Vol. 145, No. 32 — August 6, 2011

ARCHIVED — Regulations Amending the Immigration and Refugee Protection Regulations

Statutory authority

Immigration and Refugee Protection Act

Sponsoring agency

Canada Border Services Agency

(This statement is not part of the Regulations.)

Executive summary

Issue

Paragraph 72(2)(a) of the IRPA specifies that an application for leave for judicial review of a negative determination of a refugee claim may not be made until any right of appeal (e.g. RAD) provided for under the Act is exhausted. Under the current asylum system, the last administrative recourse (i.e. the last right of appeal) available to asylum claimants, prior to filing an application for leave for judicial review, is to file a refugee protection claim with the Refugee Protection Division (RPD) of the IRB. The RPD is an independent, quasi-judicial tribunal that is responsible for making first instance determinations on refugee claims. The RAD, a division of the IRB that will hear appeals from asylum claimants who have received negative determinations from the RPD, will be brought into force at the same time as the BRRA in late 2011. Therefore, as of the implementation of the BRRA, the RAD will represent the last administrative recourse at the IRB available to an asylum claimant. In other words, under the BRRA, asylum claimants who wish to make an application to the Federal Court for leave for judicial review must first appeal their claims with the RAD. Consequently, the provision in subsection 231(1) of the Regulations must be amended because it identifies the RPD, not the RAD, as the last administrative recourse available to unsuccessful asylum claimants.

The BRRA also includes amendments to the IRPA that are designed to fast track the processing of asylum claims from designated countries, as well as the identification and expedited processing of manifestly unfounded claims (MUC). Designated Countries of Origin (DCO) will include countries that do not normally produce refugees; that have a robust human rights record; and 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. A MUC is a claim that the IRB decision-maker determines to be clearly fraudulent based on the information provided by the claimant. MUCs congest Canada’s asylum system, which leads to long 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. The second proposed amendment would exclude unsuccessful DCO and MUC claimants from the automatic stay of removal provision (i.e. temporarily postpone removal proceedings) in section 231 of the Regulations, which is granted upon filing an application for leave for judicial review.

Objectives

The proposed amendments are intended to support the BRRA. The main objectives of the BRRA are 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 two objectives of the proposed regulatory amendments are as follows:

• (i) to ensure that the Regulations are consistent with provisions introduced in the BRRA and, consequently, that they remain consistent with the IRPA; and
  
• (ii) to ensure the expeditious removal from Canada of unsuccessful DCO and MUC claimants.
  

Description

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

• 1. Replace the reference to the RPD in subsection 231(1) with the RAD.
  
• An amendment to subsection 231(1) of the Regulations is required to specify that a removal order is stayed if an individual has filed an application for leave for judicial review after a negative determination at the RAD as opposed to the RPD. Given that the RAD will come into force at the same time as the BRRA, this amendment will ensure that the Regulations remain consistent with subsection 72(2) of the IRPA.
  
• 2. Under subsection 231(2), create exceptions to the automatic stay of removal for DCO and MUC asylum claimants with negative determinations at the RAD who have applied for leave for judicial review to the Federal Court.

When a person makes a refugee claim in Canada, a removal order is immediately issued against that person. This removal order is called a departure order and is unenforceable until after the last IRB determination of their refugee claim. After the last negative refugee determination decision, the departure order becomes enforceable and the person has 30 days to leave Canada. However, a claimant may apply for leave to the Federal Court for judicial review of a negative RAD decision. In filing a leave application to the Federal Court, failed refugee claimants, unless specifically exempted, 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 Federal Court makes a final decision on the failed claimant’s application.

In the BRRA (section 14.1), the Government of Canada made a clear statement that claimants from a DCO and claimants who file MUCs should be processed and removed from Canada more expeditiously than other asylum claimants. For example, the RPD will conduct hearings for DCO claimants within 60 days, compared to 90 days for other claimants. The RAD will conduct a hearing within 30 days for DCO and MUC claimants compared to 120 days for other claimants.

The proposed amendment to create exceptions to the automatic stay of removal for DCO and MUC claimants is consistent with the intent of the BRRA to process and remove DCO and MUC claimants more expeditiously than other claimants. The regulatory amendment would allow the CBSA to initiate the removal of these claimants four months earlier than 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. Under the reformed asylum system, it is expected that most failed asylum claimants will be removed from Canada within 12 months of a final decision from the IRB, and the proposed regulatory changes will assist in achieving this goal by ensuring removal of unsuccessful DCO and MUC claimants four months earlier than other unsuccessful claimants.

