ARCHIVED — Vol. 146, No. 33 — August 18, 2012

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Regulations Amending the Immigration and Refugee Protection Regulations

Statutory authority

Immigration and Refugee Protection Act

Sponsoring agency

Canada Border Services Agency

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

1. Background

The Protecting Canada’s Immigration System Act (PCISA), which received Royal Assent on June 28, 2012, builds upon the amendments to the Immigration and Refugee Protection Act (IRPA) introduced in the Balanced Refugee Reform Act (BRRA). These amendments to the IRPA will improve Canada’s asylum system, resettle more refugees from abroad, and make it easier for refugees to start their lives in this country. Changes to Canada’s asylum system introduced in both the BRRA and the PCISA directly affect provisions in the Immigration and Refugee Protection Regulations (IRPR). Regulatory amendments are required to ensure that the IRPR will be consistent with and complement the aforementioned legislation.

It should be noted that prior to the tabling of the PCISA, the Canada Border Services Agency (CBSA) proposed regulatory amendments to section 231 of the IRPR. The amendments, which were designed to support changes introduced in the BRRA, were prepublished in the Canada Gazette, Part Ⅰ, in August 2011. However, following the prepublication, additional measures that directly affected the proposed amendments were introduced in the PCISA. Therefore, the previously prepublished amendments have been withdrawn and replaced by the amendments proposed herein, which reflect changes introduced in the PCISA.

Current system

An asylum claimant is issued a conditional removal order at the time an asylum claim is made. If the asylum claim is unsuccessful, the removal order becomes enforceable. The failed asylum claimant may apply to the Federal Court for leave and judicial review of a negative decision. The application for leave must present an argument that the Court should hold a hearing to judicially review the decision. In filing the leave application, unsuccessful refugee claimants, other than the exceptions noted in section 231 of the IRPR (e.g. serious criminals and claims with no credible basis), receive an automatic stay of removal.

A stay of removal results in the postponement of removal proceedings, as the removal order is not enforceable while the stay is in effect. The stay of removal remains in effect until the Federal Court makes a final decision on the unsuccessful claimant’s application.

2. Issue

Introduction of the Refugee Appeal Division

First, the IRPR must be amended to reflect the introduction of the Refugee Appeal Division (RAD) into the Immigration and Refugee Board (IRB), a division that will be made active by the BRRA at a date to be fixed by an order of the Governor in Council.

Paragraph 72(2)(a) of the IRPA specifies that an application for leave and judicial review of a negative determination of a refugee claim may not be made until any right of appeal provided for under the Act is exhausted. Under the current system, the Refugee Protection Division (RPD) of the IRB, which is an independent, quasi-judicial tribunal responsible for making first instance determinations on refugee claims, represents the last right of appeal. Thus, an asylum claimant who has received a negative determination from the RPD may file an application for leave and judicial review to the Federal Court.

The RAD will be made active to hear appeals from asylum claimants who have received negative determinations from the RPD. As a result, once the RAD becomes active, on a day to be fixed by order of the Governor in Council, it will represent the last right of appeal prior to filing for leave and judicial review of a negative determination on an asylum claim.

It should be noted that the PCISA restricts the RAD eligibility of certain failed asylum claimants. The following failed asylum claimants cannot seek an appeal from the RAD:

