Asylum seekers should make claims through ‘appropriate’ channels: Canadian envoy to U.S.

One further detail that I hadn’t noticed before – Canada has been pressing this for more than one year (so not just short-term pre-election positioning):

Canada’s ambassador to the United States says “legitimate refugee claimants” should make their claims through an “appropriate” process rather than crossing from the U.S. between official points of entry.

David MacNaughton said the U.S. moving to begin the process to renegotiate the Safe Third Country Agreement is an encouraging sign. Ottawa wants the pact changed to close a loophole in order to allow Canada to quickly turn away most asylum seekers coming from the United States who enter from unauthorized points.

Asked to square this request with the federal government’s position that refugees are welcome in Canada, Mr. MacNaughton said asylum seekers should use an “established” process.

“We’re open to immigration. We’re also open to legitimate refugee claimants who go through the process that is established,” Mr. MacNaughton said Tuesday in the U.S. Capitol after a lunch meeting with legislators on trade. “What we’re trying to do is make sure that those who are wanting to claim refugee status do so in the way in which it’s appropriate.”

More than 40,000 asylum seekers have entered Canada through unofficial points of entry since U.S. President Donald Trump launched his crackdown on illegal immigration two years ago. The flood of claimants is bogging down the refugee protection system in Canada.

Under the current pact, most refugee claimants who come to Canada from the United States through official points of entry – such as border stations – are immediately sent back to the United States, as it is considered a safe country for refugees under the treaty. But the agreement does not apply between such points of entry, so those who cross between border stations have the right to make a refugee claim.

Mr. MacNaughton said he is encouraged that the United States is starting to move on renegotiation. But he said he did not know whether the United States would agree to the rewrite Canada wants.

“We have had no firm indication as to what they’re prepared to do or not do,” he said. “It’s a positive thing that it’s gone to State [Department] to give a negotiating mandate because that hasn’t been the case for the last however long we’ve been asking for this to happen.”

Canada has been pressing the United States to renegotiate for more than a year. The U.S. Department of Homeland Security is now working with State Department officials on a formal request to reopen the deal, The Globe and Mail reported on Monday. An assistant secretary would have to authorize the request for talks to start.

Border Security Minister Bill Blair has proposed a change to the agreement that would see Canadian border officials take such asylum seekers to an official crossing, where they would be denied immediate entry. But that plan would have to clear legal hurdles articulated by the Supreme Court that guarantee a hearing to any refugee claimant setting foot in Canada.

Janet Dench, executive director of the Canadian Council for Refugees, said a renegotiation could backfire on Canada. She said Canada risks drawing Mr. Trump’s attention to the 2004 border agreement, which could lead the United States to propose changes to the agreement that Ottawa doesn’t want.

“This agreement was negotiated to favour Canadian interests and at Canadian request,” Ms. Dench said. “And so in asking to renegotiate the agreement, the Canadian government must be aware that the U.S. government may … actually want to negotiate it so that fewer refugees are sent back to the U.S. or that the U.S. would think maybe we should actually withdraw ourselves from this agreement.”

The CCR, along with Amnesty International and the Canadian Council of Churches, launched a Federal Court challenge to the agreement in 2017, arguing against Canada’s position that the United States is a safe country for refugees under the Trump administration. A decision has not yet been issued by the court.

The NDP has called on the Liberals to suspend the pact so asylum seekers in the United States can claim refugee status at official Canadian land border posts.

Conservative immigration critic Michelle Rempel urged the Liberal government to act immediately to stop the flow of asylum seekers between official points of entry along the border, saying she doesn’t buy its assertion that Canada can’t make the appropriate changes without agreement from the United States. She accused the Liberals of putting forward ideas without a plan to practically implement them.

“We’re six months out to an election and after trying to make electoral hay out of calling Canadians who raise questions about this fear mongerers and un-Canadian and thinly veiled accusations of racism, I think that this is now about electoral calculus rather than action,” Ms. Rempel said.

