ARCHIVED — Regulations Amending the Immigration and Refugee Protection Regulations

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Vol. 145, No. 12 — March 19, 2011

Statutory authority

Immigration and Refugee Protection Act

Sponsoring department

Department of Citizenship and Immigration

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Executive summary

Issue: A large number of asylum claims, including those from major source countries, are determined to be unfounded by the Immigration and Refugee Board (IRB). This has placed pressures on Canada’s asylum system, leading to long wait times and contributing to a significant backlog of cases. As a result, individuals in genuine need of protection currently wait about 20 months or more for a protection decision and individuals not in need of protection end up staying in Canada for about four and a half years, on average. To address these challenges, the Minister of Citizenship, Immigration and Multiculturalism (the Minister) introduced Bill C-11, the Balanced Refugee Reform Act. The Balanced Refugee Reform Act, which received Royal Assent on June 29, 2010, includes legislative amendments to the Immigration and Refugee Protection Act (IRPA) that give the Minister the authority to set processing time limits in the Regulations, and to designate countries, parts of countries or classes of nationals of countries that do not normally produce refugees, for the purpose of further expediting the processing of certain claims. The purpose of this Designated Countries of Origin (DCO) policy is to reduce pressure on Canada’s asylum system by deterring unfounded claims. The legislation also provides authority for the Refugee Protection Division (RPD) of the IRB to identify a claim as manifestly unfounded, for the purpose of expedited processing at the appeal stage and deterring unfounded claims. In addition to these legislative changes, regulatory amendments are required for the implementation of the DCO and manifestly unfounded claims policies. The details, including normal and expedited time limits for processing claims at the IRB, are to be provided for in the Immigration and Refugee Protection Regulations (Regulations).

Description: The proposed regulatory amendments would set out the conditions (i.e. the quantitative thresholds) that must be satisfied prior to reviewing and designating countries, parts of countries, or classes of nationals of countries for expedited processing of asylum claims. To ensure a robust and transparent designation process and clear designation criteria, it is also proposed that further detail concerning the designation criteria and the process for review be set out in the Regulations. Finally, to ensure faster processing generally and more expedited processing for claimants from designated countries, parts of countries, or classes of nationals in countries, and for those whose claims are deemed manifestly unfounded, it is proposed that processing time limits, including time limits for scheduling the hearing at the RPD, for filing and perfecting an appeal and for making a decision on an appeal, be set out in the Regulations. Establishing these processing time limits is necessary in order to create an expedited process for DCO and manifestly unfounded claims relative to other claims.

Cost-benefit statement: The proposed amendments would contribute to the integrity of Canada’s asylum system by deterring unfounded claims. This would contribute to the overall savings flowing from the Balanced Refugee Reform Act, which will ensure faster processing and faster removals, and therefore less time spent by failed claimants in Canada with access to work permits, welfare and social services, as well as to the deterrence of unfounded claims. A full cost-benefit analysis has been conducted and is available upon request. The analysis indicates that the proposed regulatory amendments would have a positive net impact on each affected party and would result in a net, monetizable benefit of about $91.4M over the 10-year study horizon (2011–2020). All figures are in present value terms and are reflected in 2011 dollars. The anticipated net benefit is largely due to expedited processing and the deterrence of unfounded asylum claims, less the anticipated costs of implementing the proposed Regulations.

Business and consumer impacts: The DCO policy provides an additional tool to the Government of Canada to respond to spikes in asylum claims from countries that are not normally refugee-producing, and where the IRB’s acceptance rate of such claims is low, as designations would result in the deterrence of unfounded claims. Currently, such spikes can necessitate more costly options, such as visa impositions. Visa impositions can incur costs to Canada, including to Canada’s tourism industry, business travel between the countries and diplomatic relationships.

Domestic and international coordination and cooperation: Citizenship and Immigration Canada (CIC) will continue to work closely with other federal departments and agencies to ensure a robust designation process. Where appropriate, a DCO designation could have an impact on considerations related to changes in visa requirements. While the requirements for, and impacts of, DCO designations and visa impositions differ, in certain circumstances the DCO policy could provide an alternative tool to visa impositions for responding to spikes in asylum claims from countries with a low acceptance rate at the IRB.  This would be well-received by the countries concerned.

Performance measurement and evaluation plan: Three years after implementation of the new asylum system under the Balanced Refugee Reform Act, a full review of the new system will be carried out. This would include a review of the elements of the new system impacted by the proposed Regulations.

