White paper: Comments | Canadian Council for Refugees

COMMENTS ON BUILDING ON A STRONG FOUNDATION FOR THE 21^ST CENTURY MARCH 1999

GENERAL COMMENTS

1. Consultation

The Canadian Council for Refugees welcomes the opportunity to comment on the government's proposed directions, before the drafting of legislation. We believe that this gives the government an important opportunity to reflect on - and perhaps reconsider - the proposals in the light of comments from interested stakeholders, based on our on-the-ground experience and values.

We hope that the door will continue to be open for further exchanges as work progresses on the proposed changes. The CCR for its part is keen to offer its perspective and expertise to help develop detailed plans that are as fair and as effective as possible.

We would find it very helpful to have as clear as possible an indication of the next steps and timetable.

2. Human rights
We deeply regret the absence from the document of human rights language and standards (both Canadian Charter and international instruments). We note that the only use of "human rights" is to refer to the exclusion of persons who have committed violations of human rights. We emphasize the importance of presenting refugees and other newcomers as bearers of human rights (and not simply as potential rights abusers). The Immigration Act should be explicitly guided by the commitment to comply with our human rights obligations and the proposals should be reviewed to ensure their compliance. There are important areas under the current Immigration Act where Canada fails to respect its international obligations. While there are some improvements in the proposals, there are also a number of proposals that will create new violations of our international obligations. Overall, instead of moving Canada forward towards greater human rights respect, the white paper takes us backwards.

3. Gender/race analyses
The proposals lack any gender analysis, although this is required in any federal legislative change proposal. While there are a number of changes that are positive from a gender perspective, there are others which would be particularly harmful to women.

We urge that a meaningful gender analysis be conducted early enough for its results to influence the development of policy. We also recommend that the CCR and other NGOs be involved in the gender analysis. (See our own brief overview of gender impacts).

We also note the need to conduct a race analysis, recognizing that systemic racism exists and that many newcomers are racial minorities. Proposals therefore need to weigh the potential impact on members of racial minorities. The proposed expansion of the interdiction program is the clearest example of a proposal with such an impact: it will increase the harassment of racial minority travellers.

4. Rights of children
The CCR underlines its disappointment at the failure to incorporate the Convention on the Rights of the Child into the Immigration Act. The proposals also fail to ensure that all measures comply with our obligations under that Convention. We note in particular the need to address the right of children to be with their parents (see family reunification, below).

5. Coherence
We believe in the importance of a coherent overall plan for "new directions". Unfortunately the document shows a number of striking inconsistencies (e.g. there is a commitment to keeping families together, but a number of barriers to family reunification are unaddressed; there is a commitment to refugee protection, but mechanisms are proposed that prevent refugees from benefiting from Canada's protection).

6. Promoting integration
The refugee and immigration programs need to be designed to promote the integration of newcomers, recognizing that most newcomers are future citizens and that it is to everyone's advantage to ensure speedy integration. The proposals need to be analyzed through the lens of this objective. In this respect, some of the recommendations are positive, but others are not. We regret the absence of reference to the role of settlement services.

7. Family reunification
The CCR welcomes the commitment to keeping families together. Some of the recommendations will help to achieve this goal (e.g. raising the age limit for dependent children, and including same sex and common law partners as spouses).

However, not enough has been done to address barriers to family reunification, notably the long delays in processing for family members of refugees in Canada. We underline our disappointment that the white paper shows more enthusiasm for speeding up deportations than it does for speeding up family reunification. Family reunification is essential to integration. It is also a matter of human rights. We again recommend that spouses and children of refugees be allowed to come to Canada immediately to be processed for landing here. This simple measure would alleviate the enormous suffering of refugees and their families, in particular of those refugees, who because of the identity document issue, have forced on them extremely long separations from their families.

We also regret that the government has not pursued the Not Just Numbers recognition of the need to allow more extended family reunification. The current definition of "family" is limiting and ethnocentric. Expanding the definition is in line with CIC's own studies which show that refugees do better and integrate more easily, when family is available. We welcome the openness to include more distant family members when refugees are being selected overseas but this suggestion needs to be broadened so that it does not only benefit a small number of people.

We also note the failure to address the need to keep families together in the context of deportations. There should be provisions in place to ensure that wherever possible families are not separated in the removal process.

