Operational Bulletin 440-G - April 17, 2013

Processing of Refugee Claims by CIC under the New Legislation

Summary

On December 15, 2012, the Protecting Canada’s Immigration System Act (PCISA) came into force, ushering in a number of changes to the in-Canada refugee protection system. At the same time, CIC offices started using the Global Case Management System (GCMS) to process refugee claims. This Operational Bulletin (OB) outlines how to process refugee claims under the new system. It also indicates where CIC officers will find information on using GCMS.

Background

The Balanced Refugee Reform Act (under Bill C-11), which received Royal Assent on June 29, 2010, brought changes to the refugee protection system intended to deliver faster decisions, deter abuse and quickly remove persons not in need of Canada’s protection. For a refresher on these changes, see OB 222.

The PCISA (under Bill C-31), which received Royal Assent on June 28, 2012, proposed further reforms. Certain changes, in particular those related to humanitarian and compassionate (H&C) applications and Pre-Removal Risk Assessments (PRRA), came into effect at that time or shortly thereafter. For more information, see OBs 440A, 440D and 440H.

Other provisions of the PCISA came into effect on December 15, 2012. This legislation, which ultimately amends the Immigration and Refugee Protection Act, means numerous changes to the way eligible refugee claims are processed. At the same time, CIC offices ceased using the Field Operations Support System (FOSS) and started using GCMS to process refugee claims.

1. New Forms

i. CIC Forms

As of December 15, 2012, the IMM 5611 will cease to be used for refugee claims. Claimants will instead have to complete the following forms:

• Generic Application Form for Canada – IMM 0008 (PDF, 538 KB) (PDF, 553.83KB);
• Additional Dependants/Declaration – IMM 0008DEP (PDF, 471 KB) (PDF, 424.19KB);
• Schedule A – Background/declaration – IMM 5669 (PDF, 246 KB) (PDF, 776.39KB); and the
• Schedule 12 – Additional Information – Refugee Claimants Inside Canada – IMM 0008 – Schedule 12 (PDF, 1.21 MB) (PDF, 1.22MB).

As with the IMM 5611, a copy of each of the above forms must be provided to the Immigration and Refugee Board’s Refugee Protection Division, and to the claimant.

ii. Immigration and Refugee Board of Canada (IRB) – ‘Basis of Claim’ Form

The IRB’s Personal Information Form (PIF) has been replaced by a Basis of Claim (BOC) Form.

There are important procedural differences with the BOC. First, whereas all claimants previously were responsible for submitting their completed PIF directly to the Refugee Protection Division (RPD), only port of entry claimants will be required to submit their completed BOC directly to the RPD. And unlike the PIF’s 28-day submission deadline, these (port of entry) claimants are required to submit their BOC within fifteen (15) calendar days.

Inland claimants must provide a completed BOC to the inland officer at the same time as the other refugee intake forms. If the claim is referred to the RPD, the officer will provide the original BOC to the RPD. Note: The BOC must be couriered (along with all other required documentation) on a daily basis (every second day for smaller offices).

1.1 Appointment scheduling at Inland CIC Offices

Note: CIC will not accept mailed-in forms. If a client mails in completed forms, they must be returned, and the client notified that they must bring the forms in person to a CIC office. Appendix A contains sample wording for this notification.

When a person indicates a need for refugee protection, and has not yet completed the above forms, they must be given the Claiming Refugee Protection from inside Canada handout that outlines what is required in order to submit a refugee claim, and provides the website links to the relevant CIC and IRB forms. Advise the person to complete the forms using a computer, if possible, and to print the forms once completed. Claimants’ use of a computer will result in more efficient interviews and fewer data entry errors.

When the claimant returns with their forms, office staff will verify that the forms are complete (or nearly complete), at which point the person’s interview may be scheduled. When scheduling an appointment, CIC should retain the completed forms. Note that a properly completed, validated and printed IMM 0008 will include a 2D barcode, which will allow CIC to scan the data into GCMS. This will create the claimant (a client) and their application, saving staff data entry work.

Once an office is ready to schedule an appointment, a GCMS search by name and date of birth must be conducted. If the claimant is not found in GCMS or FOSS, create them as a client. If the claimant is only found in FOSS, import the person’s file from FOSS into GCMS, as per current instructions. If the claimant’s file is found in GCMS or has now been imported, then a refugee claim application must be created. This requires minimal information (type of application and received date). Once the client and application are created, the prospective claimant should be scheduled for their intake interview in GCMS (if they cannot be seen immediately).