Groups ask Federal Court to strike down Safe Third Country deal with the U.S. – Politics – CBC News

Not entirely unexpected. Court case may as much to raise the political profile as expected a ruling in their favour:

A legal challenge is being launched against the Canada-U.S. agreement that governs where people can make asylum claims on either side of the border.

Three advocacy groups are throwing their support behind a woman being named only as “E” in asking the Federal Court to strike down the so-called Safe Third Country Agreement.

Under the deal, most people who make an asylum claim at the land border are denied entry; as a result, there’s been an influx of people crossing illegally into Canada in recent months to file asylum claims.

The Canadian Council for Refugees, Amnesty International and the Canadian Council of Churches are among the many groups urging Canada to suspend the arrangement following major changes to U.S. immigration and refugee policy since the election of President Donald Trump.

But now they’re asking the Federal Court to step in, arguing that sending claimants back to the U.S. is morally and legally wrong because it risks violating their basic rights.

The litigant in the case is described as a Salvadoran woman who fled after being targeted by a gang and who believes she won’t be protected in the U.S.

It’s not the first time the deal has been tested in court.

A legal challenge was mounted after it came into force in 2004, and while the Federal Court at the time agreed the U.S. may not be safe for all refugees, the decision was overturned on appeal.

Ensuring ‘human dignity’

“Our organizations have pressed repeatedly, expecting that Canada would move to suspend the Safe Third Country Agreement as regard for the rights of refugees has rapidly plummeted under the Trump administration,” said Alex Neve, secretary general of Amnesty International Canada in a statement.

“To our astonishment and disappointment, however, the Canadian government continues to maintain that the U.S. asylum system qualifies as safe. We are left with no choice but to turn to the courts to protect refugee rights.”

Despite the deal, there are people showing up at the land border and getting through based on the exemptions that exist, including having family already in Canada.

Data obtained under the Access to Information Act showed that over a six-day period in March, 123 people showed up at legal entry points along the border and requested asylum; 66 were judged eligible and 57 turned away.

But Canada needs to go further, Rev. Karen Hamilton, general secretary of The Canadian Council of Churches, said in a statement.

“The government of Canada has a responsibility to ensure that the human dignity of all persons is respected. So it is imperative that all who seek refuge in Canada are afforded the protections guaranteed to them under the Canadian Charter of Rights and Freedoms and international human rights treaties.”

A spokesperson for Immigration Minister Ahmed Hussen said the government’s position on the agreement has not changed, and the deal remains in force

The federal Liberals have said they believe the deal does not need to be suspended or altered, as the asylum system in the United States is still functioning.

Source: Groups ask Federal Court to strike down Safe Third Country deal with the U.S. – Politics – CBC News

2016 Refugee Claim Data and IRB Member Recognition Rates | Canadian Council for Refugees

This is really an impressive analysis  suggesting (no surprise) that individual decision-makers are not as objective and consistent as desired (as Kahneman and others have demonstrated in different contexts). All Canadian government tribunals should conduct this kind of analysis to improve consistency in decision making:

The following note and the accompanying data are provided by Sean Rehaag, Associate Professor, Osgoode Hall Law School.

8 March 2017

Data obtained from the Immigration and Refugee Board (IRB) through an Access to Information Request reveals vast disparities in refugee claim recognition rates across decision-makers in 2016. This is consistent with similar findings from prior years for Canada’s previous and new refugee determination systems.

Refugee claims referred to the IRB after 15 December 2012 are subject to the new system, whereas claims referred to the IRB prior to that date are legacy cases that are decided under the old system. Legacy and new system cases are not only decided under different rules, but are also decided by different cohorts of decision-makers. Because of these important differences, the data on RPD decision-making for 2016 is separated into legacy cases and new system cases.

In 2016, some Refugee Protection Division (RPD) decision-makers granted refugee status in most of the cases they heard, including R. Tiwari (95.9%, 74 new system cases), I. Singh (92.5%, 53 new system cases) and K. Genjaga (91.8%, 85 new system cases). Others granted refugee protection much less frequently, including B. Lloyd (23.8%, 63 new system cases), R. Gibson (26.0%, 77 new system cases) and M. Beatty (29.8%, 57 new system cases).

