Ministerial Briefing Note

Transcription

1 Ministerial Briefing Note Fixing Canada s Refugee System Canadian Association of Refugee Lawyers, March 16th, 2016 Contents Inadmissibility... 3 a) Inadmissibility for Membership in a Group IRPA s.34(1)(f)... 3 Recommendation:... 3 b) Access to Appeal Rights IRPA s Recommendation:... 4 c) Long Term Permanent Residents... 5 Recommendation:... 6 d) Removal of Deeming Provision IRPA s. 36(3)(a)... 6 Recommendation:... 6 e) Inadmissibility for Misrepresentation IRPA s Recommendation:... 7 The Designated Country of Origin Regime... 8 Successful legal challenges... 8 Recommendations:... 9 The Designated Foreign National Regime Recommendation: The Canada-U.S. Safe Third Country Agreement Recommendations: Refugee Determination Proceedings ) Timelines Associated with Refugee Protection Division Hearings BOC Timelines Why is 15 days not enough time to deliver the BOC? Detained claimants fare even worse Recommendations: ) Refugee Protection Division Reopening Jurisdiction Recommendation: ) Exclusion under Article 1F(b) of the Refugee Convention

2 Recommendations: Reforming the Refugee Appeals Process Eliminating Jurisdictional Limits Eliminating Evidentiary Limits Eliminating Procedural Problems Procedural Inequity i) Timelines ii) Clarifying the RAD s Appellate Role iii) Ensuring Quality in Decision-Making Recommendations: Pre-Removal Risk Assessments Recommendations: Humanitarian and Compassionate Relief Recommendation: Citizenship Recommendations... 22

3 The Canadian Association of Refugee Lawyers welcomes the opportunity to meet with the Minister and to provide proposals for the reform of Canadian immigration and refugee policy. CARL members are both deeply embedded and invested in the Canadian immigration system and, as such, are uniquely situated to put forward proposals for reform that are at once practical and necessary to realign Canada s refugee system with fundamental principles of justice and fairness. Inadmissibility a) Inadmissibility for Membership in a Group IRPA s.34(1)(f) Inadmissibility for membership in an organization under s. 34(1)(f) should be brought in line with the reasoning of the Supreme Court in Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40. With respect to refugee exclusion under Article1F(a), the Court eschewed guilt by association and held at a minimum, complicity under international criminal law requires an individual to knowingly (or, at the very least, recklessly) contribute in a significant way to the crime or criminal purpose of a group. [para. 68] The same standard does not yet apply to inadmissibility under IRPA. Currently, no showing of complicity or even temporal link is required. An illustrative example is that of the Kurdish Democratic Party of Iran (KDPI). In 1996, the KDPI made a public choice to pursue autonomy by peaceful means and there have been no documented military engagements since that time. Currently, the KDPI is recognized as a peaceful organization promoting a worthy goal of self-determination for the Kurdish people. It is an organization that Canada and the U.S. have worked with most recently in combating extremism in the region. Yet, those who at any time were or are members of the KDPI well after any violent actions were disavowed and ceased, are still impugned for being a member of an organization that sometime in the past, in some iteration or branch thereof, engaged in subversion by force of any government. This includes individuals who were not even born when the last forceful action occurred two decades ago. It also includes those who joined the organization because they believe in their current non-violent approach, and limited their own involvement to distributing informational pamphlets advocating for the recognition of Kurdish rights. As it stands, any such individual is equally inadmissible to Canada. The law makes no distinction between such laudable nonviolent individuals, and those who themselves have participated in or assisted violent actions. The lack of distinction is illogical and unreasonable. The Ministerial relief mechanism under IRPA s is not governed by any set policy, procedure or direction. Applications are held in virtual abeyance for indefinite periods. This decision-making process should be transferred to the Board. Recommendation:

