Raj Sharma's Canadian Immigration Blog

Tories look to fast track refugee claims

Looks like refugee reform will be enacted sooner rather than later. 

Globe and Mail article indicates that the "safe country" list will be a reality come this fall. Tribunal Officers (formerly known as Refugee Protection Officers) will be making the initial decision with an ability for an appeal (which may or may not mean a hearing) to a Board Member. 

So what countries will be on the 'safe list'? My guess is all of Europe, Mexico, Israel, India (let's see about this particular prediction), Chile, Israel (and of course the other western democracies, like the US and Australia). 

Countries that remain outside of the purported safe list will likely be any country with a higher than average acceptance rate. These countries will likely come from Africa, most of the middle east, Burma, North Korea, and other non-Rule-of-Law countries.

But the exact mechanics of determining this list will be problematic. Who decides? And what will be the criteria? In my opinion, "safe countries" are those countries that are determined to be "free" (see Freedomhouse.org), with the usual indicia of the rule of law (think independent bar/judiciary, ability of citizens to change their government, ability of citizens to travel freely within the country, and the existence of a functional and effective police system). 

This issue is not going away anytime soon. 

Refugee Reform

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.

How to win a Refugee Claim: Representations/Submissions

In November 2003, I received training along with RPD Members on "RPD Reasons and Representations" from the IRB's Professional Development Branch.

In retrospect, I realize that training was very useful in my reincarnation as a lawyer practicing before the RPD.

During the training, the Members were trained and advised to approach the hearing with the intention of delivering oral reasons. While ostensibly the training recommended oral decisions because the evidence and testimony are fresh and oral reasons reduce uncertainty for the claimant (win or lose), in reality, oral decisions were required of the RPD Members because they save time - and are essential for the Board to manage its ever increasing case load efficiently.

The training "suggested" a particular approach to assimilating and organizing the information "before, during and after the hearing".

I suggest that understanding this "particular approach" will aid in preparing any counsel (and even self-represented claimants) to provide submissions which will align (if you will) with the decision makers thought process, ensuring that the relevant information is before him or her and highlighting those aspects of the claim most beneficial and hopefully succeed in establishing that the claim merits the protection of Canada under either s.96 and/or s.97 of the Immigration and Refugee Protection Act.

My suggestion for representations (based on the suggested format for decisions):

1. Introduction - the introduction of the claimant, country of reference;

2. Allegations - set out the substance of the alleged fear, including key facts from the claimant's PIF, interview at the POE and testimony before the RPD. Allegations describe "in a nutshell the reasons for the claimant's belief that he or she is a CR or a person in need of protection". The purpose of reitering these alleged events is to orient the Member, to reiterate the essentials of the claim to the decision maker;

3. Brief summary of key findings or elements in the claim that support a positive determination;

4. Directly ask the Member to find in favour of the claim (I like to be direct here, and follow up again at the end);

5. Provide your analysis of why the claim should be accepted, noting identified issues (almost always credibility, subjective/objective fear, state protection and IFA if applicable) and discussion of how those (determinative) issues can be resolved in your (or your clients) favour (ie. the testimony/allegations are supported by evidence, including country condition evidence -- NOTE point out the sources of information in support of the allegations, buttressing the objective basis of the claim or the claimant's behavior is consistent with the behavior of someone in fear - supporting the subjective basis of a fear - or that the claimants efforts to secure state protection has overcome the presumption of state protection) -- NOTE - the ability to discuss the resolution of determinative issues requires knowledge of the leading jurisprudence dealing with credibility, delay, nexus, risk to life, state protection, IFA, exclusion etc. etc.;

[To focus your analysis, ask yourself what the determinative question that the decision maker will need to resolve to decide in your favour. If the critical question is "Whether the claimant, as a national of Mexico is able to obtain adequate state protection", the analysis will need to deal with the efforts to obtain state protection (if applicable)/whether the claimant has overcome the presumption discussed in the leading case on state protection]