8. Refugee protection
We welcome the move to at least have a separate section in the Act to deal with refugee issues. Decisions regarding refugees need to be guided by the principles of protection and not immigration. It is however of concern to us that little thought seems to have been given to ensuring that the enforcement provisions, which also affect refugees, are also guided by protection principles.

We welcome the commitment to promote refugee resettlement from abroad and the recognition of Canadian obligations other than those under the Refugee Convention (i.e. the expansion of the mandate of the Immigration and Refugee Board).

Some of the changes proposed to the refugee determination system in Canada, however, do not reflect these same obligations and would lead to violations of both the Charter and international human rights standards. Notable instances are the 30-day limit for making a claim and the denial of any opportunity ever to make a second claim. These must be amended. We also emphasize that the proposals to promote interdiction fail to take any account of the commitment to protect refugees. They run directly counter to people's basic human right to seek asylum from persecution and hence make the Canadian government complicit with the persecutors, from whom the refugees are seeking to flee.

9. Enforcement orientation
We find that the white paper is driven by an emphasis on enforcement concerns, notably but not only in the parts dealing with refugees. It perpetuates and compounds myths about refugees and other newcomers. To respond to a supposed need for greater "security" for Canada, the very real security of refugees and other non-citizens is compromised. The net of "security threats" is thrown ever wider, and the recourses for protecting the non-citizens are ever narrowed. We challenge the premises on which are based the proposals for stricter enforcement and call for a re-orientation towards respect of human rights.

We do not imply by this that CIC should not address abuse. On the contrary, refugee advocates have every interest in protecting the system from abuse. But efforts to address abuse must be proportionate and they must be directed precisely at the abusers. Too many initiatives that are justified as necessary in order to address abuse actually hurt refugees as much as, or in some cases even more than, alleged abusers. We maintain that CIC has at its disposal many resources that it can and should use to address specific cases of abuse that come to its attention.

10. Decision-making
Refugees and others in Canada or seeking to come to Canada deserve fair decision-making processes. When decisions are being made involving important issues, this means independent, judicial or quasi-judicial decision-makers. We are therefore pleased with the decision to retain the Immigration and Refugee Board and in some ways to expand its mandate. However, we are concerned that the level of competence and independence at the Immigration and Refugee Board (IRB) needs to be improved, by significant improvement in the appointments and re-appointments processes. Only in this way will there be public confidence in the ability of the IRB to deliver fair, consistent and informed decisions.

11. Correcting errors
Any system makes errors and must be able to correct them. The immigration and refugee systems are noteworthy for their lack of ability to effectively correct errors. In particular, one of the basic flaws in the Canadian refugee determination is the lack of appeal on the merits - a flaw which means that it does not meet international standards. Refugee claimants found not to be refugees have therefore no opportunity to show that the decision was the wrong one, even if, for example, they may have new information. The sole recourse of judicial review at the Federal Court is completely inadequate for correcting most errors.

The failure to introduce an appeal is a very serious shortcoming in the white paper. The need for an appeal will be even more acute under the proposed new system, where the risk review is folded into refugee determination, access to humanitarian and compassionate consideration (H&C) is restricted and any opportunity for a second claim is closed off. The effect of this is that when a panel makes a mistake - and mistakes are of course made - there is NO opportunity, even through PDRCC or H&C, to correct that mistake.

The call for an appeal is based on the need to meet international standards. In its comments last year on Not Just Numbers, the UNHCR stated that it "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 decision, an effective right of appeal is consistent with due process and constitutes a fundamentally important component of the international protection regime".

It is argued that an appeal might risk lengthening the process and that this is unacceptable. We respond that with appropriate resources there is no reason the refugee determination process, with appeal, should be very long. In any case, injustice is even less acceptable than a longer process.

Overall, the white paper in many different ways limits mechanisms for correcting errors. The imposition of a leave requirement for overseas applications is explained as a way of achieving consistency with the inland claim process. We note however that there is no consistency between the refugee determination system in Canada and the refugee decision by a visa officer overseas.

12. Accountability
Not Just Numbers emphasized the importance of transparency and accountability, values that we share. Although the white paper mentions accountability, it does not propose the concrete mechanisms necessary to ensure it. We cannot but wonder whether this is out of a desire for self-protection on the part of the immigration department. We however believe that accountability measures in the long term will only enhance the credibility of the Department.

