-Preventing Human Smugglers from Abusing Canada’s Immigration System Act
-Ministers Toews and Kenney discuss Preventing Human Smugglers from Abusing Canada’s Immigration System Act
-Harper Government Introduces Preventing Human Smugglers from Abusing Canada’s Immigration System Act
-Backgrounders 1…Overview: Ending the Abuse of Canada’s Immigration System by Human Smugglers
-Backgrounders 2…Special Advisor on Human Smuggling and Illegal Migration
-Backgrounders 3…Canada’s Generous Program for Refugee Resettlement Is Undermined by Human Smugglers Who Abuse Canada’s Immigration System
-Backgrounders 4…Designating Human Smuggling Events
-Backgrounders 5…Tougher Penalties for Ship Owners and Operators who use their Ships for Human Smuggling
-Backgrounders 6…Better Tools to Successfully Prosecute and Impose Mandatory Prison Sentences on Human Smugglers
-Backgrounders 7…Deterring Individuals from Coming to Canada as part of a Human Smuggling Operation
-Backgrounders 8…Protecting our Streets and Communities from Criminal and National Security Threats
-Backgrounders 9…Revoking status of refugee fraudsters who return to their country of origin
-Karygiannis expresses serious concerns over new anti-human smuggling bill
Ministers Toews and Kenney discuss Preventing Human Smugglers from Abusing Canada’s Immigration System Act
TORONTO, October 22, 2010 — Today, the Honourable Vic Toews, Minister of Public Safety, and the Honourable Jason Kenney, Minister of Citizenship, Immigration and Multiculturalism, discussed Preventing Human Smugglers from Abusing Canada’s Immigration System Act, the Harper Government’s commitment to crack down on human smugglers who seek to abuse Canada’s immigration system.
“Yesterday our Government announced important legislation that sends a clear message to human smugglers: Canada will not tolerate them,” said Minister Toews. “Through this legislation, we are cracking down on human smugglers, protecting the safety and security of our communities, and helping to ensure the integrity of Canada’s generous immigration system.”
The Preventing Human Smugglers from Abusing Canada’s Immigration System Act will ensure law enforcement have the tools they need to crack down on human smugglers. The new measures in the proposed legislation include:
· Making it easier to prosecute human smugglers;
· Imposing mandatory prison sentences on convicted human smugglers; and
· Holding ship owners and operators to account for use of their ships in human smuggling operations.
“The Government of Canada is committed to protecting the integrity of our immigration and refugee system,” said Minister Kenney. “Canada is a fair, generous and welcoming country for those who want to work for a better life — but there are legal and legitimate ways that must be followed in order to do so.”
The Act will also help to ensure the safety and security of Canadian communities by:
Ensuring mandatory detention of illegal migrants for up to one year to allow for the determination of identity, inadmissibility and illegal activity.
The Preventing Human Smugglers from Abusing Canada’s Immigration System Act also contains numerous measures to deter individuals from using human smugglers to come to Canada. Included are the following deterrence measures that would specifically apply to illegal migrants who come to Canada by way of a human smuggling operation:
Seeking to ensure that illegal migrants who obtain refugee status can be re-assessed within five years to determine whether they still need protection or can be returned to their country of origin;
Ensuring that the health benefits the illegal migrants receive are not more generous than those received by the Canadian public from the government;
Ensuring that refugee or refugee applicants who were illegal migrants are not able to come back to Canada if they return to the country from which they sought refuge, or if they demonstrate in other ways that they are not legitimately in need of Canada’s protection; and
Preventing illegal migrants from sponsoring family members for five years.
In addition, Prime Minister Stephen Harper has appointed a Special Advisor on Human Smuggling and Illegal Migration, Mr. Ward P.D. Elcock, as part of the Government’s efforts to strengthen Canada’s ability to detect human smuggling operations overseas and prevent them from reaching Canada. The Special Advisor will advance Canada’s engagement with governments in source and transit countries, partner states and in regional and/or international fora which address human smuggling.
