or character. The use of detention as a deterrent to other asylum-seekers is also contrary to the principles of international protection. Where detention is deemed unavoidable, asylum-seekers should be entitled to basic procedural guarantees. In particular, detainees have right to be informed of the reasons for detention and their rights in a language they can understand. They should also have the right to challenge the lawfulness of the deprivation of liberty before a competent, independent and impartial authority. The Advisory Group recommends reviewing the denial of provisional status (and consequent detention) within forty-eight hours, as well as maintaining the existing provisions for the review of the detention after seven days and every thirty days thereafter. (Recommendation 165) UNHCR would agree that regular judicial or administrative review of detention measures is an essential due process protection.

ii. Detention Conditions

Although the Advisory Group has not specifically addressed the issue, UNHCR would emphasise that asylum-seekers should be held in safe and humane conditions and for the minimum period necessary. Asylum-seekers should not be accommodated with persons detained as common criminals, unless no other reasonable option exists. UNHCR further recommends the segregation in detention of men from women and adults from children, except among related individuals. Asylum-seekers in detention should be allowed regular contact with and visits from relatives and legal counsel, as well as appropriate medical treatment and some form of physical exercise. Where detention is prolonged, asylum-seekers should be afforded access to educational and vocational training activities. UNHCR encourages the elaboration of detailed guidelines governing the detention of asylum-seekers.

3. STATUS DETERMINATION PROCEDURES

The Advisory Group recommends that the proposed Protection Act provide for an inland determination system that is fair, consistent and timely and that reflects natural justice. (Recommendation 94) UNHCR fully agrees. Refugee status determination is a complex undertaking having extremely serious consequences. The erroneous rejection of a genuine claimant may lead to refoulement and place the individual’s life and liberty at risk, while recognition of non-refugees tends to undermine the institution of asylum. UNHCR would further suggest that the reliability of status determination is enhanced when the decision-maker is afforded:

Decision-makers must also possess expertise in testing and judging credibility issues, which they can only develop through training and practical experience. Officials charged with responsibility for refugee status determination must also be skilled in assisting asylum-seekers to overcome the many serious problems they may experience in presenting their claims, including language barriers, difficulties in assembling evidentiary proof and the residual effects of psychological trauma.

a. Administrative versus Quasi-Judicial Mechanisms

The Advisory Group recommends establishing an administrative "Protection Agency" that would be responsible for both inland refugee status determination and the overseas selection of persons for resettlement in Canada. (Recommendation 84) The Protection Agency apparently would replace the present Immigration and Refugee Board (IRB). UNHCR considers that administrative mechanisms for refugee status determination can be both efficient and fair, but would suggest that the following factors guide consideration of which model for refugee status determination is most appropriate.

The most important factor in the reliability of refugee status determination procedures is the quality and expertise of the decision-makers. The Advisory Group recommends that the Protection Agency be staffed by a cadre of career civil servants who would serve as Protection or Appeals Officers, with the Protection Officers rotating between postings in Canada and abroad. (Recommendation 85) UNHCR would note that the level and grade of these posts should be sufficient to attract and retain skilled professionals, so that the experience gained over years will benefit the institution and improve the quality of decisions. The quality of refugee status determination in Canada and policy development have benefited greatly from the professionalism and depth of experience that many IRB members bring from their earlier careers. If the Advisory Group’s model for refugee status determination is adopted, UNHCR would recommend that the new Protection Officers be required to possess professional qualifications and prior experience that reflect importance and complexity of refugee status determination.

The independence of decision-makers is also a key consideration. The Advisory Group report suggests that the proposed Protection Agency can be both "independent as well as sensitive to broader national imperatives." (page 84) While these qualities are not inherently contradictory, UNHCR would observe that an independent quasi-judicial mechanism helps to ensure the independence of decision-making process.