Further, the proposed amendment is consistent with provisions already established in the Regulations. Currently, subsections 231(2) and 231(3) of the Regulations outline exceptions to the automatic stay of removal provision. Subsection 231(2), in particular, already provides for an exception to the automatic stay provision when the RPD states in their decision that there is no credible basis for the claim.

While the proposed amendment would deny failed DCO and MUC claimants an automatic stay of removal, it would not 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.

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 BRRA will be entitled to an automatic stay of removal if they seek leave for judicial review to the Federal Court.

Regulatory and non-regulatory options considered

There is no non-regulatory option available for addressing the reference to the RPD in subsection 231(1) of the Regulations. The proposed regulatory amendment is necessary to ensure that the Regulations are consistent with the BRRA and that they accurately reflect paragraph 72(2)(a) of the IRPA.

Likewise, there is no non-regulatory option available to exclude unsuccessful DCO and MUC asylum claimants from an automatic stay of removal when applying for leave to the Federal Court. A regulatory amendment is necessary to ensure that unsuccessful DCO and MUC claimants are removed from Canada as expeditiously as possible. By enabling the CBSA to initiate the removal of these claimants four months earlier than claimants who are granted an automatic stay of removal, the amendment would contribute to the success of Canada’s reformed asylum system, which is based on ensuring faster processing, faster removals for failed claimants, and reducing abuse of the system (i.e. deterring unfounded claims and reducing in-Canada costs through expedited removals).

Benefits and costs

The proposed regulatory amendments are inextricably linked with the DCO and MUC policies being introduced under the BRRA and, as such, are expected to result in significant benefits to Canada.

The costs and benefits associated with the proposed regulatory amendments were outlined as part of a Cost-Benefit Analysis (CBA) prepared by Citizenship and Immigration Canada (CIC). The CBA, which assesses DCOs and processing time limits for asylum claims (for more information on CIC’s DCO policy, please refer to the following Regulatory Impact Analysis Statement: www.gazette.gc.ca/rp-pr/p1/2011/2011-03-19/html/reg1-eng.html), estimates that reforms introduced under the BRRA will reduce the length of stay in Canada for unsuccessful MUC claimants by seven months and for unsuccessful DCO claimants by eight months. The proposed exemptions to the automatic stay of removal figure prominently in those estimates: the exemptions alone are expected to reduce the length of stay for MUC and DCO claimants by four months each.

Reducing the time during which unsuccessful 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 on the federal, provincial and territorial governments.

According to the CIC CBA, the implementation of the DCO and MUC policies is expected to result in a net benefit of $91.4 million over 10 years (2011–2020). This benefit is partly attributable to the expedited removal of DCO and MUC claimants four months earlier than other failed claimants and the deterrence of these types of asylum claims. The removal of unsuccessful DCO and MUC claimants four months earlier will save an estimated $31.3 million in Interim Federal Health and social assistance. This calculation is based on CIC CBA estimates of 9 548 negative DCO claimants and 2 420 MUC claimants over 10 years with an average Interim Federal Health cost of $53/month per claimant, and an average social assistance cost of $600/month per claimant.

Another benefit considered in the CIC CBA is the deterrence of DCO claims and MUCs. The proposed amendment would contribute to deterring DCO claims and MUCs by ensuring that these types of claims do not result in long stays in Canada. In turn, reducing the number of DCO claims and MUCs made each year would reduce overall processing costs for the IRB and would facilitate more efficient processing for genuine asylum claims.

The CBSA has identified a minimal legal aid cost associated with the proposed regulatory amendment that was not described in the CIC CBA. It is expected that a percentage of unsuccessful DCO asylum claimants will request legal aid in order to apply for a stay of removal from the Federal Court. However, it is not anticipated that a significant percentage of failed DCO asylum claimants will meet the merit test employed in determining whether or not to provide legal aid. In general, the merit test assesses the reasonable likelihood of success of the case and whether a reasonable person of modest means would otherwise pay a lawyer to represent them. Given that the claims will have been considered at both the RPD and RAD, the likelihood of these claimants being provided legal aid is very low.

Given the low percentage of failed DCO asylum claimants expected to meet the merit test for legal aid, the proposed regulatory amendments are expected to result in a cost of $296,938 for legal aid over 10 years (2012–2021). The average incremental cost for legal aid expected to result from the proposed regulatory amendments was based on the tariff schedule for Ontario, the province with the highest volume of removals. This average also represents an approximate mid-point between tariff rates in British Columbia and Quebec, which are the provinces with second and third highest volumes of removals respectively. An annual increase of 1% as per the Ontario tariff schedule was incorporated in assessing the cost for this activity and the deterrent effect identified in the CIC CBA was also incorporated. Costs were discounted at a rate of 7%.