4 i. The security provisions of the IRPA should be amended such that they only result in the exclusion of a refugee claimant where he or she is complicit in proscribed acts, in keeping with the provisions of the Convention Related to the Status of Refugees and the decision of the Supreme Court of Canada in Ezokola. The Immigration Division must be allowed to consider the same range of factors in determining inadmissibility, as the Refugee Protection Division now does when determining exclusion. b) Access to Appeal Rights IRPA s. 64 Access to the IAD should revert to the standards prior to the Faster Removal of Foreign Criminals Act. Specifically, appeal rights should be afforded for all nonpenitentiary sentences (i.e. two years less a day). The current system is too heavyhanded and inflexible. Long term permanent residents may be rendered automatically inadmissible for a first offence of relatively low gravity. The only mechanism for reprieve from automatic removal is the s. 44 process whereby a request is made directly to the CBSA. However, this is highly discretionary and amorphous in policy, procedure, and application. The process should instead be transferred back to the IAD from individual CBSA officers who are not placed to be decision-makers in consideration of H&Cs and a wide variety of factors. There is an inherent conflict between the duty of a CBSA officer to enforce IRPA and the role of a third-party arbiter. In the alternative, conditional sentence orders (CSOs) must be excluded from the definition of a sentence of imprisonment for the 6 month threshold. The FCA has already underscored: the inconsistent consequences and even absurdity when one considers that the IRPA treats a conditional sentence of imprisonment of seven months more severely than a five months jail term. Tran, 2015 FCA 237 at para. 81. At a minimum, the conditional sentence threshold must be distinguished to a level commensurate with incarceration. That is to say, conditional sentences served in the community are issued for much longer durations as a matter of regular course than the comparable sentence of incarceration that would otherwise be imposed [Proulx, 2000 SCC 5 at para. 102]. In practice, a 6 month sentence of incarceration is at a minimum comparable to an 18 month conditional sentence. The IRPA must recognize this. Recommendation: i. Sub-section 64(2) of the IRPA should be amended to reinstate the two year threshold for restrictions on appeals to the Immigration Appeal Division, as follows:

5 ii. For the purpose of subsection (1), serious criminality must be with respect to a crime that was punished in Canada by a term of imprisonment of at least two years. c) Long Term Permanent Residents [T]here are factors other than nationality which may establish close and enduring connections between a person and a country, connections which may be stronger than those of nationality. Jama Warsame v. Canada, UN Human Rights Committee, CCPR/C/102/D/1959/2010, at para. 8.4 A separate category must be created for long term permanent residents with decades of good behavior prior to a criminal offence. There is a fundamental difference between an individual who commits a first offence after 20 years of being a productive resident, and an individual who engages in criminality shortly after landing. Currently, the law does not distinguish between the two. Both are equally automatically inadmissible and subject to removal without consideration of humanitarian factors if the 6 month serious criminality threshold under IRPA s. 36 be triggered. CBSA policy manual ENF 6 currently refers to special consideration for long-term permanent residents, defined as those who: became permanent residents before attaining the age of 18 years; were permanent residents of Canada for 10 years before being convicted of a reportable offence or, in cases not involving a conviction, the preparation of the A44 report; and would not have a right to appeal a decision of the Immigration Division to the Immigration Appeal Division by virtue of A64 However, it is unclear how that consideration is applied if at all. A category for longterm permanent residents must therefore be codified. Those falling within the category would require a higher threshold of criminality, be it in terms of severity or frequency of the offence. Automatic removal would be triggered by a more severe sentence or in the case of a repeat offence or breach of conditions. There are those who were first brought as young children and have remained permanent residents their whole lives. These individuals may suddenly find themselves subject to removal after an isolated offence out of character. Many are shocked to learn of the drastic consequences, as they have always considered themselves fully Canadian since childhood. For all intents, these individuals should be citizens; they are

6 a product of Canadian society since childhood regardless of official status. To remove them in the same manner as new permanent residents is to essentially punish them for failing to apply for citizenship, rather than a punishment that is reflective or proportional to the crime they committed and their circumstances. It is all the more unreasonable when such individuals have Canadian children and families of their own; yet there often exists no official mechanism by which the best interest of these children may be taken into consideration prior to removal under the current IAD restrictions. Recommendation: i. A new clause should be drafted to reflect a distinct threshold of criminal inadmissibility for long-term permanent residents, defined as those individuals who either became permanent residents before attaining the age of 18 years or who were permanent residents of Canada for 10 years before being convicted of a reportable offence. d) Removal of Deeming Provision IRPA s. 36(3)(a) In Ahmed, 2009 FC 672, the Federal Court held that for the purposes of criminal prohibition under the Citizenship Act, the election of the Crown whether to proceed summarily or by indictment is determinative of whether the offence is classified as indictable. This reflects the fact that many minor offences are hybrid offences, which may be pursued by indictment but are most often proceeded with summarily given the nature of the offence. It is reasonable that such summary offences are not treated as indictable for the purposes the Citizenship Act. However, this reasonable approach is foreclosed in the IRPA pursuant to the deeming provision under s. 36(3)(a). The provision holds that any hybrid offence is deemed indictable for the purposes of inadmissibility to Canada and loss of status, regardless of the Crown s election and the ultimate conviction. Therefore many summary convictions, which the Crown would not have considered pursuing by indictment, are treated as indictable under IRPA. This is a critical issue as a vast majority of offences under the Criminal Code are now hybrid offences; the code allows prosecutors flexibility. For purposes of the IRPA, however, the result is that minor summary offences are equated the same as indictable offences, with severe consequences. It is an necessarily high impediment that operates against the interests of reasonably blameless individuals, their Canadian families and Canadian employers. Recommendation:

