The Bill C-11 Regulations

By: Daquella Manera

Bill C-11, the Balanced Refugee Reform Act, received Royal Assent on June 29, 2010.  It introduced sweeping changes to Canadian refugee law, which I have previously blogged about here, and includes creating an appeal division, reducing processing times, and designating certain countries as being safe.  The devil, of course, is always in the details, and immigration lawyers have been patiently waiting for the Bill C-11 Regulations (the “Regulations”) to be released.  On March 19, 2011, the waiting ended.

There are no real surprises.

Clarifying the Designated Country of Origin Process

The creation of designated countries of origin (“DCO”) has created much controversy because of the reduced time that refugee claimants from such countries would have to prepare their initial claim and appeal.

The government has estimated that approximately 10% of all asylum claimants in Canada could be subject to expedited processing under the DCO policy.  The government has also estimated that designations would result in a 57% decline in the number of claims received from such countries over the 12 months following a designation.

The Regulations on this subject all involve additions to s. 159 of the IRPR.

Specifying the “International Human Rights Instruments” Referred to in the Act

One of the criteria to be examined when designating a country of origin is the human rights record of that country as it relates to certain international human rights instruments.  The Regulations specify that these instruments will be the International Covenant on Civil and Political Rights and the Convention Against Torture.

The Minister may consider any other international instruments that he/she considers relevant.

Specifying the Factors to be Considered in Assessing the Human Rights Record of the Country to be Designated

In determining whether a country will be designated, the relevant factors will be:

(a) the degree of access to justice in that country and the independence of that country’s judiciary;

(b) the existence of democratic rights, freedoms and processes, and a system of remedies for the violation of human rights in that country; and

(c) the ability of non-governmental human rights organizations and other civil society organizations to operate freely within that country.

The factors may seem general, but this is deliberate, as it allows for discretion to determine whether the systems, laws, and practices of a country can provide adequate protection to citizens.

Establishing Quantitative Thresholds as Conditions Precedent to Designating

The following quantitative thresholds will have to be met in order for a country to be considered for designation.  The thresholds were selected in order to ensure that only those countries having a significant impact on the asylum system (at least 1% of the total number of claims) and a low acceptance rate at the IRB (15%) could be reviewed.

(a) the number of claims for refugee protection made in Canada by nationals of the country in question must be equal to or greater than 1% of the total number of claims for refugee protection made in any consecutive 12-month period in the three years preceding the date of the designation made by the Minister; and

(b) the rate of acceptance by the RPD of claims made by nationals of the country in question must be equal to or lower than 15%, in any consecutive 12-month period in the three years preceding the date of the designation made by the Minister.

Requiring Consultation with a Panel of Experts

The Regulations stipulate that the Minister may only make a designation if an advisory panel of experts, including at least two non-government human rights experts, has made a recommendation supporting the designation.

Processing Time Limits

According to the Regulations, the following processing time limits will be thrust onto the refugee system.

Hearings at the Refugee Protection Division (“RPD”) must be scheduled for a date no later than 60 days after the information gathering interview for DCO claimants, and no later than 90 days after the information gathering interview for all other hearings.  An exception to this is where certain inadmissibility related inquiries are ongoing.

Appeals must be filed no later than 15 working days after the RPD written reasons are received by the applicant.  An appeal must include an application to appeal, the decision being appealed, and a memorandum of argument and supporting affidavits.

A decision on an appeal must be made by the Refugee Appeal Division within 30 days from the time the perfected appeal is received, for an appeal from a DCO claimants or from a claimant whose claim has been deemed to be manifestly unfounded.  The decision on appeal must be made within 120 days from the time the perfected appeal is received for all other claimants.  Included in this time is the submitting of the respondent’s submissions and appellant’s rebuttal.  These time limits will not apply where an oral hearing, rather than a paper-based review, is required.

In exceptional circumstances (for example, if a person was unable to appear for a hearing due to a serious injury or illness), the IRB would be able to extend these time limits.

In general, the government expects that the average processing time will drop from 20 months to less than 6.

Costs

It is worth noting that the government expects that the Regulations will save the government $91.4 million over 10 years.   The Balanced Refugee Reform Act is expected to save $1.2 billion over the same time period.

Comment

I previously blogged here about which countries I thought would be designed.  These countries were chosen based on extremely low acceptance rates.  However, when I listed these countries the 1% rule was not publicized (the number of claimants from that country must be equal to at least 1% of total refugee claimants).

Using the CBC data from 2006-2009, where the average yearly number of claims from 2006-2009 was 29,924, the following countries are those that I believe are likely to be reviewed for designation.  Human rights experts for Central America and Roma should expect telephone calls soon from CIC soon.

Country Number of Claims in First Six Months of 2010 Acceptance Rate
     
Slovakia 87 0
Thailand 100 0
USA 526 0.38
Hungary 575 0.52
Czech Republic 664 1.81
Trinidad & Tobago 63 3.17
South Korea 153 7.84
Mexico 2833 10.77
Honduras 135 14.81

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