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AILA's Canada Chapter Comments on Safe Third Country Regulations

Cite as "AILA InfoNet Doc. No. 02122641 (posted Dec. 26, 2002)"

The American Immigration Lawyers Association/Canada Chapter Submission

-Regarding -

The Proposed Regulations Amending The Immigration and Refugee Protection Regulations

-Pertaining To-

The Agreement for Cooperation in the Examination of Refugee Status Claims from Nationals of Third Countries

Presented before:

The House of Commons Standing Committee on Immigration

November 20, 2002

Prepared and presented by:

Nan Berezowski
Barrister & Solicitor, Attorney-at-Law And David H. Davis, Barrister & Solicitor

INTRODUCTION

The American Immigration Lawyers Association (hereinafter referred to as “AILA”), founded in 1947 with its head office located in Washington, D.C., represents approximately 8,000 member attorneys and law professors who practice and teach immigration law. AILA is a non-partisan, non-profit organization that provides its members with continuing legal education, information, professional services, and expertise through its 35 chapters.

The Canada chapter (hereinafter “AILA Canada”) represents the interest of US and Canadian licensed lawyers based in Canada who practise predominately in the area of US and US-related immigration law. The Canada Chapter consists of approximately 120 members from coast to coast.

AILA’S POSITION

AILA Canada is firmly opposed to the Agreement for Cooperation in the Examination of Refugee Status Claims from Nationals of Third Countries (the Agreement) recently signed between Canada and the United States. AILA Canada opposes the Agreement for the following reasons:

  1. The Agreement does not and will not achieve the desired objective of controlling the flow of refugees and asylum seekers from around the world;
  2. The Agreement will result in many persons seeking entry into Canada at Airport Ports of Entry in order to fall within the prescribed exemption category;
  3. The Agreement will result in persons being subject to remaining in limbo between the two countries depending on a variety of issues that could arise given a refugee claimant’s background;
  4. Mere physical presence in the other country ought not to preclude the right to seek asylum in the United States or in Canada;
  5. There are relatively very few cases where an applicant has filed or intends to file multiple refugee claims in more than one country.

AILA Canada views the Agreement as fundamentally flawed in that it restricts refugee claimants in their freedom to choose the country from which to seek refugee protection and, as such, does not adhere to the principles set out by the UNHCR Executive Committee in Conclusion 15 (XXX). Additionally, AILA has serious reservations that the Agreement is not consistent with basic principles of human rights law, the Canadian Charter of Rights and Freedoms, and the Geneva Convention of 1952. It is in this context that AILA has identified the following issues and made the correlating drafting recommendations.

Notwithstanding the concerns raised about the Agreement, we submit the following comments on the proposed regulations amending the Immigration and Refugee Protection regulations.

ISSUES AND RECOMMENDATIONS

1.  DEFINITION OF FAMILY MEMBER

Issue
The definition of ‘family member’ set out in the proposed regulations does not include de facto family members. However, the Policy Manual (OP: Overseas Processing) relating to section 25 of Immigration and Refugee Protection Act (herein “IRPA” or “the Act”), in relation to humanitarian and compassionate decisions, defines family members to include de facto family members - those who are either emotionally or financially dependent on the family. These persons could be children and they deserve protection.

Drafting Recommendation
The regulations should be expanded to include de facto family members. Specifically, s. 159.1 “family member” should be expanded to include the following:

…and any person who is a de facto a member of the family of the claimant.

2.  DIFFERENCE IN INTERPRETATION OF INTERNATIONAL LAW AND OBLIGATIONS

Issue
Although both countries are signatories to the 1951 Convention relating to the Status of Refugees and the 1967 Protocol (the Refugee Convention) and adhere to the definitions provided for in this body of international treaty law, the subsequent jurisprudence of the respective countries has developed independently. As a consequence, principles of international treaty law, agreed to in both countries, are implemented in the respective Refugee Status Determination systems subject to manifest differences of interpretation. In the area of gender based claims this difference is particularly acute as Canada has embraced a much wider interpretation of gender–based eligibility than has the United States. The regulatory analysis statement clearly acknowledges this problematic aspect of the Agreement in stating:

The proposed Regulations, set out to implement the Agreement in safe third countries, will likely have differential impacts by gender and with respect to diversity considerations. Canada and the United States have different approaches to the treatment of claims based on gender–based persecution and in relation to those who arrive and make a refugee claim without appropriate documents. It should be noted that the family reunification exemptions may set of these differential impacts to some extent.

The extent to which gender impacts will have implications for the intended outcomes of the Agreement are difficult to determine in advance of implementation. However, data on patterns of claims processes and procedures by gender, country of origin and grounds will be central to monitoring the impact of the Agreement over time. Such data will assist in the development of options to address unintended differential impacts.