We call in particular for an ombudsperson's office, with independence from CIC, to investigate complaints and monitor the treatment of people, especially those in vulnerable situations, such as detention and removal.

13. Financial barriers
The imposition of ever greater fees on refugees and immigrants is discriminatory and contradicts our humanitarian obligations. Newcomers, including refugees, in 1997 paid on average 3.3 times more than newcomers did in 1993. The Right of Landing Fee in particular is offensive. We regret that the white paper does nothing to address the burden of these fees - in fact the proposed permanent resident card, discussed in the paper, may require a further payment of approximately $50.

SPECIFIC COMMENTS

1. Simplifying the Act

Redrafting of the act in plain language - This is a very significant task, that should be done in close consultation with NGOs. It offers an opportunity to correct inconsistencies and unintended traps. However, any redrafting can also create new problems, hence our keen interest in being involved in the process.
Updating objectives - We emphasize the importance of including respect of international human rights obligations among the objectives. NGOs should also be consulted on the proposed revised objectives.

2. Strengthening partnerships

Not Just Numbers

3. Strengthening Family Reunification

We applaud the proposed increase in the age limit for dependent children from 19 years to 22 years. This will bring important relief to many families. However, we note that children older than 22 years continue to be part of their family and in many cultures cannot safely (or humanely) be left behind. This is especially true for young single women. There needs to be flexibility to deal with this.
We heartily encourage the proposal to reduce the length of sponsorship for spouses and dependent children. This is important in the interests of justice: it is unfair that sponsored newcomers should continue to be second class citizens for 10 years after their arrival in Canada, paying taxes at the same rates as anyone else but unable to access many of the benefits. The change is also needed in order to reduce the effects of the dangerous relationship of power that is established between sponsor and sponsored, which exacerbates situations of domestic violence. We note that the Québec experience in this regard has been very positive. Sponsorships of fiancés should also be reduced to 3 years. The reduction should be applied retroactively.
Regularizing inland applications from spouses and children is eminently sensible. However, to restrict it to those with "legal status" is both unfair and inconsistent. It would favour people from countries where a visa is not required. It fails to take account of the objective of reuniting families and Canada's international obligations in this regard (notably under the Convention on the Rights of the Child). Refused refugee claimants would be among the groups negatively affected by this. Worse, it is proposed that refused refugee claimants be denied access to H&C applications. This would mean that a refused refugee claimant who, for example, could not be removed because of a moratorium on removals, and subsequently married a Canadian citizen, would be unable to be landed. The proposal to use incentives "to encourage application from abroad" is unclear and based on a preoccupation with favouring applications from abroad which we do not support, since it lengthens family separation. In any case, the most important change that is called for in this area is for speeding up processing of family applications.
We warmly encourage the notion of removing inadmissibility on basis of excessive demands on health or social services for spouses and dependent children.
The proposal to recognize common-law and same-sex couples is welcome. However, the exact terms will be important. They need to be sufficiently flexible to take account of different cultural and political realities. For example, in many countries same-sex couples cannot safely live together: it would therefore be inappropriate to have cohabitation a necessary criterion. Common-law marriages should be defined in such a way that it addresses the situation of people married in traditional ceremonies which do not lead to official marriage certificates.

On the proposed increase in enforcement of sponsorship undertakings, we note that implementation of such strategies to date has caused considerable hardship. We draw attention to the fundamental illogicality of recognizing the right of all people to family reunification and then requiring everyone to provide for support of family members without regard to their ability to pay. We emphasize the need to distinguish between bad faith and accidents which prevent the sponsorship obligations being observed (e.g. lack or loss of employment, illness). We do not oppose the enforcement of sponsorship obligations when sponsors who can pay wilfully refuse to do so. We oppose the pursuit of sponsors who are willing but unable. As a very bare minimum, there should never be payments required of people who are on social assistance.
The proposal to suspend a sponsorship obligation if the sponsor or sponsored person is convicted of violence against the other is good in principle, but of limited value since getting a conviction is a long and dubious process. There needs to be a mechanism for ending the obligations on the basis of any evidence of spousal violence.
While we agree in general terms with measures to prevent, for example, men who commit spousal assault from sponsoring a series of spouses, we do not believe there should be any blanket prohibitions against sponsorship. There is a need to take account of the rights of innocent parties, e.g. children who are to be sponsored. There needs to be some flexibility to consider all the circumstances of the case.