  1. Failed claimants from a Designated Country of Origin
    Designated Countries of Origin (DCO) will include countries that do not normally produce refugees, countries that have a robust human rights record, and countries that offer strong state protection. States with strong democratic, judicial and accountability systems are likely to provide the necessary protection to their citizens and, as a result, foreign nationals from these countries are unlikely to require protection.
  2. Failed claimants determined to have a “manifestly unfounded claim”
    A “manifestly unfounded claim” (MUC) is a claim that an IRB decision-maker determines to be clearly fraudulent based on the information provided by the claimant (e.g. a foreign national vacationing in Canada claims asylum because his visitor’s visa has expired and he wants to extend his vacation). MUCs can contribute to longer wait times for people in need of refugee protection and allows people not in need of refugee protection to remain in Canada while they wait for a decision on their claims.
  3. Failed claimants whose claim was found to have “no credible basis”
    In accordance with subsection 107(2) of the IRPA, if the RPD is of the opinion that there was no credible or trustworthy evidence on which it could have made a favourable decision, it shall state in its decision that there was “no credible basis” for the claim. This type of decision is used when RPD members determine not only that the evidence adduced is insufficient to establish the claim, but also that there is no credible or trustworthy evidence on which the claim could have been accepted. Like DCO claims and MUCs, these types of claims can slow down processing in Canada’s asylum system.
  4. Claimants that fall under an exception to a Safe Third Country Agreement (STCA-exception claimants)
    Under paragraph 101(1)(e) of the IRPA, a refugee claim to the Refugee Protection Division is ineligible if the claimant came directly or indirectly from a country designated in regulation. Currently, the only country designated is the United States. Safe third country agreements require that a foreign national make a claim in the first country in which they arrive unless they qualify for an exception to the agreement, such as having a family member who is a Canadian citizen or permanent resident. Because asylum claimants who are subject to an exception from the agreement had a previous opportunity to make an asylum claim in a safe third country (i.e. another nation that recognizes international refugee laws), a negative RPD decision on their claims should be considered final.
  5. Failed claimants who are designated as part of an “irregular arrival”
    After the coming into force of the PCISA, the Minister may designate an “irregular arrival.” The legislation dictates that if designated by the Minister as part of an “irregular arrival,” the individual automatically becomes a “designated foreign national” (DFN) unless he or she holds the documents required for entry, and on examination the officer is satisfied that the person is not inadmissible to Canada. This authority has been put into place in order to curb human smuggling and discourage irregular migration trends.

As the aforementioned classes of failed claimants will be restricted from RAD eligibility, the first instance decision made at the RPD will be the last recourse prior to filing for leave and judicial review.

Once the RAD is implemented by the BRRA, subsection 231(1) of the IRPR must be amended as it identifies the RPD as the last administrative recourse available to unsuccessful asylum claimants who choose to seek leave and judicial review from the Federal Court. It will be amended by identifying the RAD as the last administrative recourse available to unsuccessful asylum claimants who choose to seek leave and judicial review from the Federal Court.

Expedited processing and removals for certain failed claimants

When a person makes a refugee claim in Canada, a removal order is immediately issued against them. This removal order is called a “departure order” and is unenforceable until after the last IRB determination of their refugee claim.

A failed asylum claimant may apply for leave to the Federal Court for judicial review of a negative RPD determination. Currently, in filing an application for leave and judicial review to the Federal Court, all failed asylum claimants, subject to the exceptions in subsections 231(2) and 231(3) of the IRPR, receive an automatic stay of removal. A stay of removal results in the postponement of removal proceedings as the removal order is not enforceable while the stay is in effect. The stay of removal remains in effect (i.e. removal is postponed) until the earliest of the following:

  • (a) the application for leave is refused;

  • (b) the application for leave is granted, the judicial review is refused, and no question is certified for the Federal Court of Appeal;

  • (c) if a question is certified by the Federal Court — Trial Division and the appeal is not filed within the time limit or if the appeal is dismissed;

  • (d) if an application for leave to appeal is made to the Supreme Court from a decision of the Federal Court of Appeal and the application is refused;

  • (e) if the application referred to in paragraph (d) is granted, the appeal is not filed within the time limit or the appeal is dismissed.

3. Objectives

The proposed amendments are intended to support the PCISA and the BRRA. The PCISA and the BRRA aim, amongst other things, to ensure faster decisions on asylum claims, faster removals for failed claimants, and reduced abuse of Canada’s refugee determination system (e.g. making fraudulent and/or unfounded refugee claims). The refugee determination system is intended to assist those in need of Canada’s protection; it is not intended to be used as a means of remaining in Canada for long periods of time by those who do not need protection.

The first objective of this regulatory proposal is to align, for clarity, consistency and accuracy, existing provisions of the IRPR with amendments to the IRPA introduced in the PCISA and the BRRA.