Drafting Recommendation
AILA Canada’s recommendation is that this acknowledged differential impact should be addressed in the regulations. Specifically, a person who’s claim can be anticipated, based on its nature, to be rejected in the United States but could be accepted in Canada should be exempt from the Agreement’s ineligibility provision. We therefore recommend an additional subsection to section 159.6 as follows:

(d) may succeed in a claim for refugee protection under section 95(1) of the Immigration and Refugee Protection Act, but, because of the nature of the claim, would not likely be protected in the United States.

3.  DETENTION

Issue
There are individual claimants, subject to detention in the United States, who would not be subject to detention in Canada. Again, the laws and practices of the respective countries have developed independently to reflect their respective socio-political values. It is important that Canada continue to adhere to its own interpretation of its obligations under international law as set out in Article 9 of the International Covenant on Civil and Political Rights and Section 31 of the Refugee Convention. The latter provides as follows:

(1) The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

(2) The Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularized or they obtain admission into another country.

Canada should continue to adhere to its own independently evolved jurisprudence and should refrain from permitting the Agreement to supersede its own understanding of its obligations in international law.

Drafting Recommendation
AILA Canada recommends that a person subject to detention in the United States, but not subject to detention in Canada, should be exempted from the Agreement’s ineligibility provision. We therefore recommend the addition of a subsection to section 159.6 as follows:

(e) is not subject to detention under section 55 of the Act but is subject to detention in the United States if returned to the United States.

4.  AVAILABILITY OF AN APPEAL MECHANISM

Issue
The regulations in their present form give complete discretion to an Immigration Officer to make the admissibility decision of whether a refugee claimant can enter Canada at a land port of entry. There is no provision for this person to appear before an adjudicator in the Adjudication Division in order to have the threshold issue of admissibility determined by an impartial arbiter.

AILA Canada takes the position that Citizenship and Immigration Canada (hereinafter “CIC”) must observe the principles of natural justice and the duty of fairness enshrined in section 7 of the Charter of Rights and Freedoms. The Immigration Policy Manuals, that provide direction to Immigration Officers, make reference to the limited ability of Immigration Officers to make determinations that are not considered complex. However, factual circumstances, that may involve complex decisions, should be left for an Adjudicator to make the ultimate decision. This is especially so as the impugned law involves international and constitutional law.

Drafting Recommendation
It is AILA Canada’s position that deciding upon the admissibility of a refugee claimant at a land port of entry is a complex decision and should therefore not be left to a sole Immigration Officer whose mandate may not necessarily be consistent with the best interests of the applicant. As such, we recommend the addition of section 159.8 as follows:

The decision on eligibility shall be made at an admissibility hearing by an Adjudicator.

5.  FINAL DETERMINATION

Issue
When is the final determination made concerning eligibility under these regulations?

Article 4(3) of the Agreement states that an applicant is not to be returned to the receiving Party until a final determination is made concerning the application of this Agreement. However, at present, the regulations do not make reference to the Stay of Execution of any Removal Order that may be made by an Immigration Officer who decides that a person’s refugee claim is ineligible as a result of this Agreement. As a result, an individual may be automatically removed although no final determination has been made in light of the fact that the applicant has a right to seek leave to appeal to the Federal Court Trial Division of either a decision made by an Immigration Officer or, as AILA recommends, a decision made at an admissibility hearing conducted by an Adjudicator.

Drafting Recommendation
AILA Canada takes the position that if the Agreement is to be enforced then the regulations must be amended in order to ensure that the applicant is not removed prior to a final determination being made concerning the eligibility of the applicant to make a claim in Canada. Specifically, section 231(1) in IRPA should be amended after the words “…to reject a claim for refugee protection…” as follows:

…or with respect to a determination under subsection 101(1) (e) of the Act…

6. EXERCISE OF DISCRETION

Issue
The Agreement provides for, in Article 6, the use of discretion. Specifically, Article 6 states:

Notwithstanding any provisions of this Agreement, either Party may at its own discretion examine any refugee status claim made to that Party where it determines that it is in its public interest to do so.

However, the exercise of discretion is not outlined in the proposed regulations.

Drafting Recommendation:
AILA Canada recommends that the use of discretion should be set out in the proposed regulations. Specifically, an additional section, section 159.10, should be inserted as follows:

Notwithstanding any other provision in this regulation, the Minister may decide that paragraph 101(1) (e) of the Act does not apply where the Minister determines that it is of the public interest to do so.

In adding this subsection the Minister will be better equipped to contend with some of the anticipated discrepancies between our Canada’s jurisprudence and Refugee Status Determination system and our obligations under this Agreement.

CONCLUSION

AILA Canada opposes implementation of the Agreement and the proposed regulations as they would serve to alter Canada’s present Refugee Status Determination system so as to undermine independently evolved jurisprudence, Charter principles and Canada’s interpretation of its obligations under international law. In the event that the Committee proceeds with implementation of the regulations, it is AILA Canada’s position that the drafting recommendations, presented above, would serve to mitigate the deleterious impact of the Agreement and therefore should and must be included in the final version of the regulations.

 
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