Things not in the section:

We are extremely concerned that there are no measures to speed up family reunification. We underline the importance of speedy family reunification for integration and the particular situation of refugees who have been forced to leave behind their immediate families. There are increasing numbers of Convention refugees in Canada on whom very long delays in family reunification are imposed (because of the ID issue, security issues or inability to pay fees/Right of Landing Fees). We continue to urge that spouses and children of refugees be allowed to come to Canada immediately to be processed for landing here.

Not Just Numbers

sponsor family members of their choice

4. Selection system

We support the commitment to working on access to trades and professions and call for this commitment to be translated into meaningful and substantial actions in the near future.

5. Permanent resident status

a) Because of the ambiguity in the proposal to change the residency requirement, there are concerns that permanent residents might lose their status through failure to renew their card or through an inability to "prove" that they had been in Canada for the necessary time period. We are also concerned about the need to ensure that permanent residents be adequately informed in advance when they risk losing their permanent residence, to avoid painful misunderstandings about rights.

b) Secure identity card: We oppose inclusion of biometric data and charging newcomers for the card. Card-holders should be given a print-out of all the information on the card.

6. Strengthening Refugee Protection

We note the need to achieve greater consistency between the inland and overseas processes. Overseas applicants appear almost always unrepresented, in interviews rather than hearings, before visa officers (who have little training and little access to relevant documentation), rather than independent decision-makers. There are different applications of the refugee definition, with that used overseas being narrower. In the context, suggesting that greater consistency is achieved by imposing a leave requirement for access to the Federal Court is seriously misleading.

We continue to call for an appeal on the merits, for claims made both in Canada and overseas. Our concerns in this regard are highlighted above.

A. Resettlement

We welcome the overall principle of strengthening resettlement and the goals behind the four proposals. There are other measures which could help strengthen resettlement as well. Improvements in the quality of decision-making (including greater consistency) is needed. This could be achieved either through a special body responsible for refugee determinations, or through a special body of visa officers responsible for refugee resettlement. Also needed are improved communication and a general overall improvement in processing for all resettlement cases (we propose 6 months as the standard). We emphasize the need for adequate resources to be allocated to the processing of resettlement cases - the overseas programs have been progressively cut back and are unable to function effectively as a result.

We support the shift in balance towards protection and away from ability to settle. However, we are concerned that there will not be a consistent and real change.

This requirement has been a long-term concern for NGOs since it can prevent resettlement for refugees in need of protection or a durable solution or those with special needs. This requirement is also problematic at a practical level as well. Determining a refugee's capability to become independent is difficult, the measures are unclear and the requirement is applied inconsistently among visa posts.

We note that the factors visa officers are directed to take into account promote a gender bias (they include level of education, knowledge of English/French, professional experience and qualifications, all of which women are less likely than men to score well at). We continue to recommend the elimination of the "successful establishment" criterion.

The current policy is that the more a refugee is in need of protection, the less emphasis should be placed on the "ability to establish" criteria. This means that to a certain extent protection should already be of greater emphasis than successful establishment.

If the successful establishment criterion is to be preserved, we seek an overall reduction in its importance for all refugees rather than a pyramid-type approach which would benefit a few special needs cases. We believe this recommendation is appropriate for both philosophical and practical reasons. It would diminish immigration criteria and thus highlight the humanitarian nature of the program. It would also mean that refugees currently considered inadmissible would now be found admissible and thus expand the number of refugees available for resettlement and help us meet resettlement targets.

We warmly welcome the proposal to allow members of extended family to be processed overseas and promote speedy family reunion.

This recommendation responds to a growing grassroots concern. Resettled refugees face problems of family separation whether it is the separation from immediate family or relatives that may have shared the same household. Reunification with extended family is often extremely important for settlement. At the very least we should expect this recommendation to mean that members of the immediate family of a resettled refugee (whether they are residing with the refugee in the country of asylum or not) should also be resettled as the dependants of a refugee. Similarly, relatives sharing a household with a refugee, whether in the country of origin or in the country of asylum, should also be resettled along with the refugee. We note that in situations of war and displacement families are fractured and reconstituted and every effort should be made to keep together what family has been preserved.