The Advisory Group does not offer much explanation as to why the quasi-judicial mode of decision-making should be discarded. An implicit consideration appears to be cost and efficiency. Administrative mechanisms, of course, are not self-evidently cheaper or faster. UNHCR would also note that Canada has invested significant resources in developing the IRB as an institution since its creation in 1989. Moreover, UNHCR has appreciated the leadership and jurisprudence of the IRB in refugee status determination, particularly with respect to training, documentation and dealing with the specific protection needs of women, children and other vulnerable refugees.

b. Time Frame for Determinations

The Advisory Group proposes to create "conditions for a fair and timely" process by establishing a strict time frame for the consideration of asylum applications. (Recommendation 105) The report recommends that protection interviews be held within six weeks of the submission of a claim and that written decision be issued within a further six weeks. (Recommendations 105 & 107)

While refugees clearly benefit when status determination procedures are both just and efficient, UNHCR’s experience has been that rigid deadlines for resolving asylum claims are likely to prove unworkable in practice. UNHCR would agree that many asylum applications could be finally decided within the proposed twelve week period. As with the reporting and filing deadlines, however, the rules must be sufficiently flexible to account for the difficulties many asylum-seekers will encounter in preparing and presenting their claim. Refugee status determination involves a complex factual and legal inquiry that is often hampered by vexing problems of proof. UNHCR’s experience is that entirely legitimate factors will often delay a final decision in some cases until well beyond the time period recommended by the Advisory Group.

The proposed expedited processing times may impose an increased burden on all parties to the status determination process. The staff of the proposed Protection Agency would likely come under tremendous pressure to meet the deadlines, particularly since the agency remains financially responsible for meeting the basic needs of the claimant pending the decision on status. (Recommendation 118) UNHCR would be concerned that, in the face of such demands, the objective of fairness could be subordinated to that of timeliness. While the Government may decide to provide the Protection Agency with the personnel and funding needed to satisfy the proposed time requirements, the resources available to assist asylum-seekers in preparing their claims is likely to remain fixed. UNHCR wishes to point out that the strict time limits proposed by the Advisory Group could place great strains upon the pro bono lawyers, non-governmental organisations and community agencies that represent and counsel asylum-seekers, to the ultimate detriment of the claimants.

c. Acceptance without Interview

The Advisory Group recommends that, where the applicant’s paper submission clearly establishes the need for protection, Protection Officers would be authorised to accept the claim without an interview. (Recommendation 106) UNHCR views the expedited consideration and acceptance of clearly well-founded claims as an excellent innovation.

d. Pending Claims before the IRB

The Advisory Group recommends allocating sufficient resources for the IRB’s Convention Refugee Determination Division (CRDD) to decide all claims received prior to the implementation date for the proposed new system, although the quorum would be reduced to one member for this purpose. (Recommendation 119) UNHCR would recommend avoiding the use of single-member panels, in the absence of a right of appeal on the merits from CRDD decisions.

4. CRITERIA FOR PROTECTION

The Advisory Group recommends that the proposed Protection Act incorporate the 1951 Convention and other current and developing human rights and humanitarian standards, the violation of which would endanger the life and security of a person. (Recommendation 87) The international community has articulated human rights concerns beyond the protection of refugees, including, inter alia, the protection of torture survivors who are non-refugees. UNHCR views the Advisory Group’s proposal as highly progressive and most positive in a global environment where many States are adopting increasingly restrictive interpretations of their international obligations, even under the 1951 Convention.

a. Preserving the Separate Identity of Refugees

UNHCR would recommend that refugees continue to be treated as separate identifiable category within the new broader class of protected persons. The procedures should provide for the recognition of refugee status, where appropriate, even where consideration of protection on some other basis is also warranted. UNHCR considers that the preservation of this distinction is necessary to ensure continued respect for specific rights and protections afforded to refugees under the 1951 Convention and, more broadly, to preserve the integrity of the existing international protection regime.

