Law Times

Law TiMes • March 5, 2012 FOCUS Refugee lawyers gearing for battle over C-31 But government says Canada's doors open to legitimate claimants BY MICHAEL McKIERNAN Law Times R efugee lawyers are keep- ing up the fight against the federal government as it flexes its majority muscles with an omnibus bill that could revolutionize the country's refugee system. On Feb. 16, Immigration Minister Jason Kenney introduced bill C-31, protecting Canada's immigration system act. The leg- islation resurrects ideas from the previous parliamentary session that the government was unable to get through with its minority posi- tion. It includes the ability to desig- nate safe countries and respond to human smuggling. "These are the most significant amendments to refugee legisla- tion in this country in more than 30 years," says Gordon Maynard, past chairman of the Canadian Bar Association's national immigration law section. "I think collectively what these amendments do is sig- nal the end of Canada's legacy of being a country that respects and fairly treats refugee claimants and refugees. I think we've very clearly turned that corner." In a statement, Kenney said the new act simply filled in the gaps left by the watered-down Balanced Refugee Reform Act. It received Royal assent in June 2010 and is due to come into force this summer. "Our government is sending a clear message that our doors are open to those who play by the rules, including legitimate refugees," said Kenney. The new legislation incorpo- rates measures to tackle human smuggling by allowing the min- ister to designate the arrival of a group of refugee claimants as an "irregular arrival." Claimants in designated groups are subject to 12 months of manda- tory detention without the possibil- ity of review. Once the government grants their refugee applications, it releases them from detention. But claimants are unable to apply for permanent residence or travel documents for five years. Kenney claims the tough mea- sures will help end abuse of the refugee system by human smug- glers, but Maynard says it does so by punishing claimants. "This is all aimed at the people on board the vessel," he says. The government first intro- duced a similar human smuggling bill in late 2010 after the arrival of two boats in British Columbia filled with Tamil refugees. Maynard believes people have exaggerated the threat of the vessels. He notes only a handful have arrived during the past three decades and none since 2010. The new version in bill C-31 is virtually identical to its original introduction except for the fact that people under 16 won't be subject to mandatory detention. "That is a change but not a hugely reassuring one," says Noa Mendelsohn Aviv, director of the equality program at the Canadian Civil Liberties Association. "The www.lawtimesnews.com OLPB - 1-2 page 4X.indd 1 1/20/12 10:42 AM fact that it's no longer going to be mandatory for these children to end up in these facilities shouldn't in any way lessen our concerns for the 16 year olds and over who are going to end up in this cruel and unnecessary mandatory detention even where there is no concern about security and no concern about flight risk." Mendelsohn Aviv says she doesn't expect the mandatory detention "to pass constitutional muster," and notes the restrictions on permanent residence applica- tions for successful claimants cre- ates a second class of refugees. "You will have the ordinary ref- ugees who aren't treated in a puni- tive and mean-spirited way and then the designated refugees who are suffering these penalties," she says. "It's hard from the perspective of the asylum seeker to understand what's the difference. Both have suffered trauma and have well- grounded fears." According to Maynard, the bill's provision for designated safe countries actually creates a third tier of refugee claimant. The bill allows the minister to designate countries that don't normally produce refugees and generally respect human rights in order to expedite the process for claimants from them. After seeking asylum, claimants have just 15 days to get their information together with a hearing to follow within 30 days and no right of appeal to the refu- gee appeal division. "You get a one-shot hearing," says Maynard. "The only review of any refusal is to the Federal Court for judicial review, but there's no right to remain in the country while you make the application and you don't get a work permit at any stage." But Kenney says the large increase Canada has seen in ref- ugee claims from countries such as those in the European Union justifies the new rules. EU mem- bers account for 23 per cent of all refugee claims, yet 95 per cent of those are withdrawn, abandoned or rejected. Last year, Hungary was Canada's single largest source of refugee claims. "Too many tax dollars are spent on bogus refugees," Kenney said in his statement. "We need to send a message to those who would abuse Canada's generous asylum system that if you are not in need of protec- tion, you will be sent home quickly." Maynard says he doesn't object to the idea of designated safe coun- tries but worries that the govern- ment has scrapped the idea of an independent panel originally pro- posed to make the determination in the most recent bill. Instead, Kenney alone has the power to des- ignate countries. "The seriousness of the conse- quences means it's important that the designation be made appro- priately," says Maynard. "This leaves the door open to political decisions." The bill also proposes changes that will affect all refugees, includ- ing barring claimants from making applications for humanitarian and compassionate consideration until their refugee claim is in process. In addition, in Clause 19 it pro- vides for a mechanism for success- ful refugee claimants to retroactive- ly lose their permanent residence status if the government applies for a determination that they're no lon- ger in need of protection. The recently formed Canadian Association of Refugee Lawyers weighed in on that development in a statement. It warned the change could affect refugees who have been in Canada for many years. "Clause 19 undermines Canada's commitment to refugees, makes a mockery of our commit- ment to the United Nations to provide permanent resettlement to refugees, and puts at risk of depor- tation tens of thousands of refugees who have already been granted permanent residence in Canada," the group's statement said. 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