Data from the client’s completed forms may be entered into GCMS prior to the interview.

Note: Claimants must no longer be asked to undergo their Immigration Medical Examination prior to their eligibility decision. This is in light of a June 30, 2012, Order in Council respecting the Interim Federal Health Program (IFHP). For more information on the IFHP changes, see: www.cic.gc.ca/english/department/laws-policy/ifhp.asp

1.1.1 Intake appointment

Processing of claimants at the interview in the new system has not changed significantly. For detailed information on how to process a refugee claim in GCMS, refer to the GCMS workbook.

Staff should check GCMS to verify whether any temporary resident applications were processed in GCMS for the claimant. If so, a GCMS information request for the application should be generated and provided to the IRB (which will eliminate the need for the IRB to contact missions in search of previous visa applications).

Unlike in FOSS, officers are expected to record the outcome of all criminality checks conducted as part of the refugee claimant intake process. If no adverse information is found in the Canadian Police Information Centre (CPIC) check or received from other sources, then the criminal clearance activity should be passed.

When all information has been entered into GCMS, an eligibility decision can be made. If a claim is eligible, the IRB’s Hearing Booking Tool (see section 4) should be used to obtain the date of the claimant’s RPD hearing and hearing abandonment date (note: it is one date per family). This information must be entered into GCMS. Additionally, the BOC must be scanned and saved to GCMS as an incoming document on the application. Once this is done, the security check can be triggered.

A final eligibility decision is then made on the application, which triggers the creation of the relevant documents (IMM 1017 – Medical Report, Refugee Protection Claimant Document (RPCD), Eligibility decision, A44 report, Departure Order and/or Notice to Appear). Once all documents are printed or finalized, the application is automatically closed and the relevant information downloaded to FOSS.

Those whose claims are eligible must be given an IRB ‘Claimant’s Kit,’ stocks of which are provided by the IRB. CIC inland offices receive Claimant’s Kits ‘missing’ a BOC (as this will have already been completed by the claimant). Note: the kit contains a ‘Notification of Contact Information’ form. It may appear that (in all cases) the claimant must complete and submit this form to the IRB within ten (10) days. However, it only needs to be completed/submitted if the claimant was unable to list an address on their other forms, or in the case of a change of address.

Note: there is no need to affix a photo to the IMM 1017, as the client is instructed to bring both their RPCD and photos to the panel physician (for identity verification purposes).

When the interview is completed, officers must scan most of the forms, travel/identity documents, etc., and save them into GCMS. Where applicable the documents must be moved to the shared electronic file folder (see table below for details). These documents may later be leveraged by other GCMS users (at CIC and at the Canada Border Services Agency [CBSA]), reducing file transfer.

Offices must courier, to the RPD, packages that include the following items/copies thereof:

• Generic Application Form for Canada (IMM 0008);
• Schedule A – Background/declaration (IMM 5669);
• Schedule 12 – Refugee Claims Inside Canada (IMM 0008 – Schedule 12 );
• Basis of Claim (must be the original);
• Notice to Appear;
• Client photos (stapled to the back of the principal applicant’s IMM 0008);
• Identity and travel documents;
• Visa office file information (if applicable);
• Any other documents submitted.

Important note: These packages must be couriered to the RPD on a daily basis (every 2nd day for smaller offices).

Table – Saving/Attaching to GCMS

Upon completion of the above, place the following documents in the client’s physical file:

• Original IMM 0008;
• Original IMM 5669 and IMM 0008 – Schedule 12;
• Copy of the Basis of Claim form;
• Signed copy of the RPCD;
• Use of a Representative (IMM 5476);
• Interpreter Declaration (IMM 1265);
• Terms & Conditions;
• Notice of Seizure;
• Client photo;
• Fingerprint record, if completed through Livescan;
• (When the claimant has a Temporary Resident Visa) Copy of the ‘ATIP Report’; and
• Seized travel/identity documents.