Issue

Currently, a large number of asylum claims, including those from major source countries, are determined to be unfounded at the Immigration and Refugee Board (IRB). This has placed pressures on Canada’s asylum system, leading to long wait times and contributing to a significant backlog of claims. As a result, individuals in genuine need of protection currently wait about 20 months or more for a protection decision and individuals not in need of protection end up staying in Canada for long periods of time. In fact, failed claimants have access to multiple layers of recourse, resulting in delays in removal from Canada. It takes, on average, four and a half years from the initial claim until the removal of a failed asylum claimant and in some cases 10 years or longer. The result is that long wait times, with access to work permits, social services and welfare, may attract persons who are not in need of protection to make asylum claims in order to live and work in Canada for years.

To address these challenges, the Minister of Citizenship, Immigration and Multiculturalism (the Minister) introduced Bill C-11, the Balanced Refugee Reform Act. On June 29, 2010, the Balanced Refugee Reform Act received Royal Assent. As a result, the Immigration and Refugee Protection Act (IRPA) was amended to give the Minister the authority to set processing time limits in the Regulations and to designate countries, parts of countries or classes of nationals of countries that do not normally produce refugees, for the purposes of further expediting the processing of claims. The legislation also provides authority for the Refugee Protection Division (RPD) of the IRB to identify a claim as manifestly unfounded, for the purpose of expedited processing at the appeal stage. The purpose of the Designated Countries of Origin (DCO) policy, the faster processing timelines and the identification of manifestly unfounded claims is to reduce pressure on Canada’s asylum system by deterring unfounded claims, thus contributing to a system that is able to provide faster decisions to those who are in need of protection.

While the DCO policy and manifestly unfounded claims policy have been established in the Balanced Refugee Reform Act, regulatory amendments are proposed in order to provide for specific criteria and transparency around the DCO designation process, as well as normal processing time limits and expedited time limits for DCO and manifestly unfounded claims.

For the purpose of deterring unfounded claims, the Balanced Refugee Reform Act allows decision-makers at the RPD of the IRB to identify a claim as manifestly unfounded, if it is determined that the claim is clearly fraudulent, in accordance with United Nations High Commissioner for Refugees (UNHCR) guidance. (see footnote 1) The Regulations would ensure clear timelines for expedited processing of such claims, thus providing for a quicker and more flexible tool than the DCO policy for responding to unfounded claims, particularly where the quantitative volumes for a designation review have not yet been reached.

For the DCO policy, the legislation requires that countries be considered for designation only if they meet two quantitative criteria that demonstrate a high claim volume and low acceptance rate. The legislation also requires that the review for designation take into consideration the human rights record of that country, as it relates to the human rights instruments specified in the Regulations, and the availability of avenues for seeking protection and redress in that country.

The proposed regulatory amendments would set out the two quantitative thresholds that would need to be met before a review for designation could be undertaken. In addition, to ensure a robust and transparent designation process and clear designation criteria, it is proposed that further detail concerning the DCO criteria and designation process would also be set out in the Regulations. Finally, to ensure that processing is prioritized for claimants from designated countries, parts of countries, or classes of nationals in countries, and for those whose claims are deemed manifestly unfounded, it is proposed that processing timelines, including time limits for scheduling the hearing at the RPD, for filing and perfecting an appeal and for making a decision on an appeal, be set out in the Regulations. Establishing these processing timelines is necessary in order to establish an expedited process for DCO and manifestly unfounded claims relative to other claims.

Objectives

The objective of the DCO and manifestly unfounded claims policies is to deter people who are not in need of protection from making asylum claims. This is in line with the overall objectives of the Balanced Refugee Reform Act, which include faster decisions on asylum claims, faster removals for failed claimants, and reduced abuse of Canada’s asylum system.

The objective of these policies is not to restrict access to asylum. Access to refugee status determination procedures will not be limited for DCO claimants or claimants whose claims are deemed to be manifestly unfounded. All claims will be assessed on the basis of their individual merits at the RPD and at the Refugee Appeal Division (RAD), with the further possibility of seeking judicial review at the Federal Court.

The objectives of the proposed regulatory amendments are

1. to ensure a robust and transparent designation process and clear designation criteria;

2. to ensure that the DCO policy will function properly, in accordance with its policy intent; and

3. to ensure timely processing and an expedited process for claimants from designated countries, parts of countries or classes of nationals in countries, and for those whose claims are deemed manifestly unfounded, for the purpose of helping to deter unfounded claims.

Description

It is proposed that the following amendments be made to the Regulations.

