CIMM - IRB – Hong Kong - June 2, 2021

Key messages

• The Immigration Board of Canada (IRB) is the administrative tribunal responsible for determining whether an individual has a well-founded fear of persecution and should receive Canada’s protection as a refugee. In making this determination the Board regularly monitors and updates country conditions from refugee-producing countries.
• All refugee claims from Hong Kong before the IRB are currently being actively examined. As of April 30, 2021, there are fewer than 20 claims from Hong Kong currently before the Board. Decisions are made based on the facts presented in an individual case, and in accordance with our immigration laws.

If pressed on statistics:

• From January 2020 to April 30, 2021, the IRB’s Refugee Protection Division has finalized 29 asylum claims from residents of the Hong Kong SAR. As of April 30, 2021, there were fewer than 20 claims remaining in the Division’s inventory.
• For use in CIMM only: Because the overall number of claimants from Hong Kong are so small, the Board has measures in place to protect the privacy of claimants. In the context of this Committee’s important work, however, the Board is prepared to confirm that the Refugee Protection Division has accepted roughly [Redacted], and rejected roughly [Redacted], of refugee claims from Hong Kong since January 2020.
• For use outside of CIMM: To protect privacy, the IRB cannot break down those statistics further at this time.

If pressed on details of rejected claims:

• Independent adjudicators at the IRB make decisions based on the merits of the specific facts presented in an individual case, and in accordance with Canada’s immigration laws. Claims can be rejected for a number of reasons, including for credibility issues.
• Refugee proceedings are private as a matter of law. As such, the IRB can neither confirm nor deny whether any individual has sought asylum in Canada, nor can the Board provide any details about the reasons for accepting or rejecting any particular claim.

If pressed on whether the IRB is prioritizing claims from Hong Kong:

• Under the Immigration and Refugee Protection Act, scheduling of files is informed by principles of fairness, efficiency, integrity, and institutional independence.
• All claims from Hong Kong are currently being actively examined.
• The IRB has identified them for triage as part of its Task Force on Less Complex Claims. This means that they are examining these claims, based on country conditions, to see if they can be resolved without a hearing or through a shorter hearing, if there are only one or two key determinative issues to be resolved. No claim is denied without a hearing.
• If there are more complicated questions of credibility or identity, then such cases will not be addressed as a less complex claim.

Background

• All refugee claims from Hong Kong are currently being actively examined by the Immigration and Refugee Board.
• Upon referral to the IRB, refugee claims from Hong Kong are triaged by the Refugee Protection Division’s (RPD) Task Force on Less Complex Claims (TFLCC).
• The TFLCC is a streamlined case management process for certain country and claim types, which allows for certain claims to be granted a positive decision without holding a hearing, or to proceed with a short hearing if only one or two issues need to be resolved.
• Decisions to include a particular country of origin or type of claim under the TFLCC process are based on several assessments, including conditions relating to human rights, political activity and legal systems.
• If there are more complicated questions of credibility or identity, then such cases will not be addressed as a less complex claim and the claim will proceed to a regular hearing.
• The TFLCC has developed tools and identified subject matter experts on Hong Kong claims.

Statistics:

• Refugee claims from Hong Kong have historically been very low, with fewer than 20 cases referred each year between 2013 and 2019.
• In 2020, 30 claims from Hong Kong were referred to the IRB, with the majority in January and February (prior to the implementation of the national security law).
• From January 2020 to April 30, 2021, the RPD has finalized 29 asylum claims from residents of Hong Kong.

  Summary Table: Hong Kong Claims Processed by RPD: Total claims

  RPD Decisions taken between January 1, 2020 and April 30, 2021	29
  Positive decisions	[Redacted]
  Negative Decisions	[Redacted]
  Number of cases pending at the RPD as of April 30, 2021	[Redacted]
  Age of oldest claim	December 2019
  Average age of claims (21 months is average)	8 months

• Most claims relate to political or pro-democracy activists.
• The average age of these claims is 8 months (as opposed to normal age of 21 months). The triaging of these claims has been delayed for reasons related to the COVID-19 pandemic, including challenges for counsel in obtaining and providing the required documentation in a timely manner.

