Bill C-31: Reforming Canada’s Refugee System or Destroying It?

On February 16, 2012 Citizenship, Immigration and Multiculturalism Minister Jason Kenney introduced Legislation “to protect the integrity of Canada’s immigration system.” The Stephen Harper government minister “proposed measures include further reforms to the asylum system to make it faster and fairer, measures to address human smuggling, and the authority to make it mandatory to provide biometric data with a temporary resident visa application.”

Minister Kenney said in the prepared Press Release that “Canadians take great pride in the generosity and compassion of our immigration and refugee programs. But they have no tolerance for those who abuse our generosity and seek to take unfair advantage of our country.”

The new bill, is titled “Protecting Canada’s Immigration System Act” and proposes extensive changes to Canada’s refugee protection process that build on the changes to the asylum system passed in June 2010 as part of the Conservative government’s Balanced Refugee Reform Act.

The Coalition for Justice for Refugees and Immigrants, composed of nearly 60 national organizations across Canada, including Amnesty International (AI), the Canadian Council for Refugees (CCR) and the Canadian Association of Refugee Lawyers (CARL), and the Canadian Civil Liberties Association (CCLA), however, have attacked the proposed changes. They state the changes are “Unconstitutional” and undermine “Canada’s Humanitarian Traditions” and violate “Canada’s International Obligations.”

The Coalition, in a Press Conference held in Ottawa on March 26, 2012 said, “Bill C-31 is Bad Policy and Creates a Manifestly Unfair System That Will Fail to Protect Refugees in Canada.”

Peter Showler, a former Chair of the Immigration and Refugee Board and Director of the Refugee Forum at the University of Ottawa, characterized Bill C-31 as “a bill that fundamentally changes Canada’s immigration and refugee system and it is a bill that violates the Canadian Charter of Rights, international law and, frankly, common sense as well.”

On the behalf of the Coalition Showler stated, “this is not simply a matter of standing on the sidelines and criticizing the current bill, that we actually do believe that it is necessary to reform Canada’s refugee system but it’s important to do it in a way that has features that are fast, fair and effective. None of these features are contained in Bill C-31.”

Criticisms leveled at Bill C-31 by Nathalie Des Rosiers, of the Canadian Civil Liberties Association and also the former Dean of the University of Ottawa Law School Civil Section, include the fact that the “bill gives the power to a minister to designate a group and incarcerate them for 12 months without judicial review. On its face, this violates the Charter. It also violates the Convention on the Rights of Refugees, and it will be challenged. The ability to challenge detention in front of a court is at the heart of a judicial process and the rule of law. It is the right to habeas corpus. To have denied this to anyone on Canadian soil is a mistake. It’s an infringement of the rights and it is wrong.”

Des Rosiers also noted, “The Auditor General has come to the conclusion that this will cost at least $70,000 per person that will be incarcerated and that doesn’t cost – that doesn’t take into account the social cost and the cost to the proper integration of immigrants that will be incarcerated for 12 months.”

“The Minister has said well, that he will release them at his good pleasure if and when their circumstances warrant it or if people have their refugee status determined and refugee status accorded, but this is wrong. In a democracy, we cannot leave an unfettered discretion powers in a government to incarcerate people. We shouldn’t do it and we shouldn’t do it for people that come to Canada,” said Des Rosiers.

Heather Neufeld, a member of the executive of the Canadian Council for Refugees and a practicing immigration and refugee lawyer in Ottawa, offered the following critical comments on the provisions for family re-unification in the proposed Bill.

“Currently, individuals who are granted refugee status in Canada can immediately apply for permanent residence for themselves as well as for their dependants abroad. Now, under Bill C-31, individuals who are detained and who are granted refugee status are required to wait five years before they even become eligible to apply for permanent residence. The consequences of this restriction concerning family separation and family reunification are unthinkable,” Neufeld said.

The result of the proposed changes, according to Neufeld, are prolonged family separation that may mean: “Spousal relationships may break down. Children may arrive to parents they no longer even know and some children become too old to even bring to Canada.”

“So forcing anyone granted refugee status to wait five years before they even become eligible to being the process of family reunification is not only unconscionable, it is likewise cruel” said Neufeld.

Alex Neve, who is the Director General of Amnesty International Canada and a lawyer and a recognized expert on international human rights, also criticized Bill C-31. He said, “Among the many troubling provisions in Bill C-31 is the power given to the Minister of Immigration to designate a list of countries of origin that are supposedly safe. Refugee claimants who are nationals from these so-called safe countries will be treated very differently from all other refugee claimants and they will face discrimination and unequal justice in a number of very worrying ways.”

Neve stated, “First, their claims will be fast-tracked for processing, sending a clear signal to decision-makers that their cases are assumed to be doubtful and dubious.” Second, if turned down, claimants from designated safe countries of origin will have no access to an appeal before the Immigration and Refugee Board’s new Refugee Appeal Division — a crucial safeguard for people whose lives and liberty may be on the line.”

Neve continued, “And finally, even the last resort option of turning to the Federal Court for a review of a negative decision on technical grounds is rendered nearly meaningless as claimants from safe countries will almost always be deported before the court decides before – before the court decides whether or not they will even be granted a hearing.”

The representative for Amnesty International also further attacked the Bill for, “Introducing the safe countries of origin concept into the Canadian refugee system is unfair and problematic for so many reasons. First, there is simply no reliable, objective way to distinguish safe and unsafe countries when it comes to human rights protection. Where does the line get drawn? Human rights violations, unfortunately, occur in virtually all countries around the world — countries considered to be democratic, countries which have close economic, tourist and other ties with Canada, countries that may be safe for most people but countries which nonetheless may also be dangerous and discriminatory for many others.”