The second objective of the proposed amendments is to ensure the expeditious and differentiated processing and removal of certain classes of failed asylum claimants, such as claimants who make manifestly unfounded claims.

4. Description

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

(1) Replace the reference to the IRB RPD in subsection 231(1) of the IRPR with the final negative determination by the RAD in order to align with the provisions in paragraph 72(2)(a) of the IRPA

An amendment to subsection 231(1) of the IRPR is required to specify that a removal order is stayed if an individual has filed an application for leave and judicial review after a negative determination at the RAD as opposed to the RPD. Subsection 231(1) currently states

“a removal order is stayed if the subject of the order has filed an application for leave for judicial review in accordance with subsection 72(1) of the Act with respect to a determination of the Refugee Protection Division to reject a claim for refugee protection. . . ”

As set out in paragraph 72(2)(a), the IRPA requires that any right of appeal that may be provided by this Act be exhausted before an application for judicial review may be made. Therefore, failed claimants who do not have access to RAD can seek leave to the Federal Court following a negative decision at the RPD. In contrast, failed claimants with access to RAD must pursue that avenue before seeking leave at the Federal Court. This amendment ensures that the IRPR remains consistent with paragraph 72(2)(a) of the IRPA.

This proposed amendment also aligns with objectives of the PCISA by ensuring that DCO, MUC, STCA-exception, no credible basis, and DFN claimants — who are excluded from access to the RAD under the PCISA — would not be eligible for an automatic stay of removal if they file an application for leave and judicial review of their negative refugee determination. This amendment would support the Government’s goals of expedited processing and removal of certain classes of failed claimants. It would also be consistent with the exceptions to the automatic stay of removal provision that already exist in subsections 231(2) and 231(3) of the IRPR.

It should be noted that, while the amendment would deny an automatic stay of removal to the aforementioned types of claimants, it would not deny any failed claimant the opportunity to apply for leave and judicial review at the Federal Court. Nor would it preclude those claimants from filing a stay application with the Federal Court. However, unless a stay is granted, the filing of such an application would have no impact on the continuation of the removal process and the enforcement of the removal order.

(2) Create an exception to the automatic stay of removal for those failed claimants who, after accessing the RAD, become designated foreign nationals, or whose country of origin becomes designated

The second proposed amendment would ensure that failed asylum claimants who had been eligible for an appeal to the RAD, but who are subsequently determined to be DFNs, or who are subsequently determined to have come from a DCO, are excluded from the automatic stay of removal provided in subsection 231(1).

Again, it should be noted that, while this amendment would deny an automatic stay of removal to the above-noted types of claimants, it would not deny them the opportunity to apply for leave and judicial review at the Federal Court. Nor would it preclude them from filing a stay application with the Federal Court. However, unless a stay is granted, the filing of such an application would have no impact on the continuation of the removal process and the enforcement of the removal order.

A transitional provision forms part of the proposed amendments to provide that claimants who receive a negative decision from the RPD prior to the coming into force of the Regulations will be entitled to an automatic stay of removal if they apply for leave and judicial review to the Federal Court. The transitional provision further provides that those whose claims are referred to the RPD prior to coming into force but who receive a negative decision after coming into force will receive an automatic stay of removal if they apply for leave and judicial review to the Federal Court and would have been eligible for an appeal to RAD had their claim not been referred prior to the coming into force of the Regulations.

5. Consultation

The proposed amendments have not received significant public or stakeholder attention or criticism to date. External consultations on these amendments occurred in relation to similar amendments that were prepublished in the Canada Gazette, Part Ⅰ. That being said, the amendments that make up this current proposal differ from the content from the previously proposed amendments. While the previously proposed amendments only excluded DCO and MUC claimants from the automatic stay of removal (NCB claimants are currently excluded), the current proposal expands the exclusions to those claimants subject to an exception to the STCA as well as DFNs. These changes have been added to support and ensure consistency with measures introduced in the PCISA.

The previously proposed amendments were well-received by the Office of the United Nations High Commissioner for Refugees (UNHCR) and the Canadian Council for Refugees (CCR), in consultations on May 20 and May 27, 2011, respectively.

