Division 16 of Bill C-97 introduced many important amendments to the Immigration and Refugee Protection Act (IRPA). This post will highlight some of those IRPA amendments.

Note that this post is not intended to be a complete account of the IRPA amendments – and certainly not a replacement for personalized legal advice. You should speak with an immigration lawyer before making any decision about your immigration or refugee matters. Further, how the amendments will be implemented remains to be seen, and the amendments may be implemented in ways that are not obvious from the text of Bill C-97 alone.

People seeking immigration advice should also read up on how Bill C-97 changes the regulation of immigration consultants, which is not covered here.

1. New Ground of Ineligibility for Inland Refugee Claims

People seeking refugee protection after coming to Canada will no longer be able to make a refugee claim to the Immigration Refugee Board (IRB) if they previously requested refugee protection from certain foreign countries.

Before C-97, asylum-seekers were already ineligible if they made a previous refugee claim inside Canada, or if they had successfully received protection abroad (among other grounds). Now, ineligibility has been extended to people who tried to claim abroad but never succeeded in those claims.

The rule only applies to foreign countries that have an information-sharing agreement/arrangement with Canada “to assist in the administration and enforcement of their immigration and citizenship laws”. Exactly what this means and which countries this covers remains to be tested. However, it certainly includes the USA, the UK, Australia, and New Zealand.

The rule is also limited to claims made after C-97 was introduced on 19 March 2019.

People found IRB-ineligible under this new rule will only be able to submit applications for a Pre-Removal Risk Assessment (PRRA). Unlike IRB proceedings, PRRA applications allow much less time to collect evidence, and had much lower rates of success. However, unlike most PRRA applications, a PRRA application by someone found IRB-ineligible under the new rule will be entitled to a hearing.

People affected by the rule are also barred from applying for a Temporary Resident Permit (not to be confused with a Visitor, Study, or Work visa/permit) during the processing of any PRRA application.

This expanded ineligibility rule is troubling. There are several situations why someone who genuinely needs protection might have claimed elsewhere but not succeeded in getting or maintaining protection:  

• Some countries will accept refugee claims, but delay processing of those claims indefinitely.
• Some countries do not recognize the same grounds for protection as Canada (ex. the USA does not protect survivors of state-endorsed domestic violence, whereas Canada does)
• A refugee may flee their country to seek protection, only to find their persecutors followed them to a second country.
• A refugee may flee their home country to make a claim, but return after it seems persecution has ended – only to realize there is still persecution and flee again (ex. where a promising new government eventually turns out just as bad as the oppressive one they replaced)

2. Federal Court proceedings will extend the time refused asylum-seekers are barred from making H&C, TRP, and PRRA applications

If a refused refugee claimant asks the Federal Court the review an IRB refusal, and the Federal Court does not rule in their favour, it will extend the time they are barred from making certain applications.

If someone makes a refugee claim to the IRB, and that claim is refused by a division of the IRB, they cannot make certain immigration applications until one year has passed from the last refusal. Previously, a refused refugee claimant could ask the Federal Court to review the IRB’s refusal without extending that one-year bar – even if the Court’s decided against the claimant. This has now changed. If the Federal Court rules against the claimant, or if the claimant withdraws/abandons their Federal Court proceedings, the bar will be renewed for one year from that moment.

Applications that fall under the one-year bar are as follows:

• An application for Permanent Residence on humanitarian and compassionate grounds
• An application for a Temporary Resident Permit
• An application for a Pre-Removal Risk Assessment

Fortunately, the exceptions to the one-year bar have not changed. It will not apply to people who would be denied life-sustaining medical care if removed, or people whose removal would hurt a child’s best interests.

3. To pressure foreign governments into cooperating with removals from Canada, Temporary Residents can be targeted

If the Canadian government believes that the government of a foreign country is unreasonably refusing/delaying the issuance of travel documents to their citizens who are in Canada, the government now has an explicit power to stop accepting applications for Worker, Student, or Visitor status from citizens of that country in retaliation – and even suspend or terminate in-process applications.

This move appears designed to pressure foreign governments into providing the travel documents necessary to remove their citizens from Canada.

4. New listed immigration objective

IPRA now lists an additional 12^th objective for Canada’s immigration system: “to maintain, through the establishment of fair and efficient procedures, the integrity of the Canadian immigration system”. Interestingly, this has been a stated goal of Canada’s refugee protection system since 2003 in slightly different terms, but not a stated goal for immigration generally.

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The post Bill C-97, Division 16: Tightened Restrictions on Inland Refugee Claims first appeared on Bellissimo Law Group.