Some of the recognition rate variation may be due to specialization in particular types of cases. For example, some decision-makers specialize in geographic regions with especially high or low refugee claim recognition rates. For further possible explanations for variations in recognition rates, please see an IRB explanatory note, which was provided with a response to an earlier Access to Information Request: http://ccrweb.ca/files/7.irb_explanatory_note-2012.pdf

Although some of the recognition rate variation can be explained by factors related to specialization, the tables below suggest that country of origin specialization alone fails to fully account for the variations. The tables show substantial variance for some decision-makers between the recognition rates that would be predicted based on the average recognition rates for the countries of origins in the cases they decided, and their actual recognition rates. For instance, in new system cases B. Lloyd (predicted 57.4%; actual 23.8%), R. Gibson (predicted 53.9%; actual 26.0%) and J. Daubney (predicted 59.7%; actual 32.3%) had much lower recognition rates than predicted, whereas R. Tiwari (predicted 62.6%, actual 95.9%), J. Eberhard (predicted 56.5%; actual 87.4%) and J. Bousfield (predicted 63.6%; actual: 89.3%) had much higher recognition rates than predicted.

This year’s data also includes information about outcomes on appeals at the IRB’s Refugee Appeal Division (RAD). As with RPD decision-making, outcomes at the RAD appear to vary greatly depending on who serves as the decision-maker. For example, in RAD cases decided on the merits, claimants were much more likely to succeed in their appeals before S.S. Kular (56.5%, 46 cases), R. Dhir (50.5%, 32 cases) or L.F. Agostinho (46.6%, 58 cases) than before L. Favreau (5.3%, 94 cases), Stephen Gallagher (17.1%, 35 cases) or D.E. Sokolyk (20.6%, 63 cases). Remarkably, claimants were more than 10 times as likely to succeed on appeals with S.S. Kular than with L. Favreau.

A few implications of this year’s data are worth highlighting:

  • Some countries that are designated as “safe” in Canada’s refugee determination system produced many positive refugee determinations in 2016. Consider for example, Hungary, which had a 66.9% recognition rate, and which produced 184 successful refugee decisions (involving 529 individual claimants) in the new system in 2016. It is difficult to understand how such countries can reasonably be designated as “safe” or what could justify limitations on procedural rights (e.g. expedited processes, limitations on pre-removal risk assessments) that come with such designations. For further analysis, see: http://ssrn.com/abstract=2588058
  • The persistence of unexplained variations in recognition rates across adjudicators in the new refugee determination system, combined with the devastating potential impact of false negative refugee decisions (i.e. refugees being returned to face persecution), make robust oversight mechanisms essential. Unfortunately, many refugee claimants continue to be denied access to the appeal at the Immigration and Refugee Board and are ineligible for automatic stays on removal pending judicial review at the Federal Court. This includes large numbers of claimants who transited to Canada via the United States – even though one’s route to Canada has little to do with whether one has a well-founded fear of persecution. For further analysis, see: http://ssrn.com/abstract=2647638
  • While substantial variation in recognition rates persist, it should be noted that no new system decision-makers in 2016 who made 20 or more decisions denied every single claim they heard. This is in contrast to the old refugee determination system (S. Roy in 2013: 0.0%, 23 decisions; D. McSweeney in 2011: 0.0%, 127 decisions; D. McBean in 2010: 0.0%, 62 decisions; D. McBean in 2009: 0.0%, 72 decisions). It is worth considering whether this change relates to the professionalization of refugee decision-making and the shift to civil servant decision-makers (rather than political appointees as was the case under the old system).
  • The overall success rates on RAD appeals are remarkably high. Indeed, appeals brought by claimants and decided on the merits were granted in almost one third of cases (33.1%). On the one hand, the fact that the RAD is correcting large numbers of claims that were wrongly denied at the RPD emphasizes the importance of this form of oversight. On the other hand, however, it also suggests that there is room for improvement in initial decision-making at the RPD.