b. Criteria for Protection Overseas

Canada has been generous in affording resettlement opportunities to refugees abroad. The Advisory Group recommends that Canada should continue to exercise leadership in generating protection-oriented responses to refugee crises. (Recommendation 82) Specifically, the Advisory Group proposes that the broader criteria described above be applied in examining applications for protection received overseas. (Recommendation 87)

(i) "Most in Need of Protection"

The Advisory Group emphasises the importance of creating a system that "focuses first and foremost on those most in need of protection, and that makes determinations closer to the source of the problem." (page 87) The Advisory Group recommends that the Protection Act " provide conditions to encourage claims for protection to be made at the earliest opportunity, which means in the following order: overseas, at the port of entry, inland." (Recommendation 89) UNHCR appreciates the Advisory Group’s intention to address global protection needs in this proactive manner, but with certain qualifications.

UNHCR would emphasise that positive measures to encourage overseas claims should not be accompanied by disincentives or barriers to the direct arrival of asylum-seekers in Canada. Canada’s role in offering protection to inland asylum-seekers remains extremely important and, as the Advisory Group observes, is also a matter of international obligation. (page 88) While the meaning of the phrase "most in need of protection" is not entirely clear, the Advisory Group’s underlying assumption may be that persons seeking protection overseas are more in need than asylum-seekers who arrive directly to Canada. If so, UNHCR would respectfully disagree. For UNHCR, persons in need of protection are those who have a well-founded fear of persecution, irrespective of where they lodge their claims. UNHCR would urge against establishing any form of hierarchy among refugee claimants.

(ii) UNHCR’s Priorities for Resettlement

UNHCR would suggest that the priority in overseas processing is identifying those persons most in need of resettlement. Resettlement is a vital instrument of protection and for achieving durable solutions, but it is only one instrument. While the Advisory Group has focused exclusively upon resettlement, UNHCR takes a comprehensive view of the possibilities before determining what durable solution is appropriate for a particular refugee or group of refugees. Before promoting resettlement, UNHCR will make every effort to explore possibilities for local solutions and to evaluate whether voluntary repatriation will be feasible or foreseeable within an acceptable time frame.

UNHCR has identified certain categories of refugees who may be more in need of resettlement as an instrument of protection. For example, UNHCR gives priority attention in resettlement to refugees with acute legal or physical protection needs and, in particular, to women-at-risk and unaccompanied children, where resettlement would be in the child’s best interests. Survivors of violence and torture, who may need specialised medical or psychological care unavailable in the country of asylum, are also priority candidates for resettlement. UNHCR also views resettlement as the appropriate durable solution for refugees who have no realistic prospects for local integration or for voluntary repatriation. Such refugees may face no immediate threat of refoulement, but the quality of the asylum they are receiving may be unacceptably poor. Family reunification, of course, is also a major focus of UNHCR’s resettlement activities.

(iii) Urgent Cases

Urgent intervention may be required to ensure protection in exceptional cases. Thus, UNHCR strongly endorses and appreciates the Advisory Group’s recommendation that persons facing immediate danger overseas be granted a temporary protection visa and admitted to Canada. (Recommendation 93)

(iv) Prospects for Integration

The Advisory Group recommends that the proposed Protection Agency impose "no requirement that applicants be likely to establish themselves in Canada." (Recommendation 88) UNHCR has always promoted the separation of refugee resettlement and immigrant selection criteria and, thus, strongly supports the Advisory Group’s recommendation. As the report correctly notes, the protection of persecuted persons is a matter of human rights and international legal obligation, while immigration decisions are based upon economic, social and cultural objectives designed to serve a country’s national interests, as well as those of persons seeking to immigrate. (page 13) Resettlement is a tool of protection, and the potential for successful integration should not negatively influence the selection and promotion of resettlement cases. Elimination of settlement criteria would substantially enhance UNHCR’s ability to refer deserving cases for resettlement in Canada. The Advisory Group also recommends that "protection performance indicators" should include "indicators of integration for protected persons." (Recommendation 13) If the Protection Agency will be held accountable by Parliament for the level of integration achieved by protected persons, UNHCR would hope that this factor would not negatively influence the overseas selection process.