7 CARL recommends the repeal of the deeming provision under IRPA s. 36(3)(a), such that the nature of the ultimate conviction is dispositive of its treatment under immigration law. This would accord with the approach that is taken under the Citizenship Act. e) Inadmissibility for Misrepresentation IRPA s. 40 Currently, a minor inaccuracy in any information provided constitutes grounds for a finding of misrepresentation. It may not matter if the misrepresentation was unintentional, or essentially clerical in nature. In other words, unlike the situation of fraud in the criminal context, a finding of misrepresentation does not require an element of mens rea or intentionality. In sum, a minor, inadvertent inaccuracy in an immigration application, could lead to severe consequences including a five year bar on reapplication. Recommendation: Section 40 should include elements of both materiality and intentionality. With respect to misrepresentations under the Citizenship Act, the Federal Court has found an element of mens rea is required (see e.g. Savic, 2014 FC 523); the same should be true for immigration.

8 The Designated Country of Origin Regime The Conservative government s introduction of the concept of a designated country of origin ( DCO ), a so-called safe country list, represented a major shift in Canada s refugee protection system. For the first time, claimants are now subject to different procedural rights depending on their country of origin. The Minister may designate countries of origin based on an assessment of past acceptance levels and on the Minister s own assessment of the country in question. 1 There is no objective, expert panel that makes the determination as to which countries should be on the list. The selection factors employed by the Minister are anomalous and do not include direct evidence of persecution of particular groups cited in the Refugee Convention. The differential procedural protections for DCO claimants as compared to other claimants include: 2 i) faster timelines for filing BOC forms and scheduling of their RPD hearing; ii) no statutory stay of removal pending judicial review of their RPD decision in Federal Court; and iii) longer period of time before they can access the Pre- Removal Risk Assessment process 36 months instead of the 12-month period for all other claimants. 3 Successful legal challenges CARL has been either an applicant or an intervenor in three different legal challenges to the DCO scheme. On two occasions the Federal Court found the differential treatment experienced by DCO claimants is discriminatory under s. 15 of the Charter. In the Canadian Doctors case it was differential access to health care that was the subject of the Charter breach, and more recently in the Y.Z. case, the Federal Court found that the denial of access to an appeal of the RPD decision was a violation of the equality guarantee. The government has announced that there will not be pursuing an appeal of either of these decisions. The third legal challenge before the courts is to the longer period of time (36 months vs 12 months) DCO claimants are barred from making a PRRA. Leave has been granted in this case (Feher IMM ) but no hearing date has been set. Discussion 1 IRPA s The original scheme also barred access to the RAD for claimants from a DCO. This was struck down in Y.Z. v. Canada 2015 FC 892, the Federal Court found s.110(2)(d.1), the provision that denied access to the RAD to DCO claimants, to be invalid. This decision stands as the government has indicated that they will not be pursuing an appeal. 3 Relevant sections in IRPA include: s.112(2)(b.1)(c), s (2), 161(1.1)