We urge that measures for families of refugees selected overseas also apply to refugees granted status in Canada. The same issues and situations apply to both groups (for example the children of a refugee in Canada may have been living with their grandparents who should certainly be considered part of the family unit).

We recommend that the definition be formulated in a broad and flexible manner and that it be able to include family members that have become separated from the rest of the family group as a result of displacement.

Working more with NGOs in identifying, pre-screening and resettling - we support this under certain conditions, which we have already detailed.

In particular, the CCR supports NGOs as Overseas Service Partners on the condition that:

- the involvement of NGOs will enable access to refugees that the Canadian government has not previously been able to select; and

- the involvement of NGOs will lead to some form of additionality/incrementality benefitting refugees by: 1) more refugees being resettled; 2) more special needs refugees being resettled within the current Canadian target; or 3) improved services for refugees.

Immediate entry of urgent protection cases - this is an excellent commitment, which corresponds to longstanding calls from the CCR for a more responsive program for those with urgent protection needs. We strongly encourage this issue to be fully explored and effective measures to be put in place to ensure that it is viable, and from as many parts of the world as possible.

As formulated in the white paper, it is not clear how this proposal would be different from the status quo. Currently, refugees in need of urgent protection can be brought to Canada through the use of a Minister's Permit. While used often during the 1980s for individuals in immediate danger in El Salvador and Guatemala, it is currently seldom used. Furthermore, when refugees arrive in Canada through such means they often face long delays in becoming landed. The white paper and statements the Minister has made suggest that she would actually like a reduction in the overall use of Minister's Permits. As a result, it is hard to reconcile these two objectives. If the Minister herself would like to decide who receives a Minister's Permits, a positive outcome could be to implement a more European style system for the resettlement of urgent protection cases. The Minister could take it upon herself to make decisions to resettle refugees in urgent need of protection within 24-48 hours like some European states. However, this approach would not respond to problems with the refugee's eventual landing. An alternative mechanism to a Minister's Permit may be needed which would provide a refugee in need of immediate protection a means of entry or status that will provide the refugee with a status on arrival in Canada which will allow her to integrate quickly.

B. In-Canada

The decision to keep the IRB is very good, but it needs to be accompanied by substantial reform to the appointment and re-appointment processes. The possibility of including in legislation selection criteria and process for IRB members is a step in the right direction, but is too tentative. We underline that refugee determinations are currently being rendered by IRB members whose appointment process does not ensure their competence to the task - the result is that decision-making is inconsistent and all too often ill-informed and unfair. The political nature of the IRB undermines the independence of the Board. These fundamental problems in the composition of the Board need urgent remedy.

Single protection decision at IRB, including refugee determination and risk determination: The CCR welcomes the recommendation that risk review be conducted by the IRB. We have already taken the position that the IRB, as an independent, quasi-judicial tribunal, is the best available body to make decisions about risks of removal.

Nevertheless the issues raised above about the quality of decision-making at the IRB also apply to risk decisions. The importance of ensuring decision-makers are fair and competent is only increased by the addition of new responsibilities. According to the white paper proposals, which do not include an appeal, claimants face the possibility of a single hearing on which all their chances for protection must rest. If the panel makes an error, there is no second chance. Therefore, the proposal for consolidated decision-making only reinforces the need to ensure an effective appointment and re-appointment process, and to introduce a meaningful appeal to correct the errors that will inevitably occur.

We have also long argued for the replacement of the contorted and internally self-contradictory definition of PDRCC. Tying the new definition to international standards is very positive. Relevant standards go beyond the Convention Against Torture, however, and include the 1948 Universal Declaration of Human Rights, the 1966 International Covenant on Civil and Political Rights, the 1966 International Covenant on Economic, Social and Cultural Rights, the 1948 American Declaration on the Rights and Duties of Man, the 1969 American Convention on Human Rights, the Principles on Prevention of Arbitrary Execution, the Declaration on the Protection of All Persons from Enforced Disappearance and the Geneva Convention relative to the Protection of Civilian Persons in Time of War.