Two definitions are necessary here. First, DCO’s “are countries that respect human rights, offer state protection, and normally do not produced refugees”, are “safe”, and determined to be DCO’s by the Minister of Immigration, Refugees and Citizenship Canada based on qualitative and quantitative measures, according to the Respondent in Feher.[2] Second, a PRRA enables refugee claimants to present new facts or evidence of risk of persecution, torture, cruel and unusual treatment or punishment or risk to life to Canada Border Services Agency (CBSA) prior to removal. A positive PRRA leads to protected person status and allows the person to remain in Canada and apply for permanent residence. A negative PRRA results in removal although judicial review of the PRRA decision is possible.

Feher combined five individual applications from persons who feared removal to Hungary, a DCO, and had made refugee claims based on their Roma ethnicity and in one case also based on gender-based violence. The Canadian Association of Refugee Lawyers was also an applicant. The refugee claims in question had been refused and CBSA had directed the applicants to report for removal. Because the waiting period of 36 months had not elapsed, the applicants were ineligible for a PRRA. They had asked CBSA to defer the removal but were denied, leading them to seek judicial review of the refusals.[3]

The applicants in Feher challenged the constitutionality of paragraph 112(2)(b.1) of the Immigration and Refugee Protection Act, which they claimed were based on stereotypes about DCO claimants.[4] They successfully argued that DCO claimants were treated differently from non-DCO claimants and the differential treatment was based on national origin, discriminatory and violated the equality guarantee found in subsection 15(1) of the Charter.[5] The applicants relied in part on Y.Z.[6] and Canadian Doctors[7].[8]

The Honourable Justice Boswell held in Feher:

“It was not necessary, in my view, for Parliament to differentiate between DCO and non-DCO claimants when imposing a restriction on when a failed refugee claimant could access a PRRA. Timely access to a PRRA is a significant benefit for failed refugee claimants and delaying this access to some claimants based on their country of origin impairs their right to equality.”[9]

The Court also noted that because the majority of failed claimants “are generally removed from Canada” before the 12-month waiting period is up “most failed refugee claimants will never be able to access a PRRA regardless of whether they are or are not a DCO claimant”.[10] However, Feher still represents a victory for Romani refugee claimants and DCO claimants more generally because it enhances the possibility of remaining in Canada due to a positive PRRA.

Despite Feher, there remain significant disadvantages for DCO claimants in comparison to the treatment of non-DCO claimants under the IRPA and its regulations.[11] Furthermore, Justice Boswell certified two questions, which means an appeal of Feher could be initiated in the coming weeks.

Sources

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The post Federal Court Reduces Wait Time for Refugee Claimants From “Safe” Countries to Apply for PRRA first appeared on Bellissimo Law Group.

PRRA is essentially a two-step risk assessment process in which the applicant has 15 days to file the PRRA forms and an additional 15 days to make written submissions and adduce evidence about the risks to which the applicant would be exposed to if returned to their country of nationality or habitual residence. The onus is on the applicant to specify the nature of the risks they would face if forcefully removed and that there is a lack of state protection for people specifically in their circumstances who face a risk of persecution.

In the case of a failed refugee claimant, PRRA officers are required to evaluate any new, relevant and material evidence not previously assessed and which would have changed the outcome of the refugee claim had the evidence been put forward at the time. If successful on a PRRA, the applicant is granted the status of a protected person, which would allow them to apply for permanent residence in Canada. The conferring of refugee protection, however, may not be applicable to individuals found to be inadmissible on the grounds of serious criminality, security, violating human or international rights or organized criminality.

Applying for a pre-removal risk assessment? Contact us today!

The post What You Need To Know About Pre-Removal Risk Assessments (PRRAs) first appeared on Bellissimo Law Group.

One Matter, One Client – Five Successful Judicial Reviews!

Last year a man retained our office to challenge his refused Pre-Removal Risk Assessment (PRRA) to the Federal Court of Canada. He advised our office that this was the fifth time that his PRRA had been refused, and so would be his fifth time challenging the matter to the Court. We reviewed his application materials and the decisions already made by the Federal Court to make our arguments.

The Court allowed the application for Judicial Review and was in complete agreement that enough was enough. No longer satisfied in only quashing the PRRA refusal, the Court issued clear directions to the next Officer to re-determine the file, including the disclosure of communications that Citizenship and Immigration Canada had withheld from our client and the requirement that a PRRA interview be held.

The post This Week’s Featured Success Story! first appeared on Bellissimo Law Group.