The Federal Court in Y.Z. and the Canadian Association of Refugee Lawyers v. The Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness, 2015 FC 892 (“Y.Z.“) has certified the following two questions: Does paragraph 110(2)(d.1) of the Immigration and Refugee Protection Act (“IRPA“) comply with subsection 15(1) of the Charter? If not, is paragraph 110(2)(d.1) of the IRPA a reasonable limit on Charter rights that is prescribed by law and can be demonstrably justified under section 1 of the Charter? The Court also announced that effective immediately refugee claimants from designated countries of origin can access the Refugee Appeal Division (the “RAD“).
Standard of Review in Refugee Appeal Division Hearings
On December 15, 2012, the Refugee Appeal Division (the “RAD“) began considering appeals against decisions from the Refugee Projection Division (the “RPD“) to allow or reject refugee claims. According to the Immigration and Refugee Board of Canada’s website, the steps to a RAD appeal are: Once you receive the written reasons for the decision from the Refugee Protection Division, you have 15 days to file a Notice of Appeal. You have 30 days from the day you received your written reasons for the RPD decision to perfect your appeal by filing an Appellants Record. The Minister may choose to intervene at any point in the appeal. The RAD Member makes a decision on your appeal. In most cases, this decision will be provided to you no later than 90 days after you have perfected your appeal, unless an oral hearing is held. Almost immediately there was uncertainty over what the role of the RAD was. The RAD began operating under the assumption that it would review RPD decisions using the reasonableness standard, and its members began stating that the following principles governed its appeals: that deference is owed to RPD findings of fact and questions of mixed law and fact; … Read More
Due Process When Everything is a Crime: Court Strikes Down Human Smuggling Law
The British Columbia Supreme Court (“BCSC“) in R v. Appulonappa has struck down s. 117 of the Immigration and Refugee Protection Act (“IRPA“). Section 117 theoretically prohibited human smuggling. Its exact wording was: 117. (1) No person shall knowingly organize, induce, aid or abet the coming into Canada of one or more persons who are not in possession of a visa, passport or other document required by this Act. (2) A person who contravenes subsection (1) with respect to fewer than 10 persons is guilty of an offence and liable (a) on conviction on indictment (i) for a first offence, to a fine of not more than $500,000 or to a term of imprisonment of not more than 10 years, or to both, or (ii) for a subsequent offence, to a fine of not more than $1,000,000 or to a term of imprisonment of not more than 14 years, or to both; and (b) on summary conviction, to a fine of not more than $100,000 or to a term of imprisonment of not more than two years, or to both. (3) A person who contravenes subsection (1) with respect to a group of 10 persons or more is guilty of an offence … Read More
Refugees, Article 1F, and Rehabilitation
Article 1F of the 1951 Refugee Convention excludes individuals who have committed serious crimes from being eligible for refugee status under the Convention. It states: Article 1F of the 1951 Refugee Convention states: F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: ( a ) He has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; ( b ) He has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; ( c ) He has been guilty of acts contrary to the purposes and principles of the United Nations. Section 98 of Canada’s Immigration and Refugee Protection Act (the “Act“) provides that a person encompassed by the 1951 Refugee Convention is not a Convention refugee or a person in need of protection pursuant to the Act. In Hernandez Fables v. Canada (Citizenship and Immigration), 2011 FC 1103, the Federal Court certified the following question: When applying article 1F (b) of the United Nations Convention relating to the Status of … Read More
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.
Retroactive PRRA Termination Begins
Yesterday, Citizenship and Immigration Canada (“CIC“) began retroactively closing existing Pre-Removal Risk Assessment (“PRRA“) applications for which Bill C-31’s 12-month bar applies. Bill C-31 amended the Immigration and Refugee Protection Act’s (“IRPA“) provisions regarding who was ineligible to apply for a PRRA. IRPA now provides that: 112(2) .. a person may not apply for [a PRRA] if (b.1) subject to subsection (2.1), less than 12 months have passed since their claim for refugee protection was last rejected — unless it was deemed to be rejected under subsection 109(3) or was rejected on the basis of section E or F of Article 1 of the Refugee Convention — or determined to be withdrawn or abandoned by the Refugee Protection Division or the Refugee Appeal Division; [or] (c) less than 12 months have passed since their last application for [a PRRA] was rejected or determined to be withdrawn or abandoned by the Refugee Protection Division or the Minister. CIC will be closing PRRA and subsequent PRRA applications that are currently in its inventory for which a previous Immigration and Refugee Board (“IRB“) or PRRA decision (rejected, abandoned or withdrawn) has been made within the last 12 months (August 15, 2011 to August 14, 2012) and for which a country exemption does not apply. The countries that are currently exempted from the 12-month PRRA bar are the following: Central African Republic, Egypt, Guinea-Bissau, … Read More
C-31 Regulation Released Regarding Timelines
Bill C-31, also known as the Protecting Canada’s Immigration System Act introduced strict timelines to Canada’s refugee determination process. The Canadian government has now introduced the Regulations which provide specifics as to the new timelines. Time limits for scheduling the first-level hearing, for filing and perfecting an appeal and for making a decision on an appeal will be as follows: The Basis of Claim document shall be submitted not later than 15 days after the referral of the claim to the Immigration and Refugee Board, if the claim is made at a Port of Entry. If the claim is made at an inland office, the required documents and information would have to be submitted at the time of the eligibility interview. Port of Entry claimants would be given an extra 15 days to complete the Basis of Claim, which Inland claimants must submit at the time of the eligibility interview. Hearings at the Refugee Protection Division shall be scheduled for a date that is not later than 30 days after the claim is referred for inland Designated Country of Origin claimants, not later than 45 days after the claim is referred for Port of Entry Designated Country of Origin claimants, … Read More
Regulatory Changes to Private Sponsorship of Refugees
On June 9, 2012, the Government of Canada published regulatory changes in the Gazette regarding the Private Sponsorship of Refugees Program (“PRSP“). Under the PRSP, there are three types of sponsors. The first are Sponsorship Agreement Holders (“SAHs“). SAHs are local, regional, and national incorporated organizations that have signed multi-year agreements with Citizenship and Immigration Canada for the purpose of submitting sponsorship cases on a regular basis. The second are Groups of Five (“G5s“), which are five or more Canadian citizens or permanent residents who live in the applicant’s expected community of settlement who sponsor refugees. They account for 40% of the PRSP. The third are Community Sponsors (“CS“), which are organizations that have not signed formal agreements. As of 2012, the PRSP has brought over 200,000 refugees and persons in refugee-like situations to Canada. As the PRSP has grown, so too didthe backlog and the refusal rate. Some missions abroad currently have waiting lists exceeding five years. Excluding Iraq, the average G5 approval rate is only 37%. The proposed changes to the PRSP were meant to address this. The changes included requiring that the foreign national’s application for protection from abroad be submitted at the same time as the sponsor’s application. … Read More
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. … Read More
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 … Read More