ARCHIVED – Backgrounder — Summary of Changes to Canada’s 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.

Below is a summary of the changes to Canada’s refugee system following passage of the Balanced Refugee Reform Act in June 2010 and the Protecting Canada’s Immigration System Act in June 2012.

  CURRENT SYSTEM Canada’s New Refugee System

Estimated Total Processing Time
(does not include time to removal or if the IRB grants a postponement for the initial hearing)

1,038 days

30 – 45 days – DCO refugee claimants
216 days – non-DCO refugee claimants

Eligibility Review

Eligibility determination within three working days.

No change.

Information- Gathering

28 days to submit Personal Information Form to the Immigration and Refugee Board (IRB).

For claims made at a port of entry (POE), a Basis of Claim form will be submitted directly to the IRB no later than 15 days following referral of the claim to the IRB.

For inland claims, the Basis of Claim form will be submitted to Citizenship and Immigration Canada (CIC) or the Canada Border Services Agency (CBSA) during the eligibility interview.

Initial Hearing: Refugee Protection Division (RPD) of the IRB

Hearing by Governor in Council appointed decision makers with no time standards. Current processing time line is 19 months.

Hearing by public servant decision makers according to proposed time lines:

  • No later than 30 days after referral to the IRB for inland DCO claimants.
  • No later than 45 days for POE DCO claimants.
  • No later than 60 days for all non-DCO claimants.

Appeal:
Refugee Appeal Division (RAD)

No appeal division.

New Refugee Appeal Division created.

DCO claimants, manifestly unfounded claims, claims with no credible basis, claimants who are subject to an exception to the Safe Third Country AgreementFootnote * and claims referred to the IRB before the coming into force of the new system (backlog)Footnote ** will not have access to a RAD appeal and re-hearings of those claims ordered back to the IRB by the Federal Court on judicial review.

No access to the RAD for those who arrive as part of a designated irregular arrival.

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.

Proposed 15 working days to file and perfect an appeal to the RAD.

Except in cases where a hearing is held, proposed time lines for a RAD decision is 90 days from when the appeal is perfected.

Designated Countries of Origin (DCO)

No authority to designate countries of origin.

Minister has authority to designate countries of origin for the purpose of expedited processing.

Triggers for a review based on rejection rates, withdrawal and abandonment rates or a qualitative checklist for countries with few refugee claims.

Quantitative triggers will be established by Ministerial Order. For the quantitative criteria, a high rejection rate which includes withdrawn and abandoned claims could trigger a review for designation. The actual thresholds will be set out in Ministerial Order. The government will be proposing a threshold of 75% rejection rate and 60% withdrawal/abandonment rate.

Designations are not automatic. Countries that meet either the qualitative or quantitative triggers may be subject to review in consultation with other government departments.

Pre-Removal Risk Assessment (PRRA)

Foreign nationals can apply for a PRRA prior to removal.

For most claimants, no PRRA for one year following a final negative refugee claim decision by the IRB or a final negative PRRA decision.

This change comes into immediate effect at Royal Assent of the Protecting Canada’s Immigration System Act.

The bar on accessing a PRRA will be extended to 36 months for individuals from a designated country of origin.

In the event of a sudden change in country conditions that could lead people to being subject to personalized risk if returned to their home country, the Minister of Citizenship, Immigration and Multiculturalism may exempt individuals from the bars on accessing a PRRA.

The criteria for an exemption will be established in regulations at a later date.

Time lines accelerated for filing a PRRA application and evidence to the RPD within 15 working days, to be set out in regulations at a later date.

Ministerial Interventions

On behalf of Minister, CBSA intervenes before the RPD primarily for security or criminality reasons.

More flexibility for ministers of CIC and Public Safety to intervene in proceedings before the RAD.

Reopening Applications at the IRB

IRB has jurisdiction to reopen previously decided claims.

IRB will not be able to reopen previously decided claims or appeals once a final decision has been made at a higher level (i.e. RAD or Federal Court).

Removal Time Lines

Lack of timely removals of failed refugee claimants.

Currently takes on average 4.5 years from time a refugee claim is made and all recourses are exhausted and a failed refugee claimant is removed. In some extreme cases, this has taken up to 10 years.

Currently, the Act requires removal “as soon as practicable.”

Failed refugee claimants from all countries have access to an automatic stay of removal when seeking judicial review.

Removal as soon as possible.

No automatic stay of removals for:

  • Claimants from DCOs;
  • Claimants with manifestly unfounded claims and those found to have no credible basis;
  • Claimants who were subject to an exception to the Safe Third Country Agreement at a land border; and
  • Claimants who arrive as part of a designated irregular arrival.

Launch of the Assisted Voluntary Return and Reintegration Pilot program in the Greater Toronto Area on June 29, 2012, to increase the number of failed refugee claimants who willingly leave Canada in a timely manner.

Loss of Permanent Resident Status when protected person status ends (i.e., cessation)

Cessation does not result in loss of permanent resident status

Provide that when, upon application by the Minister, the IRB finds a person has ceased to be a person in need of protection or a Convention refugee, the individual also loses their permanent resident status if they have it.

An exception is provided when refugee protection ceases due to a change in country conditions. In this case, loss of permanent resident status is not automatic.

Criminality

Persons convicted of a serious crime in Canada and sentenced to two years or more are denied access to the RPD

Anyone convicted of a serious crime would 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.

Humanitarian and Compassionate consideration
(H&C)

Changes to H&C under the Balanced Refugee Reform Act came into effect on June 29, 2010, when that bill received Royal Assent. The changes includes the following:

  • a person cannot have two H&C applications pending at the same time;
  • in examining H&C requests made in Canada, decision makers may not consider risks that are assessed within the refugee protection process, i.e., risk of persecution based on grounds set out in the Refugee Convention or risk of torture, or of cruel and unusual treatment or punishment;
  • the new measures also confirm in legislation the existing policy that an H&C application is not considered complete until the appropriate fees have been paid; and,
  • the legislation separates out the public policy provision from the H&C provisions.

Changes to the H&C provision under the Balanced Refugee Reform Act came into effect on June 29, 2010, when that bill received Royal Assent.

Additional changes include no access to H&C for 12 months following a final negative IRB decision.

Exceptions will be made to consider best interests of children directly affected or where there is risk to life caused by a health or medical condition for which no adequate care is available in the country of origin.

No H&C application when the person has an ongoing refugee claim. Refugee claim may be withdrawn and an H&C application submitted if the IRB has not yet heard substantive evidence on the claim.

These additional changes come into immediate effect at Royal Assent of the Protecting Canada’s Immigration System Act.

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