Consideration must be given to people fleeing situations of generalized risk. One of the contradictions in the current system is that the worse the general human rights situation in the home country, the harder it is to be accepted on the basis of personalized risk. This problem needs to be addressed. In this regard, Paragraph 17 of the UNHCR's May 1997 report to the Executive Committee, Return of persons not in need of international protection may be helpful. It refers to persons who "while not necessarily Convention refugees, would nevertheless be exposed to danger if returned" and refers to asylum-seekers who cannot be returned "due to armed conflict or general disturbance".

At the same time, the personal risks covered by the PDRCC definition must be retained in the new definition.

It is important that the refugee decision be made first, to ensure that all those eligible have the protections of that status, and in the interests of international jurisprudence in this area. We are also concerned that the introduction of the consolidated decision-making process not tend to encourage in any way a narrowing of the interpretation of the refugee definition. Maintaining a broad refugee definition is an important way in which Canada promotes strong refugee protection both locally and internationally.

The eligibility clauses, which are already inappropriate for refugee claimants (and have been criticized by the UNHCR), are even more urgently in need of being addressed in the case of other forms of risk, since there are no exclusion clauses. We note that finding claims ineligible because the claimant has refugee status in another country causes problems, because of misinterpretations about claimants' status, and because of situations where the claimant has a fear of persecution in the country in which he or she had refugee status. We recommend that all claims be referred immediately to the IRB and any appropriate eligibility issues considered there. We believe that such a measure would serve the goals of both fairness and efficiency. We also urge that CIC take this opportunity to correct the problem in the Immigration Act (S. 44) which excludes claims made by persons against whom a removal order has been made. This has led to injustices where people in need of protection are denied access to the refugee determination system.

It will also be necessary to address the entitlements of non-refugees who cannot be removed. In most cases, they should have the same rights to apply for permanent residence as refugees, and on the same terms (e.g. with respect to family reunification), but in some cases (e.g. those who have committed crimes against humanity) they should rather be brought to justice.

We look forward to opportunities for working with CIC on the development of the details of the consolidated decision-making model. We note that a workshop will be held on the topic at our May 1999 conference: we hope that this will be a useful contribution to the policy development efforts.

The 30 day time limit for making a claim, with exceptions in "compelling circumstances" is a violation of our international obligations, is completely inconsistent with the Refugee Convention and would lead to people being refouled to persecution, torture or extrajudicial execution. We believe it would also be counter to the Canadian Charter, which as interpreted by the Supreme Court in Singh, entitles refugee claimants to fundamental justice in the form of an oral hearing where credibility is at issue.

In its 1998 Note on International Protection, the UNHCR has stated that "exclusive resort to measures to combat abuse, without balancing them by adequate means to identify genuine cases, can lead to refoulement of refugees". Among the developments of concern, the UNHCR mentioned "the imposition of unreasonable time-limits for the filing of asylum requests".

Although claims made after 30 days might be abusive (as might some claims made on arrival) there is no necessary relationship between the moment at which a claim is made and its validity. Refugees may make claims after 30 days for a wide range of reasons, including changes in country circumstances, changes in personal circumstances, fear, lack of information or counsel and reluctance to make a claim unless it is absolutely necessary. Some categories of claimants will be particularly vulnerable, e.g. women fleeing domestic violence or sexual assault or other gender-based forms of persecution and people fleeing persecution based on sexual orientation.

On the other hand, introducing a deadline will force some people into making a claim while they still have other options, because they know that they will lose the opportunity if they wait. Others that miss the deadline will have an incentive for destroying documents that prove the date of their arrival. There will need to be a determination of which claims made after the deadline are to be exceptionally referred to the IRB: this will necessarily be a complex and time-consuming process, requiring, for example, officers to research country situations in order to determine whether there has been a sufficient change in circumstances to justify an exception.

We note the necessarily arbitrary nature of a timeline. We urgently recommend that this proposal be dropped, and note that in the existing system, claimants who delay in making their claim are asked to explain the reasons and may be rejected if the explanation is not found to be adequate. We believe that this addresses concerns about abuse at the same time as ensuring that refugees in need of Canada's protection are not arbitrarily refused access to the determination system.