9 It is CARL s position, based on the reasoning of the Federal Court in both the Canadian Doctors case and the Y.Z. case, that the other procedural disadvantages in imposed on DCO claimants under the DCO regime are also likely to be found to be in violation of s.15 of the Charter. Justice Boswell in the Y.Z. case found that the distinction between DCO claimants and non-dco claimants was not only discriminatory on its face but that it is also serves to further marginalize, prejudice, and stereotype refugee claimants from DCO countries which are generally considered safe and nonrefugee producing and the DCO scheme also perpetuates a stereotype that refugee claimants from DCO countries are somehow queue-jumpers or bogus claimants who only come here to take advantage of Canada's refugee system and its generosity. 4 It has also become clear that the process devised for de-designating countries from the DCO list is ineffective. For example, the recent acceptance rates for three DCO countries (Hungary: 71%, Slovakia: 51%, Mexico: 44%) suggest that they are producing significant numbers of genuine refugees. These countries have not been de-listed, however, since under the current system, there is no requirement for the Minister to do so. Once on the list, there is no express provision for the removal of refugee producing countries. CARL was pleased to hear Minister McCallum inform the Standing Committee on Citizenship and Immigration, on February 23, 2016, that the government may move to eliminate the DCO designation altogether in light of the legal challenges. CARL strongly endorses this position. Recommendations: i. CARL calls for the elimination of the DCO scheme ii. In advance of the legislative changes required to repeal the DCO regime, the Minister should immediately de-list countries from the regime that are clearly unsafe for many individuals. These include: Croatia Czech Republic Hungary Mexico Slovak Republic South Korea 4 Y.Z. v. Canada at para. 124

10 The Designated Foreign National Regime Another of the changes imposed by the previous government is the Designated Foreign National ( DFN ) regime. Designation under the regime imposes severe consequences, including: Mandatory detention for all persons aged 16 or older, with limited right of review; No right of appeal to the Refugee Appeal Division No access to permanent residence for a minimum of five years, even for those whose refugee claims have been accepted. This means that these refugees are unfairly deprived of family reunification with their spouses and children for more than five years. The extended mandatory detention with limited review is of highly questionable constitutional validity. It is imposed on refugee claimants merely because of their mode of arrival in Canada, without consideration of their age, gender, health, family circumstances or whether they have faced persecution. These claimants will inevitably be sent to provincial medium security prisons and placed with the general criminal population regardless of their language comprehension, the merits of their claim or their psychological condition. Further, they will face the disadvantage of proving their refugee claim while in prison, with limited access to legal counsel, interpreters and community support. The punitive nature of the DFN regime, imposed on refugees simply for arriving without documentation, represents a clear breach of the UN Refugee Convention. It is imperative that this government immediately take measures to remedy this breach. Recommendation: i. CARL calls on the government to immediately repeal the Designated Foreign National regime.

11 The Canada-U.S. Safe Third Country Agreement As described in greater detail below, CARL calls on the government to rescind the appeal bar for those who have entered Canada under an exception to the application of the Canada-U.S. Safe Third Country Agreement (STCA). As we further outline below, the bar bears no rational connection to the merits of refugee claims and was instead imposed simply to limit the numbers of individuals with access to the Refugee Appeal Division. In addition, when the STCA came into effect in 2004 following extensive Parliamentary debate and public consultation, several categories of claimants were exempted. One of these exemptions applied to nationals of countries in respect of which Canada had imposed a temporary suspension of removals. In July 2009 the previous government removed that exemption through a regulatory amendment 5, exposing nationals of such countries to the possibility of refoulement by the USA. Finally, experience with port of entry cases demonstrates that the strict and narrow application of the terms of the STCA can cause extraordinary hardship and even place individuals at risk. While the Minister retains discretion under s to act on his own initiative to exempt a claimant from the operation of the STCA, port of entry officers lack legislated authority to exercise discretion in appropriate cases. Recommendations: i. CARL calls on the government to rescind the bar on appeals of STCA exempt refugee claimants. ii. iii. CARL calls for the reinstatement of s (c) of the Regulations. In addition to the general elimination of restrictions on access to H&C relief discussed below, CARL calls for the introduction in the regulations of a specific authorization to exercise H&C discretion to refer a claimant to the RPD notwithstanding strict ineligibility under the STCA. 5 SOR/ , s. 1