Protection from a third country

• The IRB only has jurisdiction to adjudicate refugee claims and appeals made within Canada. Responsibility for selecting refugees who are outside Canada rests with IRCC.
• The Refugee Protection Division (RPD) of the IRB decides on refugee protection claims made in-Canada. These claims are first determined to be eligible by either the Canada Border Services Agency (CBSA) or the Department of Immigration, Refugees and Citizenship Canada (IRCC), and then referred to the IRB.
• IRCC is responsible for Canada’s policies related to immigration and refugee matters.

Claims from a third country

• The IRB only has jurisdiction to adjudicate refugee claims made within Canada. IRCC is responsible for Canada’s policies related to immigration and refugee matters, including responsibility for selecting refugees who are outside Canada.

Article 1E and the application of IRPA to situations where a citizen of Hong Kong/China possesses a British overseas passport

• The applicability of Article 1E is decided on a case-by-case basis by the members of the RPD and Refugee Appeal Division (RAD) based on the arguments and evidence presented.
• The IRB cannot comment on legal issues which will be adjudicated before our independent members. However, we do make resources available to the public to help understand the legal issues, such as the paper, Interpretation of the Convention Refugee Definition in the Case Law, which covers the application of Article 1E.

Additional measures that the IRB could put in place

• All outstanding in-Canada refugee claims from Hong Kong that have been referred to the Board are currently being actively examined and the Board has identified claims from Hong Kong for triage as part of the Task Force on Less Complex Claims.
• The Immigration and Refugee Board is an independent administrative tribunal that makes decisions in accordance with the law on certain immigration and refugee matters. The IRB does not have authorities under the Immigration and Refugee Protection Act to create programs for refugees.
• IRCC has the overall responsibility for immigration and refugee matters. IRCC also determines the eligibility of refugee protection claims made in Canada and refers eligible claims to the IRB for a decision.

State of readiness should there be an influx of claims

• Recent investments made by the Government of Canada have provided the IRB with additional capacity to address the recent surge in asylum claims. This funding has allowed the Board to essentially double its staff and number of adjudicators in three years and slow the growth of the refugee claims inventory and wait times from where they would otherwise be.
• Currently, the IRB is funded to process 50,000 refugee claims and 13,500 appeals per year.
• The impact of pandemic-related border measures has depressed intake volumes since March 2020, allowing the Board to continue to make progress against addressing backlogs, despite the operational challenges caused by the pandemic.
• The IRB continues to plan and implement innovative operational strategies from processing, resourcing, and administrative perspectives to address the backlog and is ready to process an influx of claims, if that situation were to materialize

Residents of Hong Kong that are arrested, detained or imprisoned under the NSL and their admissibility

• Refugee claimants who have been detained, charged, or convicted in Hong Kong for politically motivated reasons will not generally be excluded from refugee protection in Canada. Section 98 of the Immigration and Refugee Protection Act only excludes refugee claimants from obtaining refugee protection if they have committed serious non-political crimes, war crimes, or crimes against humanity outside Canada.
• The RPD and the RAD will always be required to make decisions on a case-by-case basis and with the most up-to-date evidence available.
• Under the Immigration and Refugee Protection Act, foreign nationals who have committed, been charged with, or convicted of a crime may be found to be inadmissible to Canada if that crime is also a crime under Canadian law. Inadmissibility decisions are made on a case-by-case basis.
• Foreign convictions are examined to see whether they would have been an offence under Canadian laws if they had occurred in Canada. If there is no equivalent offence, the individual would not be inadmissible for having committed or being convicted for that offence. For example, as there is no equivalent offence in Canada for participating in a peaceful protest, a charge or conviction for having partaken in such activities would not make an individual inadmissible to Canada. But again, all decisions are made on a case-by-case basis.

Questions about a specific claim

• The IRB cannot confirm or deny whether any person has made a refugee claim.
• This is not only to respect the privacy rights of such persons (the Board has a responsibility to safeguard such information) but also and especially in the case of persons seeking refugee protection, to mitigate any risks to that person, noting that they are seeking protection and may be fleeing agents of persecution from their country of origin.