1. Specify the “international human rights instruments” referred to in the Act

The Balanced Refugee Reform Act establishes that one of the criteria to be examined when designating a country of origin is the human rights record of that country as it relates to the international human rights instruments specified in the Regulations. It is proposed that the Regulations be amended to specify the “international human rights instruments” referred to in the Act, as including

(1) the International Covenant on Civil and Political Rights (ICCPR); and

(2) the Convention Against Torture (CAT).

While other international human rights instruments relevant to specific issues or populations could be used to support country assessments where appropriate, the ICCPR and CAT are the two key, broad instruments relevant to protection considerations that should be considered in all country assessments. As the Balanced Refugee Reform Act indicates, the Minister may consider any other international instruments that he/she considers relevant.

2. Clarify the factors to be considered in assessing the human rights record of the country and availability of avenues for seeking protection and redress

It is proposed that the Regulations clarify the legislative criteria of the “human rights record of the country in question as it relates to the factors set out in sections 96 and 97” of the Immigration and Refugee Protection Act (see footnote 2) and the “availability in the country in question of avenues for seeking protection and redress”, which the Minister must consider in designating a country of origin. It is proposed that the factors to be considered by the Minister in assessing these criteria should include the following:

(a) the degree of access to justice in that country and the independence of that country’s judiciary;

(b) the existence of democratic rights, freedoms and processes, and a system of remedies for the violation of human rights in that country; and

(c) the ability of non-governmental human rights organizations and other civil society organizations to operate freely within that country.

All of these factors would have to be considered by the Minister before making a designation. These are general factors affecting the availability in a given country of avenues for seeking protection and redress and the human rights record of a country. These factors have been kept general to allow for necessary discretion to determine whether the systems, laws and practices of a country, which can vary substantially, provide adequate protection to citizens.

3. Establish two quantitative thresholds as conditions precedent to designating

It is proposed that the Regulations be amended to establish the following quantitative thresholds, demonstrating high claim volume and a low acceptance rate, which must be met in order for a country to be considered for designation:

(a) the number of claims for refugee protection made in Canada by nationals of the country in question must be equal to or greater than 1% of the total number of claims for refugee protection made in any consecutive 12-month period in the three years preceding the date of the designation made by the Minister; and

(b) the rate of acceptance by the RPD of claims made by nationals of the country in question must be equal to or lower than 15%, in any consecutive 12-month period in the three years preceding the date of the designation made by the Minister.

These thresholds were selected in order to ensure that only those countries having a significant impact on the asylum system (at least 1% of the total number of claims) and a low acceptance rate at the IRB (15%) could be reviewed.

4. Require consultation with a panel of experts

To ensure that expert advice is being provided to the Minister in the designation process, it is proposed that the Regulations be amended to indicate that the Minister may only make a designation if an advisory panel of experts, including at least two non-government human rights experts, established by the Minister, has made a recommendation supporting the designation. The Minister would not be required to consult the panel in order to cancel a designation.

5. Establish processing time limits at the IRB

It is proposed that time limits for scheduling the first level hearing, for filing and perfecting an appeal and for making a decision on an appeal be set out in the Regulations, as follows:

(a) Hearings at the RPD must be scheduled for a date that is no later than 60 days after the information gathering interview for DCO claimants and no later than 90 days after the information gathering interview for all other claimants. The RPD could postpone a hearing in cases where certain inadmissibility related inquiries are ongoing.

(b) In the case of all claims, appeals must be filed and perfected no later than 15 working days after the RPD decision and written reasons are received by the appellant, in accordance with IRB Rules. A perfected appeal is understood to include an application to appeal, the decision and written reasons being appealed, and a memorandum of argument and supporting affidavits.

(c) A decision on an appeal must be made by the RAD within 30 days from the time the perfected appeal is received, for an appeal from a DCO appellant or from an appellant whose claim has been deemed to be manifestly unfounded, and within 120 days from the time the perfected appeal is received for all other appellants. The respondent’s submissions and appellant’s rebuttal would also take place within these time limits. These time limits would not apply where an oral hearing, rather than a paper-based review, was considered to be required.

In exceptional circumstances (for example, if a person was unable to appear for a hearing due to a serious injury or illness), the IRB would be able to extend these time limits. The IRB Rules are being developed concurrently, and will clarify certain details, including the time accorded for the respondent’s submissions and appellant’s rebuttal.

Regulatory and non-regulatory options considered

There is no non-regulatory option for establishing quantitative thresholds, as the Balanced Refugee Reform Act requires thresholds to be established in the Regulations in order for countries to be considered for designation.

