First Designation of Irregular Arrivals

On December 5, 2012, the Minister of Public Safety and Emergency Preparedness (the “Minister“) made his first designation of irregular arrival under Bill C-31, the Protecting Canada’s Immigration System Act.

The Washington Post is reporting that the 85 people were designated, including 35 children.  Thirty of the irregular arrivals have already been arrested thus far.  The refugee claimants appear to be Romanian, and arrived in Canada between February and October.

Continue reading “First Designation of Irregular Arrivals”


Explanation of the H&C Bars

The purpose of this blog post is to provide an overview of the changes to Humanitarian & Compassionate Applications (“H&C“) resulting from the Balanced Refugee Reform Act and the Protecting Canada’s Immigration System Act which are now in effect.  In brief, there are now several restrictions on when H&C applications can be made.

Permanent Residence Applications Only

Perhaps most importantly, section 25 of the Immigration and Refugee Protection Act now states:

Subject to subsection (1.2), the Minister must, on request of a foreign national in Canada who applies for permanent resident status and who is inadmissible or does not meet the requirements of this Act, and may, on request of a foreign national outside Canada who applies for a permanent resident visa, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected.

[Emphasis Added]

As such, officers cannot consider H&C factors in temporary resident applications, including work permits, study permits, and visitor records.

One Year Bar (and Five Year Bar)

The following table explains how Citizenship and Immigration Canada will process H&C applications in certain scenarios.

If Then
CIC receives the H&C application on or after June 29, 2010, and the applicant has a pending H&C application (this could include an H&C request made in the context of another type of PR application)… the H&C application will NOT be examined, fee and application will be returned.
the application is received on or after June 28, 2012, and the applicant has a pending refugee claim…. the H&C application will NOT be examined, fee and application will be returned.
the application is received on or after June 28, 2012, and the applicant has received a negative decision on a refugee claim from the Immigration and Refugee Board’s Refugee Protection Division (RPD) or Refugee Appeal Division (RAD). the H&C application will NOT be examined until after 12 months have passed since the date of the last decision, fee and application will be returned, unless an exception applies.
the application is received on or after June 28, 2012, and the applicant has withdrawn a refugee claim AFTER substantive evidence was heard at their RPD hearing the H&C application will NOT be examined until after 12 months have passed since the date that the IRB determined the claim to be withdrawn, fee and application will be returned, unless an exception applies.
the application is received on or after June 28, 2012, and the applicant has withdrawn a refugee claim BEFORE substantive evidence was heard at their RPD hearing the H&C application will be examined.
the application is received on or after June 28, 2012, and the applicant has been determined to be a “designated foreign national” the H&C application will NOT be examined for 5 years.

Exceptions

The exceptions mentioned above are 1) risk to life due to medical condition and 2) adverse effect on the best interests of a child directly affected.  Special rules apply to claiming these exceptions, and it is important that applicants be specific that they are requesting them.


Overview of PRRA Changes

The purpose of this blog post is to provide an overview of the changes to Pre-Removal Risk Assessments (“PRRAs“) resulting from Bill C-31 which are now in effect.  A PRRA is a paper application in which individuals can submit that they would be at risk of persecution, risk to life, or risk of cruel and unusual treatment or punishment if returned to their countries of origin.  For most applicants, a positive determination results in the granting of refugee protection and the opportunity to apply for permanent residence as a protected person.  Bill C-31, the Protecting Canada’s Immigration System Act, introduced several restrictions on the ability of people to apply for PRRA.

One Year Bar

A person may not apply for a PRRA if less than 12 months have passed since the Immigration and Refugee Board (“IRB“) rejected their refugee claim, or determined the claim to be abandoned or withdrawn.

A person may also no longer apply for a PRRA if less than 12 months have passed since Citizenship and Immigration Canada (“CIC“) rejected the individuals previous PRRA application, or determined it to be withdrawn or abandoned.

The above bars apply retroactively to PRRAs currently being processed.

Applicants from certain countries are exempted from the one year bar.  These countries include the Central African Republic, Egypt, Guinea-Bissau, Libya, Mali, Somalia, Sudan, and Syria.  Nationals from these countries are exempt from the 12-month bar only if their IRB or PRRA decision (rejected, abandoned or withdrawn) was rendered between August 15, 2011 and August 14, 2012.  There are no exemptions to the 12-month bar for cases decided by the IRB or CIC from August 15, 2012, onward.

Designated Countries Of Origin

Rejected refugee claimants from a Designated Country of Origin are not eligible to apply for PRRA for 36 months after the date of their final decision at the IRB.  This change applies only to PRRAs submitted after December 15, 2012.

