Asylum and the Rule of Law in Canada : The Asylum Seeker in the Canadian Legal System
Canada is a settler society par excellence. Almost 20 per cent of the population is foreign-born, putting it right behind Australia as a country of immigration in empirical terms. Canada is also a country of immigration in the normative sense; official discourse celebrates immigration as constitutive of the nation. The image of Canada as an especially welcoming haven for refugees and asylum seekers fits well within this narrative. Indeed, the United Nations High Commissioner for Refugees (UNHCR) awarded the Nansen Medal to the Canadian people in 1986 in recognition of Canada’s ‘outstanding services in supporting refugee causes’.
In light of this image, it seems mildly surprising that Canada was slow to subscribe to the international refugee regime. It was notoriously hostile to Jews fleeing Nazi Germany, and even after the holocaust, remained dilatory and parsimonious in its refugee admissions. It did not sign the 1951 Convention relating to the Status of Refugees (Refugee Convention) until 1969, claiming that accession would impede management of its immigration programme, especially deportation.
The Immigration and Refugee Protection Act 2001 (IRPA) and the Immigration and Refugee Protection Regulations (IRP Regulations) were enacted within months of 11 September 2001 (9/11), although the statute was drafted well before the attacks on the World Trade Center and the Pentagon. Part 2 of IRPA defines the scope of protection, establishes grounds of ineligibility, and adumbrates the process from arrival at a port of entry, to adjudication of the refugee claim, to judicial review, and finally to the removal of unsuccessful claimants.
Refugee protection extends to the following persons :
1. a person determined to be a UN Convention refugee;
2. a person who faces a substantial risk of torture within the meaning of Article 1 of the Convention Against Torture (CAT);
3. a person who faces a risk to life, or of cruel and unusual treatment, or who risks punishment that is not faced generally by other individuals in that country, is not the result of lawful sanctions, and is not caused by the country’s inability to supply adequate health care.
A person may lodge a refugee claim at a land, air or sea port of entry. Canada imposes entry visa requirements on most ‘refugee-producing countries’ and denies visas to anyone deemed likely to claim asylum. Therefore, the asylum seeker typically lacks the requisite visa entitling entry to Canada and is therefore presumptively inadmissible to Canada. The immigration officer (a government employee) will issue a conditional removal order that comes into effect if and when the refugee application is rejected for ineligibility or after further examination of the merits of the claim. If a non-citizen enters Canada with a visa (student, tourist, temporary worker, etc.), he or she may apply inland at an immigration office for refugee protection and no removal order will be issued as long as the visa remains valid.
At the time the asylum claim is made, the immigration officer may enquire into the basis for the refugee claim, and the officer’s notes will be admissible at the refugee hearing. The immigration officer must then determine the asylum seeker’s eligibility for referral to the Refugee Protection Division (RPD) of the Immigration and Refugee Board (IRB). The grounds for ineligibility include the following :
a. Already recognized as a refugee in Canada or another country to which the claimant can be sent;
b. Refugee claim previously rejected or found ineligible in Canada;
c. Asylum seeker inadmissible for reasons of security, ‘violation of human or international rights’ [sic], serious criminality, or organized criminality;
The USA is the only country designated as a safe third country. Pursuant to the Canada-US Safe Third Country Agreement,14 refugee claimants who arrive at the Canadian border from the USA will be deflected back to the USA to make asylum claims unless they are unaccompanied minors, or have relatives residing legally in Canada.15 If an immigration officer does not determine eligibility within three days, the claim is automatically referred to the RPD. Where inadmissibility due to security or criminality is at issue, or where the person is the subject of extradition proceedings, referral of the asylum claim is suspended until the resolution of the admissibility or extradition matter.
An eligible asylum seeker will receive a Personal Information Form (PIF), which must be completed in English or French and submitted to the IRB within twenty-eight days. The PIF consists of a long form questionnaire that asks about the asylum seeker’s personal history, and requires elaborating in a written narrative the reasons for seeking refugee protection. The asylum seeker may retain legal counsel. In Ontario, British Columbia and Quebec, state-funded legal aid is available, although the rates are considered so low in Quebec that many refugee lawyers no longer accept legal aid clients. Canada detains relatively few asylum seekers prior to their hearings, although the grounds upon which detention is legally permissible were expanded under the 2001 IRPA. Once they submit their PIFs, asylum seekers may work, and may obtain social assistance and limited public health insurance.
Where asylum seekers arrive as a family, each family member must complete a separate PIF and must establish a separate basis for asylum. In other words, a child does not automatically receive refugee status because their parent meets the definition. In practice, the claims of a are usually processed and heard together, and there is a marked tendency to prioritize the refugee claim of an adult male family member as the ‘principal claimant’.
