The Harper government imposed a visitor visa requirement on all\u00a0nationals of\u00a0Mexico effective 14 July 2009.\u00a0 Defending this decision, the Prime Minister, recently in Mexico, blamed Canada’s\u00a0soft refugee system because it encourages bogus claims from economic migrants.\u00a0 But we all know that the imposition of a visitor visa requirement is a barrier to legitimate business.\u00a0 It is\u00a0a \u00ab\u00a0blunt instrument\u00a0\u00bb that is a finger in the dyke, a mere band aid directed at a single country\u00a0that 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.\u00a0 Ouch!<\/p>\n
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.\u00a0 There are two main elements which require immediate reform that will both reduce the cost to Canada and\u00a0the incidence of fraud.\u00a0 Both needed reforms have to do with timeliness.\u00a0 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\u00a0around the globe.<\/p>\n
Firstly, claimants should expect to have their claims adjudicated promptly, allowing for some reasonable time for\u00a0preliminary settlement, retaining legal counsel, and marshaling the evidence to prove the genuineness of their cases.\u00a0 Right now, unfortunately,\u00a0that period of time is often greater than a year, which is far too long.\u00a0\u00a0Such an unconscionably long time fuels bogus refugee claimants who feed off the right to work and the right to\u00a0receive social benefits, including housing, food allowances, education, and health care.\u00a0 Ouch to\u00a0Canadian tax payers!\u00a0 Genuine claimants, by comparison,\u00a0want 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.<\/p>\n
The second area of reform that is long overdue has to do with what happens after a refugee claim is refused.\u00a0 Everyone is in agreement that failed refugee claimants should be promptly removed from Canada, subject to\u00a0a right of appeal or re-determination in deserving cases by an independent judicial or quasi-judicial body.\u00a0 Right now, failed refugee claimants are often still in Canada for many years after their cases have been rejected.\u00a0The Canada Border Services Agency says they do not have the resources to find and remove the estimated 200,000 or so \u00ab\u00a0undocumented\u00a0\u00bb persons.\u00a0\u00a0Many of these often\u00a0have the lawful right to work, to\u00a0receive social benefits, and,\u00a0not surprisingly with the passage of time, become more and more integrated into Canadian society making it more difficult for compassionate officers to remove them.\u00a0 This is of course understandable and just, but would not be an indirect result if refugee claims were disposed of more promptly.<\/p>\n
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.\u00a0 The Liberals never achieved progress on the refugee reform file.\u00a0 On July\u00a019th Citizenship and Immigration Minister Jason Kenney gave notice to \u00ab\u00a0stay tuned\u00a0\u00bb, as reforms to the refugee determination system would be announced soon.<\/p>\n
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.\u00a0 Wow!\u00a0 That’s a lot of travelers, and that’s a lot of business and tourism.\u00a0 At C$75 per visa, that’s also a lot of revenue in just two weeks.<\/p>\n
While reform is needed and on its way, there are limitations to what the Minister and the Harper government are able to do.\u00a0 Our Supreme Court determined decades ago that refugee claimants have the constitutional\u00a0right to have their cases determined by an oral hearing.\u00a0 Moreover, they have\u00a0the right to legal counsel.\u00a0 What this means is that cases cannot be refused without an oral hearing\u00a0and without legal counsel.\u00a0 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\u00a0as well as the\u00a0conditions in refugee-producing countries.\u00a0 No oral hearing required, but the right to legal counsel must be honored as a cornerstone\u00a0of our fair, democratic society.\u00a0 This reduces cost and encourages certainty and settlement for the obviously strong cases, both noble goals.<\/p>\n
The cases that are less obvious need to have an oral hearing, without prejudice and record from the first-level officer review.\u00a0 Claimants\u00a0are 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.\u00a0So they will not instinctually or otherwise trust Canadian officials, and we should not expect that they will.\u00a0 This is the reason that legal counsel\u00a0is needed to persuade the claimant to be thorough, accurate and truthful in their disclosures.<\/p>\n
In 2002, our immigration and refugee laws were overhauled in a sweeping and comprehensive way.\u00a0 The then Liberal government trumpeted the reforms as transparent leading to a modern, efficient system.\u00a0 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.\u00a0 The Liberals, however,\u00a0chose not to implement the Refugee Appeal Division, stating that it was because of the large number of outstanding claims and the \u00ab\u00a0difficulties\u00a0\u00bb relating to its implementation.\u00a0 When the Liberals lost power in 2006, the number of outstanding refugee claims was some 23,000.\u00a0 The Conservatives, who took power in 2006, have also not yet implemented the refugee reform, including the Refugee Appeal Division.\u00a0 The number of outstanding refugee claims\u00a0has now ballooned\u00a0to about\u00a065,000.\u00a0 Maybe something like the Refugee Appeal Division\u00a0is coming soon.\u00a0 Minister Kenney has been quoted just last month as saying that he and his government colleagues are open to the idea.<\/p>\n
The environment for action is now ripe for reform.\u00a0 It costs Canada too much to have huge inventories of undetermined refugee claims and immigration applications.\u00a0 At the same time the unconscionable delays have festered to the point of creating incentives for queue-jumpers and bogus cases.\u00a0 We need strong leadership, and thoughtful reforms, that preserve integrity, run efficiently, reduce the burden on taxpayers, and protect the genuine persons fleeing persecution.<\/p>\n
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.\u00a0 He was formerly a federal government immigration lawyer, having been in-house legal counsel to the Immigration and Refugee Board.\u00a0 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 wcreates@perlaw.ca<\/a>.<\/em><\/p>\n This article was originally published in the December 2009 edition of the Ottawa Business Journal.<\/em><\/p>\n","protected":false},"excerpt":{"rendered":" The Harper government imposed a visitor visa requirement on all\u00a0nationals of\u00a0Mexico effective 14 July 2009.\u00a0 Defending this decision, the Prime Minister, recently in Mexico, blamed Canada’s\u00a0soft refugee system because it encourages bogus claims from economic migrants.\u00a0 But we all know that the imposition of a visitor visa requirement is a barrier to legitimate business.\u00a0 It […]<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"wds_primary_category":0,"wds_primary_expertise_area":0,"footnotes":""},"categories":[82],"tags":[],"class_list":["post-1629","post","type-post","status-publish","format-standard","hentry","category-publication","expertise_area-business-law","expertise_area-immigration","expertise_area-personal-immigration","expertise_area-immigration-litigation","expertise_area-litigation","expertise_area-personal-legal-needs"],"acf":[],"_links":{"self":[{"href":"https:\/\/perlaw.ca\/fr\/wp-json\/wp\/v2\/posts\/1629","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/perlaw.ca\/fr\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/perlaw.ca\/fr\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/perlaw.ca\/fr\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/perlaw.ca\/fr\/wp-json\/wp\/v2\/comments?post=1629"}],"version-history":[{"count":2,"href":"https:\/\/perlaw.ca\/fr\/wp-json\/wp\/v2\/posts\/1629\/revisions"}],"predecessor-version":[{"id":2963,"href":"https:\/\/perlaw.ca\/fr\/wp-json\/wp\/v2\/posts\/1629\/revisions\/2963"}],"wp:attachment":[{"href":"https:\/\/perlaw.ca\/fr\/wp-json\/wp\/v2\/media?parent=1629"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/perlaw.ca\/fr\/wp-json\/wp\/v2\/categories?post=1629"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/perlaw.ca\/fr\/wp-json\/wp\/v2\/tags?post=1629"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}