Montreal, Canada – Refugee advocates and legal experts have raised the alarm at a proposed change to Canada‘s asylum system, saying the government’s plan would curb refugee rights and have a “chilling effect”.
The Canadian government introduced an amendment to the country’s Immigration and Refugee Act in a 464-page budget bill earlier this month.
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The change would prevent people who previously made an asylum claim in other specific countries – the United States, United Kingdom, Australia and New Zealand – from having a full refugee status determination hearing in Canada.
Ottawa says the measure is part of its broader effort “to better manage, discourage and prevent irregular migration”, as thousands of asylum seekers have crossed the border into Canada from the US without visas over the last few years.
The goal also is to make the Canadian refugee system more efficient and reduce delays in processing times, a senior government official told Al Jazeera.
But Sharry Aiken, a law professor at Queen’s University in Ontario, said the change may end up “precluding people who are genuine refugees from having a hearing on the merits of their case”.
“It’s just a bedrock principle of Canadian refugee law that claimants are entitled to an oral hearing on the merits of their claim,” she told Al Jazeera.
By telling people they won’t have access to such a hearing, Aiken said Canada is “taking one step down the road of dismantling the entire system of refugee status determination”.
Currently, people seeking refugee protection in Canada must prove they have a “well-founded fear of persecution” in their home country due to their race, religion, or political opinion, among other reasons.
Refugee-protection claimants get an oral hearing before an official at the Immigration and Refugee Board (IRB), an independent tribunal that adjudicates on refugee cases.
Under the government’s proposed change, people will no longer have access to that hearing if they applied for refugee protection in one of the countries that Canada says has a refugee system similar to its own.
Instead, they will have what’s called a pre-removal risk assessment.
We know that children are ripped from their parent's arms and put in cages. We know that people have to make asylum claims from behind bars in prison. We know that former Attorney General Jeff Sessions greatly restricted the refugee definition. Our response to refugees seeking protection here should not be to make Canada more like Trump's America by adopting those types of laws.
That assessment comes with its own set of rules and regulations and has been described by refugee law experts as being “less efficient” than the refugee hearings at the IRB.
The senior government official defended the amendment, however, saying it was “consistent with international law” and that “Canada remains the gold standard for refugee determination systems”.
Of about 105,000 refugee claims that were made over the last two years in Canada, 3,150 people – or about three percent of all applicants – had previously applied for protection elsewhere, the official said.
People who would be affected by the change “have durable solutions elsewhere”, the official added.
However, Maureen Silcoff of the Canadian Association of Refugee Lawyers said filing a refugee claim in another country did not mean that person had a fair shot at getting protection.
It also didn’t mean that people should automatically be shut out of the refugee system in Canada, she told Al Jazeera.
“It’s actually quite shocking that this is what Canada wants to do,” she said.
Silcoff said the change would largely affect people who previously made claims for refugee protection in the US, where the situation for refugees has become increasingly dire under US President Donald Trump.
“We know what’s going on in the United States,” she said.
“We know that children are ripped from their parent’s arms and put in cages. We know that people have to make asylum claims from behind bars in prison. We know that former Attorney General Jeff Sessions greatly restricted the refugee definition,” Silcoff added. “Our response to refugees seeking protection here should not be to make Canada more like Trump’s America by adopting those types of laws.”
Despite the criticism, Justin Trudeau‘s government has remained steadfast in its backing of the amendment.
The senior official told Al Jazeera the change must be “looked at in context with all of the other actions that we’re taking”.
In its 2019 budget, Ottawa said it plans to invest $88m [$1.18b Canadian dollars] over five years to implement its so-called Border Enforcement Strategy and to process refugee claims and enforce removal orders.
The budget also says the government plans to create three new judicial positions “to help ensure efficient and timely processing of asylum claimants seeking judicial review”.
Last year, 55,388 refugee protection claims were referred to the IRB’s Refugee Protection Division. Of the 26,805 cases that were finalised, 14,790 applications were accepted while 8,759 were rejected.
At the end of 2018, 71,675 refugee protection claims were still being processed.
Meanwhile, the head of the United Nations High Commission for Refugees’ office in Canada has publicly defended the government’s proposed change, saying it keeps the country “in line with international law”.
“The measure … still upholds a welcoming approach,” Jean-Nicolas Beuze told The Globe and Mail newspaper on 16 April.
“It’s not undermining the protection that people will receive if they arrive in Canada and want to be recognised as refugees.”
That was echoed by the senior government official, who told Al Jazeera that, “people who are no longer eligible to make an asylum claim … are not immediately deported” from Canada.
“There is still a robust process for them,” the official said.
Struggle to survive
However, Janet Dench, executive director of the Canadian Council for Refugees, a national advocacy group, said the pre-removal risk assessment was “likely to be extremely inefficient”.
Funnelling more refugee claimants into this system may translate into longer waiting times, she said, with a “huge number of extra cases [added into] a process that is not equipped for it”.
“There’s very serious rights issues at stake here,” Dench added.
People forced into the pre-removal risk assessment system are also “technically not refugee claimants”, Dench said, and they, therefore, don’t have access to a comparable level of services in Canada.
“They may struggle to survive, and yet they may wait longer in that situation,” she said.
Dench also said people in pre-removal risk assessment do not have access to an appeal through the IRB.
Their only recourse is to ask a federal court to review a decision if their claim is rejected, Dench said, but people don’t have a stay of removal during that process, meaning they can be deported before their appeal is heard.
“The way to make the system work fairly and efficiently is to simplify it and say everybody who needs protection gets a hearing and we focus on making the decisions at the IRB quickly and fairly,” she said.
Beyond the changes to the system, Aiken also criticised the government for burying the change in a budget bill.
She called that decision “unconscionable, shocking, a disappointment and a page torn straight out of the Conservative playbook”.
Trudeau’s predecessor, former Conservative Party leader and Prime Minister Stephen Harper, often used omnibus bills to pass contentious legislative changes without any pushback.
In his 2015 election campaign, Trudeau – who is facing a tough fight before a federal vote in October – pledged that his Liberal Party would “not resort to legislative tricks to avoid scrutiny”.
“Stephen Harper has used prorogation to avoid difficult political circumstances. We will not,” the party’s platform stated at the time.
Pushing the amendments through in a budget bill means they will not go to the parliamentary committee for study, and it does not allow expert witnesses to present their views, Aiken said.
“It can’t be overstated how reprehensible it is that in the lead-up to an election, this government has chosen to introduce significant changes to Canada’s laws … in a budget bill,” she said.
Silcoff agreed, saying that including the change in the budget bill was “an attempt to ram it through quickly without full consideration”.
“Canada has a reputation of being a leader in human rights, a leader in refugee protection,” she said. “And I think we need to maintain that – and not take a step backward.”