12 Refugee Determination Proceedings 1) Timelines Associated with Refugee Protection Division Hearings The time limits for claimants to file their Basis of Claim (BOC) forms and for the scheduling of their refugee hearing are too short. 6 While there was considerable delay in having a hearing before the RPD prior to refugee reform, the changes have swung too far in the other direction. Drastically short time limits do not allow claimants enough time to present a thorough and accurate account of how and why they fear persecution. The essence of a good refugee system is allowing claimants a reasonable opportunity to tell their story. Such an opportunity is necessary for legitimate fairness, but it also yields more reliable decisions that are less susceptible to wasteful appeal and review procedures. The hallmark of Canadian refugee status determination has always been first decision, best decision. It is a wise and practical principle that applies to reasonable timelines for each stage of the RSD process. BOC Timelines The BOC time limit is too short: claimants who make their refugee claim at a port of entry only have 15 days to file their BOC after initiating their claim. Fifteen days is not enough time. The Basis of Claim form (BOC) is the first opportunity for claimants to tell their story and for RPD members to assess the story. If it is not thorough and accurate, the RPD member s initial legal and factual analysis of the claim may be skewed. The hearing may start off on the wrong foot and the hearing may focus on the unintentional errors and omissions in the BOC rather than allowing the claimant an opportunity to tell his or her story in a straightforward manner. Why is 15 days not enough time to deliver the BOC? The majority of claimants do not speak English or French. They face cultural barriers of not understanding the refugee definition, the refugee claim system, Canadian legal process or other government and social functions including welfare assistance, housing, public transportation, and currency. They are often culturally and geographically disoriented and badly advised by overseas smugglers or local members of their own nationality or language group. Most claimants require the advice of legal counsel to writer a clear, relevant, and consistent narrative. Delays in finding and retaining counsel, which may arise for a number of valid reasons, are common, meaning that there is frequently insufficient time to properly prepare the BOC. Provincial legal aid procedures often impose delays before counsel can be retained. Moreover, a false or inaccurate story can be written quickly. It takes time to understand and write a thorough and accurate story. Detained claimants fare even worse 6 Time limits are set out at s and s of the Immigration and Refugee Protection Regulations

13 Claimants who are detained at the time of initiating their claim are subject to an even more drastic time limit for filing their BOC. CBSA is currently taking the position that individuals who initiate claims after being arrested or detained inland are required to complete all the forms, including the BOC within the three working days, and prior to a deemed referral. The basis for this interpretation appears to be the combination of IRPR s (1) which says that a person who makes a claim for refugee protection inside Canada other than at a port of entry must provide an officer with the documents and information referred to in s.99(3.1) not later than the day on which the officer determines the eligibility of their claim under IRPA s.100(1). The RPD Rule 7 specifies that the BOC must be provided to the officer referred to in IRPA s.99(3.1). Three days is a drastically short time limit that on its face would not allow claimants adequate time to complete a BOC. The reality is that these claimants are completing these forms in a highly pressurized and constrained environment. Amendments are required to clarify that detained claimants should not have a shortened time limit to prepare their BOC forms. As a result, CARL calls for the regulations to be amended to provide that the BOC be delivered to the IRB within 30 days for claims made at the portof-entry or inland, including where a claimant is detained. An additional two weeks is not a significant amount of time in the overall claim process; A thorough and accurate written account of the claimant s reasons for seeking refugee protection is more likely to allow the IRB member to manage the hearing efficiently and to reach a correct decision; Time Limit for the IRB Date of Hearing is too Short Hearing dates are set by the CIC or CBSA officer at the eligibility interview on the following schedule as per section 159.9(1) of the IRPR regulations: Regular claimants: 60 days DCOs at inland offices: 30 days DCOs at Port of entry: 45 days All refugee hearings require an individual assessment of the claim. The amount and complexity of the evidence can be greatly varied. Hearings are more efficient and more likely to produce correct decisions when all of the evidence is available prior to hearing the testimony of the claimant. Some evidence may be difficult to obtain quickly because it is located in the country of nationality which may be either a repressive regime with strict control of access to information or a country in crisis or civil war where information is inaccessible. Medical documentation is also challenging to obtain in advance of the hearing within these shortened time limits. Most notable are psychological reports which can rarely be obtained within 30 or 60 days. Such reports are not only relevant to support a history of trauma, but also speak to the ability of the claimant to testify effectively. To ensure a reliable hearing, such reports should always be available before the RPD member questions the claimant.