Vacation of a Refugee Claim, Articles E and F

The above 12 and 36 month PRRA bars do not apply to individuals whose refugee claim has been vacated or was rejected on the basis of section E or F of Article 1 of the Refugee Convention.

(A refugee claim may be vacated if the IRB, on an application by the government, determines that a positive refugee decision was obtained as a result of directly or indirectly misrepresenting or withholding material facts.  Article 1E provides that an individual cannot obtain refugee status if they have taken residency in a third country and have the rights and obligations which are attached to the possession of nationality of that country.  Article 1F provides that an individual cannot be a refugee if the person has committed a serious non-political crime outside of the country in which the person is claiming refugee status.)

Consequently, such individuals will be able to make an application for a PRRA and will not be subject to the 12- or 36-month bar.

Serious Criminality and PRRA

PRRA applicants who have been determined to be inadmissible to Canada on grounds of serious criminality whose applications are approved will not receive protected person status.

Previously, protected person status would only be denied if the individual was punished in Canada by a term of imprisonment of at least two years.  Now, PRRA applicants who are inadmissible due to an in-Canada conviction punishable by at least 10 years imprisonment will not receive protected person status.  Instead, their removal order will simply be stayed.

PRRA applicants who are inadmissible due to a conviction outside Canada for an offence that, if committed in Canada, would constitute an offence punishable by at least 10 years imprisonment will continue to receive only a stay of removal if the PRRA is approved.

In each of the above cases the risk factors that applicants may claim in a PRRA have been broadened.


Anatomy of a Misleading Press Release

Some Twitter followers have asked me to explain my comments regarding a press release that I have described as extremely misleading.

On February 22, 2012, Citizenship and Immigration Canada released a press release titled “Protecting Canada’s Immigration System Act Earning Rave Reviews“.  The press release contains quotes from politicians, lawyers, the media, and interest groups.  After reading it, one would reasonably assume that everyone quoted supported Bill C-31, the Protecting Canada’s Immigration System Act.

However, anyone remotely familiar with who some of the people quoted in the press release are will realize that something is amiss.

Lets start with Don Davies, the Opposition Critic for immigration.  Are we really supposed to believe that Mr. Davies supports Bill C-31?  Of course he doesn’t!  It’s basically his job not to!  A quick glance at his website and youtube confirm that he does not support the Bill, so why is he included as someone who is positively raving about Bill C-31?

Next.  Lets turn to some of the press release’s examples of the media “raving” about Bill C-31.

The press release quotes the Globe and Mail as saying:

Immigration Minister Jason Kenney’s refugee reforms, aimed at making the process more efficient and decisive, are generally good. If implemented, they will improve an unwieldy asylum program.

The legislation rightly focuses on weeding out claimants who are not genuine, and stemming the flow of asylum seekers from countries such as Mexico and Hungary that are democracies with respect for basic rights and freedoms.

Fast-tracking refugee claims from these countries, and ensuring failed claimants are promptly deported, is an excellent way to ensure Canada does not become a magnet for abuse. The bill will also implement biometric identification, such as fingerprints and photos, for people who apply for visitor’s visas. This welcome change will guard against the use of false identities.

 

However, here is what the Globe editorial, which is titled Due Process as important as efficiency in refugee reform (the editorial’s headline is of course omitted from the press release), actually says:

The press release quotes the Toronto Star as saying:

Kenney’s latest reform plan would reduce the current backlog of 42,000 refugee claims; cut the processing time for asylum seekers from “safe countries” to 45 days (from 171 days under Balanced Refugee Reform Act); and save money.

 

The Toronto Star editorial is titled “Immigration Minister Jason Kenney’s New Refugee Law Lacks Balance“.  Doesn’t quite seem like a rave review huh?

Now.  Presumably some of the people and institutions quoted in the press release actually like Bill C-31.  Some may even be “raving” about.  However, given the blatant cherry-picking, bordering on misquoting, above, why would I believe that anything in the press release actually reflects the views (as opposed to a snippet) of the people and institutions it quotes?

Bill C-31 contains many provisions which I believe are laudable, and some which I dislike.  At a minimum, it introduces changes to a refugee determination system that badly needs reforms.  However, in making its case for why its solutions are the best way forward, the Conservative Government needs to be seen by the public as having credibility when it presents facts, figures, and arguments.  Given the current scandal that the Conservative Party is facing over alleged voter suppression during the last election this should seem especially obvious.   Unfortunately, pulling stunts like this press release severely diminishes the government’s credibility.