6. Also - you may need to respond to opposing argument - whether this is forwarded by the attending Tribunal Officer (formerly known as Refugee Protection Officer) or Minister's counsel (as CIC can intervene in refugee claims). You may want to rebut the opposing argument prior to your analysis which should highlight the positive elements of the claim; and

7. Conclusion - simple concluding paragraph reiterating the decision you are seeking.  

Also:

Don't ignore the problem elements - address them directly - I think the Member will appreciate the forthrightness, and rather than have those problems go unaddressed by you, you may as well try and put the best light on them that you can; 

Establish the following:

1. Identity and country of origin;

2. Is there any exclusion issues (like 1Fa)?;

3. What is the harm feared? Who is the agent of persecution or perpetrator of this alleged harm?;

4. Why is the claimant particularly at risk? Is there a serious possibility of this harm being inflicted? (the 'standard of proof' is not a balance of probabilities, but somewhat lower);

5. Is there somewhere else in the country of origin that the claimant can go and be safe (IFA)? Is there adequate state protection in the country of origin (state protection)?

How to make a refugee claim in Canada

The process to initiate a refugee claim/claim for protection in Canada is relatively straightforward.

There is a lot of information about how Canada determines refugee protection on line.

A starting point would be information on CIC's website here.

Additional resources are available at the IRB's website here.

Here's a publication from the Library of Parliament - dated but useful here.

In essence, once an individual within Canada (either arriving at the airport, making a claim at an inland immigration office (eg. CIC at Harry Hays building downtown Calgary) or making a claim at the US/Canada border - but is an exemption to the Safe Third Country Agreement) informs CIC of an intention to make a refugee claim, the refugee eligibility determination process begins.

This may take different permutations. For example, in Calgary, once you notify CIC of your intention to claim refugee protection at their offices at Room 170 220 4th Ave SE (Harry Hays bldg) they will give you a date several weeks away for an 'eligibility interview'. You will also need to complete a one page form indicating the refugee applicant's name, date of birth and whether they require an interpreter. If required, CIC will provide one for the eligibility interview date. They will give you refugee eligiblity forms ("Information on Individuals Seeking Protection") to complete:

Download 2008_04_22_scan_refugee_eligibility_forms.pdf

The applicant (aka claimant) will be required to bring the completed forms along with 4 passport sized photographs for the interview. At the interview, current practice appears to be to go through the forms line by line to confirm the information provided. This is slightly tedious. Counsel is allowed to be present, but their sole is strictly circumscribed - they are not to make submissions or otherwise interfere with the immigration officer.

The claimant will also be asked to set out briefly the reasons for making the refugee claim. This can achieve relative importance later, especially if there is a material omission, contradiction or other discrepancy between the information provided at the eligiblity interview and the individuals refugee claim with the Immigration and Refugee Board.

The officer is really looking at whether this individual is eligible to make a refugee claim and whether the claim can be referred to the Immigration and Refugee Board for a refugee hearing - the officer isn't there to determine whether the claim is any good, or really even meritorious. Elibility is determined by ensuring (see section 101(1) and (2) of the Immigration and Refugee Protection Act):

• Refugee protection hasn't already been conferred on the claimant, or already rejected (no repeat claims);
• A prior claim was ineligible to be referred or was withdrawn or abandoned;
• The claimant has been recognized as a Convention Refugee by another country and can be sent or returned to that country; and
• The claimant is inadmissible on grounds of security, violating human or international rights, serious criminality or organizaed criminality (there's also a section dealing with serious criminality, when it applies, and when it doesn't apply to render a claim ineligible).

Once the claim has been determined to be eligible, a different officer takes over and completes the necessary paperwork, including the issuance of a removal order (which is stayed until after the refugee claim, and is affected by other statutory/judicial stays). The claimant is provided with his or her Personal Information Form (available on the IRB website) and other instructions, including medical instructions. The PIF is due 28 days from the determination of eligiblity and must be submitted to the Vancouver IRB office (in the case of claims made in Western Canada). Once proof of filing of the PIF is received, an applicant can apply for a work permit - which is sent to CPC Vegreville. The initial work permit of a refugee does not require the payment of the $150 fee.

