Vol. 146, No. 26 — December 19, 2012

Registration

SOR/2012-252 November 30, 2012

IMMIGRATION AND REFUGEE PROTECTION ACT

Regulations Amending the Immigration and Refugee Protection Regulations

P.C. 2012-1589 November 29, 2012

Whereas, pursuant to subsection 5(2) (see footnote a) of the Immigration and Refugee Protection Act (see footnote b), the Minister of Citizenship and Immigration has caused a copy of the proposed Regulations Amending the Immigration and Refugee Protection Regulations, substantially in the annexed form, to be laid before each House of Parliament;

Therefore, His Excellency the Governor General in Council, on the recommendation of the Minister of Citizenship and Immigration, pursuant to subsection 5(1) and sections 32 and 111.1 (see footnote c) of the Immigration and Refugee Protection Act (see footnote d), makes the annexed Regulations Amending the Immigration and Refugee Protection Regulations.

REGULATIONS AMENDING THE IMMIGRATION AND REFUGEE PROTECTION REGULATIONS

AMENDMENTS

1. The Immigration and Refugee Protection Regulations (see footnote 1) are amended by adding the following after section 159.7:

DIVISION 3.1

CLAIM FOR REFUGEE PROTECTION — TIME LIMITS

Documents and Information

Time limit — provision of documents and information to officer

159.8 (1) For the purpose of subsection 99(3.1) of the Act, a person who makes a claim for refugee protection inside Canada other than at a port of entry must provide an officer with the documents and information referred to in that subsection not later than the day on which the officer determines the eligibility of their claim under subsection 100(1) of the Act.

Time limit — provision of documents and information to Refugee Protection Division

(2) Subject to subsection (3), for the purpose of subsection 100(4) of the Act, a person who makes a claim for refugee protection inside Canada at a port of entry must provide the Refugee Protection Division with the documents and information referred to in subsection 100(4) not later than 15 days after the day on which the claim is referred to that Division.

Extension

(3) If the documents and information cannot be provided within the time limit set out in subsection (2), the Refugee Protection Division may, for reasons of fairness and natural justice, extend that time limit by the number of days that is necessary in the circumstances.

Hearing Before Refugee Protection Division

Time limits for hearing

159.9 (1) Subject to subsections (2) and (3), for the purpose of subsection 100(4.1) of the Act, the date fixed for the hearing before the Refugee Protection Division must be not later than

  • (a) in the case of a claimant referred to in subsection 111.1(2) of the Act,
    • (i) 30 days after the day on which the claim is referred to the Refugee Protection Division, if the claim is made inside Canada other than at a port of entry, and

    • (ii) 45 days after the day on which the claim is referred to the Refugee Protection Division, if the claim is made inside Canada at a port of entry; and
  • (b) in the case of any other claimant, 60 days after the day on which the claim is referred to the Refugee Protection Division, whether the claim is made inside Canada at a port of entry or inside Canada other than at a port of entry.

Exclusion

(2) If the time limit set out in subparagraph (1)(a)(i) or (ii) or paragraph (1)(b) ends on a Saturday, that time limit is extended to the next working day.

Exceptions

(3) If the hearing cannot be held within the time limit set out in subparagraph (1)(a)(i) or (ii) or paragraph (1)(b) for any of the following reasons, the hearing must be held as soon as feasible after that time limit:

  • (a) for reasons of fairness and natural justice;

  • (b) because of a pending investigation or inquiry relating to any of sections 34 to 37 of the Act; or

  • (c) because of operational limitations of the Refugee Protection Division.

Appeal to Refugee Appeal Division

Time limit for appeal

159.91 (1) Subject to subsection (2), for the purpose of subsection 110(2.1) of the Act,

  • (a) the time limit for a person or the Minister to file an appeal to the Refugee Appeal Division against a decision of the Refugee Protection Division is 15 days after the day on which the person or the Minister receives written reasons for the decision; and

  • (b) the time limit for a person or the Minister to perfect such an appeal is 30 days after the day on which the person or the Minister receives written reasons for the decision.

Extension

(2) If the appeal cannot be filed within the time limit set out in paragraph 1)(a) or perfected within the time limit set out in paragraph (1)(b), the Refugee Appeal Division may, for reasons of fairness and natural justice, extend each of those time limits by the number of days that is necessary in the circumstances.

Time limit for decision

159.92 (1) Subject to subsection (2), for the purpose of subsection 110(3.1) of the Act, except when a hearing is held under subsection 110(6) of the Act, the time limit for the Refugee Appeal Division to make a decision on an appeal is 90 days after the day on which the appeal is perfected.

