Backgrounder — Summary of Changes to Canada’s Asylum System

Below is a summary of the changes to Canada’s asylum syste m following passage of the Balanced Refugee Reform Act in June 2010 and the Protecting Canada’s Immigration System Act in June 2012.

Some changes came into effect immediately when each piece of legislation received Royal Assent, while other changes come into effect on December 15, 2012, or beyond.

Key Changes Canada’s New ASYLUM System – as of December 15, 2012

Estimated Total Processing Time
(does not include time to removal or if the IRB grants a postponement for the initial hearing)

Previous System:
1,038 days.

30 - 45 days – Designated country of origin (DCO) asylum claimants
240 days – non-DCO asylum claimants

Eligibility Review 

Previous System:
Eligibility determination within three working days.

No change.

Information- Gathering

Previous System:
28 days to submit Personal Information Form to the IRB.

Personal Information Form replaced by the new “Basis of Claim” form.

For asylum claims made at a port of entry (POE), a Basis of Claim form must be submitted directly to the IRB no later than 15 days following referral of the claim to the IRB.

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

As of December 15, 2012, only the new Basis of Claim form will be accepted. It is available on the IRB website.

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

Previous System:
Hearing by Governor in Council appointed decision makers with no time standards. Current processing time line is 18 months.

 

Hearing by public servant decision makers according to time lines:

  • No later than 30 days after referral to the IRB for inland DCO claimants.
  • No later than 45 days for POE DCO claimants.
  • No later than 60 days for all non-DCO claimants.

Appeal:
Refugee Appeal Division (RAD)

Previous System:
No appeal division.

New RAD created.

The majority of claimants will have access to the RAD. There will be no access to the RAD for:

  • claimants from DCOs;
  • claimants, who according to the RPD, have manifestly unfounded claims;
  • claims, which according to the RPD, have no credible basis;
  • claimants who were subject to an exception to the Canada –U.S. Safe Third Country Agreement at a land border;
  • claimants who arrive as part of a designated irregular arrival (e.g. a human smuggling event);
  • claimants who have their claims re-heard at the IRB if the claim is ordered back to the IRB by the Federal Court on judicial review; and
  • claimants whose claim was referred to the IRB before the coming into force of the new system (i.e., claimants in the backlog).**

In addition, there will 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) or for those with claims that are deemed rejected because of an order of surrender under the Extradition Act or for those determined to have abandoned/withdrawn their claim at the RPD.

Appeals must be filed within 15 calendar days and all final documents submitted (known as perfecting an appeal) within 30 calendar days from the date the written reasons of the RPD decision are received.

Except in cases of a hearing, the time line for a RAD decision is 90 days from when the appeal is perfected.

Designated Countries of Origin (DCOs)

Previous System:
No authority to designate countries of origin.

New authority to designate countries of origin for the purpose of expedited processing.

A DCO is a generally non-refugee producing country which respects human rights and offers state protection.

Designations are not automatic. Countries are triggered for a review leading to potential designation according to either quantitative or qualitative criteria.

Quantitative thresholds are stipulated by Ministerial Order as a:

  • 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 proceeding designation. If a country meets one of these triggers, it may be reviewed for potential designation.

Qualitative triggers are stipulated in legislation and are used to identify countries with less than 30 finalized claims for potential designation. Countries must meet each of the following triggers in order to be reviewed for potential designation:

  • the existence of an independent judicial system;
  • recognition of basic democratic rights, with mechanisms for redress if infringed; and
  • the existence of civil society organizations.

Once a country is triggered, CIC may conduct a review in consultation with other government departments. The Minister of Citizenship, Immigration and Multiculturalism will make the final decision on whether to designate a country.

If a country does not meet any of these triggers, it cannot be designated.

The bar on accessing a (PRRA) will be extended to 36 months for individuals from a DCO.

Ministerial Interventions

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

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

Reopening Applications at the IRB

Previous System:
IRB has jurisdiction to reopen previously decided claims.