Harper Government Introduces Preventing Human Smugglers from Abusing Canada’s Immigration System Act
VANCOUVER, October 21, 2010 — Today, the Harper Government is delivering on its commitment to crack down on human smugglers who seek to abuse Canada’s immigration system. Speaking in front of the illegal migrant vessel, the Ocean Lady in Vancouver, the Honourable Vic Toews, Minister of Public Safety, and the Honourable Jason Kenney, Minister of Citizenship, Immigration and Multiculturalism introduced legislation that would strengthen Canada’s ability to prosecute human smugglers, deter those that seek to jump the queue, prevent human smuggling operations before they leave for Canada and maintain the integrity and fairness of our immigration system.
“Our Government is taking action to prevent the abuse of Canada’s immigration system by human smugglers,” said Minister Toews. “The legislation introduced today will send a clear message: Canada opens its doors to those who work hard and play by the rules while cracking down on those who seek to take advantage of our generosity and abuse our fair and welcoming immigration system.”
The Preventing Human Smugglers from Abusing Canada’s Immigration System Act will ensure law enforcement have the tools they need to crack down on human smugglers. The new measures in the proposed legislation include:
· Making it easier to prosecute human smugglers;
· Imposing mandatory prison sentences on convicted human smugglers; and
· Holding ship owners and operators to account for use of their ships in human smuggling operations.
The Act will also help to ensure the safety and security of Canadian communities by:
Ensuring mandatory detention of illegal migrants for up to one year to allow for the determination of identity, inadmissibility and illegal activity.
“The measures we introduced today send a clear message to individuals overseas thinking about smuggling people and to those people thinking about using human smugglers – don’t do it,” said Minister Kenney. “This action will help to prevent the abuse of Canada’s immigration system by human smugglers, while allowing us to continue offering protection to the world’s most vulnerable.”
The Preventing Human Smugglers from Abusing Canada’s Immigration System Act also contains numerous measures to deter individuals from using human smugglers to come to Canada. Included are the following deterrence measures that would specifically apply to illegal migrants who come to Canada by way of a human smuggling operation:
Seeking to ensure that illegal migrants who obtain refugee status can be re-assessed within five years to determine whether they still need protection or can be returned to their country of origin;
Ensuring that the health benefits the illegal migrants receive are not more generous than those received by the Canadian public from the government;
Ensuring that refugee or refugee applicants who were illegal migrants are not able to come back to Canada if they return to the country from which they sought refuge, or if they demonstrate in other ways that they are not legitimately in need of Canada’s protection; and
Preventing illegal migrants from sponsoring family members for five years.
In addition, Prime Minister Stephen Harper is appointing a Special Advisor on Human Smuggling and Illegal Migration, Mr. Ward P.D. Elcock, as part of the Government’s efforts to strengthen Canada’s ability to detect human smuggling operations overseas and prevent them from reaching Canada. The Special Advisor will advance Canada’s engagement with governments in source and transit countries, partner states and in regional and/or international fora which address human smuggling.
The Preventing Human Smugglers from Abusing Canada’s Immigration System Act and backgrounders can be consulted at www.publicsafety.gc.ca.
Backgrounder 1…Overview: Ending the Abuse of Canada’s Immigration System by Human Smugglers
Human smuggling is a criminal enterprise that spans the globe. Human smugglers facilitate, for a profit, individuals entering Canada illegally. By charging people large sums of money for their transportation, human smugglers have made a lucrative business out of facilitating illegal migration, often by counselling smuggled persons to claim asylum in the country to which they are smuggled. Human smuggling can take place in many forms, including by boat.
In particular, the human smuggling networks in Southeast Asia are large and growing. One smuggling vessel that reached Canada from Southeast Asia, the Ocean Lady, had a history of smuggling cocaine, explosives, and weapons as cargo. The fact that two human smuggling vessels reached Canada in the last 12 months alone is proof of the reach and capability of these human smuggling organizations. It is clear that human smugglers are targeting Canada.
Human smuggling undermines Canada’s security. Large scale arrivals make it difficult to properly investigate whether those who arrive, including the smugglers themselves, pose risks to Canada on the basis of either criminality or national security.
