U.S. Committee for Refugees World Refugee Survey 1997 - Canada

In 1996, 26,120 asylum claims were filed in Canada, and 30,800 claims were pending at year's end. During the year, Canadian authorities decided 16,578 refugee claims, and granted asylum in 9,541 cases (57.6 percent). This shows a drop from the approval rates in both 1995 and 1994 when 70 percent of the cases decided were recognized as refugees. In 1996, the leading source countries for refugee claims in Canada were Sri Lanka (2,946), Chile (2,824), and Iran (1,718). In 1995, as in 1994, the major source countries were Sri Lanka, Iran, and Somalia. In response to the sudden increase in Chilean refugee claimants in the previous six months, the government announced in June that it was re-imposing a visa requirement on Chileans that had been lifted 15 months before. A total of 28,315 refugees were "landed" in 1996. "Landing" refers to permission to enter or remain in Canada to establish permanent residence. Of these, 10,919 were refugees resettled from abroad (7,846 government-assisted and 3,073 privately sponsored), and 17,396 were asylum seekers recognized as refugees (13,842) or their dependents abroad (3,554). Asylum Procedure Under Canada's current asylum procedure, a senior Department of Citizenship and Immigration Canada (CIC) officer must first determine if an asylum seeker is eligible to apply for asylum. CIC officers can rule a claimant ineligible for asylum on grounds such as criminality or as a threat to national security, or for having been recognized as a refugee in another country. Persons who have already been served with a removal order are also ineligible to file refugee claims. Eligible cases are referred for a merits hearing before a two-person panel from the Convention Refugee Determination Division (CRDD) of Canada's quasi-judicial Immigration and Refugee Board (IRB). If either of two CRDD panel members rules positively, Refugee Convention status is granted, except in certain rare cases where a unanimous decision is required, such as when both IRB members agree that the applicant destroyed or disposed of identity documents. CIC announced in March 1995 its intention to reduce CRDD panels, in most cases, from two members to one, by the end of 1996. On June 14, 1996, the House of Commons conducted a first reading of C-49, a massive bill that includes a provision to reduce CRDD panels to a single person. C-49 includes another controversial provision that would allow the immigration minister to remove the IRB chairman at any time without cause. By year's end, the bill had not been enacted, and these changes had not gone into effect. Some Canadian NGOs were critical of these provisions of C-49. They argued that allowing the immigration minister greater discretion to remove the IRB chairman would compromise the independence of the board. Some also pointed out that the government has traditionally argued that judicial review is unnecessary because of the enhanced protection of two-member IRB panels. "Cutting panel members from two to one, buried in omnibus housekeeping legislation, can only further weaken safeguards and put life and freedom at risk for more refugees," said the Inter-Church Committee for Refugees (ICCR). The Canadian procedure also allows for expedited consideration for claimants who come from countries whose nationals have high asylum approval rates, whose cases do not involve complex legal or factual issues, and who present no problems of credibility or inconsistency with known country conditions. In such cases, a single CRDD member can grant asylum after meeting informally with the claimant. If both CRDD members reject a claim, the claimant may submit a written request to the federal court for "leave" to commence judicial review. Federal judges are not required to give a reason for accepting or rejecting leave. If leave is granted, the judge hears arguments, and either upholds the IRB decision or sends the case back to the IRB with a written opinion. Judicial review is limited to correcting matters of law; federal judges are not empowered to examine claims on their merits. In August, the IRB issued guidelines on the special needs of children appearing before the IRB to make refugee claims. Although about 25 percent of asylum seekers in Canada are children, according to the IRB, most are not called upon to testify because their parents are the primary applicants. However, the IRB said that the new guidelines would be of particular significance to unaccompanied children, who, it said, represent, on average, less than five percent of the total number of refugee claims received by the IRB each year. Although the guidelines maintain that child asylum seekers must meet the same well-founded fear of persecution standard as adults, they call upon adjudicators to recognize that children may not be able to articulate their claims in the same way as adults, and instruct them to take into account the best interests of the child. According to the government, these represent the first guidelines on child refugee claimants ever promulgated by a country operating a refugee determination procedure. In 1993, Canada was the first country to issue guidelines on gender-related persecution claims. Those guidelines were updated in November 1996 to address subsequent legal developments in Canada on the questions of membership in a particular social group and state protection. Regulatory Changes In December, the minister of citizenship and Immigration announced a proposed regulation to eliminate the Deferred Removal Orders Class (DROC). The DROC, created in November 1994, identifies rejected asylum seekers who have been under removal orders for more than three years, but who have established themselves in Canada and been employed for at least six months, as a class that may adjust to become permanent residents. Most DROC class members had not been removed because the government had declared a moratorium on removals because of dangerous conditions in their countries of