It should be noted that MUC asylum claimants are not expected to receive legal aid as these cases were determined to be “manifestly unfounded” by the IRB and would, therefore, be very unlikely to meet the merit test for legal aid funding.

The legal aid costs identified would result in a minimal reduction of the overall benefit identified in the CIC CBA from $91.5 million to approximately $91.2 million.

There would be significant qualitative benefits to Canada arising from the proposed amendments. The proposed amendments, in conjunction with expedited DCO and MUC processing timelines, would strengthen the integrity of Canada’s asylum system by ensuring faster removals of unsuccessful DCO and MUC claimants.

Faster removals would also contribute to the deterrence of unfounded claims as making a claim would no longer result in a long period of time in Canada. As a result of forgone expenditures on claim processing, social services and social assistance, the proposed amendments would result in cost savings for the federal government, as well as for provincial and territorial governments (as identified in the CIC CBA).

In addition, expedited processing and removal times would reduce the amount of time unsuccessful DCO and MUC claimants have 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.

The CIC CBA includes an assessment of the estimated costs and benefits that would result from DCO and MUC changes introduced in the BRRA. The estimates are based on projected timelines for processing DCO claims and MUCs from initiation right through to removal. As such, the estimates include the four-month savings that would result from the proposed amendments to the Regulations. In other words, the proposed regulatory amendments comprise a portion of the overall assessment conducted by CIC and are, therefore, inextricably linked to the costs and benefits projected by CIC.

The table below provides a breakdown of the estimated costs and benefits associated with the changes under the BRRA, including the proposed regulatory amendments.

Rationale

As stated above, the proposed amendments are integral to the objectives of the BRRA, which are to ensure faster processing, faster removal of failed claimants, and the deterrence of unfounded claims. The proposed Regulations would expedite the removal of DCO and MUC claimants and deter the making of those types of claims. Without this regulatory amendment, it would not be possible to expedite the removal of claimants who make DCO claims or MUCs. Furthermore, it would be more difficult to deter DCO claims and MUCs as there would be virtually no negative consequence to making such claims.

Consultation

No consultations were undertaken regarding the first proposed amendment (changing RPD to RAD in subsection 231(1)). This amendment is administrative and ensures that the Regulations remain consistent with the IRPA.

The proposed amendment that would create an exception to the automatic stay of removal provision for those unsuccessful DCO and MUC refugee claimants seeking leave to the Federal Court has not received significant public or stakeholder attention or criticism to date.

The proposed amendment was 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. Both organizations support provisions that specifically address unfounded asylum claims.

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 clear and objective designation criteria as well as a rigorous and transparent designation process should be employed in designating a safe country of origin. This was addressed both through legislation (BRRA), which included designation criteria, and through CIC’s proposed DCO regulations, which established objective and quantitative criteria that must be met before a country can be designated. 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.

CIC has been consulted extensively on the proposed regulatory amendment to exclude unsuccessful DCO and MUC claimants from an automatic stay of removal when applying for leave to the Federal Court. The proposed regulatory amendment does 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 amendment as a complementary extension of the Department’s DCO and MUC policies.

The IRB Consultative Committee on Practices and Procedures, The Canadian Bar Association, the Canadian Association of Professional Immigration Consultants (CAPIC), the Quebec Immigration Lawyers Association (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 proposed amendment.

Implementation, enforcement and service standards

The CBSA is mandated, in part, with removing foreign nationals who are inadmissible to Canada. The proposed regulatory amendment will not result in any implementation or enforcement changes in the CBSA’s business processes. The implementation of the proposed regulatory amendments will not require staffing or significant training as the changes are administrative in nature and do not carry operational implications. 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 DCO and MUC claimants four months earlier than other claimants, which will assist in 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, will conduct ongoing monitoring of the impacts of these amendments in order to assess the effectiveness of initiating removals for DCO and MUC claimants four months earlier than other unsuccessful refugee claimants.

Performance measurement and evaluation

The CBSA, in collaboration with CIC, will monitor the impacts of these amendments against their intended objectives as outlined above on an ongoing basis. An evaluation of the new asylum system is planned for three years after the implementation of the BRRA. The evaluation will be coordinated by CIC and will engage all partners involved in implementing the BRRA. The review will assess the extent to which the BRRA and related regulatory amendments have contributed to streamlining the refugee determination process.

Andrew Lawrence
Project Manager
Refugee Reform Program Development
Post-Border Programs Directorate
Canada Border Services Agency
100 Metcalfe Street, 10th Floor
Ottawa, Ontario
K1A 0L8