In an article published in the Calgary Herald in October 2007, I commented on the necessity of reform to Canada's overburdened refugee system. Immigration Minister Kenney - perhaps the fifth minister in that portfolio since 2003 - has finally acted by imposing visa requirements on two top source countries for refugee claims: Mexico and the Czech Republic. There are two ways to alleviate the heavy burden on the overtaxed immigration and refugee determination system. One method is to limit the number of individuals accessing it. The visa requirement is a blunt instrument that will achieve this objective. It has, unfortunately, the effect of potentially denying a legitimate refugee from accessing Canada's protection. The second method is to reform the system. As it stands, an economic migrant can utilize the refugee system, obtain work and health benefits and stymie removal for years. A quick 'no' on such claims should be a disincentive for anyone but those fleeing persecution or face a legitimate risk to their lives in their country of origin. It appears clear that Kenney is now contemplating changes to the current refugee determination system.
As it currently stands, Canada's Immigration and Refugee Board, has jurisdiction over refugee claims made in Canada. These claims can arise from foreign nationals already in Canada, such as visitors, workers and students. A number of individuals, using false documents, also enter Canada without status and can claim refugee status. A filed refugee claim can take as long as two years to be determined by the IRB. A refugee claimant is eligible for a work permit in the meantime, and continues to eligible for a work permit even after the claim has been refused. The IRB is generous however, accepting over 40% of all refugee claims that proceed to a hearing. Counting a possibility of review by the Federal Court, a possible application under "humanitarian and compassionate" grounds, another, subsequent risk assessment, a failed refugee can easily remain in Canada for over five years.
Canada can likely adopt some of the UK innovations,including a list of "safe" countries. The claims of these individuals would be fast tracked. Other reforms include having immigration officer initially deciding on the merits of refugee claims. Such officers are trained in a similar manner to immigration decision makers in assessing credibility, evidence and legal issues unique to the refugee determination world. Currently, immigration officers determine "humanitarian and compassionate" applications that result in permanent residency. There is no obvious reason why officers cannot make decisions on certain refugee claims.
Other reforms that I commented on almost two years ago include the following:
- Appointing more decision makers;
- Focusing the IRB to get to the easy yes, or easy no, faster. There are countries, such as Myanmar and Colombia, that have approval rates over 75 per cent. A refugee claim from such a country should be expedited (indeed, provisions in the RPD rules allow such a decision to be made by an immigration officer). As a result, these quick yeses will result in resources being more efficiently used elsewhere. Claims where the refusal rates are quite low (less than 15 per cent or so) should be expedited in a fair manner. Claims from Mexico have about an 11% acceptance rate; and
- Adopting the reforms of other western democracies. The U.K. has a list of safe countries from which asylum claims which are refused and certified as clearly unfounded will be determined quickly, and cannot be appealed before removal. The following countries are currently designated as generally safe under the Nationality and Immigration Act 2002: Albania, Bulgaria, Jamaica, Macedonia, Moldova, Romania, Serbia and Montenegro, Bolivia, Brazil, Ecuador, India, Sri Lanka, South Africa and Ukraine. Home Office Minister Des Browne, in discussing adding India to the safe country list, stated: "Introducing a safe country list has resulted in a significant cut in the number of asylum applicants from these countries and this is just one of a number of steps we are taking to tackle abuse of the system . . . India, however is generally a safe country where people are not routinely fleeing for their lives, and very few people need our protection under the refugee convention.
Canada's humanitarian tradition has resulted in a generous refugee determination system. The IRB is Canada's largest administrative tribunal and is charged with determining claims in an efficient and fair manner. This mandate is threatened by a multitude of bogus refugee claims. On a personal level, it's my opinion that the determination of refugee claims by an independent administrative tribunal (as opposed to a determination by the government that is also charged with removal) should continue, albeit with greater efficiencies. At the same time, government is allowed to set policy within the limits of the Charter and law. It's clear that in this economic climate and with this particular government, things can't go on as they have (whether Kenney's proposals will survive a fall election remains to be seen).
Economic migrants that have benefited from the current system, other stakeholders and those with vested interest in the current refugee determination system will fight change from the status quo tooth and nail. Minister Kenney will not have smooth sailing on his quest towards reform of Canada's refugee determination system.