2. New FOSS Fields

In the new system, CBSA will continue to process refugee claimants in FOSS. On December 15, 2012, the changes to FOSS required to support the Balanced Refugee Reform Act (C11) and the PCISA (C31) were deployed to the FOSS Production Database. Significant changes have been made to the Record of Refugee Claim (RR) Screen, and others. These changes include the following (list is non-exhaustive):

1. Fields in which to record whether:
   • The claim was made at a port of entry;
   • The claimant is from a Designated Country of Origin (DCO);
   • The claimant is a designated foreign national (part of a designated irregular arrival).
2. New Travel Document-related fields allowing for additional information such as document number and country of issue. These may later assist in making removal arrangements.
3. New Unaccompanied Minors fields and values, including fields in which to record name and contact information with respect to the organization or person(s) involved in the guardianship.
4. New fields that will help the RPD arrange the hearing, including whether the claimant will require an interpreter or special accommodations (and related details).
5. New fields to indicate the date on which a claimant must report to the IRB for a special (abandonment) hearing, should they fail to:
   • Submit a completed BOC on time (port of entry claims); or
   • Attend their RPD hearing.
6. An INTERVENTION CONSIDERATION field, for use when the officer feels there are grounds to explore the need for an intervention.

For specific information on all of the above, plus other FOSS changes, consult the Refugee Reform FOSS Release Notes

Note: Removal Orders

Although departure orders may be issued from GCMS, exclusion and deportation orders can only be issued from FOSS. This means that the client is in GCMS, but the exclusion or deportation order is issued via FOSS. Stand-alone enforcement will come to GCMS in a future release.

3. New timelines for RPD hearings

Under the new legislation, RPD hearings will be held under shorter timelines, depending on where the claim is made, and whether the claimant is from a designated country of origin (see ‘Designated Countries of Origin’, below). See the following table for the new timelines.

4. Hearing Booking Tool

In the new system, officers will be responsible for scheduling RPD hearings. They will do this using the IRB’s web-based Hearing Booking Tool (HBT). The following instructions are for both CBSA and CIC officers:

• Make sure that all associated family members files are together with the principal claimant’s file being referred that day;
• Log on to the Hearing Booking Tool;
• Click ‘Book a Hearing’;
• Enter the FOSS ID of the principal claimant only (the appointments provided will apply to the whole family);
• Select either ‘POE’ or ‘Inland’;
• Select either ‘Yes’ or ‘No’ for Designated Country of Origin (DCO) Note: in a family unit, if any one family member is a DCO claimant, for the purposes of using the HBT, ‘Yes’ must be selected for the principal applicant (whether or not s/he is a DCO claimant). However, on the FOSS/GCMS record, it is important that each individual member of the family is correctly flagged as being or not being a DCO claimant.
• Verify with the claimant where they plan to reside in Canada and select the Hearing Location City  [RPD Rule 3(3)a];
• Verify with the claimant whether they want their hearing in English or French and select the Language of Preference;
• If the claimant is represented by counsel, select the date that fits counsel’s availability;
• If the claimant is not represented by counsel, or counsel’s availability does not coincide with any of the available dates, select the 30^th, 45^th or 60^th date (as applicable). If none of those dates are available, select the nearest earlier date (e.g. the 29^th or, if not available, the 28^th, etc.);
• Select ‘Confirm Booking’ – please note, this does not schedule the claimant(s), it simply reserves the room for the hearing;
• Print Hearing Appointment sheet for reference when entering dates into systems for the principal claimant AND all their associates, to be kept on file;
• Record the following in the computer system and proceed with referral including:
  • indicate if claimant has any special needs [RPD Rule 20 (1)];
  • indicate whether an interpreter is required;
  • enter the Hearing Date booked (refer to Hearing Appointment sheet);
  • enter the Abandonment Date for Failure to provide BOC (port of entry cases only; refer to Hearing Appointment sheet);
  • enter the Abandonment Date for Failure to appear at hearing (refer to Hearing Appointment sheet).

4.1 Notice to Appear

Once all of the above dates have been entered into the system, the Notice to Appear will contain new dates, as follows:

• RPD Hearing location/date/time; and
• Date of special (abandonment) hearing, should claimant fail to show for their hearing.

In port of entry cases, the Notice to Appear will also contain the following:

• Notification that claimant has 15 days to submit the BOC form to the RPD; and
• Date of special (abandonment) hearing, should claimant fail to submit their BOC on time.

5. Designated Countries of Origin

Under the new legislation, the Minister has the authority to identify designated countries of origin (DCO). DCOs are countries that do not normally produce refugees; they are widely regarded as respectful of human rights and offering state protection. There are differences in how DCO claimants will proceed through the refugee protection system. DCO claimants:

1. Will not be able to apply for a work permit unless/until their refugee claim is approved by the RPD, or 180 days have passed and their claim has not yet been heard;
2. Will have their RPD hearing sooner than other claimants (see ‘New Timelines,” above);
3. Will not have access to the IRB’s new Refugee Appeal Division;
4. Whose refugee claims are rejected, will not be able to apply for a PRRA until 36 months have passed since the rejection (as opposed to the 12-month bar on non-DCO claimants);
5. Will not have an automatic stay of removal when seeking judicial review.

