CIMM Committee Report

    Those who are granted status by the Immigration and Refugee Board (IRB), either as a Convention refugee or, under the Board’s soon-to-be-expanded mandate, as a "person in need of protection," can apply for permanent residence in Canada. A problem that has consistently arisen in the past is that obtaining permanent resident status is often delayed, as the rules require applicants to establish their identity for a second time. Many applicants do not have documents that are considered satisfactory by CIC and, thus, some refugees remain in a "legal limbo" for years. Although they have been found by the IRB to have established their identity and a fear of persecution, CIC does not land them because they lack satisfactory identity documents.

    The Committee heard from many witnesses that those caught in this legal limbo face a multitude of problems. They are unable to sponsor family members to join them in Canada, they cannot access student loans, employers may be hesitant to hire them because of their lack of permanent status, and they cannot travel abroad. There currently exists a special program for landing Somalis and Afghanis and the proposed regulations contemplate continuing such a program — to be referred to as the Undocumented Protected Persons in Canada Class. Many of the witnesses criticized the current and proposed undocumented landing programs as overly restrictive and unnecessary. The Committee found these submissions persuasive.

    Security screening now commences when a refugee claimant initiates a claim and both refugee status and permanent resident status may be revoked should any misrepresentations be discovered. As a result, the Committee does not see any compelling reason not to rely on the IRB’s finding of identity. As witnesses repeated throughout our hearings, every protection determination is a determination of identity. To hold up the landing of thousands of individuals out of a concern that some — likely a very small number — are not who the IRB concluded they are, is unjust.

    The regulations require specific documents, such as passports and national identity cards, to be submitted with an application for landing. Clause 171 of the proposed regulations provides for the use of a statutory declaration, accompanied by identity documents issued outside Canada before the person’s entry to Canada, as an alternative to these requirements. Some witnesses testified that this provision requires more than the recent arrangement reached in Federal Court (the Aden Order). In any event, the Committee feels that the IRB’s determination of identity should be considered dependable and that further obstacles to landing, such as those anticipated by this clause, need not exist.

    The Committee recommends that those granted refugee or protected person status by the IRB be granted permanent resident status within 60 days and that the IRB’s determination of identity be considered valid for this purpose. The Undocumented Protected Persons in Canada Class would thus become unnecessary and should be eliminated.

1. Overview

    Refugees and others in refugee-like situations abroad may apply for resettlement in Canada. Currently, refugees can be sponsored for resettlement either by groups or organizations, or by the government. Apart from satisfying the criteria for Convention refugee status, applicants must show an ability to establish themselves in Canada. Two humanitarian classes also exist: the Country of Asylum and the Source Country classes. The former includes people outside of their home country who are personally affected by massive violations of civil rights or an armed conflict, such as a civil war. The latter includes people who are from a country listed on the Source Country Schedule and who would qualify as Convention refugees if they were outside of their home country.

    The proposed regulations would maintain the resettlement program in its current form with a few significant alterations. To begin with, refugees who are seeking resettlement but do not have private sponsors in Canada would have to be referred by the United Nations High Commissioner for Refugees (UNHCR) or another organization that has a memorandum of understanding with the Minister. (In fact, many refugees are now referred in this manner as a matter of administrative practice.) Exceptions are contemplated when referral organizations are unavailable or unable to provide referrals, or when circumstances in the region justify accepting applications without a referral. The requirement of a referral is intended to assist in managing the volume of applications, while the designation of geographic areas where referrals are not necessary permits the Minister some discretion in situations of humanitarian urgency.

    In determining the likelihood of economic establishment in Canada for those seeking resettlement, the criteria would remain essentially the same, except that consideration of the applicants’ ability to communicate in an official language would be changed to a consideration of their ability to learn an official language. As well, the presence of family in Canada would be a new factor to be considered. Those who are determined to be "vulnerable" (i.e. in greater need of protection than other refugees due to a heightened risk to their physical safety) or "in urgent need of protection" (i.e. facing an immediate threat of being killed, subjected to violence or arbitrary imprisonment, or returned to their home country) would no longer need to demonstrate an ability to become economically established in Canada.

    The Committee heard testimony that raised concerns with respect to three aspects of the overseas refugee program.

2. Ability To Establish

    The requirement that foreign nationals in need of refugee protection satisfy an immigration officer that they and their accompanying family members will be able to become "economically established" in Canada was criticized by various witnesses.

    While most who addressed this issue advocated removing any establishment requirement, some suggested that, at a minimum, the requirement to establish "economically" should be removed. The Committee believes that such an amendment would be reasonable.

RECOMMENDATION 43

The requirement of clause 136(1)(g) that a refugee overseas demonstrate an ability to become "economically established" should be changed to an ability to become "established."