Neve added, “This is certainly the case with many countries commonly thought to be at the top of Minister Kenney’s safe list such as Mexico where a deepening human rights crisis has been the subject of a growing number of alarming reports from Amnesty International and others. Or the Czech Republic and Hungary where countless human rights experts have documented deep and longstanding violence and discrimination against Roma people.” Minister Kenney has frequently characterized Roma refugees as “bogus.”

The Federal Court of Canada, not known to be a bastion of judicial activism, has recently over turned two negative decisions involving Roma refugee claims. In one decision the Federal Court stated that, “there has been a severe upswing of extremism directed against Roma and further that there is extensive evidence of the government’s shortcomings in actually preventing violence against Roma.” In the second Decision, the Federal Court ruled that, “the evidence is overwhelming that Hungary is unable presently to provide adequate protection to its Roma citizens.”

Neve commented that, “Against that reality, it is particularly problematic that the decision to designate safe countries will rest entirely in the hands of the Minister, making it open to all manner of inappropriate political considerations. Tellingly, an earlier proposal to set up an expert committee to advise the Minister on this list has been scrapped.”

Neve further stated, “This approach also undermines one of the most fundamental principles of refugee protection, namely that refugee claimants should have their cases assessed individually, not on the basis of sweeping generalizations such as the countries from which they come from.”

The Representative from Amnesty International continued, “And finally, at its very core, it is discrimination — discrimination in something so essential as access to justice and the quality of that justice, justice meant to ensure that people will be kept safe from serious human rights violations. No justice for you because of where you come from.”

“The concept of safe countries of origin is a wrong-handed fiction. It contravenes the fundamental principle that refugee claims should be assessed individually. And it constitutes indefensible discrimination. It does not belong in Canada’s refugee system and should be abandoned” said Neve.

Mr. Lorne Waldman, President of the Canadian Association of Refugee Lawyers and widely recognized as one of Canada’s leading experts on immigration and refugee law, also addressed what he described as “one of the most alarming features of the new legislation which is the time frames.” Waldman stated, “I want to make it clear: as a refugee lawyer who sees the harm that delays in the process have brought upon my clients, I support an expeditious process. I support a process that gives refugees a reasonable period of time to present the case and results in quick, fair decision-making.”

“But the new refugee procedure,” Waldman stated, “has created time frames that are so completely unrealistic as to make a facade of due process in the refugee determination system. Refugees will have 15 days from the date they make a claim — the date of their arrival — to file a form which sets out the basis for their case. And, as we all know, these forms then form the foundation for their entire claim. And if they make omissions, these omissions will be held against them. It will be impossible for refugees to obtain legal advice and to get counsel to prepare the forms in most cases given the very short time frames.”

The President of the Canadian Association of Refugee Lawyers continued, “If a refugee is on the designated country of origins list, he will then have to have a hearing within 30 days. As we know, refugees are required and expected to bring corroborating evidence. Given the time frames — be it 30 days for the expedited cases or 60 days for the unexpedited cases — it will be virtually impossible for refugees to get legal representation and for them to be able to get corroborating evidence. The time frames are so absurd and so unrealistic as to make the system completely devoid of any fairness.”

According to Waldman, “The appeal process is laughable. For years, refugee advocates have called for an appeal system and indeed when the refugee system was amended two years ago with the consensus of all the political parties, we rejoiced that the Conservative government was going to introduce an appeal. But the time frames that are now included in this new appeal process as so ridiculous as to make the appeal process a joke. Fifteen days to file a perfected appeal is virtually impossible. No one can file an appeal, obtain counsel, obtain the transcript and be able to realistically comply with those time periods.”

Continuing his critique, Waldman said, “The appeal is also made absurd by the fact that so many different groups are now being excluded from the right to have an appeal. You don’t get an appeal if you’re on one of the designated country lists. You don’t get an appeal if you’re designated as an irregular arrival. You don’t get appeal if they find your case has no credible basis. There are … six [grounds] for denying persons access to the appeal process. So in the end it’s doubtful that there will be very many people left who will be able to obtain access to an appeal and so one wonders why the government is going to the expense of creating an appeal process that will be used by and available to so many.”

Another serious criticism raised by Waldman is “the impact of this bill on permanent resident status for persons who’ve already been accepted as refugees. Under the new legislation, the Minister will be able to apply for cessation. What this means is the Minister will be able to apply for an order that a person is no longer a refugee because the conditions in their country have changed. This provision exists in the current legislation. But the significant change is under the new law if the Minister applies and if the Minister is successful in obtaining an order of cessation, that will immediately strip the person of their permanent resident status.”

Waldman gave the following example: “A refugee comes from Kosovo, a genuine refugee, accepted and brought to Canada by the Government of Canada as a refugee from Kosovo. Now we know that the situation in Kosovo has changed. Under the current legislation, the Minister can apply for an order saying that they’re no longer a refugee, but it doesn’t have any effect on their permanent resident status. Under the new legislation, the Minister applies for such an order and if the order is granted by the Board — which it will be because there’s no longer a dangerous situation in Kosovo — then that person immediately loses their permanent resident status, is inadmissible to Canada, and is subject to immediate deportation.”

“There are tens of thousands of people in Canada who came to Canada as refugees, and genuine refugees, have not done anything wrong and their status is now at risk because of this change in the legislation” said Waldman.

The Conservative Government has a majority in Parliament and can readily pass the legislation. Opponents of the Bill C-31 are calling for substantial revisions. In the end these issues may be determined in the Courts.

Edward C. Corrigan is a lawyer certified as a Specialist in Citizenship and Immigration Law and Immigration and Refugee Protection by the Law Society of Upper Canada in London, Ontario, Canada. He can be reached at: corriganlaw@edcorrigan.ca. Read other articles by Edward, or visit Edward's website.