origin. Since its inception in November 1994, CIC has received about 6,244 applications, of which 4,716 have been approved (76 percent), 873 refused (14 percent), and the remainder still pending, as of December 19, 1996. The government said that the DROC was being abolished because its existence created a "disincentive for persons under removal order to leave Canada voluntarily." Accompanying the termination of the DROC is a transition period allowing persons eligible for membership in the class immediately before repeal to apply for landing. The minister also announced that Canada would be "streamlining" its Post-Determination Refugee Claimants in Canada (PDRCC) class. Under existing regulations in 1996, all rejected asylum seekers were automatically placed in the PDRCC review process and considered to be applicants for permanent residence. Permanent residence would be granted to persons who were found to face a serious risk of harm upon return, provided they had not committed serious crimes or were inadmissible on other grounds. In fiscal year 1995-96, CIC officers conducted 7,277 PDRCC risk reviews, and approved 6.5 percent, allowing them to apply for permanent residence in Canada. Under the new regulations, rejected asylum seekers will no longer automatically be considered for permanent residence as members of the PDRCC class, but instead will be given 15 days to apply for a review of their case. Several additional grounds are introduced for denying rejected asylum seekers eligibility for inclusion in the PDRCC class, such as serious criminality. PDRCC class eligibility is also denied to rejected asylum seekers who leave Canada for the United States and then return to Canada again and file a second refugee claim within six months of their departure. Such persons, say the regulations, "have already benefitted from the opportunity of a risk review subsequent to the initial refugee claim." According to the government, the streamlining of PDRCC is intended to reduce "multiple, consecutive layers of decision-making for refused refugee claimants" and to avoid "unnecessary delays in removal." Canadian NGOs generally opposed the regulatory changes, some charging that the government was restricting its ability to meet its obligations under the Convention Against Torture. The nongovernmental ICCR called the DROC "a crucial safety valve allowing unrecognized refugees to get on with their lives when Canada chooses not to deport them." Another new regulation, published in proposal form in the Canada Gazette on November 16, 1996, will create a new Undocumented Convention Refugee in Canada Class (UCRCC) for nationals or habitual residents of certain designated countries that are unable, due to sustained civil war and the lack of a central government authority, to issue identity documents. Members of the UCRCC will be permitted to apply for landing without meeting the identity document requirements for permanent residence established by legislative changes in 1993. Such persons, although recognized as refugees, have not been able to reunite with spouses and children abroad, because they are not permanent residents. Only nationals from two countries, Afghanistan and Somalia, will initially qualify for the UCRCC. The government estimated that about 7,500 refugees in Canada from Afghanistan or Somalia have not been able to obtain permanent residence status due to lack of identity documents. The regulation will require UCRCC members to wait five years after having been recognized as refugees by the IRB before being permitted to adjust their status. The Canadian Council for Refugees (CCR), an umbrella organization of Canadian NGOs, said, "Five years is an enormously long time to wait in legal limbo. The hardship is particularly unacceptable for those separated from children and husband or wife." The CCR also criticized the regulation for being limited to two nationalities only, pointing out that others are similarly situated, and for limiting UCRCC to Convention refugees only, leaving undocumented Afghans and Somalis who are accepted under PDRCC review still unable to adjust their status. (The UCRCC regulation came into effect on January 31, 1997. The new DROC and PDRCC regulations, published in the Canada Gazette on January 4, 1997, were scheduled to take effect March 1, 1997, but final implementation was delayed.) Resettlement On December 19, 1996, the minister of citizenship and immigration also announced a proposed new Resettlement from Abroad Class (RAC). In addition to Convention refugees selected abroad, the RAC is to include two new classes of humanitarian admissions for persons in refugee-like circumstances: a Source Country class, and an Asylum Country class. Both new classes are intended to include persons continuously and seriously affected by civil war or armed conflict who may not meet the refugee definition in the Refugee Convention, which is the standard in Canada's Immigration Act. Such admissions are to be reserved for persons for whom there is no possibility within a reasonable period of time for a durable solution to their displacement. The government also said that it would assign an annual numerical ceiling for RAC admissions. The CCR objected to the introduction of a numerical limitation on refugee admissions, pointing out that Canada has never imposed a ceiling on privately sponsored refugees. It said, "Private sponsors will lose incentive to undertake sponsorships...if they know that there is an overall limit on resettlement and the more private sponsors do, the less the government will undertake." The Asylum Country class is for persons outside their country of origin who have suffered from massive human rights violations. Such persons must be privately sponsored. The government said, "It is possible the Asylum Country category may result in an increase in the number of privately sponsored refugees, which would be in keeping with the government's intent to revitalize the private sponsorship program." The Source Country class is for