Exception

(2) If it is not possible for the Refugee Appeal Division to make a decision on an appeal within the time limit set out in subsection (1), the decision must be made as soon as feasible after that time limit.

2. Section 206 of the Regulations is renumbered as subsection 206(1) and is amended by adding the following:

Exception

(2) Despite subsection (1), a work permit must not be issued to a claimant referred to in subsection 111.1(2) of the Act unless at least 180 days have elapsed since their claim was referred to the Refugee Protection Division.

COMING INTO FORCE

3. These Regulations come into force on the day on which section 14.1 of the Balanced Refugee Reform Act, chapter 8 of the Statutes of Canada, 2010, comes into force, but if they are registered after that day, they come into force on the day on which they are registered.

REGULATORY IMPACT
ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Executive summary

Issues: A large number of asylum claims, including those from major source countries, are determined to be unfounded by the Immigration and Refugee Board (IRB). This has placed pressures on Canada’s asylum system that not only contribute to increasing the draw for unfounded claims as a result of access to benefits, including access to Canada’s labour market, but also contribute to long wait times and significant backlog of cases. Individuals in genuine need of protection currently wait about 19 months for a protection decision, and individuals not in need of protection end up staying in Canada for about four and a half years, on average. To address these challenges, the Minister of Citizenship and Immigration (the Minister) introduced the Balanced Refugee Reform Act in the spring of 2010, followed by the Protecting Canada’s Immigration System Act (Bill C-31) in the winter of 2012. These acts streamline the asylum system to provide for faster processing, by authorizing regulations to set time limits that expedite the processing of certain claims.

Description: To ensure faster processing generally, and more expedited processing for claimants from designated countries in particular, processing time limits, including time limits for submitting a Basis of Claim form and scheduling the hearing at the Refugee Protection Division (RPD) of the IRB, for filing and perfecting an appeal to the Refugee Appeal Division (RAD) and for making a decision on an appeal, are set out in the Immigration and Refugee Protection Regulations. Establishing these processing time limits was necessary in order to ensure that claims are decided quickly, and to create an expedited process for claims made by claimants from a designated country of origin (DCO) relative to other claims.

While the first prepublication of the previous proposed regulatory amendments in the Canada Gazette, Part Ⅰ, on March 19, 2011, included criteria to be taken into account when designating countries, those criteria will now be established by ministerial order. In addition, as a result of the legislative amendments implemented by the Protecting Canada’s Immigration System Act, DCO claimants, claimants whose claims are determined to have no credible basis or to be manifestly unfounded, as well as other categories of claimants, will not have access to the RAD of the IRB. Therefore, the prepublished RAD timelines for those claimants have been eliminated.

To reduce the draw factor associated with access to the Canadian labour market upon filing an asylum claim, access to work permits for DCO claimants is restricted until 180 days have passed with no decision on their application, as per the current regulations.

Cost-benefit statement: The amendments will contribute to the integrity of Canada’s asylum system by deterring unfounded claims through significantly shorter processing time limits and by imposing a bar on work permits for DCO claimants, except in certain circumstances. This will contribute to the overall savings flowing from the Protecting Canada’s Immigration System Act, by ensuring faster processing and faster removals, and therefore ensuring that less time is spent by failed claimants in Canada with access to work permits, welfare and social services, as well as contributing to the deterrence of unfounded claims. A full cost-benefit analysis has been conducted and is available upon request. The analysis indicates that the regulatory amendments will have a positive net impact on each affected party and will result in a net, monetizable benefit of about $92.9M over the 10-year study horizon (2012–2021). All figures are in present value terms and are reflected in 2012 dollars. The anticipated net benefit is largely due to expedited processing and the resulting deterrence of unfounded asylum claims, less the anticipated costs of implementing the Regulations and the bar on work permits for DCO claimants.

“One-for-One” Rule and small business lens: Neither the “One-for-One” Rule nor the small business lens applies to these Regulations.

Business and consumer impacts: The expedited time limits for DCO claimants provide an additional tool for the Government of Canada to use in responding to spikes in asylum claims from countries that are not normally refugee-producing and that have a low acceptance rate at the IRB. These expedited time limits would result in the deterrence of unfounded claims. Currently, such spikes in asylum claims can necessitate more costly options, such as the imposition of visa requirements, which are broader in their application. The imposition of visa requirements can incur costs for Canada, including in the areas of Canada’s tourism industry, business travel between the countries, and diplomatic relations.

