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To add to our ongoing commentary on the proposed changes to the Refugee process and procedures in Canada that are being introduced, below is a very good summary of the changes and some concerns we have about them as they impact on the rights of refugee claims in Canada.
Mary Keyork, a Managing Associate at our firm has done a great job in preparing this summary which I think highlights the real problems with Bill C-11
For details on our other blogs on this topic go here and here
Bill C-11, the Balanced Refugee Reform Act, introduced at the House of Commons on March 30, 2010 proposes changes to the the entire refugee process which would have a significant impact on the lives and rights of thousands of refugee claimants every year.
The bill’s main intention is to reduce the backlog at the Immigration and Refugee Board (IRB) by speeding up the process. The proposed bill outlines major modification to the refugee process, one of which is the creation of the Refugee Appeal Division (RAD). Most modifications have yet to be elaborated and we remain without clear answers about many procedures which could negatively impact refugee claimants
One of the changes might include the elimination of the Personal Information Form (PIF) which is a document prepared by a claimant, most of the time, with the assistance of a lawyer outlining details and circumstances of the claim. The PIF is a crucial part of the refugee process (in existence for over two decades) as it allows claimants to focus and elaborate on their story which is, in most cases, an extremely painful and difficult exercise. The reform intends to replace the PIF by an interview of the claimant within 8 days of arriving in Canada by an officer who might not ask the necessary questions which would adequately display a claimant’s story. The questioning process at the Port of Entry is now transferred to the IRB offices creating an adversarial environment between the IRB and the claimant.
Another changes is the scheduling of a hearing date within 60 days of the interview. This places a claimant in a very vulnerable situation as there is almost no time to retain a lawyer for the 8-day interview and obtain proper legal advice not to mention the time required to prepare, disclose evidence, arrange for witnesses and obtain important documents (such as medical and psychological reports) for the 60 day hearing. Furthermore, as most interviews will not have allowed counsel to be present, the evidence submitted by a claimant at the 8-day interview will be held against him or her at the hearing with very little opportunity to rectify or add specific details to the story. Furthermore, the bill proposes these hearings be conducted by civil servants who might lack the necessary independence.
A refugee hearing is a very complex and lengthy procedure which deserves facts and arguments to be presented in an orderly and organized manner to protect the rights of refugee claimants and to allow them to fully disclose their story in a personalized manner. Most refugee claimants arrive in Canada confused and scared, often traumatized by what they have left behind in their home country and tired from the journey to Canada. Speeding up the refugee process to diminish the backlog by not allowing claimants to properly present their story can only harm future claimants. The right to counsel is a fundamental right protected by the Constitution of Canada and confirmed by the Supreme Court of Canada.
Also, claimants from the “safe country list” will not have access to the RAD which politicizes this list and undermines an individual assessment of each refugee claimant. It is not because an individual is born in a democratic country that he or she cannot have a well-founded fear of persecution!
Finally, the reform proposes that failed refugee claimants be banned from applying for permanent residence under humanitarian and compassionate grounds within one year after rejection of the refugee claim as well as a restriction to submit a Pre-Removal Risk Assessment (PRRA) if the claimant is removed within one year. This is unnecessary as there is no connection between an H&C application and removal from Canada. Banning H&C closes the door to applicants who have reasons to remain in Canada beyond a refugee claim such as the best interest of the children. Claimants could also have a new risk and therefore a PRRA cannot be eliminated.
Is it crucial to fight for the rights of these claimants. This new bill will gives rise to constitutional challenges which we need to prepare for! Expediting the system without fairness will create horrific injustices and violates the main objectives of the Immigration and Refugee Protection Act.
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