14 As a result, CARL calls on the government to amend sections (1) and (2) and 159.9(1) of the regulations so that RPD hearings are scheduled within 90 days. This, CARL submits, will preserve the prompt scheduling of refugee determination hearings while preserving the rights of refugee claimants to fully present their claims. CARL also recommends that there be an express discretion for the Refugee Protection Division to vary the timeline in particular claims to ensure a full and fair hearing of the claim. This would allow, for example, an individual board member to postpone a hearing for relevant evidence, where the interests of justice require it. Recommendations: i. CARL calls for sections 159.9(1) the regulations to be amended to provide that the BOC be delivered to the IRB within 30 days for claims made at the port-of-entry or inland, including where a claimant is detained. ii. iii. The scheduling of hearings before the Refugee Protection Division should be changed such that all claims are heard within 90 days after the claim is referred to the RPD. Board members must have the express authority to postpone hearings, before the hearing commences, where it is necessary to do so in the interests of justice. 2) Refugee Protection Division Reopening Jurisdiction The RPD has long had jurisdiction to reopen a refugee claim where it is established that there was a failure to observe a principle of natural justice. (RPD Rule 62). However, PCISA removed the RPD s jurisdiction to re-open a claim if the RPD s decision has subsequently been the subject of a final decision by the Refugee Appeal Division or the Federal Court (s ). This limitation applies even if it is demonstrated that there was in fact a breach of natural justice at the RPD, and even if that breach was not known or raised before the RAD or Federal Court. By their very nature, breaches of natural justice go to the heart of a fair refugee procedure. They are sometimes undisclosed until later in the process, particularly where there has been a serious default by legal counsel or an inadvertent failure in communication between the IRB and the claimant. Recommendation: i. CARL calls on the government to rescind s of the IRPA (and make the necessary related amendment to s. 62 of the RPD Rules). 3) Exclusion under Article 1F(b) of the Refugee Convention

15 In 2014, the Supreme Court of Canada issued its decision in Febles v. Canada, 2014 SCC 68 on the issue of exclusion from refugee status for serious non-political crimes. While the decision resolved certain legal issues, CARL maintains that, as a matter of policy, the government should codify changes into the IRPA related to the assessment of the seriousness of excludable offences and the relevance of rehabilitation in the Article 1F(b) exclusion analysis Recommendations: i. The definition of serious must be narrowed by statute. Current practice of looking at the 10 year maximum does not consider the punishment that would likely be imposed. A more holistic and comprehensive assessment looking at sentencing range and mitigating factors of the offence must be instituted. ii. Expiation or rehabilitation must be considered as a second, separate step. A serious crime 30 years ago should not automatically bar an individual fleeing risk to life decades after the fact.

16 Reforming the Refugee Appeals Process An effective, merit-based appeal process is an essential component of any comprehensive refugee determination system. This is because: a) refugee determination is an inherently difficult and error-prone task; and b) the consequences of errors in refugee determination proceedings are acute as they expose refugee claimants to potentially life-threatening human rights abuses. When the Immigration and Refugee Protection Act [ IRPA ] was passed in 2002, the Liberal government at the time passed legislation creating the Refugee Appeal Division [ RAD ] of the Immigration and Refugee Board. The RAD was not implemented, however, until Unfortunately, its success as a review mechanism has been undermined by significant jurisdictional, evidentiary and procedural limitations placed upon it by the previous government. Eliminating Jurisdictional Limits Pursuant to section 110(2) of the IRPA, various classes of individuals are barred from appealing decisions to the RAD. These bars are not rooted in principle but are rather motivated by a desire to simply curtail the refugee determination process for those subject to them. There is no data, however, to suggest that the claims of these individuals are either less likely to be determined on the basis of error, or that the consequences of such errors are necessarily less grave than for other claimants. 7 One such limitation the bar on appeals for those from Designated Countries of Origin has already been found by the courts to violate the Canadian Charter. 8 As such, CARL calls on the government to immediately remove all bars on access to the Refugee Appeal Division, namely: Appeals of Designated Foreign Nationals and Designated Countries of Origin 9 ; Appeals of the claims of individuals whose cases proceeded on the basis of an exception to the Safe Third Country Agreement; Appeals of determinations that a refugee claim has been withdrawn or abandoned; Appeals of RPD determinations that a claim has no credible basis or is manifestly unfounded; 7 Sean Rehaag and Angus Grant, Unappealing: An Assessment of the Limits on Appeal Rights in Canada's New Refugee Determination System (August 19, 2015). UBC Law Review, Forthcoming; Osgoode Legal Studies Research Paper No. 42/2015. Available at SSRN: 8 Y.Z. v. Canada (Citizenship and Immigration), 2015 FC

