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.

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Refugees, Democracies, and State Protection

People are often dismissive when they hear of refugee claimants arriving with stories of persecution at the hands of militias or gangs. This especially appears to be the case when the refugee claimants originate from a democratic country. Why, they ask, do these people not simply go to the police in their respective home countries?
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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?


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.



Persuassive Decision on Tamil Refugees (Updated)

A persuasive decision is a decision that is considered to have persuasive value in developing consistent jurisprudence. They provide clear, complete, and concise reasons with respect to the particular element that is thought to have persuasive value, and consider all of the relevant issues in a case. Other members are encouraged to rely upon persuasive decisions in the interests of consistency.
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Visa Office Referrals and Joint Assistance Sponsorships for Refugees

Citizenship and Immigration Canada has released Operational Bulletin 228 – Visa Office Referred and Joint Assistant Sponsorships (JAS) for Refugees – New Templates and Instructions. This bulletin is somewhat timely given the recent media furor regarding Canada’s “failed” refugee system. It highlights that there are alternatives to becoming a refugee in Canada beyond showing up and declaring an intention to seek asylum.  Indeed, the number of refugees who arrive in Canada through specific programs exceeds those who declare that they are refugees from within Canada.

In 2009, 7,202 people became refugees by declaring upon arrival in Canada that they were asylum seekers. 7,425 arrived as government-assisted refugees. 5,036 people arrive as privately sponsored refugees.

The Operational Bulletin highlights two programs designed to combined private sponsorship with government assistance. They are the Visa Office Referrals program and the Joint Assistance Sponsorship program.

Visa Office Referrals (VOR)

In the VOR program, visa offices identify refugees from their inventory for private sponsorship. Such a case is initiated either by the visa office or by the sponsoring group. According to the Bulletin, the program ensures that selected refugees who are ready to travel can proceed to Canada as quickly. The most appropriate cases for such referral are small families or single adults without special needs.

Joint Assistance Sponsorships (JAS)

The JAS program enables sponsoring groups to partner with Citizenship and Immigration Canada in the resettlement of refugees who, because of special needs or circumstances, are expected to require an extended resettlement period and support over and above that which is provided either through government assistance or regular private sponsorship alone.

Private sponsors provide resettled refugees with orientation, significant settlement assistance, and emotional support to supplement the financial assistance and immediate and essential services available through the government’s Resettlement Assistance Program (RAP).

In order to be eligible for a JAS, the refugee:

  • must be a member of the Convention Refugees Abroad Class, the Source Country Class or the Country of Asylum Class;
  • must have a greater need of settlement assistance than other Government Assisted Refugees (GARs) because of exceptional resettlement needs such as one or more of the following:
    • physical or mental disability which could require treatment in Canada;
    • unusual family configuration such as single-parent families with several young children or families consisting only of siblings, one or more of whom has assumed parental responsibilities;
    • separated minors;
    • elderly persons;
    • other special needs identified by the visa office.