Once the PIF is received by the IRB, the claim is scheduled for a hearing. If the claim fits the profile of claims with high acceptance rates, the claim may be scheduled for an expedited process. If the expedited process does not result in a positive recommendation, or the claim does not fit the profile, it will be scheduled for a full hearing before a single member of the Refugee Protection Division of the IRB. The IRB is an independent tribunal established by the executive in 1989 as a response to the Singh v. Canada (Minister of Employment and Immigration) (Singh)16 decision of the Supreme Court of Canada. The member may be assisted at the hearing by a Refugee Protection Officer (RPO) – a civil servant. Legal counsel or non-legally trained consultants may represent the claimant by posing questions and offering submissions. The hearing is supposed to be inquisitorial and non-adversarial. In rare cases, usually those involving exclusion of the claimant under Article 1F of theRefugee Convention, a representative of the Minister of Citizenship and Immigration will participate by opposing the refugee claim, thus converting the hearing into an overtly adversarial process.
The member may render a decision orally at the conclusion of the hearing, or may reserve judgement. Reasons are required for all negative decisions, and for positive decisions on request. The acceptance rate has fluctuated since the IRB was established in 1989, and an overall acceptance rate masks meaningful variations between countries of origin, types of claims, and individual decision makers. Having said that, it should be noted that the acceptance rate sank to 40 per cent in 2004. By 2006, the acceptance rate had rebounded to 47 per cent, where it had hovered for several years prior to the period 2002–5. (The drop coincided with the general rise in anti-refugee animus following 9/11, but the correlation remains a hypothesis).
If the claim is accepted, the asylum seeker may obtain permanent resident status and eventually citizenship. If the claim is rejected, the asylum seeker has fifteen days to apply for leave to seek judicial review before the Federal Court of Canada.19 The grounds of review include error of law, breach of natural justice, or findings of fact made in a ‘perverse or capricious manner or without regard to the evidenceIf the claim is accepted, the asylum seeker may obtain permanent resident status and eventually citizenship. If the claim is rejected, the asylum seeker has fifteen days to apply for leave to seek judicial review before the Federal Court of Canada. The grounds of review include error of law, breach of natural justice, or findings of fact made in a ‘perverse or capricious manner or without regard to the evidence before it’.20 In 2001, about 63 per cent of unsuccessful refugee claimants applied for leave to seek judicial review. The Federal Court granted leave in about 12 per cent of the applications, and set aside about 12 per cent of those judicially reviewed.21 Successful judicial review results in remittance of the case back to the tribunal for rehearing. A decision of the Federal Court may only be appealed to the Federal Court of Appeal if the Federal Court judge certifies a question of general importance arising from the judicial review.
A conditional removal order against a rejected asylum seeker comes into force fifteen days after the negative decision, which coincides with the period for seeking leave for judicial review of a rejected claim. The asylum seeker will also receive notice of her/his entitlement to apply for a Pre-Removal Risk Assessment (PRRA), which is a last-minute evaluation conducted when the individual is ‘removal ready’. An asylum seeker who is ineligible for referral to the IRB because of making a prior unsuccessful claim, or who is inadmissible on grounds of security or criminality, may also apply for a PRRA. The PRRA is evaluated according to the same criteria as a protection claim, except that it is conducted in writing by an immigration officer rather than in person by an independent decision maker. Rejected claimants can only raise new evidence or evidence not reasonably available at the time of the hearing before the IRB. Successful PRRA applicants who are inadmissible on grounds of criminality or security are protected from removal but cannot acquire permanent resident status. Moreover, the Minister of Citizenship and Immigration retains discretion to refoule a refugee who, in her/his opinion, poses a danger to the public or to national security.
Apart from the refugee protection regime, any non-citizen (including a failed asylum seeker) may seek an exemption from the requirements of IRPA by applying for humanitarian and compassionate consideration. This ministerial discretion is delegated to a senior immigration officer, and is structured by voluminous guidelines. In general, necessary but not sufficient conditions for a successful application for humanitarian and compassionate discretion to remain in Canada is evidence of economic establishment and unusual hardship that would result from removal. The consequences of removal are generally regarded as the province of refugee determination and are thus irrelevant to a humanitarian and compassionate determination in respect of a failed asylum seeker.
Source : International law that use in this reference :
– Susan Kneebone, 2009. REFUGEES ASYLUM SEEKERS AND THE RULE OF LAW Comparative Perspectives. Cambridge University Press: New York.
Picture The Asylum Seeker in the Canadian Legal System