On February 16, 2012, Citizenship and Immigration Canada announced a new bill, Protecting Canada’s Immigration System Act, aimed to protect the integrity of the Canadian immigration system by making changes to the asylum system passed in J2010 as part of the Balanced Refugee Reform Act. The Canadian government’s goal would have several purposes, but most importantly to provide faster protection to approved refugees and faster removal of those who are denied refugee status. There are several changes that will affect all refugee claimants, both claims that are currently pending and those in the future. The bill must be passed in parliament still before coming into effect.
Faster Processing times for Designated Countries of Origin
Refugee claimants from a list of Designated Countries of Origin (DCO), determined by the Minster of Citizenship and Immigration Canada, will be processed in 45 days. DCO will be countries that do not normally produce refugees, which are currently mostly European Union countries. The government gave the example of the 4,900 Hungarian refugee claims last year, of which only 2% were accepted, and many were abandon and withdrawn. All other claimants would be processed in 216 days.
Limited Appeal Rights at the Refugee Appeal Division
When the 2002 Immigration Refugee Protection Act was enacted, the Immigration Refugee and Protection Board included a fourth division, the Refugee Appeal Division. Although the division has not been implemented yet, it will allow failed refugee claimants to appeal the negative decision. Under the proposed Protecting Canada’s Immigration System Act, not all refugee claimants that have been refused will have access to the Refugee Appeal Division. Those that will not have access to the Appeal division, nor have an automated stay of removal, are denied claimants that:
- Are from Designated Countries of Origin
- Fall under the Safe Third Country Agreement (currently claimants that claim refugee at a Canada-USA land border crossing)
- Were designated irregular arrivals
- Made a refugee claim to the Immigration and Refugee Board before the Refugee Appeal Division comes into effect (i.e. those in backlog)
- Made an application to end a person’s protected person status (i.e., cessation or vacation of protected person status)
- Made manifestly unfounded claims, with no credible basis
The right to apply to the Federal Court for a review of the negative decision will remain.
Timely Removals from Canada
Currently it takes an average of five years to remove a failed refugee claimant from Canada. Citizenship and Immigration Canada wants to improve the speed that removals of denied refugee claims occur. There are several proposed measures. One measure is to prevent denied refugee claimants from accessing Humanitarian and Compassionate consideration for one year. Additionally, they will not be allowed to submit a Humanitarian and Compassionate application while their refugee claim is pending. They would be allowed to withdraw their refugee cause to apply for H&C.
Serious Criminals unable to make a Claim
Under the Protecting Canada’s Immigration System Act, serious criminals will not have access to the Immigration and Refugee Board to make a refugee claim in Canada.
Biometric Data for Temporary Resident Applicants
The Protecting Canada’s Immigration System Act will allow the Canadian government to collect biometric data of temporary resident visa applicants, study permit applicants and work permit applicants. Biometric data includes fingerprints and digital photos. The goal is to reduce the number of fraudulent identity documents.
Other Proposed Changes
- Hearing by public servant decision makers according to proposed time lines: within 30 days for inland DCO claimants; 45 days for Port of Entry DCO claimants; and 60 days for all non-DCO claimants.
- No subsequent Pre-Removal Risk Assessment for one year following negative decision.
- Refugee claims cannot be re-opened once a decision has been made at the higher level (i.e. Refugee Appeal Division or Federal Court)
Criticism of New Act
Given the total processing times before a decision is made, the increasing number of abandoned or refused refugee claims and the many years it may take to remove a failed refugee claimant, there is an urgent need to improve Canada’s Refugee System. While the Protecting Canada’s Immigration System Act proposes several measures to address these issues, it is not without its criticisms. These include:
- Restricting access to the Refugee Appeal Division may result in the persecution of genuine refugees
- The elimination of a committee of independent experts that would advise the government on the “safe country” list may allow political pressures to stand in the way of a fair, judicial process
- The Act gives too much power to the Minister and for decisions to be politically motivated
- Short processing times may prevent refugee claimants from having adequate time to prepare their cases or to appeal refused cases