The Protecting Canada’s Immigration System Act

The Protecting Canada’s Immigration System Act

Citizenship, Immigration and Multiculturalism Minister Jason Kenney has introduced on 16 February 2012 a new Bill aimed at protecting the integrity of Canada’s immigration system.  The proposed measures include further reforms to the asylum system to make it faster, to address human smuggling, and to make it mandatory to provide biometric data with a temporary resident visa application.

The new bill, Protecting Canada’s Immigration System Act, proposes changes that build on reforms to the asylum system passed in June 2010 as part of the Balanced Refugee Reform Act, when the Conservative Party was still running a minority government and was obliged by the parliamentary opposition to pass a much softer legislation than initially intended.  Now, the majority Conservative Government is taking its “revenge” and chances are that the bill will come into force in a very short time.

Basically, the proposed measures would provide faster protection to those who genuinely need refuge, and faster removal for those who don’t.  In particular, refugee claimants from generally non-refugee-producing countries such as most of those in the European Union (EU) would be processed, on average, in 45 days compared to more than 1,000 days under the current system, or 171 days under the Balanced Refugee Reform Act.  The move comes as Canada copes with a massive spike in refugee applications from Hungary. Figures recently obtained by Postmedia News suggest that 4,409 Hungarians of Roma origin applied for refugee status in 2011 compared with just 2,300 a year earlier. Only two per cent of the application filed in 2010 by Hungarian nationals were approved, and seven per cent in the first nine months of last year.

Based on the new bill, a list of Designated Countries of Origin will be adopted.  Designated countries of origin (DCO) would be countries that do not normally produce refugees. The proposed changes would amend the criteria used to identify countries to be considered for designation, and remove the requirement to have an expert panel make a recommendation to designate.  There would be a two-step process for a country to be considered for designation.  First, a country would have to meet one of two quantitative thresholds or limits set out in a ministerial order. The proposed triggers for a review are based on rejection rates, withdrawal and abandonment rates. A rejection rate (which includes abandoned and withdrawn claims) of 75% or higher would trigger a review. Similarly, an abandonment and withdrawal rate of 60% or higher would trigger a review too.

For claimants from countries with a low number of claims, a qualitative checklist would be established in legislation. The qualitative criteria checklist would include:

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

Once a country is triggered for a review, Citizenship and Immigration Canada (CIC) would conduct a review in consultation with other government departments. The Minister of Citizenship, Immigration and Multiculturalism would make the final decision on whether to designate a country.  Claimants from designated countries would not have access to the Refugee Appeal Division at the IRB.

To further accelerate the processing of refugee claimants from a designated country, these claims would be heard on an expedited basis by the IRB. It is proposed that DCO claims would be heard by civil servant decision makers at the IRB within 30 days for claims made at inland immigration offices and within 45 days for claims made at ports of entry. By comparison, it is proposed that hearings for claimants from all other countries would occur within 60 days.

All failed claimants would continue to have the option of asking the Federal Court to review a negative decision. However, there would be no automatic stay of removal for DCO claimants should they decide to ask the Federal Court to review a negative decision, which means that they could be removed from Canada while their claim is pending.

To further reduce the attraction of coming to Canada to make an unfounded claim, DCO claimants will be ineligible to apply for a work permit and associated benefits until their claim is approved by the IRB or their claim has been in the system for more than 180 days and no decision has been made.

Mandatory detention remains for people who enter Canada as part of a designated smuggling event (for instance on board of boats operated by organized smugglers). But once the identity of a claimant has been established and a refugee claim is approved, individuals would be released from detention.

The final component of the new legislation would give the Minister the authority to make it mandatory for visa applicants to provide biometric data (i.e., fingerprints, photograph) to visit Canada. Documents can be forged or stolen, whereas biometric data provide greater certainty, confirming the identity of applicants when they apply.   According to the official Communiqué issued by the Canadian Government, these measures would put our country in line with international partners such as the United Kingdom, the European Union, Australia, and the United States. This would help prevent known criminals, failed refugee claimants and deportees from using a fake identity to obtain a visa. The use of biometrics would also bolster Canada’s existing measures to facilitate legitimate travel by providing a fast and reliable tool for confirming identity.

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