Page 42 - Shahrvand BC No.1224

‹ English Section
Understanding the new refugee determination system in Canada
By Edward C. Corrigan
Rabble.ca
On December 15, 2012, the system
for determining refugee claims made
in Canada underwent significant
changes as a result of the coming into
force of the Balanced Refugee Reform
Act and the Protecting Canada’s
Immigration System Act, the latter of
which amends both the Immigration
and Refugee Protection Act and the
Balanced Refugee Reform Act.
The Immigration and Refugee Board
of Canada (IRB) has as a result
significantly altered its operations
and procedures to meet these
legislated changes, starting with a
new Refugee Protection Division
(RPD) and Refugee Appeal Division
(RAD). The IRB will continue, as
stated in the Government’s Press
Release, "to resolve immigration and
refugee cases efficiently, fairly and in these asylum claims provides the
accordance with the law."
To address the provisions of the
new legislation and accompanying
regulations, the IRB has developed
new Chairperson’s rules for both the
RPD and the RAD and has updated
and revised many of its forms and
documents as well.
Claims at a port of entry
At points of entry into Canada the
newly created Basis of Claim or
BOC Form, which replaces the old
Personal Information Form (PIF),
needs to be filed with IRB within 15
days of eligibility. The Claimant will
get the BOC after the Citizenship
and Immigration Canada (CIC)
documents are completed and claim
found eligible. The BOC is required
to be filed with the Immigration and
Refugee Board within 15 days and
hearing will be set within the time
lines set for making refugee claims.
For refugees from Designated
Countries of Origin (DCO’s)
hearings are to be held within 30 –
45 days after referral of the claim to
the Immigration and Refugee Board
of Canada (IRB). For refugees from
Non-Designated Countries claims are
supposed to be held in a 60-day time
frame. If the BOC is not filed within 15 will deny DCO claimants access to
days, the claimant will be required to
appear for an Abandonment Hearing
to explain why their BOC and other
required documents were not filed
within the 15 Day Time limit.
Applying for refugee protection
from within Canada
For refugee claims made in Canada
all documents including the Basis of
Claim (BOC) are filed with the CIC
office where the claim is made.
CIC requires that, in addition to
the BOC, claimants must submit a
Document Checklist (IMM 5745);
the Generic Application Form (IMM
0008), Schedule A – Background
Declaration; Additional Information
(IMM 0008 – Schedule 12). If you
are using a lawyer, or an approved
Consultant, you also need to file a Use Designation as a Country of
of a Representative Form (IMM 5476).
Also required are four passport sized
photos of every claimant, identity
documents and other documents that
support the claim. All documents in
a foreign language must be translated
into English or French. CIC is
requiring that an application for
permanent residence be made along
with the BOC.
Designated countries of origin
Minister of Citizenship Immigration
and Multiculturalism Jason Kenney's
announcement on December 14,
2012 on Designated Countries of
Origin (DCO) has created a second
class of refugee claimants. The
ability to designate such countries
and accelerate the processing of
government with a tool to respond to
spikes in claims from countries that
do not normally produce refugees.
All failed claimants continue to have
the option of asking the Federal
Court to review a negative decision.
However, there will be no automatic
stay of removal for DCO claimants
should they ask the Federal Court
to review a negative decision, which
means that they could be removed
from Canada while their application
for review before the Federal Court
is pending. In these circumstances,
failed claimants can ask the Federal
Court to stay the removal.
According to Kenney, “large numbers
of unfounded asylum claims are
a financial burden on Canadian
taxpayers. Canada’s social assistance
programs and other generous benefits
are a draw for many.”
The Conservative government’s plan
is to further reduce the attraction
of coming to Canada to make an
unfounded claim. DCO claimants
will be ineligible to apply for a work
permit until their claim is approved
by the IRB or their claim has been
in the system for more than 180 days
and no decision has been made.
Restricting access to work permits
Canada’s labour market as well as the
benefits associated with employment
in Canada (such as the Goods and
Services tax credit, the Working
Income Tax Benefit and employment
insurance – none of which can be
accessed by claimants who do not
have a work permit.)
Many countries use a similar authority
in what is commonly known as a “safe
country of origin” policy to accelerate from human trafficking); access to
asylum procedures for the nationals of
certain countries. These states include independent judiciary system; and
the United Kingdom, Ireland, France,
Germany, the Netherlands, Norway,
Switzerland, Belgium and Finland,
among others. Some European Union
(EU) states also have accelerated
procedures for the nationals of other
EU member states.
