Maytree Conversations

By Peter Showler, Director of the Refugee Forum and former chairperson of the Immigration and Refugee Board (IRB) of Canada

For the past few years, the immigration and refugee portfolio has enjoyed or endured a particularly high political profile under the Conservative government of Stephen Harper with Jason Kenney serving as Minister of Immigration, Citizenship and Multiculturalism. This forthcoming parliamentary session promises to be no different. Refugees comprise only thirteen per cent of the approximately 250,000 immigrants who come to Canada each year, but refugee policy, rather than immigration policy, will once again be the preoccupation of the government. It promises to be a stormy session and the theme may well be the Revenge of the Majority.

Two prominent pieces of refugee legislation will once again be in the news.

Bill C-4, the Bill Preventing Human Smugglers from Abusing Canada’s Immigration System Act, is a particularly controversial piece of legislation. It was originally introduced to parliament in October 2010, but was withdrawn from the House order paper after all of the opposition parties publicly opposed it. The bill purports to crack down on human smugglers, but its more punitive measures are actually directed against refugee claimants. The bill mandates that every man, woman and child be imprisoned for up to a year if they arrive in a designated group (like by boat for example) without any form of judicial review by a court. The bill has puzzled legal observers since it is a blatant violation of S.10 of the Charter of Rights, as well as the principle of Habeas Corpus, a corner stone of any democratic country that allows any person to challenge their imprisonment before a judge.

It was assumed that the bill was primarily introduced for political purposes, to burnish the government’s law and order image before the federal election. The Conservative’s campaign messages appeared to confirm that view. With pictures of the Sun Sea in the background, the opposition parties were portrayed as soft on human smuggling. But the bill is back with all of its most controversial provisions intact and now supported by the muscle of a Conservative majority in both the House of Commons and the Senate. It is expected that the bill will be quickly sent to a House committee. Let the fireworks begin.

Lurking in the parliamentary background is a second piece of legislation that most had assumed to be finished business. Bill C-11, the Balanced Refugee Reform Act, was passed in June 2010, but the new refugee claim system was not to be implemented until December 1 of this year. Officials at the Immigration and Refugee Board have been working furiously to ensure the new system would be ready. Minister Kenney recently announced that implementation would be delayed until June 29, 2012, the latest possible date allowed under the law.

On the face of it, the postponement is a surprise. Three years ago, Prime Minister Harper publicly apologized to the president of Mexico, blaming Canada’s refugee system for the necessity of imposing a visa requirement on Mexican citizens and promising to fix the system. Delayed implementation means the Mexican visa requirement continues and the current system, with its backlog of claims and delays in removal, continues.

However, rumours abound that the government is not happy with the concessions that it made to pass the law and is now pondering tougher amendments to its own law. Refugee advocates are already unhappy with government regulations that have seriously undercut the balance between speed and fairness in the new law. Additional changes will require new legislation and will pit human rights advocates against a government determined to impose its will on an out-numbered opposition. We will once again hear the government’s specious rhetoric about good refugees and bad refugees.

None of this will be good for refugees, or, ultimately, for Canada.

Related links:

• Refugee Forum
• Fast, Fair and Final: Reforming Canada’s Refugee System
• A fast and fair refugee system: a slogan or a reality?
• New project helps claimants navigate new refugee system
• Implementation of the Balanced Refugee Reform Act delayed until June 2012
• CIC Facts and Figures - Permanent and temporary residents by immigration category, 2010

By Peter Showler, Director of the Refugee Forum and former chairperson of the Immigration and Refugee Board (IRB) of Canada

Citizenship, Immigration and Multiculturalism Minister Jason Kenney has just announced that implementation of the Balanced Refugee Reform Act (BRRA), scheduled for December 1 of this year, has been postponed to June 29, 2012. That is the latest possible date under the law that the bill could be implemented.

No reasons have been offered for the delay.

The BRRA radically alters Canada’s refugee claim system and the Immigration and Refugee Board (IRB) was confronted with an enormous administrative task to prepare for the new system. The IRB has been charged with hiring and training hundreds of new staff to serve as Interview Officers and Refugee Protection Division members who will be public servants under the new act. In addition the Board was in the course of creating an entire new division, the Refugee Appeal Division, to hear appeals of refugee decisions.