(v) The Importance of Timely Decisions

The Advisory Group recommends that Protection Officers be required to issue a written decision on protection claims within six weeks after the interview. (Recommendation 92) UNHCR strongly encourages such efforts to expedite the process, provided that the decision-makers are given adequate resources to reach a determination in a fair and considered manner. Resettlement candidates, by definition, are persons in need of protection. Lengthy delays discourage UNHCR from submitting cases to a particular country, and this has been a major reason for the reduced number of resettlement submissions to Canada.

The prompt issuance of a positive decision will not necessarily expedite the departure of a protected person for Canada, unless other aspects of the process are also accelerated. Where a person abroad will require extensive medical care, the Advisory Group would require the proposed Protection Agency to ensure that all necessary facilities are arranged in the province of destination. (Recommendation 117) Presently, obtaining provincial authorisation for resettlement cases having special medical needs can take months, which can result in the case being withdrawn and submitted to another country. The Advisory Group does not make any recommendations as to how this process might be expedited, although the proposed Federal-Provincial Council on Immigration and Protection could provide a framework for resolving such problems on the policy level. (Recommendation 22)

5. APPEAL FROM A NEGATIVE DETERMINATION

UNHCR considers that asylum-seekers should be afforded the right to appeal from a negative refugee status determination, as well as any other decision that may result in the loss of refugee status and possibly refoulement. The UNHCR Executive Committee has termed the right to appeal from a negative decision a "basic requirement" for refugee status determination procedures. EXCOM Conclusion No. 8 (XXXIII) (1978). Given the potentially grave consequences of an erroneous negative decision, an effective right of appeal is consistent with due process and constitutes a fundamentally important component of the international protection regime.

a. Reconsideration of Negative Refugee Status Decisions

The Advisory Group’s recommends that the proposed Protection Act provide for an appeal on the merits of negative decisions made on applications for protection in Canada. (Recommendation 108) The Advisory Group confirms that the option to appeal is "necessary to maintain procedural fairness, to correct erroneous findings of fact, and to ensure consistent interpretations of the law, especially given the potentially life-threatening consequences of an error in judgement." (page 94) Appellate decisions "having precedent value would be published by the Protection Agency." (page 95) UNHCR has many years advocated that refugees in Canada should enjoy the right to appeal from a negative refugee status decision and, thus, very much welcomes this recommendation. UNHCR would further add that the necessity of establishing an appeal mechanism is greater when the first instance decision is made by a single Protection Officer, rather than by a two-member panel as is presently the case with the CRDD. The Advisory Group has recommended that overseas protection determinations not be subject to appeal, although UNHCR would hope that the existing practice of permitting UNHCR to clarify and resubmit cases for resettlement to Canadian missions abroad would be retained.

Reconsideration of negative protection decisions would be carried out by the "appeal section" of the proposed Protection Agency. Appeals Officers would form a separate cadre of higher-level civil servants. The appeals process would consist of a paper review, although Appeals Officers would have the option of conducting an interview with the applicant in order to consider new evidence linked to credibility. UNHCR considers that the procedural framework for appeals and relevant procedural safeguards need to be articulated in greater detail. For example, a clear separation should be established between the first-instance and appellate procedures, in order to ensure the independence of the appellate body. The Advisory Group has recognised the importance of giving of the reviewing body with respect to decisions taken under the proposed Immigration and Citizenship Act the "requisite degree of independence." (Recommendation 157), and the independence of the appeals mechanism under the Protection Act should be similarly guaranteed.

