U.S. Committee for Refugees World Refugee Survey 2003 - Canada

At the end of 2002, Canada hosted about 78,500 refugees and asylum seekers in need of protection. This figure includes about 52,800 pending asylum cases, 15,200 persons whose asylum claims were accepted, 67 persons accepted under the Pre-Removal Risk Assessment (PRRA) process, and about 10,400 refugees resettled from overseas.

During the year, about 33,400 persons applied for asylum, roughly 25 percent fewer than 2001. However, a total of about 39,500 were referred to the Immigration and Refugee Board (IRB) for hearings, including persons who applied the year before. The IRB accepted about 15,200, and denied about 11,100, for a grant rate of about 58 percent (not counting about 6,300 cases abandoned or withdrawn), an increase from 47 percent in 2001. At the end of the year, about 52,800 asylum seekers were awaiting a first-instance decision.

The leading sources of new asylum seekers were Pakistan (3,900), Colombia (2,700), Mexico (2,400), China (2,900), and Sri Lanka (1,800), including some referred to the IRB from the previous year. Asylum seekers from the following countries had some of the highest approval rates: Colombia (84 percent), Zimbabwe (82 percent), Sri Lanka (80 percent), and China (71 percent).

In response to rumors of impending implementation of the Safe Third Country Agreement signed by Canada and the United States, many asylum seekers crossed into Canada from the United States – many of them from the Middle East, South Asia, and North Africa – believing that Canada's borders would be shut in 2003. Many were in out of legal status in the United States Special Registration process.

Asylum Procedures

Canada's new Immigration and Refugee Protection Act (IRPA) came into force on June 28, 2002. The act changes many of the asylum determination procedures.

An immigration officer with Citizenship and Immigration Canada (CIC), Canada's immigration department, first screens the asylum seeker within three days to determine his or her eligibility. Grounds of ineligibility include an applicant's previous asylum claim in Canada, previous recognition as a refugee in another country to which the person can be returned, or passage through a designated safe third country. Finally, if the immigration officer determines the asylum seeker to be a security risk, a violator of human rights, a serious criminal, or a person involved in organized crime, the case must be referred to the IRB for a hearing to determine whether or not the individual is admissible.

If the asylum seeker is entitled to make a claim, or if the immigration officer fails to refer the case within three days, the case is referred to the Refugee Protection Division (RPD), which grants or denies refugee status. In addition, the RPD considers whether the claimant is a "person in need of protection," a person who, if removed from Canada, faces a danger of torture or risk to his or her life, or a risk of cruel and unusual treatment or punishment. The IRPA explicitly obliges authorities under the RPD to consider Canada's obligations under the UN Convention against Torture in making asylum determinations.

Canada's Supreme Court ruled in 2002 in the cases of Suresh v. Minister of Citizenship and Immigration (MCI) and Ahani v. MCI that the Minister should generally decline to deport refugees where there is substantial risk of torture. The court allowed for theoretical departures from the rule, but declined to enunciate them stating, "the ambit of an exceptional discretion to deport to torture, if any, must await future cases."

If the RPD finds the claim to be manifestly well-founded, the applicant gets an expedited hearing before a refugee protection officer. If the refugee protection officer recommends acceptance, the claim is forwarded to a member of the RPD for a final review. Should the RPD not find the claim manifestly well-founded, the refugee protection officer not recommend acceptance, or the RPD member in final review not approve the recommendation of the refugee protection officer, the claim is sent to full hearing.

A full hearing is generally a non-adversarial process in which another member of the RPD and a refugee protection officer question the asylum seeker. The IRPA, in contrast to the former Immigration Act, allows claims to be heard by one member only. (Formerly, two members heard the case and the applicant had only to receive the approval of one of them.) A full hearing may become adversarial if a representative of the MCI intervenes to argue for exclusion. The asylum seeker may be represented by counsel at his or her own expense. Minors and persons who are not able to understand the nature of the proceedings before them are appointed a designated representative by the RPD. Also, UN High Commissioner for Refugees (UNHCR) representatives may observe any hearing.