Supporters of the status quo believe Canada has a humanitarian imperative to treat human smuggling and illegal migration as an acceptable way for immigrants or refugees to come to Canada. They ignore that human smuggling isn’t just a profitable business; it’s also a dangerous and exploitative one.
Under the Preventing Human Smugglers from Abusing Canada’s Immigration System Act, our government is cracking down on human smugglers by:
· Enabling the Minister of Public Safety to declare the existence of a human smuggling event, and make those involved subject to the Act’s measures;
· Making it easier to prosecute human smugglers;
· Imposing mandatory minimum prison sentences on convicted smugglers; and
· Holding ship owners and operators to account for use of their ships in human smuggling operations.
Under the Act, our government is ensuring the safety and security of our streets and communities by:
Establishing the mandatory detention of participants for up to one year, or until a positive decision by the Immigration and Refugee Board, whichever comes sooner, in order to allow for the determination of identity, admissibility and illegal activity;
Under the Act, our government is also reducing the attraction of coming to Canada by way of an illegal human smuggling operation including by:
· Preventing those who come to Canada as part of a human smuggling event from applying for permanent resident status for a period of five years, should they successfully obtain for refugee status; and
· Preventing individuals from sponsoring family members for five years.
Furthermore, our government is also reducing the attraction of coming to Canada by way of an illegal human smuggling operation by:
· Ensuring the health benefits participants receive are not more generous than those received by the Canadian public by the government; and
· Enhancing the ability to terminate the protected person status of those who return to their country of origin for a vacation or demonstrate in other ways that they are not in legitimate need of Canada’s protection.
In addition, our Government is detecting and deterring human smuggling overseas through:
· Appointing a Special Advisor on Human Smuggling and Illegal Migration; and
· Increasing the presence overseas through operational activities, diplomatic outreach, partnership with other affected nations, and engagement of multilateral bodies like the UNHCR.
Additional information:
Trafficking in Persons (Justice Canada)
CBSA Migrant Vessel Arrivals – Roles and Responsibilities
Backgrounder 2…Special Advisor on Human Smuggling and Illegal Migration
The Prime Minister has appointed Mr. Ward P.D. Elcock as Special Advisor on Human Smuggling and Illegal Migration.
The overall mandate of the Special Advisor is to coordinate a whole-of-government response to human smuggling. Mr. Elcock will provide advice and recommendations to Ministers and the National Security Advisor to the Prime Minister in terms of advancing Canada’s strategy to combat human smuggling and illegal migration.
In addition to working with partners here at home, Mr. Elcock will also work with key international partners to promote international cooperation on this serious issue – putting a particular focus on human smuggling operations that occur by sea.
The appointment is part of the Government’s efforts to strengthen Canada’s ability to detect human smuggling operations overseas and prevent them from reaching Canada. The Special Advisor will advance Canada’s engagement with governments in source and transit countries, as well as Canada’s engagement in regional and/or international fora which address migrant smuggling.
Mr. Elcock, a career public servant, most recently served as the federal Coordinator of Olympic and G8/G20 Security (2010), where he was responsible for providing an integrated federal approach to security for the Vancouver 2010 Games as well as the back-to-back G8 and G20 summits. He is a former Deputy Minister of National Defence and has also served as Director of the Canadian Security Intelligence Service.
Reporting to the National Security Advisor to the Prime Minister, the Special Advisor will be supported by a small office housed within the Privy Council Office.
Backgrounder 3…Canada’s Generous Program for Refugee Resettlement Is Undermined by Human Smugglers Who Abuse Canada’s Immigration System
Canada’s refugee resettlement program is one of the most generous in the developed world. Each year, Canada resettles 10,000 to 12,000 refugees through its government-assisted and privately sponsored refugee programs. Globally, countries with resettlement programs resettle about 100,000 refugees from abroad each year, which means that Canada takes 1 out of every 10 refugees resettled. These refugees often spend many years – sometimes decades – in squalid refugee camps or urban slums in order to escape to Canada. Patiently they wait for the chance to immigrate to Canada legally.
