A recent initiative by the Canada Border Services Agency (CBSA) embodies a problematic approach to the treatment of refugees. This initiative prioritizes the “cessation” and “vacation” of refugee protection – that is, mechanisms for rejecting a refugee claim and issuing a removal order to a refugee, even to a refugee who has lived in Canada for several years and is a permanent resident. Specifically, CBSA can apply to “cease” a person’s refugee status – that is, strip a person of refugee status – where it believes that person has “voluntarily reavailed” himself or herself of the protection of their country of origin, or has become “re-established” in their country of origin or their country of nationality.[1] The scope of what constitutes reavailing oneself of protection or reestablishing oneself in a country of origin is unclear. Janet Dench, executive dieasrector of the Canadian Council for Refugees, notes a cessation case where a refugee lost her status because she returned to her country of origin (Iran) “briefly to care for a sick relative”.[2] This suggests the scope is unduly wide. CBSA can apply to “vacate” a past decision by the Immigration and Refugee Board (IRB) that was favorable to a refugee where it believes “the decision was obtained as a result of directly or indirectly misrepresenting or withholding material facts relating to a relevant matter”.[3] The Refugee Protection Division of the IRB decides whether to allow applications by the CBSA. If the IRB allows an application, the person at issue will lose their refugee status and receive a removal order. CBSA aims to refer a “minimum of 875 cases” to the IRB for cessation or vacation this year.[4] This target is significantly higher than the number of such cases referred to the IRB in past year: for example, 192 cases were referred last year and 115 in 2011.[5]

This effort to boost the cessation and vacation of refugee status, particularly in combination with recent changes to the refugee system that place tight timeframes on refugee claimants, will have profound negative effects on the lives of many genuine refugees. Life is complex, particularly for persons who flee their country of origin as a result of persecution. Persons who claim refugee status immediately upon arrival to Canada must file initial documents within 15 days of their arrival.[6] Providing a succinct, coherent and comprehensive narrative to immigration officers who enforce space and time limits is a challenge. Language barriers and a rational fear or mistrust of authorities exacerbates this challenge. As Catherine Dauvergne (Law Professor, University of British Columbia) notes, completing the initial paperwork for a refugee claim within 15 days is “not possible”:

Forms will be incomplete and inaccurate. Vital supporting material will be unavailable. Decision makers will have to rely on less information than ever before. This will lead to more mistakes. In the refugee decision making, errors cost lives.[7]

Such errors will certainly result in harsh consequences for persons who are found to have misrepresented or withheld information in their refugee claim.

Sharry Aiken (Law Professor, Queen’s University) highlights that efforts to increase the cessation and vacation of refugee status is in line with the string of recent changes to the Canadian refugee system, all of which demonstrate the Canadian government is “keen on rescinding the welcome mat for refugees”.[8] She also notes that such quotas raise questions about the extent to which the IRB (a “quasi-judicial” body) is impervious to political interference and whether recent reforms achieve the key underlying objective of maintaining the integrity of the refugee system. Notably, if CBSA quadruples the number of cessation and vacation applications, it will result in “serious backlogs” for the IRB.[9] Delays do not reconcile with government rhetoric that asserts an ambition to achieve a faster and fairer refugee system. Delays also do not serve the interests of refugees who seek safety in Canada and, thus, undermine the Canadian “humanitarian tradition” and historical “openness towards refugees”.[10]

Moreover, this initiative is inconsistent with the spirit of international law, namely the UN Refugee Convention to which Canada is a Contracting State.[11] Under the Refugee Convention a refugee is any person who, “as a result of a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his [or her] nationality and is unable, or, owing to such fear, is unwilling to avail himself of the protection of that country … [and] return to it”.[12] Canadian law defines a refugee in a similar way.[13] The Refugee Convention permits Contracting States to expel a refugee from their territory in exceptional situations on grounds of national security or public order. Where a Contracting State seeks to expel a refugee, it must provide the refugee an opportunity to “submit evidence to clear himself [or herself] and to appeal to and be represented for the purpose before the competent authority”.[14] The Contracting State must also allow such a refugee a reasonable period of time “to seek legal admission into another country”.[15] States cannot return a refugee to another State where “his [or her] life or freedom would be threatened on account of race, religion, nationality, membership of a particular social group or political opinion”, regardless of national security or public order concerns.[16] This prohibition against returning a person to a risk of facing torture is commonly referred to as the principle of non-refoulement. In comparison to the standard set by the Refugee Convention, Canada adopts a more expansive view of the situations in which refugees may receive removal orders and provides fewer procedural protections to refugees who receive removal orders. The extent to which a person is able to appeal a decision by the IRB that order cessation or vacation and the extent to which Canadian authorities will effectively respect the principle of non-refoulement is unclear. Refugees will require high quality legal assistance to effectively respond to a negative decision by the IRB.

In sum, this initiative, like many of the recent changes to Canada’s refugee system, reflects a problematic ‘tough on refugees’ agenda. While the objective of strengthening the integrity of the Canadian refugee system is laudable, it must not be achieved at the expense of fairness to refugees and of respect for international law.

[1] Immigration and Refugee Protection Act, SC 2011, c 27, s 108. [IRPA]

[2] Toby Cohen, “New Quota aimed at stripping refugee status raises concerns among advocates” (21 January 2014)O.canada.com, online: Ihttp://o.canada.com/news/national/new-quota-aimed-at-stripping-refugee-status-raises-concerns-among-advocates/. [Cohen]

[3] IRPA, supra note 1, s 109.

[4] Cohen, supra note 2.

[5] Ibid: This information was obtained by a Vancouver based lawyer through an access to information request.

[6] Citizenship Immigration Canada, “Backgrounder – Summary of Changes to Canada’s Refugee System”, online: http://www.cic.gc.ca/english/department/media/backgrounders/2012/2012-06-29b.asp.

[7] Catherine Dauvergne, “Refugee rules the end of Canada’s humanitarian tradition” (29 January 2013) The Globe and Mail, online: http://www.theglobeandmail.com/globe-debate/refugee-rules-the-end-of-canadas-humanitarian-tradition/article7937115/. [Dauvergne]

[8] Cohen, supra, note 2.

[9] Ibid.

[10] Dauvergne, supra, note 7.

[11] UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series, vol. 189, p. 137, online: http://www.refworld.org/docid/3be01b964.html. [Refugee Convention]

[12] Ibid, article 1.

[13] IRPA, supra note 1, s 96.

[14] Refugee Convention, supra note 11, article 32.

[15] Ibid.

[16] Ibid, article 33.