ARCHIVED – Backgrounder — Overview of Canada’s New Refugee System
On 23 July 2015, the Federal Court rendered a decision impacting the right to appeal to the Refugee Appeal Division of the Immigration and Refugee Board (IRB) of Canada. Please check the IRB website for more information.
With the passage of the Balanced Refugee Reform Act in June 2010 and the Protecting Canada’s Immigration System Act in June 2012, a new refugee system has been created. These changes accelerate the processing of refugee claims and will help deter abuse of the system.
Faster decisions on refugee claims are central to an improved system. With these new measures, decisions on claims will be made by public servants at the Refugee Protection Division (RPD) of the independent Immigration and Refugee Board of Canada (IRB), and the time lines for conducting hearings will be accelerated.
Hearings for refugee claimants will drop from the current average of 19-20 months, to no later than 30 to 45 days after referral of the claim to the IRB for claimants from designated countries of origin depending on where the refugee claim is made and 60 days for all other claimants.
Designated Countries of Origin
Designated countries of origin (DCO) are countries that do not normally produce refugees, but do respect human rights and offer state protection. Claimants from a DCO will have their refugee claim heard faster and will not have access to the new Refugee Appeal Division (RAD) at the IRB.
Eligible claimants from designated countries will receive a fair hearing at the independent IRB and will be able to ask the Federal Court to review a negative decision.
No countries will be automatically designated. If a country meets specific criteria set out in legislation and Ministerial Order, it could undergo a review and may be subsequently designated.
See the separate backgrounder on DCOs for more information on the designation process.
Refugee Appeal Division
A new Refugee Appeal Division (RAD) at the IRB is being created in response to strong requests from stakeholders and to further add to the fairness of the system.
The Refugee Appeal Division will
- give most claimants a chance to prove that the Refugee Protection Division decision was wrong in fact or law or both, and
- let new evidence be introduced that was not reasonably available at the time of the Refugee Protection Division process.
The appeal will be paper-based, with oral hearings in exceptional cases.
Appeals will be decided by Governor in Council appointees at the RAD.
Decisions on appeals are expected within 90 days of the appeal being perfected for those cases when no oral hearing is held.
In addition, DCO claimants, and those determined to have a manifestly unfounded claim or a claim with no credible basis, will not have access to the RAD. Refugee claimants who are subject to an exception in the Safe Third Country AgreementFootnote * and those who arrive as part of a designated irregular arrival will also not have access. Those with a refugee claim referred to the IRB before the new system comes into effect (i.e., those in the inventory)Footnote ** and re-hearings of claims which are ordered back to the IRB by the Federal Court on judicial review will also not have access to the RAD, as they did not have access to the RAD when their claim was made. In addition, there will be no access to the RAD to appeal a decision on an application to end a person’s protected person status (i.e., cessation or vacation of protected person status) or for those with claims deemed rejected because of an order of surrender under the Extradition Act or for those determined to have abandoned/withdrawn their claim at the RPD.
All failed refugee claimants will continue to have the option of asking the Federal Court to review a negative decision.
In order to be effective, faster decisions must be complemented by faster removals.
Under the new system, limits on accessing a pre-removal risk assessment (PRRA) and on submitting an application for humanitarian and compassionate (H&C) consideration come into effect right away.
Changes on accessing a PRRA include:
- For most claimants, allowing only one PRRA in a 12 month period – in other words, no PRRA for one year following a final negative refugee claim decision from the IRB or a final negative PRRA decision; and
- For claimants from DCOs, the bar on accessing a PRRA will be extended to 36 months.
In the event of a sudden change in country conditions, the Minister of Citizenship, Immigration and Multiculturalism may exempt certain nationals from the bar on accessing a PRRA. Regulations will be developed to specify criteria which must be considered when determining whether or not an exemption should be granted.
Changes to H&C include:
- An H&C application cannot be submitted while a refugee claim is pending. Claimants have the option of withdrawing their refugee claim in order to apply for H&C, but this must be done prior to substantive evidence being heard at the hearing before the IRB.
- Failed refugee claimants will be barred from requesting H&C for one year following a final negative IRB decision. Exceptions to the bar will be made in cases where removal would subject an applicant to a risk to life caused by the inability of their country of nationality to provide adequate health or medical care, or where removal would have an adverse effect on the best interests of a child directly affected.
- At Royal Assent, the bar on requests for H&C comes into force. Individuals who received a final negative IRB decision must wait 12 months before being able to request H&C.
In addition, to further ensure that delays in removals are minimized:
- The RPD and the RAD are prevented from re-opening previously decided refugee claims and appeals once a final decision has been made at a higher level (e.g., no re-opening of claims by the RPD once the RAD has made a final decision);
- The authority to make regulations that outline the factors that may or must not be considered when a request to defer a removal is received by the Canada Border Services Agency (CBSA) have been established;
- The automatic stay of removal for certain groups of failed refugee claimants upon filing an application for leave for judicial review at the Federal Court has been removed. This includes: DCO claimants; those determined by the RPD to have a manifestly unfounded claim or a claim with no credible basis; those who were able to make a refugee claim based on an exception to the Safe Third Country Agreement; and those who arrive as part of a designated irregular arrival. This means that these failed refugee claimants can be removed from Canada pending the Federal Court’s review of a negative decision, unless they receive a judicial stay of removal upon application to the Federal Court; and
- There is a concurrent loss of permanent resident status when the IRB finds, upon application by the Minister, a person has ceased to be a Convention refugee or a person in need of protection because, for example, they have returned to their country of origin (i.e., re-availed themselves of protection in their home country). But in cases where an individual’s protected person status has ceased due to a change in country conditions, loss of permanent resident status is not automatic.
The Assisted Voluntary Return and Reintegration (AVRR) pilot program will also help to remove low-risk failed refugee claimants more quickly. The program, which will be launched in the Greater Toronto Area, will be open to claimants from all countries when it begins on June 29, 2012. It is open to those in the current system, as well as claimants under the new system, in order to expedite removals and further contribute to efforts to reduce the removals backlog.
More information on the AVRR pilot program is available on the CBSA’s website.
The new measures will also restrict access to the refugee system for those who have committed a serious crime. These changes mean that a person who was convicted of a serious crime in or outside Canada will be denied access to the RPD, but would be entitled to a PRRA regardless of the length of the sentence.
If successful, these individuals could remain in Canada, but would not be given protected person status.
Backlog Reduction at the IRB
The IRB has reduced its backlog of refugee claims. Approximately 38,400 refugee claims are pending and the government remains committed to reducing this backlog further.
As of Royal Assent of the Protecting Canada’s Immigration System Act, new RPD public servant decision makers will be able to hear cases in addition to the current Governor in Council appointees. Once the new system is in place, current Governor in Council appointees at the IRB will be allowed to continue deciding refugee claims referred to the IRB prior to the new system coming into force until the end of their term.
The transfer to the IRB of the PRRA function and outstanding PRRAs is expected to occur two years after the new system comes into force. This will provide CIC with additional time to reduce the number of pending PRRA applications before the transfer takes place.
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