In the case of a claimant who is exempt from the Safe Third Country Agreement and makes his or her claim at the border, he or she will likely be required to complete the eligiblity forms then and there and provided with the PIF and sent on their way. This is likely the same MO of CIC at the airport.

Adequate identification is necessary and will be seized by CIC. The claimant will be provided with a Notice of Seizure and a certified copy of the seized document.

The IRB of course will determine whether the claimant is someone requiring protection pursuant to s. 96 and 97 of the Act. Use Canlii.org to review the exact language of these particular and important sections.

One of the difficulties in having such a free, open and transparent country such as Canada is that the information that is available to assist a genuine refugee is also avaiable to concoct a fraudulent claim.

Canada - "A haven for villains"????

A critical article in the Economist regarding Canada and its 'lax' and 'dysfunctional' immigration and refugee policy. The article points at Canadian refugee claimant Ahmed Ressam and the current backlog of 50,000 individuals against whom removal orders are pending:

...all kinds of undesirables are getting into Canada under the country's dysfunctional “refugee” system. While doing little to save genuine refugees in camps abroad, it has opened the door to queue-jumping economic migrants, big-time crooks and terrorists, as documented in numerous reports (notably from the federal government's security service and auditor-general) over more than 20 years.

...

Canada is the easiest country in the developed world in which to obtain refugee status. Most countries accept no more than around 15% of all applicants, whereas Canada accepts more than half. Attracted by an entitlement to the same legal rights and social benefits as for Canadian citizens, some 25,000 asylum-seekers make their way to Canada every year.

...

Once in Canada, they know they will be able to stay—and work—there for at least four years, while pursuing their appeals through the courts.

...

The article blames the problems on Canada's national political parties - which need to pander to the immigrant heavy votes in key cities such as Vancouver, Montreal and Toronto..and then  ends on an ominous note:

... Although the polls suggest that ordinary Canadians want the abuse to end, there is no political will. As James Bissett, former head of the Canadian immigration service, says: “It might take a bomb going off here to change this system.”

Violent Refugee Released

Paula Simons writes on a violent refugee, Samuel Martin Luin, who after completing his sentence for raping a woman in Edmonton, was released from detention by Immigration Division Member Paul Kyba. It would appear that the CBSA failed to apply for a danger opinion which would have allowed his removal from Canada:

This July, the Immigration and Refugee Board convened a deportation hearing, where Luin was ordered deported. But deporting a refugee isn't simple. Ethically, it's tricky to send someone who's been granted asylum back into a war zone. And most of Luin's family are now in Ethiopia. To deport Luin, the minister of immigration,Diane Finley, would have to sign a document called a danger opinion, effectively ruling that the danger Luin poses to the Canadian public outweighs the danger he'd face in Sudan.

The process of getting a danger opinion is long and cumbersome. First, Canada Border Services has to complete the research and paperwork to support deportation. Then, the person facing deportation has the chance to put together a legal rebuttal. Then, the paperwork goes to Ottawa for ministerial consideration. It can take anywhere from six months to two years to get a ministerial decision.

Yet even though Luin was due to be released on Nov. 23, Canada Border Services didn't file an application for a danger opinion until Nov. 13, 10 days before Luin was to hit the streets.

And so, on Dec. 3, the Immigration and Refugee Board released Luin from detention, ruling he was neither a flight risk nor a public danger.

It was unfair and unconstitutional to hold him indefinitely, said the IRB, just because Stockwell Day's Department of Public Safety failed to do its job.

"The minister is about 16 months behind in doing what the minister ought to have started ... a year and four months ago," said Paul Kyba of the Immigration and Refugee Board. "... I see no excuse, I see no valid reason why the minister chose to delay this process. This is not vigilance by the minister."

However, even given the failure on the part of the CBSA to act on the necessary paperwork to remove Samuel Martin Luin, it is somewhat disturbing that the ID released Luin without even the posting of a cash bond. Luin was subject to report to immigration once a month -- perhaps not surprisingly, Luin failed to report and went underground.