Possibility of pre-removal risk assessment by Board - we welcome this opportunity to have an assessment by an independent body. The current lack of a mechanism to assess risk immediately before removal puts Canada at risk of sending people back to human rights abuses. It will be important to ensure that a realistic opportunity is provided for arguments to be submitted and given serious consideration. There should be an opportunity for an oral hearing where necessary. Access to this assessment should be available to everyone facing removal and not only those who have already made a refugee claim. The CCR would appreciate the opportunity to discuss with CIC the details of this mechanism before they are finalized.

No possibility of a second claim ever again - this measure, like the proposed 30-day timelimit, is completely unacceptable and counter to Charter and international obligations. It would deny claimants the right to an oral hearing, even if they had first been rejected 30 years ago and the basis of the claim was completely different.

Experience has shown that, in the absence of an appeal, the second claim has worked as a way to correct errors in the first decision. We note the particular impact of this measure on women, who in a significant number of cases are included in their spouses' claim and do not have a chance to talk of their own particular reasons for fearing persecution. Anecdotal evidence shows that of those making a second claim a high percentage are women (and a high percentage are accepted).

We oppose priority processing for people coming from "safe countries of origin" and people with clearly unfounded claims. The concept of "safe countries of origin" is illegitimate. Nor is CIC in a position to determine which claims are "clearly unfounded". Even though what is at issue is only the priorizing of cases, labelling some claims in this way will prejudice them. The proposal would be particularly detrimental to women in situations of domestic violence and gay men/lesbians persecuted on the basis of their sexual orientation, since these groups continue to be persecuted in countries generally considered "safe", and may on first glance appear to be "clearly unfounded".

Having said that, we are not opposed to CIC having the power to designate a certain limited percentage (perhaps 5%) of refugee claims for priority processing by the IRB, subject to there being no "labelling" of the claims. This is in fact from our point of view preferable to having the IRB itself make priorizing decisions on the basis of enforcement concerns, which should not be their business. We urge that the respective competencies of each institution be scrupulously observed. CIC has legitimate enforcement concerns in certain cases and may want a quick decision on the protection needs of these claimants. But it is the IRB that is responsible for deciding whether or not each particular individual needs protection and they should be allowed to do their job.

No leave required for application for cessation or vacation - We oppose this proposal. The leave requirement serves a very useful function of avoiding unnecessary litigation and prevents expense and useless anxiety for refugees. In addition, we find it symbolically disturbing that CIC should propose removing the leave requirement in cases where they wish to remove refugee status, while refugee claimants who believe they have been refused refugee status in error, must seek leave to have the decision reviewed.

UCRCC waiting period reduced from 5 to 3 years. This slight improvement does not address the fundamental injustice of denying Convention refugees (Somalis, Afghanis and others) their rights to family reunification and other rights under the Geneva Convention. The current policy is not only a grave injustice to the individuals concerned, it is also extremely short-sighted in terms of social policy, creating an ever-growing marginalized group of people and seriously undermining the integration of whole communities. The current ID requirement for landing should be removed.

7. Maintaining the Safety of Canadian Society

We are totally opposed to the proposals to reinforce the interdiction program, which already prevents refugees from reaching safety, leading in some cases to their imprisonment or chain removal back to the country fled. The emphasis on interdiction, without any provisions to spare refugees' their effects, runs directly counter to the government's expressed commitment to refugee protection. Ever-increasing measures of interdiction, which prevent refugees from reaching safety, are part of an international trend which is seriously undermining the world's refugee protection régime.

Interdiction measures also lead to Canadian citizens and residents, as well as bona fide visitors, being subjected to degrading treatment on their way to Canada on the basis of their colour or ethnic origin.

We call on CIC to acknowledge that interdiction measures put refugees at risk and to exempt refugee claimants from the effects of the interdiction program. We also propose that CIC conduct a study, in consultation with the CCR, on the effects on refugees, as well as on genuine travellers, of the existing interdiction program.

We challenge the assumption that refugee claimants are a threat to Canadian safety and note our profound disquiet that the document suggests this, thus feeding existing xenophobia and anti-refugee prejudices.

new categories of inadmissibility - instead of adding new categories to the already too long list, we recommend the narrowing and clarification of existing inadmissibility clauses which throw too wide a net. In particular, the security inadmissibility clauses are highly problematic, cast too wide a net and cause injustices. We need more a rational definition and suggest that perhaps the Immigration Act could use the CSIS definition which talks concretely about threats to Canada.

