Last month, new rules to deal with asylum seekers and human smugglers took effect in Canada. They represent a return to a time when common sense prevailed to prevent the abuse of our laws.
Despite strong resistance by the opposition parties and the refugee lobby, Minister of Citizenship and Immigration Jason Kenny introduced legislation aimed at curbing abuse and introducing a faster and more equitable process for adjudicating asylum claims. The June 2010 Balanced Refugee Reform Act and the June 2012 Protecting Canada’s Immigration System Act, effectively created a new asylum policy for Canada.
For the past 25 years our refugee policy was dominated by the refugee lobby, constituted by special interest groups; lawyers, consultants, non-government organizations funded by government, and a variety of activists and refugee organizations. Many of these groups profited from our wide-open asylum system that allowed anyone from any country to claim persecution and then receive a quasi-judicial hearing before the Immigration and Refugee Board (IRB).
The system invited abuse and Canada had become the choice country for human smuggling. Smugglers could guarantee their clients two or three years in the country awaiting a hearing, with good chances claimants would never be removed if they were rejected. The appearance of the Ocean Lady carrying 76 Tamil asylum seekers in October 2009, followed by the Sun Sea with 492 Tamils in August 2010, alerted Canadians to the reality that our borders were not secure and that people were being smuggled into the country under the guise of seeking asylum. The situation underscored the crucial need for reform.
The new policy contains major elements of reform. One of the most important is the objective of faster decision making on asylum claims. To accomplish it, the minister has been given the power to designate certain countries to be safe to send refugee claimants back to. Would-be refugees from countries that are signatories of the UN Refugee Convention, are democratic and protect human rights, such as those found in the European Union, will have their claims fast tracked. Refuge claimants from these “designated countries of origin” (DCOs) will not wait years for their claims to be heard while enjoying Canada’s social assistance. The Refugee Protection Division of the IRB will hear them in 30-60 days, instead of the current average time of 19-20 months.
More significantly, claimants from DCOs will not have the right of appeal to a new Refugee Appeals Division of the IRB. They will still be able to seek leave to appeal to the Federal Court but may be removed pending the outcome of that appeal. These new policies, it should be noted, are in line with many EU countries.
It is estimated by officials that the DCO measure will save the provinces and territories $1.65-billion in social assistance and educational costs over a five-year period. The new system also provides badly needed teeth to combat human smuggling with stiffer fines and mandatory prison sentences for the smugglers and penalties for those smuggled who arrive in groups. The Minister of Public Safety will be able to declare such claimants as “irregular arrivals,” order the detention of those over the age of 16 and prevent those eventually found to be refugees from applying for permanent resident status for five years. Those found not to be refugees will not have the right to appeal. The new rules send a strong message to human smugglers — Canada is not open for business.
Other measures designed to speed up the process and make it more balanced and cost effective are included in the legislation, but a number of the key features will face Charter challenges by immigration lawyers. The introduction of a new appeals division within the IRB itself is untested and could well become an additional factor in slowing down the process. Claimants refused at the first level will now be able to appeal based on law and fact, and introduce new evidence. Decisions are expected within 90 days, but that may prove more wishful thinking than reality.
Indeed, the provision permitting claimants from DCOs to have a full hearing that may prove to be unworkable. Experience has shown that allowing everyone to have access to a quasi-judicial hearing overloads the process and produces backlogs. It might have been better simply to prevent people from DCOs from submitting refugee claims.
The effectiveness of these reasonable new policies will need to be studied over a period of several years before they can be declared a success. But Canadians should take some comfort in the knowledge that an important public policy issue of this generation is being addressed after so many years of costly neglect.