While further details on the human rights and protection designation criteria, and the requirement for the Minster to consult a panel of experts, could be established as a matter of policy, establishing these requirements in the Regulations would provide for a robust and transparent designation process and clearer designation criteria.

The proposed regulatory amendment to include processing time limits in the Regulations is necessary in order to establish an expedited process for DCO claimants and for those whose claims are deemed manifestly unfounded. While these time limits could be established in IRB Rules, the Regulations are a more appropriate vehicle as these time limits are a matter of asylum policy, and are necessary in order to make the DCO policy and the manifestly unfounded claims policy work.

Benefits and costs

There would be a significant benefit to Canada from the proposed regulations, which would strengthen the integrity of Canada’s asylum system by deterring unfounded claims, and by ensuring faster processing within the new asylum system.

These amendments would deter unfounded claims, as making a claim would no longer result in a long period of time in Canada, particularly for DCO claimants. This would result in cost-savings for the federal government, and for provincial and territorial governments, as a result of forgone expenditures on claim processing, social services and social assistance. While it is impossible to know for certain in advance of designation decisions, it has been estimated that approximately 10% of all asylum claimants in Canada could be subject to expedited processing under the DCO policy. For the purposes of the cost-benefit analysis, it has been assumed that designations would result in a 57% decline in the number of claims received from designated countries, over the 12 months following a designation. This assumption is based on the experience of the United Kingdom (U.K.), following designations made under their Non-Suspensive Appeal (NSA) policy. While recognizing the imperfect nature of any international asylum trend comparisons, the United Kingdom’s experience provides a useful and reasonable proxy.

In addition, the proposed processing time limits would contribute to faster processing within the new asylum system, by clearly setting out the time limits within which all claims must be processed. As a result of a number of reforms under the Balanced Refugee Reform Act, together with the proposed regulations, the average processing time for a claim to be heard at the IRB is expected to drop from more than 20 months to less than 6 months for those found to be in need of protection. Processing times for failed claimants would also drop significantly.

Failed DCO claimants and those whose claims are determined to be manifestly unfounded would be subject to an expedited process of about four to six months at the IRB, as opposed to about one year for other failed claimants, in addition to the time necessary for removal. A shorter time in Canada for rejected claimants in the expedited processes would mean less time with access to social services and health and welfare benefits, thus resulting in lowered costs. This would result in cost-savings for provincial and territorial governments, as well as for the federal government, as a result of forgone expenditures for social services and social assistance.

Another potential benefit to Canada flows from the possibility that the DCO policy could provide Canada with an alternative tool for responding to spikes in asylum claims from countries with a low acceptance rate at the IRB. In some cases, a DCO designation could have an impact on considerations related to changes in visa requirements. While the requirements for, and impacts of, DCO designations and visa impositions differ, in certain circumstances the DCO policy could provide an alternative tool to visa impositions for responding to spikes in asylum claims from countries with a low acceptance rate at the IRB, as designations would result in the deterrence of unfounded claims. Visa impositions can have costs for Canadians and the federal government — for example, potential costs to the tourism industry, trade, personal or business travel if retaliatory visa measures are adopted, and diplomatic relationships, as well as the cost of establishing a visa processing capacity in the country concerned. It should be noted, however, that visa policy and the DCO policy are separate areas of policy, each with its own criteria. Decisions on visa policy will continue to be made on the basis of these criteria. In cases where a visa imposition would not be advisable for any reason other than to respond to the pressure that asylum claims from a country were putting on Canada’s asylum system, a DCO designation might provide a more appropriate tool, provided that all legislative and regulatory DCO designation criteria had been considered and all designation requirements had been met, including the quantitative preconditions set out in the Regulations.

There would also be a benefit to the Canadian public. In addition to ensuring the more efficient use of tax dollars, the proposed reforms are expected to generate increased confidence in the integrity of Canada’s asylum system among Canadians.

Finally, an incidental benefit would also exist for asylum claimants found to be in need of protection, particularly those subject to the expedited processing time limits, as they would receive decisions on their claims in a timely manner, allowing them to integrate into Canadian society, and apply for citizenship, sooner.

Costs associated with the proposed regulatory amendments include the cost of federal government and non-government time for participation on the expert advisory panel, which would be absorbed with existing resources, as well as for staffing and operational costs associated with conducting country assessment work. A country assessment team will be established to serve a number of functions, including supporting the DCO designation process. Citizenship and Immigration Canada will be creating and staffing this team during the Balanced Refugee Reform Act implementation period. There would also be costs associated with communications activities for the purpose of explaining these policy changes and any DCO designations to the Canadian public, asylum seekers, and government employees.