One potential reason for the delay was the enormousness of the task facing the IRB. The Minister may well have underestimated the time and effort required to draft new rules, procedures, job descriptions and policies as well as to hire and train competent staff. The human resources challenges were immense. There were more than 6,000 applicants for the new refugee decision-maker position alone. The Minister was also confronted with a backlog of 41,000 refugee claims that has not been resolved. Such a backlog would have overwhelmed the new refugee process although it is doubtful that a six-month postponement will resolve the issue. It is not practical to expect the IRB to both implement the new refugee system and resolve the backlog at the same time.

Come next June, Minister Kenney will still have difficult backlog decisions to make if the new system is to be fast, fair and effective as promised.

Related links:

• Refugee Forum
• Fast, Fair and Final: Reforming Canada’s Refugee System
• A fast and fair refugee system: a slogan or a reality?
• New project helps claimants navigate new refugee system

Peter Showler is the Director of the Refugee Forum and the former chairperson of the Immigration and Refugee Board of Canada.

Maytree’s yearly Policy Insights document presents policy proposals prepared by Maytree, its partners and grantees. These recommendations make up the three important “I”s of public policy: ideas, instruments, and investments. They each identify a powerful idea to improve the life of Canadians, the instruments which will be effective in creating that improvement, and the investments that must be made to operationalize the instruments. These recommendations build on the power and potential of public services, and the resiliency of Canadians. You can download the complete collection of Policy Insights in PDF format. Please share and distribute to your networks.

Canada has both a moral and legal obligation to ensure that those who arrive at its borders will not be sent back to their country of origin if they are threatened with persecution or torture. Like all countries who signed the 1951 United Nations Convention relating to the Status of Refugees, Canada has considerable latitude in designing the process by which it decides who is or is not a refugee.

Although Canada’s current refugee system enjoys wide international respect, it has serious defects, notably the lack of an appeal, a questionable method of appointing decision-makers and an excessive number of administrative stages leading to delays in decision-making and the removal of refused claims. At the start of 2010, there was a backlog of 62,000 undecided refugee claims and a four-to-six-year delay in removing failed claimants.

In June 2010, the Balanced Refugee Reform Act was passed with the support of all political parties after the government accepted several key amendments to the initial government bill. The act will substantially reform Canada’s refugee claim process and is expected to be implemented in December 2011. Most experts and academics feel that the new system, if properly implemented, will be an improvement over the current system. The significant changes to the system include:

• Shorter timelines for the first level decision;
• Expedited timelines for claimants from a safe country of origin;
• Members of the Refugee Protection Division will now be public servants;
• A right of appeal to a new Refugee Appeal Division;
• Prompt removal of failed claimants within one year; and
• Limited access to alternative humanitarian applications.

Since the bill is framework legislation, many of the essential details that will determine the success and fairness of the new claim process will be contained in the government regulations and the Immigration and Refugee Board (IRB) rules. Initial drafts of the regulations and IRB rules indicate that the government may impose unreasonable time standards, particularly for the appeal process, that will seriously restrict the role of legal representatives and may lead to serious miscarriages of justice.

The Refugee Forum and other agencies will continue to encourage the government to introduce more reasonable regulations that will reflect the spirit of balance contained in the act itself. Depriving refugees of reasonable opportunities to retain legal counsel and to fully present their claims undermines both the fairness and the effectiveness of the claim system itself.

Allocate 45 days for an appeal to the new Refugee Appeal Division

The reformed refugee claim process has balanced a faster first level decision with a new appeal to catch errors. Preliminary comments from the government have indicated that refused refugee claimants will be allowed only 15 days to file and complete their appeals to the Refugee Appeal Division. That is an absurdly inadequate period of time to retain a lawyer who must review the evidence and hearing transcript to file a meaningful appeal. One of the reasons that refugee claimants are refused is due to poor legal representation. Refused claimants would be deprived of any possibility of finding alternative legal counsel for their appeal.