For a discussion of the methodology used to obtain the data and to calculate the statistics, as well as an analysis of the implications of similar data for a previous year, see Sean Rehaag, “Troubling Patterns in Canadian Refugee Adjudication” (2008) 39 Ottawa Law Review 335. This article is available via links here: http://ssrn.com/author=404046

Source: 2016 Refugee Claim Data and IRB Member Recognition Rates | Canadian Council for Refugees

Feds reviewing inland refugee system, under pressure to scrap ‘safe countries’ list

Another issue to watch in terms of how the Liberal government finds a balance between maintaining the integrity of refugee determination and rights of refugee claimants:

The Liberal government is re-evaluating the way it treats refugee claimants who ask for protection after arriving in Canada, but won’t say whether it will scrap some of the widely criticized restrictions on some refugee claimants brought in by the previous government.

Government officials met with refugee advocacy groups and researchers July 14 to gather suggestions on what to do with Canada’s asylum system, which is used to process applications for refugee status by people who have already arrived in the country. People brought in from refugee camps abroad are processed in a different way. In 2014-15, the tribunal that decides on refugee claims in Canada was referred 13,500 claims, and the next year that creeped up to 16,500.

The government’s controversial Designated Countries of Origin (DCO) list was one of the key topics of the July 14 meeting, said Janet Dench, executive director of the Canadian Council for Refugees.

The DCO or “safe countries” list was created by the previous Conservative government, and includes countries that, according to the government, do not usually produce legitimate refugees. The list—which currently includes 42 countries—was designed to “ensure that people in need get protection fast, while those with unfounded claims are sent home quickly through expedited processing,” says the Immigration, Refugees, and Citizenship Canada website.

However, an internal IRCC audit released this summer found that DCO claims had not been processed faster than those from other countries, leading NDP immigration critic Jenny Kwan (Vancouver East, B.C.) to question what the point of the system was.

The Liberals promised during the election campaign to set up an “expert human rights panel” to determine which countries should fall on the DCO list. Since the Liberals came to power, the government has said little about how it will fulfill this promise, and IRCC and the office of Immigration Minister John McCallum (Markham-Thornhill, Ont.) declined to provide details when asked.

The promise of an expert panel wasn’t good enough to satisfy critics of the DCO list, such as the Canadian Association of Refugee Lawyers (CARL) or Canadian Council for Refugees. CARL wrote in a brief submitted to the government in July that a human rights panel “cannot cure what is, at root, a discriminatory regime, introduced into the legislation for discriminatory purposes,” a sentiment Ms. Dench said was echoed by many in the July 14 consultation.

“There was a very clear message to the government from everybody that the designated-country-of-origin policy was not useful, was not credible, was not serving any purpose and was contrary to the [Canadian Charter of Rights and Freedoms],” she said.

 Critics say the DCO system kneecaps claimants from listed countries because they’re rushed through the process. They also say so-called safe countries may in fact be quite dangerous, at least to some persecuted groups or in some areas.

When asked a series of questions about the DCO system and the establishment of the expert panel, IRCC spokesperson Remi Lariviere wrote in an emailed statement that the government was considering how to make Canada’s asylum system “more fair and timely,” in part as a response to this summer’s consultations on the immigration system and to the IRCC internal audit, which identified several concerns with the system’s fairness and efficiency.

The Liberal party had also promised on the campaign trail to provide a right for claimants from DCO countries to appeal decisions by the Immigration and Refugee Board, an arm’s-length tribunal, a right they had been denied under the system set up by the Conservatives. The Liberal government has already fulfilled that promise by dropping a legal challenge initiated under the previous government to a Federal Court ruling last year, which held that the ban on appeals by DCO claimants was unconstitutional.

Department finds ‘need to reform’ system

The previous Conservative government overhauled the inland refugee system in 2012, after a rising number of refugee claims, few of which were accepted and many of which stemmed from countries the government of the day perceived to be generally safe, such as Mexico and Hungary. Canada had also recently seen two ships arrive on its shores with dozens of migrants from Sri Lanka who claimed asylum.