b. Review of "Cessation" Decisions

The Advisory Group recommends that the Protection Act prescribe a process called "cessation" for the revocation of temporary protected status or landed immigrant status granted the basis of protection considerations. (Recommendation 110) The Minister could instigate the "cessation" procedure on the following grounds:

[V]oluntarily re-availing oneself of the protection of the country of origin or re-establishing oneself in the country that one left, outside of which one remained; concealment, suppression or misrepresentation of a material fact, or fraudulent action by a person determined to be in need of protection; and persons with respect to whom there are serious reasons to believe that they have a) committed war crimes, crimes against peace or crimes against humanity; b) committed serious non-political crimes outside their country of asylum; and d) been guiding of acts contrary to the purposes and principles of the United Nations. (page 96) (Recommendation 111) The Advisory Group recommends that the proposed Protection Officers be charged with deciding upon "cessation", based upon an interview. (Recommendation 112) The Advisory Group further recommends that the grounds for revocation be applied narrowly, and UNHCR agrees that a restrictive interpretation is required, in view of the serious consequences that may follow.

(i) Consistent Use of Terminology

Before turning to the substance, UNHCR would note that the grounds for "cessation" articulated by the Advisory Group encompass the concepts of cessation, cancellation and exclusion within the terms of the 1951 Convention and broader principles of refugee law. Cessation applies to persons who are no longer in need of international protection, cancellation is relevant for persons who were erroneously recognised as refugees and exclusion is used for persons who are deemed undeserving of international protection. Cessation, cancellation and exclusion are very different in nature and the application of each is governed by three completely different sets of considerations. To avoid unnecessary doctrinal confusion, UNHCR would urges that terminology incorporated into national refugee legislation have the same meaning as in the 1951 Convention.

(ii) The Right to Appeal

"Cessation" decisions would not be subject to reconsideration on appeal, unless the individual concerned is a landed immigrant. (Recommendation 112) UNHCR recommends that persons subject to a "cessation" determination be given the right of appeal, irrespective of the individual’s status in Canada. The "cessation" determination may result in the loss of important rights and protections, possibly including benefit of the principle of non-refoulement. The potential consequences of an erroneous decision are no less grave than in the case of refugee status determination, and they are no different for refugees under temporary protected status than for those who have obtained landed immigrant status.

UNHCR notes that the Advisory Group recommends that a decision to revoke landed immigrant status not be subject to appeal, where a security certificate has been issued or, in the Minister’s opinion, the individual represents a danger to the public. (Recommendation 163) The Advisory Group did not include this qualification in stating that landed immigrants subject to "cessation" would enjoy the right of appeal. Thus, UNHCR assumes that the Advisory Group intended to give persons landed on protection grounds the right of appeal and agrees that this extra measure of protection is necessary.

(iii) Limitations on "Cessation"

The Advisory Group recommends that commencement of "cessation" proceedings not be permitted beyond the first three years following landing. (Recommendation 112) UNHCR agrees that such a limitation would be sensible in order to give persons landed on protection grounds a sense of security. It bears noting, however, that war crimes, crimes against the peace and crimes against humanity, as defined in the relevant international instruments, are not subject to any such statute of limitations, nor is exclusion on this basis time limited under the 1951 Convention.

c. Risk of Return Review

The Advisory Group recommends providing persons subject to removal sufficient advance warning of the impending removal so that they may request a risk assessment. (Recommendation 152) The individual would be given forty-eight hours to submit an application for a pre-removal risk assessment, which would have the effect of staying removal until after the Protection Agency decides on the application. Persons found not to be at risk would be removed as quickly as possible thereafter. UNHCR considers that such risk assessment may be an important safeguard in cases where changed circumstances have rendered an individual a refugee sur place since the time his initial asylum application was denied. UNHCR would recommend that the criteria and procedures governing pre-removal risk assessment be made clear, transparent and available to the applicant.