The current time limits of 45 days used by the Federal Court have proven to be a reasonable minimum standard and should be adopted in the new government regulations.

Further reading:

• Refugee Forum
• A fast and fair refugee system: a slogan or a reality?
• Report – Fast, Fair and Final: Reforming Canada’s Refugee System
• Webinar recording – Fast Fair and Final: Reforming Canada’s Refugee System

Peter Showler, Director of the Refugee Forum and author of the Maytree report, Fast, Fair and Final: Reforming Canada’s Refugee System, wrote an open letter to Minister Jason Kenney urging him to withdraw Operational Bulletin 202.

It was originally published in Embassy magazine as a letter to the editor.

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The Honourable Jason Kenney, P.C., M.P.
Citizenship and Immigration Canada
Ottawa, Ontario
K1A 1L1

September 19, 2010

Dear Minister,

On July 22 of this year, Citizenship and Immigration Canada (CIC) sent a directive to all Immigration Officers in Canada that sets a basic principle of refugee law on its head. The directive, Operational Bulletin 202, concerns the processing of military deserters who claim refugee status in Canada. The first paragraph of the directive sets out the following line of logic: Military deserters from other countries have sought refugee protection in Canada. Desertion from the Canadian military is a serious criminal offence. Therefore these deserters may also be serious criminals and therefore inadmissible to Canada.

Conscientious objection to military service, whether by draft resisters or deserters, is a widely recognized ground for granting refugee protection, both in Canada and internationally. Over the years, hundreds of conscientious objectors have been given protection although not all deserters or draft resisters are accepted as refugees. The facts of each individual case are considered, particularly: the motives and sincerity of the claimant, the legality or illegality of the military exercise they are seeking to avoid, and the possibility of excessive punishment or discriminatory prosecution. These are all facts and issues of law to be decided by a member of the Immigration and Refugee Board (IRB) after hearing the claimant’s testimony and evidence. It is fundamentally wrong-headed and a violation of the UN Refugee Convention to suggest that deserters are automatically inadmissible to Canada before hearing their claim because desertion is an offence in their own country.

Although the bulletin cites a general principle of law, a closer reading identifies the real target of the directive, namely, military deserters from one country, the United States of America. I presume then that military deserters from other, less friendly and more offensive regimes, such as Iran, Burma, Sudan, North Korea, possibly Syria and Kyrgyzstan, are still welcome to seek refugee protection in Canada and that their violation of state laws will not be a deterrent to making a refugee claim. The bulletin implies that military deserters from the US should be treated differently than deserters from other countries. There is no basis in law for that proposition. At the risk of repeating myself, that is the job of the Immigration and Refugee Board and not something to be decided prematurely by a border official before the evidence is heard.

The bulletin then discloses that its precise target is even narrower, namely those U.S. deserters who have already had their refugee claims denied and who have asked to remain in Canada for humanitarian reasons. Once again, the government appears to be circumventing the law and intruding on the independence of the Immigration Officers who are delegated to decide humanitarian applications based on the law and the evidence. It is the Immigration Officer who has the discretion to decide whether a refused claimant, for example, someone who has married a Canadian and may now be the parent of Canadian children, whether that person should be permitted to remain in Canada for humanitarian reasons.

These are difficult decisions with complicated and often heart-rending facts that include the best interests of the children but may also include the violation of US military laws. Regardless of the relevant factors, responsibility for the decision lies within the discretion of the Immigration Officer. Does any Canadian reasonably think that an Immigration Officer is making an independent decision when he or she is instructed, for US deserter cases, to “seek guidance” from the Regional Program Advisor and to copy their communications to very senior levels of their department? The clear implication is that any deserter from the US should be denied permanent residence in Canada no matter how sincere their motive for deserting or how compelling their reasons for staying in Canada.

Operational Bulletin 202 misstates the law and seeks to intrude on the independence of both IRB members and Immigration Officers. Out of respect for due process of law, I urge you to withdraw the bulletin.

Respectfully,

Peter Showler
Director, the Refugee Forum
Human Rights Research and Education Centre
University of Ottawa