Domestic and international coordination and cooperation: Where appropriate, a DCO designation and the expedited time limits associated with that designation could have an impact on considerations related to changes in visa requirements. While the requirements for, and impacts of, DCO designations and the imposition of visa requirements differ, in certain circumstances the expedited time limits associated with the DCO policy could provide an alternative tool to the imposition of visa requirements for responding to spikes in asylum claims from countries with a low acceptance rate at the IRB. This would be well received by the countries concerned.

Background

Currently, a large number of asylum claims, including those from major source countries, are determined to be unfounded at the Immigration Refugee Board (IRB). This has placed pressures on Canada’s asylum system, leading to long wait times and contributing to a significant backlog of claims. As a result, individuals in genuine need of protection currently wait about 19 months for a protection decision, and individuals not in need of protection end up staying in Canada for long periods of time. In fact, these failed claimants have access to multiple layers of recourse, resulting in delays in their removal from Canada. It takes, on average, four and a half years from the initial claim until the removal of a failed asylum claimant and in some cases 10 years or longer. These long wait times, during which claimants have access to work permits and Canada’s labour market, as well as access to social services and welfare, increase the attraction for persons who are not in need of protection to make asylum claims in order to live and work in Canada for many years.

Issue

To address these lengthy processing times, the Minister introduced the Balanced Refugee Reform Act and the Protecting Canada’s Immigration System Act. These acts authorize the making of regulations to set time limits for the purpose of expediting the processing of claims. The purpose of the faster processing time limits, including expedited time limits for DCO claimants, is to reduce pressure on Canada’s asylum system by deterring unfounded claims, thus contributing to a system that is able to provide faster decisions to those who are in need of protection.

Access to work permits and to Canada’s labour market, as well as the associated benefits, can also be considered a factor that encourages the making of unfounded claims.

Objectives

The objective of the expedited processing time limits is to deter people who are not in need of protection from making asylum claims. This is in line with the overall objectives of the Balanced Refugee Reform Act, which include faster decisions on asylum claims, resulting in faster protection for those who need it combined with faster removals of failed claimants. An expedited process and a six-month delay in acquiring a work permit will also act as a deterrent to DCO claimants making unfounded claims in order to be able to remain in Canada for an extended period of time or to seek employment, thus reducing the potential abuse of Canada’s asylum system.

The purpose of restricting access to work permits for DCO claimants is to deter individuals from using the asylum system to gain access to employment in Canada.

The objective of the Regulations is not to restrict access to asylum. All claims will continue to be assessed on the basis of their individual merits at the RPD. Most claimants will be able to appeal the decision before the Refugee Appeal Division (RAD), and all claimants will have the further possibility of seeking judicial review at the Federal Court.

Description

1. Time limits: Time limits for scheduling the first-level hearing, for filing and perfecting an appeal and for making a decision on an appeal would be set out in the Regulations, as follows:

  • (a) The Basis of Claim document (referred to in the Regulations as the required documents and information) must be submitted not later than 15 days after the referral of the claim to the IRB, if the claim is made at a port of entry. If the claim is made at an inland office, the required documents and information will have to be submitted at the time of the eligibility interview. Port of entry claimants will be given an extra 15 days to complete the Basis of Claim, which inland claimants must submit at the time of the eligibility interview.

    The Basis of Claim will replace the current personal information form, which is filled out by asylum claimants and submitted within 28 days. The information required on the Basis of Claim will be outlined in the IRB Rules; the objective remains to gather the information necessary for the IRB to prepare for a hearing.
  • (b) Hearings at the RPD must be scheduled for a date that is not later than 30 days after the claim is referred for inland DCO claimants, not later than 45 days after the claim is referred for port of entry DCO claimants, and not later than 60 days after the claim is referred for non-DCO claimants.

    These time limits have been changed from the original prepublished time limits of 60 days for DCO claimants and 90 days for non-DCO claimants.
  • (c) In the case of all claims entitled to an appeal to the RAD, appeals must be filed no later than 15 calendar days after the claimant or the Minister receives the notice of a decision and the reasons for the decision from the RPD, and appeals must be perfected no later than 30 days after the claimant or the Minister receives the notice of a decision and the reasons for the decision from the RPD.

    (d) A decision on an appeal must be made by the RAD not later than 90 days after the day on which the appeal is perfected. These time limits would not apply where an oral hearing, rather than a paper-based review, is considered to be required.

