IMMIGRATION: Plenty of room for skepticism in new refugee system

IMMIGRATION: Plenty of room for skepticism in new refugee system

Its official: Canada now has a new refugee protection system.

Immigration Minister Jason Kenney’s Balanced Refugee Reform Act received royal assent on June 29th and has become the law of the land.

The stated purpose of the reform package is to speed up the refugee process while also saving some tax dollars. According to government sources, it currently takes about 19 months to decide the average refugee claim, four and a half years to actually remove a failed refugee claimant from Canada, at an average cost of $50,000 in government resources to do so.

Kenney believes that under his new system, refugee claims can be decided in as little as 60 days and that the overall costs could be dropped to $29,000 per failed claim. However, skeptics abound.

It’s important to remember that these time limits and cost-reduction objectives cannot, and have not, been mandated by law. It’s possible that these targets will be met, and it’s also possible that they will not.

In addition, it is quite likely that by the time these provisions are actually implemented in the next 12-18 months, Kenney will no longer be our immigration minister and will no longer be seen as directly responsible for any failure in the new system to deliver as promised.

What’s new?

Under our current system, refugee claimants must set out their personal details and the basis of their fear of persecution in a detailed personal information form (PIF) which they must submit within 28 days of announcing their claim to immigration officials. Now, government officials will collect this data at an interview which will take place within about 15 days. Since the PIF is a highly detailed document and is often prepared with the assistance of an interpreter, it takes many hours and several meetings with counsel to complete.

The Immigration and Refugee Board will now have to dedicate a considerable number of hours per claimant to assume this new responsibility and to achieve the kind of detail and accuracy previously provided by clients and their counsel. Currently, any shortcomings or discrepancies in the PIF are usually held against the claimant at their refugee hearing. Under the new system, if the claimant is asked at his refugee hearing why they didn’t mention an important fact at their interview, they might have a full answer by simply saying “I wasn’t asked.”

Under the new system, the immigration minister of the day will be able to designate certain countries as “safe.” If a refugee claimant is from such a country, their hearing is expected to take place in 60 days rather than 90 days for claimants from other countries.

Under the new system, an additional level of appeal has been provided for all refugee claimants. Failed claimants will now be able to appeal to a new division of the Immigration and Refugee Board. The Refugee Appeal Division (RAD) is expected to render a decision within 120 days in ordinary cases, and within 30 days in cases involving a designated country or a case where the Board ruled that a refugee claim was “manifestly unfounded.”

Under our current system, when a failed refugee claimant is ready to be removed from Canada, they can apply for a “pre-removal risk assessment” (PRRA) to ensure there aren’t any new circumstances that could create a risk of harm if they were returned to their country of nationality. Now this option will not normally be available unless 12 months have passed since a refugee claim has been refused. CIC doesn’t consider this a problem since it expects failed claimants will be removed within a year of receiving their negative decision.

As I have written in a previous column, new rules were proposed to limit access to our humanitarian and compassionate program. These rules remained in the legislation that just received royal assent. The new law expressly states that when deciding an H&C application, “The Minister may not consider the factors that are taken into account in the determination of whether a person is a Convention refugee…or a person in need of protection.”

Accordingly, if a person has remained in Canada without status for many years and has become established here, they can become a permanent resident of Canada through our humanitarian program.
In stark contrast, a person who was denied refugee protection by the IRB for whatever reason (i.e. poor counsel, missing documents etc.) can make a humanitarian application, but the Minister can not take into account the risk the failed claimant actually faces if retuned to their country of nationality. The bizarre result is that our “humanitarian” program now affords protection to long-term illegals but not to those who are in genuine fear of harm in their country.
Strange, but true.

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Guidy Mamann, J.D. practices law in Toronto at Mamann, Sandaluk and is certified by the Law Society of Upper Canada as an immigration specialist. For more information, visit www.migrationlaw.com or email reporter@migrationlaw.com