And it makes you wonder, what can we believe?


Should People Who Lose Their Refugee Status Be Deported?

Much of the media attention towards Bill C-31 – the Protecting Canada’s Immigration System Act – has been focused on its shortening of the time periods for processing refugee claims and its removal of some appeal rights for refugee claimants that were supposed to be introduced under the Balanced Refugee Reform Act.  This past week, members of the immigration bar raised concerns about another questionable change.  In short, Bill C-31 will make it so that refugees who became permanent residents of Canada will lose their permanent residence status if their refugee status ceases.

Currently, the Immigration and Refugee Board may cease a person’s refugee status.  Amongst other reasons, it may do so if the reasons for which the person sought refugee protection have ceased to exist, or if the person reavails himself to the protection of his country of origin. Until now, the cessation of refugee status did not result in the loss of permanent resident status.  Accordingly, ceasing a refugee’s refugee status was rarely pursued where the refugee had become a permanent resident.

Bill C-31, however, changes this.  It provides that when the IRB ceases a refugee’s refugee status, then the former refugee also loses his/her permanent resident status.  Bill C-31 also provides that such an individual would be inadmissible toCanada.  Through omission it also provides that there will be no appeal to the Immigration Appeal Division, meaning that humanitarian & compassionate grounds (such as hardship and establishment inCanada) cannot be considered in deciding whether to revoke the person’s permanent resident status.

This will apply to refugees who made their claims in Canadaand to those who were resettled to Canadafrom refugee camps from abroad.  It would apply to refugees who recently obtained status, and to refugees who became permanent residents many, many years ago.

Before jumping to conclusions about whether this is or is not good law, it is useful to present some examples of when someone’s refugee status might be ceased.

Tisha is a Tamil fromSri Lanka.  In 2008, she arrived inTorontoand claimed refugee status because of the ongoing war inSri Lanka. In 2010 Tisha’s refugee status was approved.  She became a permanent resident later that year.  She has lived continuously inCanadasince arriving in 2008.  She runs a restaurant that employs 15 people.  In 2012, the IRB determined thatSri Lankawas now safe for Tamils because the civil war had ended.  It ceased her refugee status.

 

Wang is a Chinese citizen who is a Catholic.  In 2008, he arrived inVancouverand claimed refugee status.  He married a Canadian in 2009. His claim was approved in 2010, and he became a permanent resident in 2011.  Wang immediately returned toChina, and has lived there while working abroad for a Canadian company since. In 2012, the IRB determined that Wang was no longer at risk of persecution for being Catholic, and ceased his refugee claim.

 

Kim is fromKorea.  She fled an abusive husband who was a high ranking official in the government, and also had ties to the mafia.  Her refugee status was approved in 2006, and she became a permanent resident of Canada in 2008.  She has two Canadian born children, and is the director of aCanada– Korean business association.  In 2011, her husband died. In 2012, the IRB determined that Kim was no longer at risk of persecution in Korea.

 

As a result of Bill C-31, all of the above individuals would lose their permanent resident status and be removed fromCanada.

When looking at the above three scenarios some may question why it is relevant where the individuals worked.  However, it is important because permanent residents do not live in a vacuum.  They become members of their local community, and conduct their affairs with the legitimate expectation that their residency inCanada is permanent, or at least subject to their control.

Bill C-31 throws a wrench in this.  It provides that refugees who became permanent residents can lose their permanent resident status and be removed from Canadathrough no fault of their own.  The loss of status is not predicated on the refugee having lied.  Rather, it is based on circumstances beyond their control.  Furthermore, there will be no degree of establishment or hardship that the permanent resident can show to keep his status.

Even if one does not believe that Canada does not owe anything to people who are not Canadian citizens, then one should still question whether the automatic revocation of permanent resident status with no appeal right is a good thing for Canada.  There will be the economic costs to Canada in the form of employees and employers abruptly having to leave. There will also be personal costs to Canadians dependent on them.

To me, the solution to the above-mentioned problems appears obvious.  If the government is determined that the cessation of refugee status should lead to a loss of permanent resident status, then it should provide an appeal right to the Immigration Appeal Division where humanitarian & compassionate considerations can be considered.

I cannot think of a single, strong reason why it should not do so.


Was Bill C-37 Worth the Political Cost?

