Alarming clawback of human rights of refugees in Budget Implementation Act
The omnibus Budget Implementation Act (Bill C-97) includes drastic changes to Canada’s refugee system.
The most important proposed change would bar every refugee claimant who has made a claim in a country with whom Canada has an information-sharing agreement from having their refugee claim heard by the Immigration and Refugee Board (IRB) in Canada. There are no exceptions to this bar. Presently, Canada has such agreements with the U.S., U.K., Australia and New Zealand but the list could grow.
As a result of this proposed change alone, thousands of refugee claimants will be barred from having their refugee claim heard by the IRB.
Amendments like this one will have a significant impact on the human rights of refugee claimants and should not be rushed through Parliament as part of Bill C-97. These amendments should only be considered in a stand-alone bill so that Parliament can hear from experts in the field and properly appreciate the legal, policy and moral implications of these significant changes.
Below are some of the false assumptions and misconceptions being circulated about the proposed new bar on certain refugee claimants being able to access the IRB.
Misconception: The bar only applies to persons whose claims were accepted or rejected in the U.S., U.K. Australia or New Zealand, right? *FALSE*
- Canada’s existing laws already prohibit refugee claimants who have already received refugee protection in any country from having their claim heard by the IRB.
- The proposed changes would bar refugee claimants who have simply “made a claim” in a country with whom Canada has an information-sharing agreement from having their claim heard by the IRB – without any regard to whether a decision was ever made on that claim
- As a result, the proposed changes will bar access to the IRB for persons whom no country has ever decided whether they are refugees or not.
Misconception: But a ‘genuine’ refugee would never leave a country to come to Canada before their refugee claim was decided? *FALSE*
- There are legitimate reasons why a refugee may decide to journey to Canada for protection before their claim has been decided in another country.
- The U.S. and Australia have some of the most draconian detention policies for refugee claimants. The U.S. detains refugee children separate from their parents. Australia detains refugee claimants on remote off-shore islands for years on end, where suicides have become prevalent. These policies are specifically intended to compel refugee claimants to discontinue their claims and leave the country.
- The U.S., U.K. and Australia have some of the longest refugee processing times in the world – upwards of ten years. During this time, a refugee claimant will be separated from their spouse and children in their home country, who may be facing the same dangers that prompted the refugee claimant to flee in the first place.
- All of these factors can prompt genuine refugees to leave a country in which they have made a claim and to pursue protection in Canada’s more humane and expeditious system instead.
Misconception: If a refugee claimant was actually rejected by the U.S. or Australia, that definitely means they do not need Canada’s protection, right? *FALSE*
- Major differences between Canada’s refugee laws and those of other countries can result in claimants being rejected elsewhere but still being a refugee who needs protection under Canada’s laws.
- Example: women and children fleeing domestic violence will lose rights under this amendment. In 2018, U.S. Attorney-General Jeff Sessions ruled that women fleeing domestic violence – even if they were from a country that offered women no protection from such harm – are not refugees under U.S. law. Canada, by contrast, has recognized domestic violence as a form of gender-based persecution for more than two decades. The proposed changes to IRPA take no account for the weakness of US refugee laws. So a mother and daughter from Saudi Arabia whose domestic violence claim was rejected in the U.S. would still be barred from having their claim heard by the IRB. This effectively imports President Trump’s refugee policies directly into our laws.
Misconception: Refugee claimants who are barred from the IRB will receive a PRRA application and that’s just as good, right? *FALSE*
- Refugee claimants who are barred from having their claims heard by the IRB will only have access to a Pre-Removal Risk Assessment (PRRA) application. The PRRA was designed to be a supplement to a full refugee hearing to deal with situations when a lot of time had passed since the original decision, and things might have changed. It was never designed as a substitute for a proper refugee hearing, but that is what the government is using it for.
- The IRB is an independent tribunal. In almost all claims before it, a refugee claimant:
- receives an oral hearing where they can present witnesses, test the evidence of the government, and meet the decision-maker face-to-face;
- can appeal an initial refusal to the Refugee Appeal Division;
- is automatically protected from deportation while they review a final refusal in Federal Court.
- A PRRA application is not independent. Unlike a claim heard by the IRB, in a PRRA application:
- the decision-maker is an IRCC employee and not an independent adjudicator;
- the application is paper-based and an oral interview is almost never granted;
- even if an interview is held, the hallmarks of a tribunal hearing are missing – the claimant cannot: present witnesses, test the evidence the officer is relying upon, or make motions for procedural accommodations , such as facilitating sensitive testimony relating to sexual violence;
- there is no appeal whatsoever to the Refugee Appeal Division;
- there is no automatic protection against deportation while an applicant challenges a final refusal decision in the Federal Court.
Misconception: This amendment will always be limited to only people who made claims in the U.S., U.K., Australia and New Zealand, right? *FALSE*
- While currently Canada only has information-sharing agreements with other Five Eyes partners, our government could make such an agreement with any other country. This would automatically extend the IRB bar to anyone who had made a refugee claim in that country, without Parliament’s review.
- The Bill contains no provision for evaluating whether those other countries have comparable asylum determination systems to Canada, or respect international human rights and the Refugee Convention. As noted above, the U.S. and Australia– with which Canada already has information-sharing agreements – have asylum systems that provide far less protection than Canada.
The Bill contains further restrictions to the human rights of refugees, including delaying claimants’ access to risk and humanitarian assessments. All of these changes deserve careful scrutiny in a stand-alone bill.