The Harper government imposed a visitor visa requirement on all nationals of Mexico effective 14 July 2009. Defending this decision, the Prime Minister, recently in Mexico, blamed Canada's soft refugee system because it encourages bogus claims from economic migrants. But we all know that the imposition of a visitor visa requirement is a barrier to legitimate business. It is a "blunt instrument" that is a finger in the dyke, a mere band aid directed at a single country that has at best a modest effect on the bigger challenges. It also hurts the free flow of goods and services, in this case with a NAFTA trading partner. Ouch!
Our immigration and refugee intakes have significant implications economically, politically, socially and demographically. It is a big, and growing file. Properly managed, state and individual are beneficiaries. While Canada does have a world-class refugee determination system, reform is sadly needed. There are two main elements which require immediate reform that will both reduce the cost to Canada and the incidence of fraud. Both needed reforms have to do with timeliness. If implemented both will preserve or even restore the integrity of our democratic institutions, and at the same time ease friction with our trading partners, not just Mexico, but around the globe.
Firstly, claimants should expect to have their claims adjudicated promptly, allowing for some reasonable time for preliminary settlement, retaining legal counsel, and marshaling the evidence to prove the genuineness of their cases. Right now, unfortunately, that period of time is often greater than a year, which is far too long. Such an unconscionably long time fuels bogus refugee claimants who feed off the right to work and the right to receive social benefits, including housing, food allowances, education, and health care. Ouch to Canadian tax payers! Genuine claimants, by comparison, want to have their claims heard quickly, and are most often ready to present their case to decision-makers in a period of as short as just 3 months, some arguably less, but 3 months is a good and fair average to aim for.
The second area of reform that is long overdue has to do with what happens after a refugee claim is refused. Everyone is in agreement that failed refugee claimants should be promptly removed from Canada, subject to a right of appeal or re-determination in deserving cases by an independent judicial or quasi-judicial body. Right now, failed refugee claimants are often still in Canada for many years after their cases have been rejected. The Canada Border Services Agency says they do not have the resources to find and remove the estimated 200,000 or so "undocumented" persons. Many of these often have the lawful right to work, to receive social benefits, and, not surprisingly with the passage of time, become more and more integrated into Canadian society making it more difficult for compassionate officers to remove them. This is of course understandable and just, but would not be an indirect result if refugee claims were disposed of more promptly.
All of this to say that making legitimate business in one of our NAFTA trade partners pay for overdue refugee reforms is wrong policy, but it does create clever headlines that will pay political dividends for the Harper government. The Liberals never achieved progress on the refugee reform file. On July 19th Citizenship and Immigration Minister Jason Kenney gave notice to "stay tuned", as reforms to the refugee determination system would be announced soon.
The Prime Minister's Office has just said that Canadian government officials at our Embassy in Mexico City issued 15,000 visas in the first two weeks of the visa requirement. Wow! That's a lot of travelers, and that's a lot of business and tourism. At C$75 per visa, that's also a lot of revenue in just two weeks.
While reform is needed and on its way, there are limitations to what the Minister and the Harper government are able to do. Our Supreme Court determined decades ago that refugee claimants have the constitutional right to have their cases determined by an oral hearing. Moreover, they have the right to legal counsel. What this means is that cases cannot be refused without an oral hearing and without legal counsel. So the obviously strong cases can and perhaps should be promptly accepted by skilled officers who are familiar with the application of the 1951 UN Convention on Refugee Status as well as the conditions in refugee-producing countries. No oral hearing required, but the right to legal counsel must be honored as a cornerstone of our fair, democratic society. This reduces cost and encourages certainty and settlement for the obviously strong cases, both noble goals.
The cases that are less obvious need to have an oral hearing, without prejudice and record from the first-level officer review. Claimants are understandably under duress and usually have no reason to trust government officers anywhere, most having come from countries where bribery, deceit, and unfair practices permeate the public service. So they will not instinctually or otherwise trust Canadian officials, and we should not expect that they will. This is the reason that legal counsel is needed to persuade the claimant to be thorough, accurate and truthful in their disclosures.
In 2002, our immigration and refugee laws were overhauled in a sweeping and comprehensive way. The then Liberal government trumpeted the reforms as transparent leading to a modern, efficient system. In the new laws, provision was made for a Refugee Appeal Division that would most efficiently deal with failed refugee claims, thereby reducing the cost and the backlog in the Federal Court. The Liberals, however, chose not to implement the Refugee Appeal Division, stating that it was because of the large number of outstanding claims and the "difficulties" relating to its implementation. When the Liberals lost power in 2006, the number of outstanding refugee claims was some 23,000. The Conservatives, who took power in 2006, have also not yet implemented the refugee reform, including the Refugee Appeal Division. The number of outstanding refugee claims has now ballooned to about 65,000. Maybe something like the Refugee Appeal Division is coming soon. Minister Kenney has been quoted just last month as saying that he and his government colleagues are open to the idea.
The environment for action is now ripe for reform. It costs Canada too much to have huge inventories of undetermined refugee claims and immigration applications. At the same time the unconscionable delays have festered to the point of creating incentives for queue-jumpers and bogus cases. We need strong leadership, and thoughtful reforms, that preserve integrity, run efficiently, reduce the burden on taxpayers, and protect the genuine persons fleeing persecution.
Warren L. Creates, B.A., LL.B. is a certified specialist in Citizenship and Immigration Law, and has practised in this field for 23 years. He was formerly a federal government immigration lawyer, having been in-house legal counsel to the Immigration and Refugee Board. He is the Head of the Immigration Law Group at the law firm of Perley-Robertson, Hill and McDougall LLP located in the nation's capital city, Ottawa. He may be reached at (613) 566-2839; or at firstname.lastname@example.org.
This article was originally published in the December 2009 edition of the Ottawa Business Journal.