Building on the reforms passed in June 2010 as part of the Balanced Refugee Reform Act (BRRA), these new proposals further accelerate the processing of refugee claims and would help deter abuse of the system.
Faster decisions on refugee claims are central to an improved system. Under the new proposals, decisions on claims would be made by public servants at the Refugee Protection Division (RPD) of the independent Immigration and Refugee Board of Canada (IRB) as described in the BRRA, but the time lines for conducting hearings would be accelerated.
With these new measures, the time to finalize a refugee claim would drop from the current average of 1,038 days to 45 days for claimants from designated countries of origin or 216 days for all other claimants.
Designated Countries of Origin
Designated countries of origin (DCO) would be countries that do not normally produce refugees. The proposed changes would amend the criteria used to identify countries to be considered for designation, and remove the requirement to have an expert panel make a recommendation to designate.
See the separate backgrounder on DCO’s for more information.
Refugee Appeal Division
Under the BRRA, a new Refugee Appeal Division (RAD) at the IRB is being created. Appeals would be decided by Governor in Council appointees at the RAD.
The RAD will provide most claimants and the Government of Canada with an opportunity to establish that the RPD decision was wrong in fact or law or both. It will also allow for the introduction of new evidence by claimants that was not reasonably available when the RPD rejected the claim and, in exceptional cases, allow for an oral hearing.
The proposed measures aim to further accelerate the processing and the finalization of decisions at the RAD by reducing the time lines for a decision from 120 days to 90 days in those cases when no oral hearing is held.
In addition, DCO claimants, and those determined to have a manifestly unfounded claim or a claim with no credible basis, would not have access to the RAD. Refugee claimants who were subject to an exception in the Safe Third Country Agreement* and those who arrived as part of a designated irregular arrival would also not have access. Those with a refugee claim referred to the IRB before the new system comes into effect would also not have access to the RAD (i.e., those in the backlog), as they did not have access to the RAD when their claim was made. In addition, there would be no access to the RAD to appeal a decision on an application to end a person’s protected person status (i.e., cessation or vacation of protected person status).
All failed refugee claimants would continue to have the option of asking the Federal Court to review a negative decision.
*The Safe Third Country Agreement applies to refugee claimants who are seeking entry to Canada from the U.S. or vice versa at Canada-U.S. land border crossings. Under this agreement, unless individuals qualify for an exception, refugee claimants must seek protection in whichever of the two countries they first have the opportunity to do so.
In order to be effective, faster decisions must be complemented with faster removals. As part of the BRRA, there was no access to a pre-removal risk assessment (PRRA) for one year following a final negative decision from the IRB to facilitate timely removals. This change, however, may lead people to other avenues of recourse that remain available. To avoid this situation, limits on other measures that could be used to delay removal are being introduced.
One proposed measure is that following a final negative decision from the IRB, there would be no access to Humanitarian and Compassionate consideration (H&C) for one year. In addition, claimants would no longer be able to submit an H&C application while their refugee claim is pending. Claimants would have the option of withdrawing their refugee claim in order to apply for H&C, but this would have to be done prior to substantive evidence being heard at the hearing before the IRB.
To further ensure that delays in removals are minimized, the following measures are proposed:
- Prevent the RPD and the RAD at the IRB from re-opening previously decided refugee claims and appeals once a final decision has been made at a higher level (e.g., no re-opening of claims by the RPD once the RAD has made a decision);
- Establish the authority to make regulations that would outline the factors that may or must not be considered when a request to defer a removal is received by the Canada Border Services Agency;
- Remove the automatic stay of removal for certain groups of failed refugee claimants upon filing an application for leave for judicial review at the Federal Court. This would include: DCO claimants; those determined by the RPD to have a manifestly unfounded claim or a claim with no credible basis; those who were able to make a refugee claim based on an exception to the Safe Third Country Agreement; and those who arrive as part of a designated irregular arrival. This means that these failed refugee claimants could be removed from Canada pending the Federal Court’s review of a negative decision, unless they receive a judicial stay of removal upon application to the Federal Court;
- Allow for one PRRA within a 12-month period; and
- Provide for a concurrent loss of permanent resident status when the IRB finds, upon application by the Minister, a person has ceased to be a Convention refugee or a person in need of protection because, for example, they have returned to their country of origin (i.e., re-availed themselves of protection in their home country).
The Assisted Voluntary Return and Reintegration (AVRR) pilot program will also help to remove low-risk failed refugee claimants more quickly. The AVRR pilot program will be launched in the Greater Toronto Area and would now include claimants from all countries when it begins, not just those from Mexico, the Caribbean, and Central and South America. In addition, the AVRR pilot program would be opened to those in the current system in order to expedite removals and further contribute to overall backlog reduction efforts.
The proposed measures would also restrict access to the refugee system for those who committed a serious crime. These changes would mean that a person who was convicted of a serious crime in or outside Canada would be denied access to the RPD. This is the current practice for those who have received a sentence of two years or more in Canada.
Backlog Reduction at the IRB
Over the past 18 months, the IRB has reduced its backlog of refugee claims from over 60,000 to just under 42,000. And the government remains committed to reducing this backlog further.
At Royal Assent of the Protecting Canada’s Immigration System Act, new RPD public servant decision makers would be able to hear cases in addition to the current Governor in Council appointees. Once the new system is in place, Governor in Council appointees at the IRB would be allowed to continue deciding refugee claims referred to the IRB prior to the new system coming into force until the end of their term.
The transfer to the IRB of the PRRA function and outstanding PRRA’s is expected to occur two years after the new system comes into force as opposed to one year, as per the current legislation. This would provide CIC with additional time to reduce the number of pending PRRA applications before the transfer takes place.
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