The Advisory Group further states that "[w]here there is evidence that persons are excludable for reasons of war crimes, crimes against humanity or serious criminality, removal would proceed, notwithstanding a finding that the person might be at risk." (page 120). The Advisory Group notes that "[t]his is in accordance with the exclusion provisions of the [1951 Convention]," which is essentially correct, provided that the applicable procedures call for the decision-maker to weigh all relevant factors and make the determination is subject to appeal. Moreover, expulsion on the basis of serious criminality requires an additional finding that the individual concerned constitutes a "danger to the community," as is reflected in the provisions of the present Immigration Act. UNHCR would also point out that the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("Convention Against Torture"), to which Canada is a party, prohibits the refoulement or extradition of "a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture." The Convention Against Torture contains no exclusion clauses and admits no exception whatsoever to the obligation of non-refoulement.

6. THE STATUS AND RIGHTS OF RECOGNISED REFUGEES

The Advisory Group reviewed various temporary asylum models as the basis for the Canadian protection system, before rejecting them on the grounds that fairness, considerations of humanity and the practical difficulties of managing a temporary asylum regime militated against such an approach. (page 95) The Advisory Group concluded that Canada should preserve its tradition of giving refugees prospects for landed immigrant status and citizenship, and UNHCR welcomes this positive affirmation of existing practice.

a. The Landing Process

The Advisory Group proposes to accelerate and facilitate the landing process for refugees and other persons admitted to Canada on protection grounds. Persons determined to be in need of protection, both in Canada and overseas, would be immediately processed for landing, subject to the statutory medical, criminality and security checks, along with their immediate family members. (Recommendations 113 & 115) While acknowledging Canada’s legitimate national interest in these procedures, UNHCR would note that the medical, criminality and security checks can result in lengthy delays. UNHCR also would once again urge against undertaking case-specific contacts with the authorities of any country where the asylum-seeker claims to fear persecution. The Advisory Group also recommends that protected persons abroad and their dependants be exempted from the excessive cost component of the medical admissibility provisions and the processing fee. (Recommendation 114 & 116) The report also suggests creating by law a specific health care program for protection claimants and those in need of protection. (page 98)

In addition to these positive recommendations, UNHCR would encourage further steps to reduce the debt burden that refugees acquire through the process of seeking protection and obtaining landed immigrant status in Canada. Refugees already must pay fees associated with the required medical examinations and commit themselves to providing reimbursement for the cost of travel to Canada. The Advisory Group recommends that refugees also remain liable for the Right of Landing Fee, although government loans would still be available. (Recommendation 114) The Advisory Group further recommends that all sponsored Family Class immigrants six years of age or older who have not achieved a basic knowledge of English or French be subject to a tuition fee reflecting the cost of basic language training in Canada. (Recommendation 35) The report does not indicate that refugees and their dependants being landed in Canada would be exempt from the tuition fees. UNHCR is concerned that cumulative debts of such magnitude may become a serious obstacle to the integration of refugees and their efforts to overcome the difficult social, cultural and psychological adjustment problems that inevitably accompany resettlement.

b. Family Reunification

In a Chapter entitled, "The Family: Essential for Success," the Advisory Group places great importance upon the reunification of families and proposes to broaden the concept of family to reflect current social realities and the different cultural practices in various countries of origin. The Advisory Group recommends redefining the terms "spouse" and "dependent child" and establishing a flexible "third tier" of the Family Class that would allow for the admission of relatives or close acquaintances who are emotionally important to the sponsor, but who not may be members of the conventional nuclear family. (Recommendations 32, 33 and 34 & 40) The Advisory Group also recommends raising the age limit for the sponsorship of unmarried adult children to include those under twenty-two years of age, which UNHCR warmly welcomes. (Recommendation 33)

UNHCR views the Advisory Group’s recommendation that legislation should, to the extent possible, "permit sponsors to define the family" as both humane and very progressive. The proposed "third tier" of the Family Class would permit refugee families to sponsor older adult children, including single women who are unable to remain behind living alone in conditions of security or due to prevailing cultural attitudes. The "third tier" would also bring relief to refugee families who are separated from elderly parents or other dependent relatives, who often cannot be sponsored for resettlement in Canada, due to the present financial requirements. At the same time, UNHCR notes that the utility of the more flexible "third tier" may be seriously limited by the demanding ten-year sponsorship requirement.