A person will be considered a DCO claimant if they are a citizen or a national of a designated country (whether or not they claim against that country). Note: countries of nationality may only be established by documentation or a declaration of the claimant him or herself.

An up-to-date list of DCOs will be maintained on the CIC website at www.cic.gc.ca/english/refugees/reform-safe.asp – archived

DCO claimants must be flagged by indicating ‘Y’ in the DCO field. For a family unit where not all family members are DCOs, flag only those who are DCOs. However, when using the Hearing Booking Tool, the hearing must be scheduled according to the DCO/non-DCO status of the principal applicant. This will ensure that their claims will be heard together, under the shorter DCO timelines. Those family members who are not DCOs will continue to have access to the RAD.

6. Designated Irregular Arrivals / Designated Foreign Nationals

Under the new legislation, the Minister of Public Safety will have the authority to designate an arrival of persons in Canada as an irregular arrival when, having regard to the public interest, the Minister is of the opinion that:

• the examinations of the persons in the group, particularly for the purpose of establishing identity or determining inadmissibility of the persons involved in the arrival, and any related investigations concerning persons in the group, cannot be conducted in a timely manner; or
• there are reasonable grounds to suspect that, in relation to the arrival of the group, there has been or will be, a contravention of subsection 117(1) related to organized human smuggling, for profit, or for the benefit of, at the direction of, or in association with a criminal organization or terrorist group.

When a designation is made, a foreign national who is part of the group whose arrival is the subject of the designation becomes a designated foreign national (DFN).

The designation, in subsection 20.1(2) would apply to all foreign nationals arriving as part of a designated arrival, except for foreign nationals referred to in section 19 of the IRPA and except for foreign nationals who have the required documentation to enter Canada and satisfy an officer that they are not inadmissible to Canada.

Instead of being able to apply for permanent residence (PR) after conferral of refugee protection, DFNs are not eligible to apply for PR for a period of at least five years, to a maximum of six years. The five-year bar applies to all applications for PR by DFNs, including those submitted through other immigration streams such as humanitarian and compassionate consideration or the family class.

With respect to a foreign national who was part of a designated irregular arrival, the following information must be entered into FOSS/GCMS:

FOSS

CBSA FOSS users must enter a Non-computer-based Entry (NCB) in FOSS (type 46 – Designated Foreign National) that includes the following information:

• the date the Minister designated the applicant as an irregular arrival;
• the applicant may not apply for permanent residence for at least five years after the day a final decision is made (i.e., Refugee Protection Division (RPD), Refugee Appeal Division (RAD), or a Federal Court (FC) decision on the claim for refugee protection or PRRA — whichever is the latest) or in the absence of a decision (not a refugee claimant), when the designation was made.

GCMS

Enter the Special Program Code on an application.

For more information, refer to OB 440D.

7. Refugee Claim Ineligibility under A101(1)(f)

Before December 15, 2012, a refugee claim by a person inadmissible due to an in-Canada conviction was eligible unless the conviction resulted in a prison sentence of at least two years. A refugee claim by a person inadmissible for a conviction outside Canada was eligible unless the Minister was of the opinion that the person was a danger to the public in Canada.

As of December 15, 2012, these modifiers ceased to exist. That is, a refugee claim is ineligible if:

1. the claimant is inadmissible on grounds of serious criminality due to a conviction in Canada which is punishable by at least 10 years (irrespective of the prison sentence s/he received [if any]);
2. the claimant is inadmissible on grounds of serious criminality due to a conviction outside Canada that would be punishable by at least 10 years if committed in Canada (there is no need to seek a danger opinion).

As before, when a claimant appears to be inadmissible for serious criminality, the officer must prepare an A44 report, refer it to the Immigration Division, and suspend their consideration of eligibility as per A100(2). If/when the client is determined to be inadmissible, the officer determines the person’s claim ineligible.

Also as before, persons whose refugee claims are ineligible under A101(1)(f) will generally be entitled to a PRRA. However, there are now some important distinctions in terms of how these applications will be assessed. For more information, see OB 440H.