Origin is not automatic. Countries
are triggered according to either
quantitative or qualitative criteria and designated DCO’s effective December
are then reviewed, which may lead to
a designation.
Quantitative thresholds are stipulated
in the Ministerial Order as follows:
combined rejection, withdrawal and
abandonment rate of asylum claims at
the IRB of 75% or higher; or combined
withdrawal and abandonment rate
of asylum claims at the IRB of 60%
or higher. Quantitative triggers will
apply for countries having at least 30
finalized claims in any consecutive
12-month period in the three years
preceding designation. If a country
meets one of these triggers, it will be
reviewed for potential designation.
For countries that do not reach a
minimum of 30 claims finalized in any
consecutive 12-month period during
the three years prior to designation,
qualitative criteria are stipulated in
legislation.
According to the Government Press
Release countries must meet each of
the following triggers in order to be
reviewed for potential designation:
existence of an independent
judicial system; recognition of basic
democratic rights and freedoms,
including mechanisms for redress
if those rights or freedoms are
infringed; and the existence of civil
society organizations.
Although countries triggered
according to qualitative criteria
generally produce few asylum
claimants, it may still be appropriate
to designate them under the principle
that they are generally not considered
to be refugee-producing countries.
If a country does not meet any of
these triggers, it cannot be designated. some individuals who were not true
And even if a country meets all of
these triggers, it is not automatically
designated. Countries that meet
either quantitative or qualitative
triggers then undergo a review in
consultation with other Canadian
federal government departments.
The review examines a select set
of criteria, specifically: democratic
governance; protection of right to
liberty and security of the person;
freedom of opinion and expression;
freedom of religion and association;
freedom from discrimination and
protection of rights for groups
at risk protection from non-
state actors (which could include
measures such as state protection
impartial investigations; access to an
access to redress (which could include
constitutional and legal provisions).
The Minister of Citizenship,
Immigration and Multiculturalism
makes the final decision on whether
to designate a country. Every eligible
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refugee claimant, including those 1391 ‫ نمهب‬13 ‫ جمعه‬- 1224 ‫ شماره‬/ ‫سال متسیب‬
from a designated country of origin,
will continue to receive a hearing at In touch with Iranian diversity
the IRB.
The following countries have been Vol. 20 / No. 1224 - Friday, Feb. 1, 2013
15, 2012:
Austria, Belgium, Croatia, Cyprus,
Czech Republic, Denmark, Estonia,
Finland, France, Germany, Greece,
Hungary, Ireland, Italy, Latvia,
Lithuania, Luxembourg, Malta,
Netherlands, Poland, Portugal, Slovak
Republic, Slovenia, Spain, Sweden,
United Kingdom, & United States of
America
It is not entirely clear why these
countries were deemed DCO’s and
set for faster treatment of refugee
claims and denied the right to the
Refugee Appeal Division and other
restrictions including the denial of
Work Permits.
Countries such as Monaco, Norway,
Switzerland and Vatican City were
not presently included in the current
DCO list.
Many refugee advocates have
criticized the inclusion of the Czech
Republic, Hungary and the Slovak
Republic where the Roma people
have claimed they are suffering severe
discrimination and even persecution.
There are at least 16 decisions of the
Federal Court of Canada in 2012 that
have over turned decisions of the IRB
on Roma cases and sent them back
for a re-determination.
These changes are going to have a
dramatic impact on refugee claims
made in Canada. The Canadian
refugee system was once considered
a model for the world. However, it
is important to note that Canada’s
refugee system was being abused by
refugees. The rush to determine who
is a real refugee, and who is not, is
going to make the decision process
faster but also more prone to errors.
The use of the Designated Country
of Origin approach will certainly
help reduce some abuse but also
fails to address the problems of
Roma refugees who do face severe
discrimination and even persecution
in parts of Eastern Europe. It also
remains to be seen how effective
and fair the new system will be in
its implementation and also how the
new Refugee Appeal Division handles
rejected claims sent to that body
for review. In the end it is how fair
refugees are treated under the new
“faster” system that will determine if
these changes are justified.
Edward C. Corrigan is a lawyer
certified as a Specialist in Citizenship
and Immigration Law and Immigration
and Refugee Protection by the Law
Society of Upper Canada in London,
Ontario, Canada.