    This time limit has been changed from the original prepublished time limit of 120 days. In addition, under the Protecting Canada’s Immigration System Act, DCO claimants, claimants whose claims are determined to have no credible basis or to be manifestly unfounded, as well as other categories of claimants, will no longer have access to the RAD. Therefore, time limits for the RAD for these individuals are not required.

The IRB will have the flexibility to extend these time limits to accommodate vulnerable claimants, receive security screenings and clearances, and consider issues of natural justice. The Refugee Protection Division Rules and the Refugee Appeal Division Rules are being developed concurrently with these regulatory amendments and will clarify certain details, including the time accorded for the respondent’s submissions and the appellant’s response.

2. Work permits: The Regulations have been amended to restrict access to work permits for DCO claimants, unless they receive a positive decision on their claim from the RPD, or 180 days have elapsed with no decision on their claim. The work permits that have already been issued will not be revoked, but they will not be extended.

Regulatory and non-regulatory options considered

Including processing time limits in the Regulations is necessary in order to establish an expedited process for DCO claimants. While there may have been an option to establish these time limits in the Refugee Protection Division Rules and the Refugee Appeal Division Rules, it was determined as a matter of government policy that the Regulations would be a more appropriate vehicle for them.

Longer timelines for the processing of asylum claims were considered and prepublished in the Canada Gazette, Part Ⅰ, on March 19, 2011. However, given the large number of asylum claims that are unfounded, particularly from countries that are not normally refugee-producing, shorter time limits have been established.

Benefits and costs

The cost-benefit accounting statement below provides an overview of the benefits and costs of the impact of the proposed Regulations. The total estimated cost for the analysis period (2012–2021) is $82.4M (present value) [PV]. The total benefits are estimated at $175.3M (PV). It is anticipated that the most significant savings would be accrued in 2014, the year after the Regulations are implemented. The majority of these benefits are due to the deterrence of unfounded claimants in the two years following a designation, as these claimants would be subject to expedited processing. As unfounded claims are costly, this would result in significant cost savings for both the federal government and the provincial and territorial governments.

It is estimated that the regulatory amendments would generate a net benefit of $92.9M (PV) during the analysis period.

According to this analysis, the net benefit to provincial and territorial governments is estimated at $71.2M (PV) during the period studied and the net benefit to the federal government is estimated at $21.7M (PV). There would be additional qualitative benefits for the Canadian public, the federal government and positive asylum claimants.

Claimants from a designated country of origin whose claims are rejected, abandoned or withdrawn are expected to bear a cost, which reflects a key goal of these Regulations to deter individuals from making unfounded asylum claims. With no access to work permits and faster processing, these claimants would suffer a loss of income. However, for the purpose of the cost-benefit analysis, only Canadian citizens and Canadian institutions (i.e. businesses, governments and non-governmental organizations), as well as individuals residing in Canada (i.e. permanent residents, temporary residents, refugees in Canada and temporary foreign workers), have standing. As a consequence, while DCO claimants whose claims are rejected, abandoned or withdrawn are expected to be negatively affected, they are considered out of scope.

Cost-benefit statement

Base Year (2012)

Final Year (2021)

Total (PV)

Average Annual

A. Quantified impacts ($)

Benefits

Federal government

0

0.3M

44.6M

4.5M

Provinces and territories

0

10.4M

130.7M

13.1M

Costs

Federal government

0.4M

1.2M

22.9M

2.3M

Provinces and territories

0

5.3M

59.5M

6.0M

Net benefits

92.9M

9.3M

B. Qualitative impacts

Benefits

Canadian public

In addition to ensuring the more efficient use of tax dollars, the proposed reforms are expected to generate increased confidence in the integrity of Canada’s asylum system among Canadians.

Positive claimants (future Canadians)

An incidental benefit would also exist for positive claimants (future Canadians), who would benefit from the expedited timelines as they would have the opportunity to integrate and establish themselves within Canadian society sooner.

There would also be an additional benefit to positive claimants in general, as the proposed Regulations would contribute to the deterrence of unfounded claims, and would thereby help to ensure that resources can be more directly focussed on providing timely decisions to those in need of protection.

Costs

  

All identified costs have been quantified.

“One-for-One” Rule

The “One-for-One” Rule does not apply to these Regulations, as there is no change to administrative costs to business.

Small business lens

The small business lens does not apply to these Regulations, as there are no costs to businesses.