8. Interventions

The Ministerial Intervention program has the following objectives:

• Ensuring that persons such as serious criminals and security threats do not benefit from Canada’s protection;
• Maintaining the integrity of the refugee determination system;
• Ensuring that the Refugee Protection Division has comprehensive information for its refugee hearings.

Refugee hearings are normally non-adversarial in nature. The decision to intervene in a hearing is made by Hearings Officers (CBSA) or Senior Immigration Officers (CIC) who review the refugee claim file. If CIC or CBSA has relevant information that the IRB is not aware of, or questions or concerns are raised with respect to criminality, security, fraud, credibility or program integrity, the officer will file an intervention on the Minister’s behalf.

Refugee intake officers who believe that a claim may warrant intervention by either CIC or CBSA should indicate the concern in their respective computer system (“Possible Intervention” in GCMS and “Intervention Consideration” in FOSS) before transferring the file to the triage office closest to the city where the refugee claim will be heard. CIC intervenes in cases involving credibility or program integrity issues, while CBSA is responsible for cases involving criminality or security issues. CBSA is also responsible for cases that involve both credibility/program integrity issues and criminality/security issues (hybrid cases), and any detained cases (currently or in the past), regardless of grounds. Refugee intake officers should transfer the file to one of the following offices closest to where the refugee claim will be heard by the IRB.

As it is the Hearings Officer or Senior Immigration Officer who will review the file to determine whether to intervene, refugee intake officers do not need to determine whether the information/evidence is sufficient to warrant an intervention. Rather, officers should be looking at whether the claim raises issues of credibility, program integrity, security or criminality that should be examined further.

Referrals from refugee intake offices will be prioritized by the triage offices. The following are examples of cases that may warrant a referral to the CIC or CBSA office for possible intervention:

CBSA

• Criminality issue;
• Security issue;
• Possible war crimes issue;
• Possible organized crimes issue;
• Irregular arrival (i.e., claimant is a designated foreign national);
• Detained individual.

CIC

• Possible status in third country;
• Multiple nationalities;
• Possible multiple identities;
• High profile case (with no criminality or security issue);
• Previous Canadian immigration history (e.g., visa related information, previous misrepresentation);
• Claim initiated more than 6 months after entry to Canada;
• Major discrepancy in claimant’s allegations or documents;
• Claimant appears to be making a claim in order to access benefits, e.g., urgent IFH coverage requested during or before the eligibility interview.

To identify potential cases for intervention, check the “Intervention Consideration” field in FOSS (or “Possible Intervention” in GCMS), and choose one of the following values:

• 1F(a) War Crime/Humanity;
• 1F(b) Serious Crimes Abroad;
• 1F(c) Acts contrary to UN;
• 1E Protection of other country;
• Program Integrity;
• Credibility;
• Other (two or more of the above).

Ensure that the information collected along with the file is transferred to the appropriate CIC or CBSA triage office by uploading all documents and sending them through the electronic file sharing mechanism. More information on CIC Interventions will be posted on CIC’s new functional guidance pages by March. For more information on CBSA Interventions, please refer to ENF 24: Ministerial interventions.

9. Revised Counselling Pamphlet

Refugee claimants should be given the Information Pamphlet for Refugee Claimants, which contains important information regarding IFHP coverage, work permits, etc.

Appendix A – Sample template letter for persons who mail their refugee forms to CIC

[Insert date]

Name of client:
FOSS ID #:

Dear Sir/Madam:

On DATE, we received your mailed-in refugee application. Citizenship and Immigration Canada (CIC) does not accept refugee applications by mail. As a result, your application is being returned to you.

To claim refugee protection in Canada, you must do the following:

• Complete the forms found at the following website www.cic.gc.ca/english/refugees/inside/apply-how.asp;
• Complete the Basis of Claim Form, found on the Immigration and Refugee Board of Canada;
• Print a copy of each completed form, and bring them, in person, to the local CIC office closest to you. Please refer to this link to find out where you can go to make your claim www.cic.gc.ca/english/information/offices/help.asp.

Once the office has verified that your forms are complete, you will be scheduled for an interview with a CIC officer. At this interview, your refugee claim will be received by an officer who will determine if your claim is eligible to be referred to the Refugee Protection Division of the Immigration and Refugee Board of Canada.

Should you have any questions about this process, please refer to our website www.cic.gc.ca or contact our Call Centre at 1-888-242-2100.

Sincerely,

Signature of CIC official