17 Appeals of RPD decisions with respect to cessation and vacation of refugee status. Eliminating Evidentiary Limits By virtue of section 110(4) of the IRPA, refugee claimants are only permitted to adduce new evidence in support of their appeals. This evidentiary limitation is inconsistent with the basic premise of a merit-based appeals process. It has proven cumbersome to implement and it fails to ameliorate the inherent difficulties in evidence gathering associated with the compressed timelines of proceedings before the Refugee Protection Division. As such, CARL calls on the government to eliminate the evidentiary restrictions associated with the appeals process. Eliminating Procedural Problems Procedural Inequity The provisions creating and regulating the Refugee Appeal Division are asymmetrical in the procedural rights they afford to refugee claimants and the Minister. For example, the Minister is not bound by the new evidence rules described above and, unlike refugee claimants, may file other documents or submissions at any time before the RAD decides an appeal. CARL submits that the essentially preferential treatment afforded to the Minister in the appeal process is unjustified and should be eliminated. i) Timelines Refused claimants require time to receive legal advice prior to filing a notice of appeal. In some instances, where inadequate legal advice has been a cause of the negative decision, they must find and retain new counsel. CARL members have found that their ability to assemble a thorough and effective appellate record is compromised by the timelines set out in the legislation. As such, CARL submits that a more reasonable timeframe is the one associated with applications for judicial review before the Federal Court: 15 days to file the appeal and a further 30 days to perfect the record. While this would marginally expand the appellate window, it would result in substantively enhanced advocacy for refugee claimants and, as a consequence, greater justification in appellate decision-making. ii) Clarifying the RAD s Appellate Role In addition to the above, CARL calls on the government to clarify and affirm through an amendment to s.110 of the IRPA the merit-based nature of appeals to the RAD. The existent legislation has given rise to considerable confusion and litigation on this issue and is in need of clarification. Section110 should specify that that RAD s review of the RPD decision is a full, merit-based appeal. iii) Ensuring Quality in Decision-Making

18 Finally, administrative tribunals are only as effective as the members who render decisions on their behalf. The current Governor-in-council process has been secretive and ineffective. Former members of the RPD with notorious and inexplicably low acceptance rates have been appointed to the RAD without explanation or accountability. In addition, appellate review requires a high level of legal expertise. For this reason, CARL calls on the government to realize its election commitment to ensure that only individuals with appropriate subject matter expertise, including legal expertise, are appointed to the Immigration and Refugee Board. 10 In contrast to the RPD, the government should consider appointing only members who are members of a provincial bar or who hold law degrees from a Canadian law school. Recommendations: The bars on appeals to the RAD should be repealed. The limitations on adducing evidence should be removed, bringing refugee appeals in-line with immigration appeals before the Immigration Appeal Division The timelines used for appeals should be amended to provide 15 days to file the appeal and a further 30 days to perfect the record. The GIC appointment process should be amended to ensure transparent, meritbased appointments to the RAD. 10 Liberal Party of Canada, A new plan for Canadian immigration and economic opportunity online:

19 Pre-Removal Risk Assessments Access to a timely risk assessment prior to removal from Canada is a requirement under both s. 7 of the Charter and Canada s international obligations under the 1951 Convention relating to the Status of Refugees, the International Covenant on Civil and Political Rights, and the American Declaration of the Rights and Duties of Man. Until the coming into force of the PCISA in December 2012, the Pre Removal Risk Assessment (PRRA) fulfilled this function. However, the coming into force of the new s. 112(2)(b.1) introduced a statutory 12-month 11 bar to access to this critical human rights protection. Since that time, CBSA enforcement officers have been forced into the position of providing an ad hoc triage service, deferring removal in cases where an individual facing removal puts forward evidence to suggest that removal will expose her/him to a serious risk of death, extreme sanction or other inhumane treatment. CARL maintains that this triage process is not an adequate or appropriate substitute for a risk review by a competent, properly trained and statutorily mandated decision maker. The 1-year PRRA bar is only an acceptable limitation in the context of a fairer overall Refugee Status Determination system and as long as there is an adequate mechanism for exceptions to raise new risk prior to removal. Section 113(1) of the IRPA restricts PRRA applicants to submitting only new evidence that arose after their claim was refused by the RPD or that was not reasonably available, or that the applicant could not reasonably have been expected in the circumstances to have presented to the RPD. This provision is frequently invoked by PRRA decision makers to refuse to consider evidence that does not meet the new evidence rule but that, were it to be considered, would lead to the conclusion that the individual in fact faces a serious risk of persecution, torture or death. In the result, claimants who are facing the very real prospect of detention and torture have their PRRAs denied and may be removed, contrary to Canada s obligations under international human rights and refugee law. In addition, the BRRA mandated that responsibility for adjudicating most PRRA applications would be transferred from departmental officials to the expert independent tribunal, the RPD. This transfer of responsibility has still not been taken effect. Recommendations: i. CARL calls on the government to replace CBSA removal officers who now conduct deferral requests with a risk review by a competent, properly trained and statutorily mandated decision maker months for DCOs