Family reunification under Canadian law is only possible after an individual has become a landed immigrant. The Advisory Group report retains the link between landed immigrant status and the right of family reunification. UNHCR wishes to emphasise that its interest in the reunification of families begins with the recognition that the individual is a refugee or otherwise is of concern to the High Commissioner. While the Advisory Group’s recommendations meaningfully assist some refugee families, UNHCR’s view continues to be that cooperative efforts to facilitate family reunification should follow upon recognition of refugee status without delay. UNHCR has previously pointed out the difficulties encountered by refugees who are unable to obtain landed immigrant status, and thus cannot reunite with family members, typically because they fail to meet the criteria for landing, lack the financial means to pay the associated fees or are unable to produce satisfactory personal identity documents. The Advisory Group recommends that refugees in the latter category be granted temporary protected status and allowed to apply for landing after three years, at which point they would become eligible to sponsor and to reunite with their family members. (Recommendation 109)

The Advisory Group also recommends that, even after having obtained landed immigrant status, refugees seeking to reunite with the spouses or dependent children in Canada be required to commit to a three-year undertaking of support and demonstrate that they have not been on welfare during the preceding twelve months. (Recommendation 37) The sponsorship undertaking for other members of the Family Class would be ten years. The Advisory Group’s view is that, "Canadians no longer accept that someone who is not self-supporting should be entitled to sponsor additional immigrants"

UNHCR would urge that the essential difference between refugees, as persons in need of international protection, and other migrants justifies a more flexible and supportive approach to the reunification of refugee families. Refugees who are separated from family members at the time of their resettlement to Canada may face years of separation while they establish themselves and gather the financial means necessary for sponsorship. Refugees having few relevant job skills upon arrival and parents caring for children may face particular difficulties meeting the sponsorship requirements. Spouses, dependent children and other vulnerable family members in the country of origin may be at risk during this period. The Advisory Group correctly states that the family is "essential for success," and UNHCR wishes to emphasise that early family reunification is also critically important for the successful integration of refugees.

c. Travel Documents

Canada presently does not issue travel documents to refugees who have not been landed. While the Advisory Group has not addressed the issue, UNHCR wishes to draw attention to the personal hardship a refugees may face if they are unable to obtain a travel document. Refugees, by definition, do not enjoy the protection of the country of their nationality and cannot avail themselves of a national passport for travel purposes. The 1951 Convention requires Contracting States to issue travel documents to refugees lawfully staying on their territory, absent compelling reasons of national security or public order. Landed immigrant status should not be a precondition for the issuance of refugee travel documents, and UNHCR would hope that action might be taken during the legislative process to address this issue.

7. UNHCR’S ROLE IN REFUGEE PROTECTION IN CANADA

The Advisory Group has recommended the establishment of a Protection Advisory Committee composed of representatives from the domestic, international and non-governmental spheres. (Recommendation 86) Should the Minister choose to retain this recommendation, UNHCR would welcome the opportunity to participate in such a Committee, as means of carrying out its Article 35 responsibilities for supervising application of the 1951 Convention. UNHCR would also hope that any new protection legislation adopted would confirm its right to attend in an observer capacity any proceedings that concern refugees, asylum-seekers and other persons of concern to the High Commissioner.

CONCLUSION

UNHCR greatly appreciates the opportunity to comment upon the report of the Canadian Immigration Legislation Review Advisory Group. The High Commissioner will continue to closely follow the Minister of Citizenship and Immigration’s review and assessment of the legislation and policies governing immigration and the protection of refugees in Canada.