A full cost-benefit analysis has been completed, and indicates that the proposed regulatory amendments are expected to have a positive net impact on each affected party and would result in a net, quantifiable and monetizable benefit for all parties of $91.4M over the 10-year study horizon (2011–2020). This net benefit is largely due to expedited processing and the deterrence of unfounded asylum claims, less the anticipated costs of implementing the proposed Regulations.

Benefits that could not be quantified were assessed qualitatively and include renewed confidence in the integrity of Canada’s asylum system, the opportunity for faster integration into Canada for positive claimants and benefits deriving from the possibility of using a DCO designation as a tool for responding to spikes in asylum claims, which might otherwise necessitate more costly options, such as visa impositions. (see footnote 3)

All costs and benefits were assessed in terms of incremental changes resulting from the proposed Regulations — that is, in relation to the asylum system as it would exist with the changes resulting from the Balanced Refugee Reform Act but in the absence of the proposed Regulations. Costs and benefits were forecasted over a period of 10 years, from 2011 to 2020, and were estimated in monetary terms to the extent possible and by stakeholder group. Costs and benefits, both expressed in present value terms, were discounted at a rate of 7%. Costs and benefits which could not be estimated reliably in monetary terms due to data limitations or lack of sufficient evidence were addressed qualitatively. Given the high degree of variability in potential future benefits, benefits were estimated using a range with a high and low limit, with a reasonable, conservative estimate taken from within this range. Costs for implementing these Regulations would not be subject to the same variability and were therefore kept constant for this range analysis.

These Regulations would contribute to the savings that will result from faster processing under the Balanced Refugee Reform Act. Overall, the Balanced Refugee Reform Act will result in savings estimated at $1.2B (present value [PV]) [or $310M (PV) in net savings] over 10 years, largely as a result of failed claimants spending less time in Canada with access to welfare and social services, due to faster processing and faster removals. The proposed regulatory amendments would contribute to the Balanced Refugee Reform Act objective of creating a faster and fairer asylum system that is less open to abuse.

The costs-benefits accounting statement

Table 1 provides an overview of the study results. It is anticipated that the new asylum system will come into force by the end of 2011; applications would be processed within the framework of the new legislation and proposed Regulations starting from this time. The total estimated cost for the analysis period (2011–2020) is $5.3M (PV). The total benefits are estimated at $96.7M (PV). We anticipate that the most significant savings would be accrued in 2012, the year after the Regulations are implemented. Costs in 2012 are estimated at $1.0M and benefits are estimated at $25.5M. The majority of these benefits are due to the deterrence of unfounded claimants in the year in which a designation is made. As unfounded claimants are costly, this would result in significant cost savings for both the federal government and the provincial and territorial governments. Based on this analysis, it is estimated that the proposed regulatory amendments would generate a net benefit of $91.4M (PV) during the analysis period.

All stakeholders would reap positive net benefits. According to this analysis, the net benefit to provincial and territorial governments is estimated at $60.5M (PV) during the period studied and the net benefit to the federal government is estimated at $31.0M (PV). Additional qualitative benefits would be experienced by the Canadian public, the federal government, and positive asylum claimants.

Table 1: Accounting Statement

Costs, benefits and distribution

Base year (2011)

2012

Final year

Total 2011–2020 (present value)

A. Quantified impacts, in millions of dollars

Benefits

Federal government

$0

$11.4M

$0.24M

$36.3M

Provinces and territories

$0

$14.1M

$2.7M

$60.5M

Costs

Federal government

$0.4M

$1.0M

$0.3M

$5.3M

Provinces and territories

$0

$0

$0

$0

Net benefits

 $91.4M

B. Qualitative impacts

Benefits

Canadian public

In addition to ensuring the more efficient use of tax dollars, the proposed reforms are expected to generate increased confidence in the integrity of Canada’s asylum system among Canadians.

Canadian public, federal government

In some cases, a DCO designation could have an impact on considerations related to changes in visa requirements. While the requirements for, and impacts of, DCO designations and visa impositions differ, in certain circumstances the DCO policy could provide an alternative tool to visa impositions for responding to spikes in asylum claims from countries with a low acceptance rate at the IRB, as designations would result in the deterrence of unfounded claims. Visa impositions can have costs for Canadians and the federal government — for example, potential costs to the tourism industry, trade, personal or business travel if retaliatory visa measures are adopted, and diplomatic relationships, as well as the cost of establishing a visa processing capacity in the country concerned. It should be noted that visa policy and the DCO policy are separate areas of policy, each with its own criteria. Decisions on visa policy will continue to be made on the basis of these criteria.