The IRCC conducted an audit of its asylum system at the instruction of the Treasury Board, which had committed to a review of the program three years after major reforms by the Conservative government. The audit covered the period from December 2012 to December 2014. In addition to a number of positive findings about the way the asylum system was operating, it identified a series of shortcomings in Canada’s asylum system, including that DCO claimants were not processed faster than non-DCO claimants.

The audit also found “a need to reform the in-Canada asylum system due to the increasing number of claims, growing backlogs/inventories, and lengthy processing times,” and that “failed claimants are not being removed in a timely manner.”

Source: The Hill Times

C-24 Citizenship Act: Senate Hearings Start

While overshadowed by the Galati case and related media coverage, Senate hearings on Bill C-24 treaded much of the familiar ground and focussing on mainly the same issues. Given Parlvu was somewhat choppy yesterday, may not have captured all the main points.

Starting with the witnesses supporting the Bill. Richard Kurland, Lawyer and Policy Analyst, and regular media commentator, applauded the government for providing greater clarity and transparency on the requirements and pathway to citizenship from temporary and permanent residency. The greatest benefit will be in more applications processed in a more timely manner at lower cost. He expressed concern, however, over the insecurity created by the intent to reside provision. He emphasized the need for oral hearings, not allowing citizenship officers to rule on revocation for fraud without the person being able to present themselves. As to citizens of convenience, he argued in favour of the US approach of requiring US citizens living abroad to file tax returns.

 Julie Taub, Immigration and Refugee Lawyer, former member of the Immigration and Refugee Board of Canada, was even stronger in her support for the Bill. She had “fought the system for decades” and welcomed the tougher penalties for fraud, the simplification of revocation and the crackdown on citizens of convenience, drawing examples from her legal practice and recalling the evacuation of Lebanese Canadians and their eventual return in 2006. She would have preferred residency of five years as Canada was too short compared to other countries. To further avoid residence fraud, she recommended that Permanent Residents be provided with a “swipe card” required for entry to or exit from Canada, given many Permanent Residents have more two passports.
Opposing the Bill were Canadian Association of Refugee Lawyers, Lorne Waldman, President, and Peter Edelmann, lawyer. They focused on the revocation provisions, noting the differential treatment between various classes of citizens: single national born Canadian; dual national born Canadian and aware of their dual nationality; dual national born Canadian and not aware of their dual nationality; and naturalized Canadians.

Revocation could apply, save in cases of statelessness, to any of the three last categories. The Bill did not say who was a dual national and how dual nationality would be interpreted. Given how citizenship laws vary by countries, some communities would be affected more than others. The reverse onus of proof was not justified. The threshold of 5 years for terrorist offences was too low compared to sentences for murder and sexual assault. Revocation for fraud allowed for no hearing and was a completely paper process without any independent review. The intent to reside provision was not clear on how it would be interpreted and applied, and was another example of differential treatment.

Loly Rico, President and Janet Dench, Executive Director, Canadian Council for Refugees, opposed the increase in residency requirements and removal of credit for pre-PR time, given that refugoees typically spent three to four years of temporary residency before becoming permanent residents. Total time for citizenship could approach eight to ten years with these changes. Extending language and knowledge test requirements made no sense for youth given they would be in Canadian schools; for 55-64 year olds who were refugees, their life circumstances, time in refugee camps etc, may make formal test requirements an unreasonable requirement. CCR opposed revocation as it was discriminatory between Canadian and dual nationals and that punishment was better handled through the criminal system.