The UNHCR supports safe country of origin policies, such as the DCO policy, provided certain conditions are met. For example, a DCO policy should not bar access to a determination on the individual merits of a particular claim. Canada’s DCO policy meets this standard. As well, the UNHCR contends that a clear and objective designation criteria as well as a rigorous and transparent designation process should be employed in designating a safe country of origin. In addition, guidance provided by the UNHCR Executive Committee indicates that special provisions for dealing with unfounded claims in an expeditious manner are an acceptable practice, and can be useful in dealing with the burden that such claims can place on asylum systems.

Citizenship and Immigration Canada (CIC) has been consulted extensively on the proposed regulatory amendments that would exclude certain unsuccessful claimants from an automatic stay of removal when applying for leave and judicial review to the Federal Court. The proposed regulatory amendments do not impact CIC operations, as an exception to the automatic stay of removal provision would affect the removal process, which is an activity solely within the scope of the CBSA’s mandate. CIC supports the proposed regulatory amendments as a complementary extension of the Department’s DCO, MUC, STCA-exception, and DFN policy objectives.

The IRB Consultative Committee on Practices and Procedures, the Canadian Bar Association, the Canadian Association of Professional Immigration Consultants (CAPIC), l’Association québécoise des avocats et avocates en droit de l’immigration (AQAADI), the Canadian Society of Immigration Practitioners (CSIP) and the Cross Cultural Roundtable on Security were also consulted and no concerns were raised regarding the previously proposed amendments.

6. Rationale

The proposed amendments are integral to the objectives of the PCISA and the BRRA, which will ensure faster processing, faster removals of failed claimants, and the deterrence of unfounded claims.

First, replacing the reference to the RPD with a reference to the RAD is required. Without the amendment, the IRPR would not be consistent with the IRPA as amended by the BRRA and the PCISA.

Second, ensuring that DCO, MUC, STCA-exception, and DFN claimants are excluded from the automatic stay of removal is consistent with the intent of both the BRRA and the PCISA to process and remove these types of claimants more expeditiously than other claimants. The proposed regulatory amendments would allow the CBSA to initiate the removal of these claimants several months earlier than that of claimants who are granted an automatic stay of removal. More timely removals would contribute to reducing overall costs associated with Canada’s asylum system and reduce and deter abuse of the system.

The proposed regulatory changes will facilitate the removal of unsuccessful DCO, MUC, STCA-exception, and DFN claimants up to seven months earlier than other unsuccessful claimants. Unsuccessful claimants who access the RAD will be able to remain in Canada for approximately three months while their appeals are processed. If their appeals are unsuccessful and they file for leave and judicial review of their negative determinations, they will — as a result of the automatic stay of removal — be able to remain in Canada for an additional four months. Reducing the time during which unsuccessful DCO, MUC, STCA-exception, and DFN claimants remain in Canada and have access to federal and provincial social services and social assistance will significantly reduce overall costs associated with Canada’s asylum system to the federal, provincial and territorial governments. It is estimated that a refugee claimant in Canada collects approximately $8,000 on a yearly basis through social assistance and the Interim Federal Health Program.

Another benefit of the proposed amendments is that they would deter the making of DCO, MUC, STCA-exception and DFN asylum claims by ensuring that these types of claims do not result in long stays in Canada. In turn, reducing the number of these types of claims made each year would reduce overall processing costs for the IRB and facilitate more efficient processing for genuine asylum claims.

Finally, the proposed amendments are consistent with existing provisions of the IRPR: subsections 231(2) and 231(3) set out exceptions to the automatic stay of removal provision for claimants who file claims determined to have no credible basis and for claimants who are inadmissible to Canada on grounds of serious criminality, respectively.