persons within their country of origin who have suffered serious deprivations of their civil rights, including persons who have been detained or imprisoned after suffering serious civil rights deprivations. The class will apply only to persons from a list of countries established by the government. The government said that the first countries to be designated will be El Salvador, Guatemala, Sudan, Bosnia, and Croatia. Class members will be admitted either through government or private sponsorship. In a letter to USCR, the Canadian government said that all persons admitted to Canada through the RAC "must demonstrate the ability to become a self-sufficient member of Canadian society within a reasonable period of time." Canadian NGOs have been critical of what some have called the government's preference for "designer immigrants." A joint letter on May 21 from the presidents of the Canadian Council of Churches and the Canadian Jewish Congress to the immigration minister, said, "While we recognize the importance of swift integration both for the refugee and Canadian society at large, we must express our concern that lack of economic and linguistic skills not preclude the acceptance of the neediest of refugees." The letter charged that significant numbers of the neediest refugees in the UNHCR caseload had not been included in Canada's Bosnian resettlement program. In December, the government also announced a proposal to amend the rules for private sponsorship, in particular, to set out a legal framework for entering into private sponsorship agreements with major refugee-sponsoring organizations. These changes address how long private sponsors are responsible for supporting the people they sponsor. Privately sponsored refugees are not eligible for government assistance. Agreements on sponsorship are somewhat different depending on the type of sponsoring group. A group of five individuals may sponsor a refugee as before by submitting a resettlement plan of action to the minister. For organizations that sponsor larger numbers of refugees, individual resettlement plans have not been required. Instead, such groups have signed sponsorship agreements with the government. In either case, sponsors generally have had to demonstrate adequate financial resources to provide one-year's worth of lodging, care, and resettlement assistance. Under the regulations proposed in December, sponsors can be held responsible for refugees for longer than one year. The proposed regulations give immigration officers discretion to determine the appropriate period of sponsorship up to a maximum of two years. Detention and Deportation As Canada has been tightening its immigration laws and procedures, the government has placed increasing emphasis on removing rejected asylum seekers. In some cases, local communities have protested the impending deportation of long-time neighbors now faced with removal. In December, the press reported on candlelight vigils in Vancouver protesting deportation orders for rejected refugee claimants from El Salvador and Russia. According to one account, a Salvadoran family had been living in a church basement for more than a year to avoid deportation. In May and June, an inquest was held into the death in detention of Michael Akhimen (his identity, including his name, are disputed), a 39-year-old refugee claimant from Nigeria who had recently abandoned his refugee claim and was being held pending removal. He died at the Celebrity Inn, a CIC holding center, on December 17, 1995 of diabetic keto acidosis. In the days preceding his death, Akhimen reportedly made oral and written requests to see a doctor and for food and water. When he went for a drink of water, a guard allegedly stopped him. As a result of a dispute with that guard, he was placed in solitary confinement until his death. The one doctor who saw Akhimen reportedly determined that he was not a diabetic, but did not conduct any tests on him. Guards took notes detailing Akhimen's deteriorating condition, but did not call for an ambulance, assuming he was faking his condition. The jury ruled that he died of natural causes. It also made several recommendations for policy changes at the holding center. Memorandum of Agreement Following a joint announcement in 1995 of a "Canada/U.S. Accord on Our Shared Border " by Prime Minister Jean Chrétien and U.S. President Bill Clinton, officials of the two governments tried to agree on the language of a memorandum of agreement (MOA) to establish which country should be responsible for examining an asylum claim when an asylum seeker travels from one country to the other. The governments circulated a draft MOA for comment that would require – with some exceptions – that asylum applicants traveling from one country to the other apply for asylum in the country of first arrival. In February, USCR wrote an analysis of that draft MOA in Interpreter Releases, a publication on U.S. immigration law. The article argued that the draft MOA is based on a fundamentally flawed assumption about principles of refugee protection and does not, in fact, address a real problem. USCR said, "Neither country has provided statistics to show that significant numbers of persons denied asylum in one country in fact travel to the other country to apply for asylum." The USCR article showed the "country of first arrival " principle of the MOA to be inconsistent with UNHCR Executive Committee conclusions, among which Conclusion 15 states that "asylum should not be refused solely on the ground that it could be sought from another state." USCR was also instrumental in organizing a petition to the U.S. secretary of state and attorney general urging them not to sign the MOA in its current form. The letter was signed by 66 U.S.-based organizations. Canada and the United States agreed to suspend negotiations on the MOA pending the outcome of asylum legislation in the U.S. Congress. Even after the new asylum law was enacted, however, the two sides had still not reached an agreement by year's end.