Here's an article that discusses his guilty plea - defence counsel had argued that Luin's past - growing up in war ravaged Sudan should be taken into account for sentencing.

Luin has now been taken into custody by the Edmonton police acting on tips from the public.

** Update - it appears that the long awaited danger opinion has been prepared. Article here. Excerpt:

Citizenship and Immigration Canada has signed a "danger opinion" order on convicted rapist Samuel Martin Luin, which means he is thought to pose more of a danger to the Canadian public than he would face in Sudan.

The notice effectively gives the Canadian Border Services Agency permission to deport Luin. As soon as his travel documents are arranged, Luin, 23, will be put on plane back home. "We basically have a green light to go ahead with his removal," said Lisa White, spokeswoman for the Canadian Border Services Agency. "We will make every effort to remove him from Canada as soon as possible."

Canada's immigration and security weaknesses

I remember the first time I realized the weaknesses inherent in Canada’s immigration and refugee system. It occurred during my very first month as a Refugee Protection Officer, when I was screening a refugee claim referred to the Immigration and Refugee Board by Citizenship and Immigration Canada.

Essentially, when a person claims for refugee protection either within Canada at an in-land CIC office (like the airport, or the CIC office at the Harry Hays building here in Calgary) or at the border, CIC has the responsibility to ensure that the individual is ‘eligible’ to make a refugee claim.

Unfortunately, the eligibility determination relies mainly on information provided by the refugee claimant himself. At the same time, CIC does not have the ability to magically divine the true nature or background of the individual before them. A large number of refugee claimants come from countries such as Pakistan, where fraudulent documents (including passports and therefore new identities) are easily obtained.

Once CIC determine the person is eligible to make a refugee claim, the file is transferred to the Immigration and Refugee Board, where the file is screened and (eventually) a hearing is set down and the claim is heard by an independent decision maker (appointed generally without explicit legal/refugee experience – but is generally an individual who has connections to the federal party currently in power in Ottawa). At that time the refugee claimant is either granted refugee status, or is denied.

Before me that day was an individual who explicitly stated that he was a ‘leader’ of a known illegal and terrorist group in Pakistan well known to violate the human rights of religious minorities in that country. Notwithstanding his acknowledgement, the file was proceeding in the ‘refugee stream’ and it would be likely years before he could be removed from Canada.

Luckily, there were provisions in the Immigration and Refugee Board that allowed CIC to ‘claw back’ the file and set the matter down instead for an admissibility hearing (allowing for a more expeditious removal of this individual).

After a sigh of relief, I had time for more reflection on the matter. The only reason that the individual was facing removal from Canada was because he was foolish enough to acknowledge his relationship with the illicit organization. I wondered how many more similar individuals – perhaps more cunning, or perhaps more reticent – were able to utilize the refugee determination system to obtain status in Canada.

But, it goes beyond our refugee determination system. There are holes throughout the system. Background checks of prospective immigrants are essentially an exercise in futility. The Canadian Security Intelligence Service (CSIS) is apparently charged with playing “a leading role in protecting the national security interests of Canada”. CSIS itself has acknowledged in 2006 that 90% of immigration applications from Pakistan and Afghanistan -- ‘hotbeds for Islamic fundamentalism’ -- have not been adequately screened for security concerns.

Citing a lack of resources, Jack Hooper, deputy director of operations for CSIS told a Senate national security committee last year, that the ‘Service’ (as it refers to itself) was not in a position to vet one-tenth [of the 20,000 immigrants from Afghanistan/Pakistan]. In a fantastic if not ludicrous understatement, he remarked “That may be inadequate”.

I think that we may as well stick our collective heads in the sand against the very real and imminent threat in our midst, hoping against reason that it will go away, if the number two man at CSIS thinks one-tenth may be inadequate.

What I propose may be shocking or revolutionary, but I suggest – in the name of the national and public interest -- that immigration applications should not be processed if adequate security screening has not been done. A lack of resources can never be an excuse in this post-9/11 world.