Consultation

During the first prepublication period (Canada Gazette, Part Ⅰ, on March 19, 2011), 17 responses were received from a variety of stakeholders. Stakeholders were concerned that the proposed time limit of 15 business days for filing notice and perfecting an appeal to the RAD was not enough time for claimants to secure counsel, gather additional documentation and prepare the required submission. Some stakeholders expressed concern that the proposed first-level time limits (prepublished as 60 days for DCOs and 90 days for other claimants) would not provide sufficient time for claimants to gather evidence and prepare their claim. The time limits for a first-level hearing are shorter than those prepublished in spring 2011.

During the second prepublication period (Canada Gazette, Part Ⅰ, on August 4, 2012), seven responses were received from stakeholders. Stakeholders expressed concern that the timelines for the Basis of Claim (BOC) submission, RPD hearing, and filing and perfecting an appeal to the RAD were too short. Stakeholders noted that during the 15-day BOC submission time limit, claimants would also need to take care of practical necessities such as finding a place to live and employment, while also potentially needing assistance and interpretation to complete the form. Stakeholders were also concerned that the time limit for the RPD hearing is insufficient to gather documentation and evidence, and that some may need time to disclose traumatic events.

These more expedited time limits were developed in the context of the newest reforms to the in-Canada asylum system that will result in a faster system overall. Expedited time limits are an important component of the new system, and one of the key deterrents to unfounded refugee claims. In recognition that some claimants could legitimately require more time, there will be the flexibility to postpone hearings in appropriate circumstances.

Stakeholders also repeated their concerns that the timeline to file and perfect the appeal is insufficient. In response, the Regulations now require that appeals be filed within 15 calendar days and perfected within 30 calendar days, from the date that the claimant or the Minister receives the notice of a decision and the reasons for the decision from the RPD.

Stakeholders also expressed concern that barring access to work permits for DCO claimants would result in increased reliance on social assistance. Some stakeholders suggested this would result in additional costs to provinces and territories. However, social assistance costs were taken into account in the development of the cost-benefit analysis, and are offset by the overall benefits of the deterrence effect of the Regulations. In addition, under the time limits proposed as part of refugee reform, DCO claimants’ time in the system will be shortened to either 30 or 45 days, minimizing the impact of the bar on work permits on these claimants.

Rationale

As stated above, the Regulations would make an important contribution to the overall objectives of the Balanced Refugee Reform Act and the Protecting Canada’s Immigration System Act, which will ensure faster processing for refugees, faster removals of failed claimants and the deterrence of unfounded claims.

In particular, the time limits are integral to the objective of deterring unfounded claims, as they are necessary in order to ensure expedited processing for DCO claimants. Without these expedited processing time limits, the objective of these policies — to increase efficiency and to deter persons not in need of protection from making asylum claims in Canada, and therefore to guard against the abuse of Canada’s asylum system — could not be met. Restricting access to work permits for DCO claimants would help deter misuse of the asylum system in order to gain access to Canada’s labour market.

Implementation, enforcement and service standards

These Regulations will come into force on the day that section 14.1 of the Balanced Refugee Reform Act comes into force. The new streamlined asylum system also includes legislative transitional rules that will provide for how claims pending at the date of implementation are to be processed.

Claims pending before the RPD at the date of implementation of the new system would not be subject to the expedited processing time limits.

Performance measurement and evaluation

The Regulations will result in clear timeframes for processing and would contribute significantly to the fairness and efficiency of Canada’s asylum system, by ensuring that those who need Canada’s protection are able to receive it quickly, and by quickly removing those who are determined to be not in need, thus deterring abuse of Canada’s asylum system.

An evaluation of the new asylum system will be carried out three years after its implementation under the Balanced Refugee Reform Act and the Protecting Canada’s Immigration System Act. The evaluation will be coordinated by Citizenship and Immigration Canada and will include all partners involved in implementing those acts. It would include a review of the impact of the Regulations on the new asylum system, and an evaluation of the impact of the processing time limits, and the work permit restriction for DCO claimants.

Work is currently underway on developing indicators against which the reforms to the asylum system will be measured. These indicators will be completed in time for the coming into force of the new asylum system. The regulatory amendments would be measured according to a number of indicators — most significantly, the percentage of cases processed by the IRB within the proposed time limits. The level of intake, including acceptance, rejection, abandonment and withdrawal rates, will also be monitored and measured.

Contact

Andre Baril
Director
Asylum Policy and Programs
Refugee Affairs Branch
Citizenship and Immigration Canada
365 Laurier Avenue W
Ottawa, Ontario
K1A 1L1
Email: Andre.Baril@cic.gc.ca