On February 16, Jason Kenney and the Conservative government introduced Bill C-31, the Protecting Canada’s Immigration Act.  The Act makes many reforms to Canada’s refugee system, and amends previous amendments to Canada’s immigration legislation contained in the Balanced Refugee Reform Act which have not yet come into affect.  Bill C-31 was greeted by many refugee lawyers and advocates with much criticism, and was received with particular indignation from the New Democratic Party.

It is not difficult to see why the NDP was outraged by the introduction of Bill C-31.  Less than two years ago, the Conservatives and the NDP worked together to introduce the Balanced Refugee Reform Act.  Its passage was seen as a good example of compromise, and how the parties in a minority Parliament can cooperate to introduce what was generally viewed as good legislation.  I would also imagine that the NDP spent some political capital with its base by cooperating with the Conservatives and to makeCanada’s refugee system stricter.

Minister Kenney has now thrown all of that to the wind.

By abandoning the grand compromise that was the Balanced Refugee Reform Act, Mr. Kenney has taken several political risks.  First, he has abandoned any good-will that he had with the NDP.  Should the Conservatives ever find themselves in a minority government again, I doubt that they will find the NDP being very willing to work with them in the same away as they did in 2012.

Second, he has provided the NDP with the ability to criticize the upcoming reforms to Canada’s refugee system.  Because the NDP were co-drafters of the Balanced Refugee Reform Act, they could not really criticize the upcoming changes because they themselves owned the amendments.  By abandoning the Balanced Refugee Reform Act and in effect replacing it with Bill C-31, Minister Kenney has provided the NDP with legitimacy to criticize the toughening of Canada’s refugee system.

Presumably, Minister Kenney believes that the benefits of the changes in Bill C-31 outweigh the above costs.

So.  What are these changes?

(It should be noted that many of the changes below will involves changes to the Immigration and Refugee Protection Regulations, and are not actually contained in Bill C-31.  However, as the Conservative government announced these changes concurrent with the introduction of Bill C-31, I am including them under the umbrella of the Bill C-31 changes.)

First, the time-frames for when a refugee hearing will be heard have been reduced.  Under the Balanced Refugee Reform Act, a refugee hearing would occur within 60 days for a claimant from a designated safe country of origin (“DCO”), and 90 days for a non-DCO country.  Bill C-31 will reduce in most cases reduce this period to 45 days and 60 days respectively.

Second, under the Balanced Refugee Reform Act, a non-successful refugee claimant from a DCO, or a claimant whose refugee claim was found to be manifestly unfounded, would have his appeal heard within 30 days.  A claimant from a non-DCO country would have had his appeal heard within 120 days.  Bill C-31 reduces the time-frame to 90 days for non-DCO countries.  It removes the ability to appeal completely for unsuccessful refugee claimants from DCOs, for people whose claims were found to be manifestly unfounded, and for irregular arrivals.

Bill C-31 also contains numerous changes that do not relate to time limitations.   The informational interview that was proposed in the Balanced Refugee Reform Act will now be replaced with a Basis of Claim document.  The ability to designate a country as being a designated safe country of origin has been transferred from a panel of experts to the Minister. The Immigration and Refugee Board will no longer be able to reopen previously decided claims or appeals once a final decision has been made at the Refugee Appeal Division or Federal Court.

Perhaps more significantly, there will no longer be automatic stays of removal for judicial reviews of refugee decisions for people from DCOs.  (It will be interesting to see how the Federal Court deals with the onslaught of stay of removal motions.)  Refugee claimants from DCO countries will also be prohibited from getting Work Permits during the processing of their refugee claim.

Essentially, most of Bill C-31 is geared towards decreasing the estimated total processing times of refugee claims (I am excluding from this the inclusion of all of the human smuggling provisions contained in Bill C-4).  Under the Balanced Refugee Reform Act, it was expected to take 171 days to process a refugee claim from a designated country of origin, and 291 days to process a non-DCO refugee claimant’s claim. The Conservative government expects Bill C-31 to reduce this to 45 days and 216 respectively.

The above reductions may seem significant.  However, considering the fact that under the current system the average number of days is 1,038, the further reductions gained by Bill C-31 over the reductions in the Balanced Refugee Reform Act seem less impressive.  For claimants from designated countries of origin, the reduction in processing times from the current average is 96% instead of 85%.  For non DCO countries, it is 79% instead of 72%.

So.  Assuming that the above changes in Bill C-31 withstand the inevitable Charter challenges that are no doubt coming, the Conservatives will years from now have to ask themselves whether the 9% and 7% further reductions that Bill C-31 achieved were worth the political cost.

We will likely have to wait until after the next election and see what the House of Commons looks like to know the answer.