Claimants (future Canadians)

An incidental benefit would also exist for positive claimants (future Canadians) falling within a DCO designation, who would benefit from the expedited timelines as they would have the opportunity to integrate and establish themselves within Canadian society, and apply for citizenship, sooner than had they not been subject to a DCO designation.

There would also be a benefit to positive claimants in general, as the proposed Regulations would contribute to the deterrence of unfounded claims, and would thereby help to ensure that resources can focus on providing timely decisions to those in need of protection.

Costs

All identified costs have been quantified.

The full cost-benefit analysis is available upon request.

Rationale

As stated above, the proposed Regulations would make an important contribution to the overall objectives of the Balanced Refugee Reform Act, which will ensure faster processing, faster removals for failed claimants and the deterrence of unfounded claims.

In particular, the proposed time limits are integral to the objective of deterring unfounded claims, as they are necessary in order to ensure expedited processing for DCO and manifestly unfounded claims. Without these processing time limits, the objective of these policies — to deter persons not in need of protection from making asylum claims in Canada, and therefore to guard against abuse of Canada’s asylum system — could not be met.

The proposed regulatory amendments clarifying the human rights and protection criteria established in the legislation would enhance the transparency of the criteria to be considered during the DCO designation process. Further, the quantitative thresholds and the requirement that the Minister consult a panel of experts would constrain ministerial discretion, while also ensuring that expert advice is provided to the Minister during the designation process.

Consultation

As initially proposed, the DCO policy attracted some controversy from Opposition Members of Parliament, media, and refugee stakeholders. Much of this criticism has been addressed. Criticism focused notably on the lack of clarity regarding the criteria for designation, the extent of ministerial discretion to select countries for designation, and the creation of a “two-tiered” system under the original proposal, which would have denied access to the RAD for DCO claimants. Amendments to Bill C-11 addressed both of these concerns by introducing criteria into the legislation and by providing access to the RAD for all claimants.

The proposed Regulations, on the quantitative thresholds, clarification of designation criteria and requirement to consult an expert panel, were shared with the Standing Committee on Citizenship and Immigration during the development of the legislation in order to provide greater transparency regarding the DCO provisions of Bill C-11. These draft Regulations responded to concerns raised by the Committee and were well received. The DCO policy, as described in the legislation and shared draft Regulations, received all-party support and the Bill received Royal Assent on June 29, 2010.

The proposed Regulations further address concerns regarding transparency and ministerial discretion. In particular, the establishment of preconditions that must be met before a country can be considered for designation responds to concerns with respect to excessive ministerial discretion. These preconditions include the proposed quantitative thresholds and the proposed requirement that designations be preceded by receipt of a positive recommendation from a panel of experts, which would include two non-governmental experts. The proposed additional detail on human rights and protection criteria also contribute to transparency.

The UNHCR supports safe country of origin policies, such as the DCO policy in the Balanced Refugee Reform Act, provided certain basic conditions are met. The DCO policy meets the essential standard identified by the UNHCR of not barring access to a determination on the individual merits of the claim. Areas of concern identified by the UNHCR, relating to the original proposal to deny access to the RAD and the importance of providing clear and objective designation criteria and ensuring a rigorous and transparent designation process, were addressed. Bill C-11 was amended to allow all claimants access to the RAD. Concern regarding the importance of clear and objective designation criteria and a rigorous and transparent designation process have been addressed both through the amendment to the Bill that introduced designation criteria into the legislation, and through the proposed regulations, which would establish objective, quantitative criteria that must be met before a country could be considered for designation, greater clarity regarding the human rights and protection criteria established in the Bill, and a requirement for the Minister to consult a panel of experts.

During the Standing Committee deliberations on Bill C-11, stakeholders also expressed concerns about perceived short timeframes for interviews and appeal preparation. It is anticipated that concerns about the need for adequate appeal preparation time and dispensation for vulnerable claimants may be reiterated during the consultation period.

Citizenship and Immigration Canada will consult with other federal departments and agencies, and with key external stakeholders, including the UNHCR, to ensure a viable regulatory package and a robust designation process.