7. Implementation, enforcement and service standards

The CBSA is mandated, in part, with removing foreign nationals who are inadmissible to Canada. The proposed regulatory amendments will not result in any implementation or enforcement changes in the CBSA’s business processes. The implementation of the proposed regulatory amendments in and of itself will not require staffing or significant training, as the changes are administrative in nature and do not carry operational implications. Upon the Regulations coming into force, the CBSA will implement a removals strategy that will include tiered prioritization of removals. CBSA officers currently conduct removals of foreign nationals against whom enforceable removal orders have been issued. The proposed amendments would not introduce any additional requirements for CBSA officers with respect to removals.

The proposed amendments would enable the CBSA to initiate removal proceedings of unsuccessful claimants of DCO claims and MUC claims, of claimants whose claims have no credible basis, of failed claimants subject to an STCA exception, and of DFNs up to seven months earlier than of other claimants, which would contribute to achieving the projected service standard of removing unsuccessful refugee claimants within one year of a final IRB claim determination. The CBSA, in conjunction with CIC, would conduct ongoing monitoring of the impacts of these amendments in order to assess their effectiveness.

8. Contact

Andrew Lawrence
Project Manager
Refugee Reform Program Development
Post-Border Programs Directorate
Canada Border Services Agency
100 Metcalfe Street, 11th Floor
Ottawa, Ontario
K1A 0L8

PROPOSED REGULATORY TEXT

Notice is given that the Governor in Council, pursuant to subsection 5(1) and section 53 (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 Tracy Annett, Director, Cabinet, Parliamentary and Regulatory Affairs Division, Canada Border Services Agency, 191 Laurier Avenue West, 13th Floor, Ottawa, Ontario K1A 0L8 (fax: 613-946-6037; email: HPP-SP.PHP-PS@cbsa-asfc.gc.ca).

Ottawa, July 25, 2012

JURICA ČAPKUN
Assistant Clerk of the Privy Council

REGULATIONS AMENDING THE IMMIGRATION AND REFUGEE PROTECTION REGULATIONS

AMENDMENTS

1. (1) The portion of subsection 231(1) of the Immigration and Refugee Protection Regulations (see footnote 1) before paragraph (a) is replaced by the following:

Stay of removal — judicial review

231. (1) Subject to subsections (2) to (4), a removal order is stayed if the subject of the order makes an application for leave for judicial review in accordance with section 72 of the Act with respect to a decision of the Refugee Appeal Division that rejects, or confirms the rejection of, a claim for refugee protection, and the stay is effective until the earliest of the following:

(2) Subsection 231(2) of the Regulations is replaced by the following:

Exception

(2) Subsection (1) does not apply if, when leave is applied for, the subject of the removal order is a designated foreign national or a national of a country that is designated under subsection 109.1(1) of the Act.

TRANSITIONAL PROVISION

2. Despite section 1, subsections 231(1) and (2) of the Immigration and Refugee Protection Regulations, as they read immediately before the day on which these Regulations come into force, continue to apply in the case where application for leave is filed in accordance with section 72 of the Immigration and Refugee Protection Act in respect of

  • (a) a decision of the Refugee Protection Division that was made before the day on which these Regulations come into force and that rejected the applicant’s claim for protection; or

  • (b) a decision of the Refugee Protection Division that is made after the day on which these Regulations come into force and that rejects the applicant’s claim for protection, if
    • (i) the decision is in regard to a claim for protection that was referred to it before the day on which these Regulations come into force, and is a decision that could have been appealed to the Refugee Appeal Division but for section 36 of the Balanced Refugee Reform Act, or

    • (ii) the decision follows a hearing that was commenced by the Convention Refugee Determination Division in any of the cases referred to in section 191 of the Immigration and Refugee Protection Act.

COMING INTO FORCE

3. These Regulations come into force on the first day on which all of the following provisions are in force, or if these Regulations are registered after that day, the day on which they are registered:

  • (a) sections 110, 194 and 195 of the Immigration and Refugee Protection Act, chapter 27 of the Statutes of Canada, 2001; and

  • (b) sections 12 and 36 of the Balanced Refugee Reform Act, chapter 8 of the Statutes of Canada, 2010.

[33-1-o]

Footnote a
S.C. 2012, c. 1, s. 150

Footnote b
S.C. 2001, c. 27

Footnote 1
SOR/2002-227