IRB will 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

Previous System:
Lack of timely removals of failed asylum claimants.

Took, on average, 4.5 years from time an asylum claim was made and all recourses were exhausted and a failed asylum claimant was removed.

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

Legislative change to ensure that removal orders are enforced as soon as possible.

No automatic stay of removals upon application for review at the Federal Court 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 status ends (i.e., cessation)

Previous System:
Cessation does not result in loss of permanent resident status.

Provides that when, upon application by the Minister, the IRB finds a person has ceased to be a person in need of protection or a Convention refugee, the individual also loses their permanent resident status if they have it.

An exception is provided when refugee protection ceases due to a change in country conditions. In this case, loss of permanent resident status is not automatic.

Criminality

Previous System:
Persons convicted of a serious crime in Canada and sentenced to two years or more are denied access to the RPD.

Anyone convicted of a serious crime, regardless of the length of the sentence, would be denied access to the RPD, but would be entitled to a (PRRA).

If the (PRRA) is successful, these individuals could remain in Canada but would not be given protected person status.


Key Changes Changes already in effect

Humanitarian and Compassionate consideration (H&C)

Previous System:
H&C applications could be submitted at any time and multiple times.

Changes to H&C under the Balanced Refugee Reform Act came into effect on June 29, 2010, and include:

  • A person cannot have two H&C applications pending at the same time;
  • In examining H&C requests made in Canada, decision makers may not consider risks that are assessed within the refugee protection process, i.e., risk of persecution based on grounds set out in the Refugee Convention or risk of torture, or of cruel and unusual treatment or punishment; 
  • The new measures also confirmed in legislation the existing policy that an H&C application is not considered complete until the appropriate fees have been paid; and,
  • The legislation separates the public policy provision from the H&C provisions.

Additional changes that came into effect with the passage of the Protecting Canada’s Immigration System Act on June 28, 2012, include:

  • No access to H&C for 12 months following a final decision of the Immigration and Refugee Board of Canada (IRB). Exceptions will 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; and
  • No H&C application can be submitted when the person has an ongoing asylum claim. The asylum claim may be withdrawn and an H&C application submitted if the IRB has not yet heard substantive evidence on the claim.

Pre-Removal Risk Assessment (PRRA)

Previous System:
Foreign nationals could apply for a (PRRA) prior to removal without restriction.

Changes to (PRRA) also came into effect earlier this year.

Most failed asylum claimants will not have access to a (PRRA) for one year, following a final decision by the IRB.

In the case of someone who receives a negative (PRRA) decision, they are also barred from submitting a subsequent (PRRA) until one year has passed since the initial decision was made. This is to prevent individuals from submitting multiple (PRRA)s immediately after the risk they face returning to their country of origin has been assessed.

In the event of a sudden and significant change in country conditions that could lead people to being subject to personalized risk if returned to their home country, the Minister of Citizenship, Immigration and Multiculturalism may exempt individuals from the bar on accessing a (PRRA).

The criteria to be considered for an exemption has been established in regulations and includes recent changes in laws, policies or practices within a given country which indicate a risk of persecution or torture against all or some of that country’s nationals.

Assisted Voluntary Return and Reintegration (AVRR) pilot program

Previous System:
No such program.

The AVRR pilot program was launched in the Greater Toronto Area on June 29, 2012, to increase the number of failed asylum claimants who willingly leave Canada in a timely manner.

It is important to note that individuals who withdraw or abandon their claim, have a criminal record, or have been found by the IRB to have made an unfounded or non-credible claim, are not eligible to participate in the AVRR pilot program.


Key Changes Future Changes

Transfer of the (PRRA) function to the IRB

Current system:
CIC decides (PRRA) applications.

Two years after the new asylum system comes into effect, the (PRRA) function will be transferred to the IRB.

*The Safe Third Country Agreement applies to asylum 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, asylum claimants must seek protection in whichever of the two countries they first have the opportunity to do so.

**See notice on the Refugee Appeal Division

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