Debbie Douglas, Executive Director, of Ontario Council of Agencies Serving Immigrants, noted the anniversaries of the Komagata Maru and the M.S. St. Louis as a caution against promoting “any sort of racist policies.” OCASI opposed increased residency requirements, removal of credit for pre-Permanent Residents time, particularly for live-in caregivers where family separation has social and family costs. The intent to reside did not recognize that circumstances can change for work, study, or care of family members. Good faith of Minister that this would not apply post citizenship did not change ambiguity of law. Douglas echoed CCR on extending language and knowledge testing to 55-64 year olds, questioning the purpose of adding this additional barrier.
Debate as in the Commons Committee revolved around the familiar issues of intent to reside, revocation, language and knowledge testing, and decision-making process and lack of hearing or appeal. Government senators largely focussed on their defence of the Bill, and Opposition senators largely drew out their positions from witnesses opposed to C-24.
Some of the more interesting points:
  • Government Senators were sceptical that many new citizens would be affected by the intent to reside provision, examples cited by witnesses were “exceptions,”  with Sen. Enverga stating that if you “apply to come to Canada, your should live in Canada.”
  • On revocation for terror or treason, Edelmann trotted out the cliché, “one man’s terrorist is another man’s freedom fighter” and how definitions change over time. But more originally, rather than the usual Mandela example, he cited the contemporary example of Greenpeace being charged in Russia (Dench referred to Maher Arar). He also noted other heinous crimes, mentioning Paul Bernardo and Robert Picton, questioning why terrorism or treason should be treated differently;
  • There was a fairly spirited exchange on whether restoring knowledge and language testing to 55-64 year olds was an unreasonable barrier. Taub and Senator Eaton noted that basic language capability was not unreasonable to require. Refugee advocates emphasized for some it was, given what they had gone through. Senator Eaton, as a 70-year old, found their concerns to be “patronizing” to seniors but acknowledged that it may be a “huge struggle” for some. After probing by the Chair whether this was regarding language capability itself or formal testing, Douglas confirmed that it was more the lack of the alternative of an interview with a citizenship judge
  • Israel’s “law of return” was cited by Kurland as an example of dual citizenship. Some citizens, particularly refugees,  will always have a “fear of the state.” We will see how the judiciary “handles it,” acknowledging that this created two classes of citizenship.
  • Senator Eaton and Taub noted recent media reports of young men fighting in foreign conflicts and the risks of returning fighters to Canada. Taub noted there “really is not a choice” between Charter provisions and keeping Canada safe, and 75 percent of Canadians support revocation in these cases.
  • Whether more or less time in Canada increases integration was subject of debate. Douglas was powerful in noting that inclusion and removal of barriers  “goes a longer way than time,” citing the example of Black Canadians who had been here for generations.
  • Indicating the philosophical divide was a short exchange on citizenship as a privilege (Senator Enverga) and as a right (particularly Rico), who emphasized that as a former refugee from El Salvador, the right to be a full citizen, with all the rights and responsibilities that entailed as anyone born in Canada. That was part of the “beauty of Canada,” its inclusiveness and multiculturalism.
Hearings continue today with Martin Collacott, CBA, Asia-Pacific Foundation, Canadian War Brides (shut out from Commons Committee hearings), and PAFSO (foreign service union). Will be interesting to see if Galati case comes up during questions of the CBA witnesses.

Citizenship Act: Canadian Council of Refugees Submission

Submission have started. This one, from the Canadian Council of Refugees, contains few surprises. My sense is that their concerns range from the relatively less significant (e.g., change in residency, fees) to more substantive (e.g., revocation):

Principles

Citizenship rules are fundamental to who we are as a country. We believe it is crucial that the rules:

a) Respect the principle that all citizens are equal.

b) Embrace newcomers and encourage them to quickly become full participating members of our society.

c) Recognize the barriers that some newcomers face to full participation, including the particular barriers faced by refugees who have suffered persecution and long years of deprivation.

d) Respect the principle that citizenship is a status from which rights derive, and is thus similar to our status as human beings. It is not something that can be lost through bad behaviour.

e) Be clear about who acquires or loses citizenship. Individuals should have access to a fair hearing before an independent decision-maker. Decisions should not be made on a discretionary basis by the Minister.

RT @ccrweb: Concerned about changes to #citizenship in Canada? So are we. Read our submission to Parliament: http://t.co/qGwUxcxTNT #cdnimm…