The government has released much awaited criteria for designating which countries will be considered “safe,” meaning asylum seekers coming from them will be processed faster. While experts have generally welcomed the regulations, there are worries the process could become politicized as the immigration minister has a fair degree of latitude while the guidelines themselves are considered fairly limited. The “designated countries of origin” provision is a key and controversial aspect of the reformed refugee legislation, whose purpose is to deter unfounded claims. It allows the immigration minister to create a list of countries from which Canada is receiving large influx of refugee claims, but which are also considered to have sound human rights records.
Nationals from those countries arriving at Canada’s borders will go through an expedited assessment process, which includes less time to file an appeal. The minister can start assessing a country only if the number of refugee claims from that country is one per cent or higher of the total number of claims received in Canada in any 12-month consecutive period over the last three years. Furthermore, the acceptance rate for those claimants has to be 15 per cent or lower during the same time period. A country’s human rights record is one of the criteria for establishing if it should go on the list, according to regulations published on March 19 in the Canada Gazette, the government’s official publication. When assessing the human rights record in a country, the minister will have to specifically look at the degree of access to justice in that country, the existence of democratic rights and freedoms, and the ability of non-governmental human rights organizations and civil society groups to operate freely in the country.
The specific standards against which the minister is measuring a country’s record are the International Covenant on Civil and Political Rights, a 1966 UN treaty that is part of the overall Universal Declaration of Human Rights, and at the Convention Against Torture. The minister can also use additional human rights treaties during the assessment, the regulations state. However, it’s unclear where the information the minister will use to decide a country’s record will come from. The only indication is that the minister will receive advice and support from an expert panel, which will include at least two non-government human rights experts, and which the minister himself will select. According to the Canada Gazette, immigration department officials speculate that about 10 per cent of all asylum seekers in Canada could go through the expedited processing under the designated countries of origin policy. The policy could also lead to a 57 per cent drop in the number of claims from designated countries after a year.
The Canada Gazette also mentions that the new policy “could provide an alternative tool to visa impositions” in responding to spikes in asylum claims from countries with overall low acceptance rates, since the list would act as a deterrent to unfounded claims. Although department officials did not say if any specific countries are already being considered for the list, Immigration Minister Jason Kenney has repeatedly said that refugee claims from countries like the Czech Republic and Mexico are often “bogus.” Nationals from both countries need visas to travel to Canada since the summer of 2009. Canada has also seen a spike in refugee claims from Hungarian nationals, who can travel visa-free here since 2008. The Czech Republic and Mexico were both among the top ten source countries for refugee claims in 2008, with 3.8 and 35.8 per cent out of the total, respectively. In 2009, those numbers stood at almost 10 per cent for the Czech Republic and over 40 per cent for Mexico. The acceptance rates for Czech claimants stood at 43 per cent in 2008, then dropped to 10 per cent the next year. For Mexico, acceptance rates were at 11 per cent in 2008 and eight per cent in 2009. In 2010, Hungary became the top country of refugee referrals in Canada, with about two per cent of total, with also about two per cent acceptance rate. Mexican refugee claimants represented 7.6 per cent of the total with an 11 per cent acceptance rate. All these three countries would technically meet the quantitative requirement of the policy.
Immigration lawyer Max Berger said he does not object the designation criteria, but said he is concerned about “who is pulling the strings.” There is a risk the process will be politicized, he said, since the final decision-making rests in the hands of the immigration minister, who publicly said that it’s hard to believe the Czech Republic “is an island of persecution in Europe. “” Now he’s supposed to assess the human rights in that country,” Mr. Berger said. “He has already done that. The horse is out of the barn.” The lawyer said officials at the Immigration and Refugee Board, the body that decides on asylum claims, should be the ones assessing the countries for the special list, instead of the minister.
Sean Rehaag, professor at York University’s Osgoode Hall Law School, shares some of Mr. Berger’s concerns about the neutrality behind the designation process of a country. He pointed out that even though the immigration minister would rely on the advice of an expert panel before making a final decision, it is also he who will decide the composition of that panel.
The panel will include at least two nongovernment human rights experts, according to the regulations, but Mr. Rehaag said it is unclear who the other members will be and whether they will outnumber the non-governmental part of the panel. Nor is it clear what criteria the minister will use to choose the panel members.
The professor also said the regulations reveal a narrow perspective when assessing human rights in a country because they only mention two key human rights treaties. Others, such as the UN Declaration on Human Rights, the UN Convention on Discrimination against Women or the Geneva Convention could also have an impact in the decision-making process, he said. Sharryn Aiken, associate dean at Queen University’s law school and an expert in refugee law, described the criteria as a “wellintentioned attempt” to ensure decisions are made based on human rights grounds. But she also said the designation process cannot consider the individuality of refugee claims. Since even designated countries produce bona fide refugees, Ms. Aiken said that putting claimants from those countries through an expedited process disadvantages them because they will have less time to prepare. “No matter how finely tuned the criteria are, there will still be people who fall through the cracks,” she said.
Max Berger is a native of Winnipeg, Manitoba and was educated at the University of Manitoba and York University. Mr. Berger is a graduate of Osgoode Hall Law School in Toronto, Canada. He has represented immigration clients from all corners of the world and in every area of immigration law.
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