People smuggling - we note that the increase in migrant-trafficking can be tied to increased measures of interdiction. The harder governments make it for refugees to flee persecution, the more they must turn to smugglers (and the more they must pay). We believe that CIC should not talk about penalties against traffickers without attention to the rights of migrants.

Measures against "improperly documented arrivals", including detention of claimants who refuse to cooperate in establishing their identity - We strongly oppose this proposal on the grounds that it will lead to an increase in arbitrary detention of refugees. We contest the allegation that there is currently a problem with "uncooperative" claimants. The Act already provides for the detention of people where identity cannot be established. "Cooperativeness" is a loose concept that will lead to arbitrariness, inconsistency and abusive intimidation of refugee claimants.

More information-exchange with other countries on criminality and security issues and access to transportation company computers - it is of concern that there is no mention of privacy concerns.

8. Improving Effectiveness of Immigration Appeal System

"Serious criminals" to lose all right of appeal to IAD. The elimination of the highly problematic concept of "danger to the public" in this context is most welcome. However, excluding anyone from consideration of the individual's case will lead to injustices. The experiences in the US are instructive and show us what is to be avoided: since implementation of new harsh measures, there are large numbers of long-term permanent residents detained, some of them indefinitely.

It is not sufficient to have the discretionary power not to pursue removal lie with the immigration officer. This does not lead to transparent, fair and consistent decision-making. We note the context of racism in the justice system, reflected also in the immigration deportations system. We are concerned that this is not addressed in the white paper. The issue of the deportation of long-term permanent residents also needs to be addressed: it is unfair to send back to another country someone who has been in Canada so long that they are a product of our society.

We are disturbed that the "danger to the public" concept in the refugee system has not been replaced. The problems that make it inappropriate in the context of permanent residents with criminal convictions make it at least as inappropriate in the refugee system.

We strongly oppose the suggestion that access to the IAD might also be denied in cases of misrepresentation. We are aware of many kinds of situations leading to charges of misrepresentation, many of which involve no evil intent on the part of the person committing the misrepresentation. Denying them access to the IAD would lead to serious injustices.

We oppose the proposal to require overseas applicants (including refugees) to seek leave from Federal Court. On the contrary, we want to see an appeal for refugee decisions overseas, which are marked by inconsistencies, lack of information and lack of knowledge of refugee jurisprudence. Seeking a judicial review from an overseas refugee decision is already hard enough. We note that consistency with the inland refugee determination process could be equally well achieved (and the interests of justice better served) by removing the leave requirement from judicial review applications inland.

9. Refocusing discretionary powers

Refused refugee claimants will only be able to make an H&C application immediately after refusal by IRB. The targeting of refugee claimants for restrictive measures such as this betrays (once again) a disturbing prejudice against refugee claimants. We note that many refused refugee claimants have been refused in error and are prevented from having the error corrected because of the lack of appeal. Also, many claimants even if they do not meet the refugee definition, come from situations of war, civil upheaval or generalized risk and deserve humanitarian consideration. Claimants may spend considerable time in Canada, because of a moratorium on removals to the country of origin, or for many other reasons. In too many cases, claimants are given bad advice and miss opportunities to bring forward relevant information as early as they might have. We oppose the denial of refused refugee claimants' right to make H&C applications at any time. Similarly we oppose denying the right to other categories of people, such as people with an enforceable removal order. Humanitarian and compassionate consideration must be humanitarian, compassionate and considerate. Canadians again and again show through their support of individual cases that this is what they expect of the government.
The proposal to remove from H&C decision-makers the authority to consider risk is problematic. There needs to be a way to take into account the full range of factors facing an individual, which might include elements of risk as well as family, health, establishment in Canada, etc, and which cumulatively might merit a positive response.
various categories of criminals and security risks will not be able to apply for H&C - currently H&C applications are the only route for such people to argue, for example, that they will be tortured and therefore cannot under international law be returned. These issues will be better dealt with by eliminating the eligibility provisions for applications to IRB.
defining through regulations situations where H&C applications are generally approved may be positive, but we are concerned about the need to maintain flexibility to consider other situations. The proposal for the spousal category is an example of where a narrow definition could cause serious hardship, leading to separations of families, simply because the person is out of status.

With respect to other categories, we suggest that Convention refugees who have not applied within the 180 days form a category.

March 1999