Backgrounder — Summary of Changes to Canada’s Refugee System in the Protecting Canada’s Immigration System Act

To understand the proposed changes to Canada’s refugee system, it’s useful to compare the current system with the changes introduced in the Balanced Refugee Reform Act and the new proposals in the Protecting Canada's Immigration System Act. Below is a summary of these proposals.

CURRENT REFUGEE DETERMINATION SYSTEM, THE BALANCED REFUGEE REFORM ACT, AND NEW PROPOSALS

CURRENT SYSTEM BALANCED REFUGEE REFORM ACT PROTECTING CANADA’S IMMIGRATION SYSTEM ACT

Estimated Total Processing Time
(does not include time to removal)

1,038 days

171 days for refugee claimants from a designated country of origin (DCO)
291 days – non-DCO refugee claimants

45 days – DCO refugee claimants
216 days – non-DCO refugee claimants

Eligibility Review 

Eligibility determination within three working days.

No change from current practice.

No change.

Information- Gathering

28 days to submit claimant Personal Information Form to the Immigration and Refugee Board of Canada (IRB).

Information gathered through an interview by the IRB no earlier than 15 days following referral of the claim to the IRB.

For claims made at a port of entry (POE), a Basis of Claim document would be submitted directly to the IRB within 15 days following referral of the claim to the IRB.

For inland claims, the Basis of Claim document would be submitted to Citizenship and Immigration Canada (CIC) or the Canada Border Services Agency (CBSA) during the eligibility interview.

Initial Hearing: Refugee Protection Division (RPD)  of the IRB  

Hearing by Governor in Council appointed decision makers with no time standards. Current processing time line is 19 months.

Hearing by public servant decision makers within 60 days for claimants from designated countries of origin (DCO) and 90 days for non-DCO.

Hearing by public servant decision makers according to proposed time lines:

  • Within 30 days for inland DCO claimants.
  • Within 45 days for POE DCO claimants.
  • Within 60 days for all non-DCO claimants.

Appeal:
Refugee Appeal Division (RAD)

No appeal division.

Introduction of a RAD.

15 working days to file and perfect an appeal to the RAD.

Except in cases where a hearing is held, decisions within 30 days for DCO claimants and those whose claims have been determined to be manifestly unfounded and 120 days for all other claimants.

DCO claimants, manifestly unfounded claims, claims with no credible basis, claimants who are subject to an exception to the Safe Third Country Agreement and claims referred to the IRB before the coming into force of the new system (backlog) would not have access to a RAD appeal.

No access to the RAD for those who arrive as part of a designated irregular arrival.

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).

15 working days to file and perfect an appeal to the RAD.

Except in cases where a hearing is held, proposed time lines for a RAD decision is 90 days for claimants with access to the RAD.

(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 that 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.)

Designated Countries of Origin (DCO)

No authority to designate countries of origin.

Authority to designate countries of origin, including groups of nationals or parts of countries, for the purpose of expedited processing. Designation subject to a positive recommendation from a panel of experts.

Triggers for a review based on acceptance rates and volumes established in regulations.

Minister has authority to designate countries of origin, but with no sub-national or regional areas (i.e., designate an entire country, not parts of it).

Triggers for a review based on rejection rates, withdrawal and abandonment rates or a qualitative checklist for countries with few refugee claims. For the quantitative criteria, a high rejection rate which includes withdrawn and abandoned claims could trigger a review for designation.  The actual thresholds would be set out in Ministerial Order.  We would be proposing a threshold of 75% rejection rate and 60% withdrawal/abandonment rate.

Quantitative triggers would be established by Ministerial Order.

Pre-Removal Risk Assessment (PRRA)

Foreign nationals can apply for a PRRA prior to removal.

No PRRA application for one year after last decision at the IRB (RPD or RAD).

No subsequent PRRA applications for one year following a negative PRRA decision.

Time lines accelerated for filing a PRRA application and evidence to the RPD within 15 working days, to be set out in regulations.

Ministerial Interventions

On behalf of Minister, CBSA intervenes before the RPD primarily for security or criminality reasons.

On behalf of Minister, capacity also provided to CIC to intervene for reasons of program integrity or credibility at the RPD and RAD. This is a new pilot project.

More flexibility for ministers of CIC and Public Safety to intervene in proceedings before the RAD.

Reopening Applications at the IRB

IRB has jurisdiction to reopen previously decided claims.

No change from current practice.

IRB would not be able to reopen previously decided claims or appeals once a final decision has been made at a higher level (i.e., RAD or Federal Court).

Removal Time Lines

Lack of timely removals of failed refugee claimants.

Currently takes on average 4.5 years from time a refugee claim is made and all recourses are exhausted and a failed refugee claimant is removed. In some extreme cases, this has taken up to 10 years.

Currently, the Act requires removal “as soon as practicable.”

Failed refugee claimants from all countries have access to an automatic stay of removal when seeking judicial review.

Removal within 12 months following a final negative IRB decision.

Failed refugee claimants from all countries have access to an automatic stay of removal when seeking judicial review.

Removal as soon as possible.

No automatic stay of removals for:
-Claimants from DCOs;
-Claimants with manifestly unfounded claims and those found to have no credible basis;
-Claimants who were subject to an exception to the Safe Third Country Agreement at a land border; and
-Claimants who arrive as part of a designated irregular arrival.

Loss of Permanent Resident Status when protected person or Convention refugee status ends (i.e., cessation)

Cessation does not result in loss of permanent resident status and therefore is rarely pursued.  

No change from current practice.

Provide that when the IRB finds a person has ceased to be a protected person or Convention refugee, the individual also loses their permanent resident status.

Humanitarian and Compassionate consideration
(H&C)  

Changes to the H&C provision under the Balanced Refugee Reform Act came into effect on June 29, 2010, when the bill received Royal Assent. Prior to that time, there were no restrictions on the factors for consideration in H&C applications.

No longer possible for applicants to submit more than one H&C application at a time. H&C decision makers no longer consider risks contained in section 96 (Convention refugee) and section 97 (person in need of protection).

No access to H&C for 12 months following a final negative IRB decision.

Exceptions would be made to consider best interests of children directly affected or where there is risk to life caused by a health or medical condition for which no adequate care is available in the country of origin.

No concurrent H&C application and refugee claim. Refugee claim may be withdrawn and an H&C application submitted if the IRB has not yet heard the claim.

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