Theoretically, if the claim is rejected the asylum seeker may appeal to the Refugee Appeal Division (RAD). However, by the end of 2002, the RAD was not yet in place. For the time being, the only means of challenging a negative decision of the RPD is to seek judicial review at the Federal Court of Canada. If successful at the Federal Court, the applicant's case is referred back to the RPD for a new hearing. If unsuccessful, the applicant faces removal, but prior to removal may apply to the CIC for a Pre-Removal Risk Assessment (PRRA).

The PRRA process allows persons facing removal, including failed asylum seekers, to apply for a review of their case. However, in the case of a failed asylum seeker, the CIC immigration officer will only consider new evidence showing a change in circumstances. The PRRA is usually conducted by written submissions, but the officer has discretion to request that the claimant attend a hearing. Persons whose asylum claims are approved by the RPD or who are granted protection through a PRRA can apply for permanent residence.

Even persons ineligible for permanent residence for reasons of security, criminality, or violation of human rights, may still have a temporary stay of removal through a PRRA. If it is decided that such a person is at risk upon their return, the final decision to allow or reject the application will be based on balancing the risk to the individual against the risk to society. Between the implementation of the IRPA on June 28, 2002 and the end of the year, about 4,600 individuals applied for a PRRA. Of those, immigration officers reviewed over 2,000, but accepted only 67 as "protected persons."

Canada grants asylum seekers the right to work, permission to attend school, and health services while they are waiting decisions on their claim. In some provinces, asylum seekers receive free legal representation. Generally, asylum seekers are not detained in Canada, unless they are believed to pose a security risk, a flight risk, or a criminal threat, or if officers need to verify their identity. However, during the year, Canada began a pilot project at Pearson International Airport in Toronto called "Project Identity," to detain those who lack credibility, are evasive and uncooperative, or have destroyed or concealed papers.

Resettlement

Canada resettled some 10,400 refugees during 2002. Of these, more than 3,000 were privately sponsored. While most admitted met the UN Refugee Convention definition, about 1,500 met the "asylum country" standard of being seriously and personally affected by civil war, armed conflict, or massive violations of human rights. Another roughly 1,700 met the Refugee Convention definition, except that they remained in their countries of citizenship or habitual residence.

In cooperation with UNHCR, Canada continued to admit persons under the Urgent Processing Program, which resettles refugees with critical protection needs within five days. In 2002, this program was supported with implementing regulations.

Interception

Canada sought to increase interceptions of asylum seekers in 2002, and stationed additional immigration officers at airports abroad to check visas and other documents of travelers prior to their boarding aircraft to Canada. Airlines are fined for bringing persons without proper documents to Canada. The Canadian Council for Refugees argues that these measures unduly affect asylum seekers who often must rely on false documents and smugglers to seek safety.

Safe Third Country Agreement

Following the "Smart Border Declaration" announced in 2002 between Canada and the United States, the two countries finalized a "Safe Third Country" agreement in December. Yet to be implemented, the agreement would deny individuals who pass through the United States the right to claim asylum in Canada. (The United States would also have reciprocal rights, but the numbers transiting Canada to the United States is typically only about 200 persons a year, compared to roughly 15,000 heading to Canada). Exceptions are proposed for all airplane or boat arrivals, for cases where it cannot be determined that the asylum seeker passed through the United States, and for cases where the asylum seeker has family in Canada or is an unaccompanied minor. Proposed Canadian regulations also exempt persons charged in the United States or a third country with a capital offence, those from countries to which CIC has moratoria on removal (at the end of 2002, this included Afghanistan, Burundi, Congo-Kinshasa, Rwanda, and Zimbabwe), those who have visas to Canada, and those persons who may enter Canada without a visa, but are required to hold a visa to the United States. A House of Commons committee also recommended several exceptions, including cases where the applicant would be subject to the United States' expedited removal process or its one-year deadline on asylum applications, is a victim of domestic violence (until the United States establishes gender guidelines consistent with those of Canada), or is a francophone refugee.

The agreement allows the United States to send Canada 200 refugees of their choosing. It is expected that the United States will send persons intercepted at sea, predominately Haitians, Dominicans, and Cubans to Canada.