20 ii. iii. CARL calls on the government to rescind s. 113(a), the PRRA new evidence requirement. CARL calls for the transfer of responsibility for PRRA adjudication to the RPD within 6 months.

21 Humanitarian and Compassionate Relief The availability of equitable, humanitarian and compassionate relief to mitigate the rigidity of the law in an appropriate case has been a defining characteristic of Canadian immigration law for decades. As the Supreme Court explained in the recent Kanthasamy judgement, citing a 1975 case called Chirwa, the provision exists to address those facts, established by the evidence, which would excite in a reasonable man [sic] in a civilized community a desire to relieve the misfortunes of another. While s. 25, the H&C provision, remains an important provision within the IRPA, its reach has been drastically curtailed by the BRRA, PCISA and FRFCA resulting in numerous categories of vulnerable persons and communities being denied access to equitable relief. Specifically, the following barriers were introduced between 2010 and 2014: bar on submitting H&C applications for permanent residence until one year after refugee claim has been rejected (25(1.2)(c)) bar on seeking a TRP until one year after refugee claim has been rejected (24(4)) bar on considering s. 96 and 97 risk factors in H&C applications (25(1.3)) bar on H&C applications by persons who have been found inadmissible under s. 34, 35 or 37 (25(1)) restriction of H&C discretion to persons who have applied for permanent residence (25(1)) Restricting access to equitable relief is anathema to basic norms of social justice and the very structure of the IRPA. It also calls into question the constitutionality of other immigration provisions (for instance, broad-based inadmissibility criteria) that have historically been justified on the basis of the availability of H&C relief. Recommendation: i. CARL calls for the elimination of the above barriers to H&C relief.

22 Citizenship CARL applauds the government abolishing the changes made by the former government that made citizenship more difficult to obtain and more precarious. More, however, can be done to enhance the fairness of the process. First, we suggest a reduction in the bar for obtaining citizenship after revocation to five years, as it was previously. While we agree that some consequences should flow from misrepresentations we believe that five years is a sufficient time. It should be noted that if the bar is returned to five years, a person will still have to wait until his or her application is processed but will only be eligible to apply again after five years. CARL also suggests that the revocation procedures for misrepresentation be amended. Pursuant to the current law passed by the former Conservative Government a Canadian citizen can have his or her citizenship revoked by an official without a hearing and without any right to have full disclosure of the case against him or her. A permanent resident subject to deportation for misrepresentation has a right to both a hearing and an equitable appeal. Yet a Canadian citizenship whose citizenship is to be revoked has no such rights. These provisions are currently being subject to a legal challenge in the Federal Court as being inconsistent with the Charter of Rights. There is no reason why the new government should support these reforms which deny citizens a fair hearing. Indeed while in opposition Liberal Members of Parliament opposed these very provisions. Finally, CARL suggests that the provisions that allow for citizenship to be denied to persons who are charged or convicted of offenses outside of Canada be amended so that charges or convictions in undemocratic regimes should not be a basis to deny citizenship. Recommendations i. Reduce the bar for obtaining citizenship after revocation to five years, as it was previously. ii. iii. Amend the revocation procedures for misrepresentation to allow for a fair hearing and an equitable appeal. For those denied citizenship for foreign criminal convictions or charges, expressly exclude convictions in undemocratic regimes.