Implementation, enforcement and service standards

Implementation of these proposed Regulations would include activities related to staffing and training for the country assessment team; the continued development of a process for reviewing countries against the criteria established in the Act and Regulations, in consultation with other federal government partners, including the Department of Foreign Affairs and International Trade (DFAIT), the Department of Justice (JUS) and the Canada Border Services Agency (CBSA), as well as the UNHCR; the establishment of the proposed expert advisory panel, including two non-government human rights experts, by the fall of 2011; and ongoing monitoring by CIC of the impacts of these amendments against their intended objectives, in collaboration with government partners, and in support of the evaluation described below.

All of these activities are being pursued as a part of the overall implementation strategy for the Balanced Refugee Reform Act.

Performance measurement and evaluation

The proposed Regulations would result in a more robust designation process, as well as clear timeframes for processing and would contribute significantly to the fairness and efficiency of Canada’s asylum system.

Work is currently underway on indicators against which the reforms to the asylum system will be measured. The proposed regulatory amendments would be measured according to a number of indicators — most significantly, the percentage of cases processed by the IRB within the proposed time limits.

Three years after implementation of the new asylum system under the Balanced Refugee Reform Act, an evaluation of the new system will be carried out. The evaluation will be coordinated by CIC and will involve all partners involved in implementing the Balanced Refugee Reform Act. It would include a review of the elements of the new system impacted by the proposed Regulations, including an evaluation of the impact of the DCO policy and of the processing time limits.

Contact

Jennifer Irish
Director
Asylum Policy and Programs
Refugee Affairs Branch
Citizenship and Immigration Canada
365 Laurier Avenue W
Ottawa, Ontario
K1A 1L1
Email: Jennifer.Irish@cic.gc.ca

PROPOSED REGULATORY TEXT

Notice is hereby given that the Governor in Council, pursuant to subsection 5(1) and section 111.1 (see footnote a) of the Immigration and Refugee Protection Act (see footnote b) proposes to make the annexed Regulations Amending the Immigration and Refugee Protection Regulations.

Interested persons may make representations concerning the proposed Regulations within 30 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part I, and the date of publication of this notice, and be addressed to Jennifer Irish, Director, Asylum Policy Program Development, Citizenship and Immigration Canada, Jean Edmonds South Tower, 17th Floor, 365 Laurier Avenue West, Ottawa, Ontario K1A 1L1 (tel.: 613-941-8331; fax: 613-941-6413; email: Jennifer.Irish@cic.gc.ca).

Ottawa, March 10, 2011

JURICA ČAPKUN
Assistant Clerk of the Privy Council

REGULATIONS AMENDING THE IMMIGRATION AND REFUGEE PROTECTION REGULATIONS

AMENDMENT

1. The Immigration and Refugee Protection Regulations (see footnote 4) are amended by adding the following after section 159.7.

DIVISION 3.1

CLAIM FOR REFUGEE PROTECTION — TIME LIMITS FOR HEARINGS AND APPEALS

Designation by the Minister Under Section 109.1 of the Act

Number of claims

159.8 For the purposes of paragraph 109.1(1.1)(a) of the Act, the number of claims for refugee protection made by nationals of the country in question is one per cent of the total number of claims for refugee protection made in any consecutive 12-month period in the three years preceding the date of the designation made by the Minister under subsection 109.1(1) of the Act.

Rate of acceptance

159.9 For the purposes of paragraph 109.1(1.1)(b) of the Act, the rate of acceptance of claims for refugee protection made by nationals of the country in question is 15 per cent in any consecutive 12-month period in the three years preceding the date of the designation made by the Minister under subsection 109.1(1) of the Act.

International human rights instruments

159.91 For the purposes of subparagraph 109.1(1.2)(a)(ii) of the Act, the international human rights instruments include the following:

(a) the International Covenant on Civil and Political Rights; and

(b) the Convention Against Torture.

Factors to be considered

159.92 The factors to be considered by the Minister in assessing the human rights record of the country in question under subparagraph 109.1(1.2)(a)(i) of the Act and the availability in that country of mechanisms for seeking protection and redress under paragraph 109.1(1.2)(b) of the Act include the following:

(a) the degree of access to justice in that country and the independence of that country’s judiciary;

(b) the existence of democratic rights, freedoms and processes and a system of remedies for the violation of human rights in that country; and

(c) the ability of non-governmental human rights organizations and other civil society organizations to operate freely within that country.

Consultation before designation

159.93 (1) The Minister shall not designate a country or part of a country or a class of nationals of a country under subsection 109.1(1) of the Act unless the Minister has

(a) consulted an advisory panel of experts that has been established by the Minister for that purpose and includes at least two non-government human rights experts; and

(b) received from the panel a recommendation supporting the designation.