    The factors that are to be considered when assessing the ability of applicants to establish are set out in clause 136(1)(g) and include: their "resourcefulness"; the presence of relatives in Canada; the potential for employment given their education and skills; and, their ability to learn to communicate in an official language. While many witnesses indicated that they would prefer that the ability to establish criterion be eliminated, it was also suggested that, at a minimum, the individual factors should not be given inordinate weight. For example, the lack of relatives in Canada should not in itself be considered detrimental to an application for resettlement.

RECOMMENDATION 44

Clause 136(1)(g) should be clarified to indicate that the factors indicating potential for establishment should be examined collectively so that a weakness in one area would not bar admission.

3. Referral Requirement

    The requirement of a referral from the UNHCR or an organization that has a memorandum of understanding (MOU) with the Department gave rise to concerns on the part of some witnesses. Clause 140(2) of the proposed regulations stipulates some of the requirements of any MOU with a referral agency. The Committee was urged to consider including procedural requirements that would ensure fairness in the referral process. Among these were:

• A stipulation that before issuing a decision not to refer, the organization must give the applicant notice of the intention not to refer and an opportunity to respond.

• A stipulation that before issuing a decision not to refer, the organization should interview the applicant.

• A stipulation that the organization must provide a copy of the file to the Federal Court of Canada when an applicant challenges a decision not to issue a visa on the basis of a lack of a referral.

• A stipulation that the organization reconsider a decision not to refer, when requested to do so by the Minister.

    The Committee wishes to ensure that applicants for resettlement in Canada are treated fairly and encourages the Department to include procedural safeguards in MOUs.

RECOMMENDATION 45

The Department should develop additional requirements regarding the contents of memoranda of understanding with referral agencies that will ensure procedural fairness in the referral process.

4. No Durable Solution

    Clause 136(1)(d) of the proposed regulations requires that refugees seeking resettlement establish that there is no reasonable prospect, within a reasonable period of time, of a "durable solution" in a country other than Canada. Two witnesses indicated their reading of durable solution as including voluntary repatriation, resettlement in a country other than Canada, or resettlement in the country of nationality or habitual residence. These witnesses suggested that the regulations as written appear to contemplate resettlement in the country of feared persecution when the individual is not willing to return. It would seem implausible that someone who qualifies under the regulations as a Convention refugee would be required to return to their home country against their will.

    If it is intended that involuntary resettlement in the country of nationality or habitual residence is included in the definition of "durable solution," the Committee shares the concerns of witnesses who indicated that this would violate international standards respecting refoulement, or return to a country of feared persecution.

    The regulations would clarify some aspects of the PRRA process by specifying, for example, when an application can be made and how long an applicant would have to submit their evidence after receiving notice from the Department. Oral hearings may be convened in some situations and the regulations also provide some guidance in this respect. Other substantive and procedural PRRA rules are, however, absent from the proposed regulations.

    With respect to the 15-day deadline for submitting an application following the receipt of a notice from CIC, some witnesses indicated that this is simply too short a time. Thirty days has, in the past, been accepted by the Department as a reasonable time for written submissions and, as some witnesses indicated, 30 days is the time limit for filing an application for leave to apply for judicial review in the Federal Court.

RECOMMENDATION 47

The filing deadline for Pre-Removal Risk Assessment submissions should be 30 days.

    Generally, it is anticipated that the PRRA process will involve only a paper review. However, oral hearings may be convened in some cases. The proposed regulations provide, in clause 159, that when credibility is in issue with respect to evidence that is central to a protection decision, and acceptance of the evidence would justify granting protected status, an oral hearing may be convened.

    The Committee notes that the PRRA process is, in part, intended to address the fact that under the Act, a person can make only one refugee claim in a lifetime. Pursuant to section 101(1) of the Act, those whose claims have been rejected, withdrawn or abandoned (among others) will be ineligible to have another claim heard by the IRB, regardless of any change in circumstances or the passage of time. The PRRA would therefore be used in the case of a person who, for example, is rejected by the IRB in 2003 but who, after returning to their homeland, faces new persecution in 2005 and subsequently appears at a Canadian port of entry seeking asylum. Similarly, the PRRA would be used by a person who withdraws their IRB claim in 2003, falsely believing it safe to return to their home country, only to return to Canada the following year due to a well-founded fear of persecution.

RECOMMENDATION 48

The regulations should provide that an oral Pre-Removal Risk Assessment hearing is required when an applicant is ineligible to have a protection claim heard by the Immigration and Refugee Board because a previous claim was withdrawn or abandoned.

    The regulations are vague concerning the procedures to be followed in the course of a PRRA hearing. Notice would be given to a PRRA applicant of the issues of fact to be addressed at the hearing and the person would be required to respond to questions posed by an immigration officer. However, no details are provided as to other procedural rules, such as those that exist for IRB hearings. As these hearings may be a matter of life or death for some applicants, the Committee agrees with the witnesses who advocated more details in the regulations.