Cancelling a designation

(2) The Minister may cancel a designation made under subsection 109.1(1) of the Act without consulting the advisory panel of experts.

Hearing Before the Refugee Protection Division

Time limits for hearing

159.94 (1) Subject to subsections (2) and (3), for the purpose of subsection 100(4.1) of the Act, the date fixed for the hearing before the Refugee Protection Division must be

(a) in the case of any claimant referred to in subsection 111.1(2) of the Act, not later than 60 days after the date of the interview referred to in subsection 100(4) of the Act; and

(b) in the case of any other claimant, not later than 90 days after the date of that interview.

Exception in certain circumstances

(2) If, for reasons of fairness and natural justice, the hearing cannot be held within the time referred to in paragraph (1)(a) or (b), the hearing must be held as soon as feasible after that time.

Exception for pending investigation or inquiry

(3) If the hearing cannot be held within the time referred to in paragraph 1(a) or (b) because of a pending investigation or inquiry relating to section 34, 35, 36 or 37 of the Act, the hearing must be held as soon as feasible after that investigation or inquiry is completed.

Appeal to the Refugee Appeal Division

Time limit for Appeal

159.95 (1) Subject to subsection (2), for the purpose of subsection 110(2.1) of the Act, the time limit for a person or the Minister to file and perfect an appeal to the Refugee Appeal Division from a decision of the Refugee Protection Division is not later than 15 working days after the day on which the person or the Minister receives written reasons for the decision.

Extension

(2) If, for reasons of fairness and natural justice, the appeal cannot be filed and perfected within the time referred to in subsection (1), the Refugee Appeal Division may extend the time limit for filing and perfecting the appeal by the additional number of working days that is appropriate in the circumstances.

Definition of “working day”

(3) In subsection (1), “working day” does not include Saturdays or holidays.

Time limits for decision

159.96 (1) Subject to subsection (2), for the purpose of subsection 110(3.1) of the Act, except where a hearing is held under subsection 110(6) of the Act, the time limit for the Refugee Appeal Division to make a decision on an appeal is

(a) in the case of any claimant referred to in paragraphs 111.1(3)(a) to (d) of the Act, not later than 30 days after the day on which the appeal is perfected; and

(b) in the case of any other claimant, not later than 120 days after the day on which the appeal is perfected.

Exception

(2) If it is not possible for the Refugee Appeal Division to make a decision on an appeal within the time referred to in paragraph (1)(a) or (b), the decision must be made as soon as feasible after that time.

COMING INTO FORCE

2. These Regulations come into force on the day on which section 12 of the Balanced Refugee Reform Act , chapter 8 of the Statutes of Canada, 2010, comes into force, but if these Regulations are registered after that day, they come into force on the day on which they are registered.

[12-1-o]

Footnote 1
The UNHCR’s Executive Committee Conclusion on the problem of manifestly unfounded or abusive applications for refugee status or asylum, No. 30(XXXIV) — 1983, available at www.unhcr.org/refworld/docid/3ae68c6118.html, indicates that “manifestly unfounded” claims are “those which are clearly fraudulent or not related to the criteria for the granting of refugee status laid down in the 1951 United Nations Convention relating to the Status of Refugees nor to any other criteria justifying the granting of asylum” and offers the following additional guidance:

(i) as in the case of all requests for the determination of refugee status or the grant of asylum, the applicant should be given a complete personal interview by a fully qualified official and, whenever possible, by an official of the authority competent to determine refugee status;
(ii) the manifestly unfounded or abusive character of an application should be established by the authority normally competent to determine refugee status;
(iii) an unsuccessful applicant should be enabled to have a negative decision reviewed before rejection at the frontier or forcible removal from the territory. Where arrangements for such a review do not exist, governments should give favourable consideration to their establishment. This review possibility can be more simplified than that available in the case of rejected applications which are not considered manifestly unfounded or abusive.

Footnote 2
Sections 96 and 97 of the Immigration and Refugee Protection Act provide the following definitions of “Convention refugee” and “person in need of protection”:

96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,

(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or
(b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country.

97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of
nationality, their country of former habitual residence, would subject them
personally

(a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if

(i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,
(iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide
adequate health or medical care.

Footnote 3
“Positive claimants” is used to refer to asylum claimants whose claims are ultimately accepted by the IRB.

Footnote 4
SOR/2002-227

Footnote a
S.C. 2010, c. 8, s. 14.1

Footnote b
S.C. 2001, c. 27