As of October 2, 2010, there were more than 42,000 applications for refugee resettlement waiting in Canadian immigration offices around the world. Each of these applications represents a person or a family waiting patiently and legally in the refugee queue to come to Canada. These refugees choose to wait for the chance to come to Canada legally, rather than pay human smugglers to help them jump the queue. The Government of Canada appreciates their respect for our laws. In the fullness of time, that patience will be rewarded for many with a letter from Citizenship and Immigration Canada welcoming them to the Canadian family.
It is unfair to those seeking to come to Canada through legitimate, legal means when others pay human smugglers to help jump our immigration queue. When this happens, Canada’s immigration system becomes less fair, and less balanced.
With the passage of the Balanced Refugee Reform Act, Canada will be increasing the number of refugees resettled from abroad by 20%, or about 2,500 each year. The Government-Assisted Refugees Program, under which the United Nations High Commissioner for Refugees refers refugees to Canada for resettlement, will be expanded by 500 refugees. In addition, a further 2,000 resettlement places are being added to the Private Sponsorship of Refugees Program. These increases will bring the number of refugees resettled annually to as many as 14,500. Canada’s program for refugees to resettle here legally went from being one of the most generous in the world, to being even more generous.
Canada is a global leader in resettlement. For example, Canada was the first country to resettle Rohingya from Bangladesh and has now welcomed close to 300 refugees. In addition, Canada has resettled more than 3,900 Karen from Thailand and we are in the process of resettling up to 5,000 Bhutanese refugees from Nepal. These refugees have followed the rules.
In 2009, in response to the ongoing situation in Iraq and requests from the United Nations High Commissioner for Refugees, Canada more than doubled the number of resettled refugees it is welcoming through the mission in Damascus, where most Iraqi refugees apply. As a result, Canada resettled 1,418 Iraqi refugees through the government-assisted program and 2,426 more through the private sponsorship program last year. An additional 708 Iraqi refugees have been resettled to Canada in the first quarter of 2010. These refugees have followed the rules.
In addition, 30 years ago, thanks to the outpouring of support from Canadians, the Private Sponsorship of Refugees came into being as we welcomed more than 60,000 refugees from Vietnam, Laos and Cambodia who were fleeing international Communism. These refugees also followed the rules. More recently, Canada welcomed the remaining Vietnamese who had been living in the Philippines without status since the late 1970s, based on humanitarian and compassionate grounds.
In total, through the private sponsorship program, Canada has welcomed more than 200,000 refugees from all over the world, over and above the number of refugees resettled through the Government-Assisted Refugees Program. All of these individuals who immigrated to Canada through our resettlement programs waited patiently in the queue for the chance to come to Canada legally.
Our Government will stand up for these refugees’ rights to be processed in a fair and orderly fashion, consistent with our laws and values – and not allow human smuggling operations to jump to the front of our immigration queue.
Backgrounder 4…Designating Human Smuggling Events
To combat human smugglers and prevent the abuse of Canada’s immigration system, stronger laws and deterrence measures than what currently exist are required. By conferring a special legal status on a human smuggling operation, these tougher measures can be applied to all those who have participated in that operation.
Under the proposed Preventing Human Smugglers from Abusing Canada’s Immigration System Act, the Minister of Public Safety could designate the arrival of a group of individuals who entered or attempted to enter Canada in a manner that runs contrary to Canada’s immigration laws as a human smuggling event
The conditions for designating a human smuggling event are:
The Minister may, by order, having regard to the public interest, designate the arrival of a group of persons in Canada as an irregular arrival if he or she:
· is of the opinion that examinations relating to identity and admissibility of the persons involved in the arrival, and other investigations, cannot be conducted in a timely manner; or
· has reasonable grounds to suspect that the arrival involves organized human smuggling activity for profit, or in support of a criminal organization, or terrorist group.
Individuals who arrive as part of a designated human smuggling event would be subject to different detention rules and processing at the Immigration and Refugee Board, restrictions on permanent residence, travel and family sponsorship, and government-provided health coverage that is no better than that which is made available to the Canadian public.
The Preventing Human Smugglers from Abusing Canada’s Immigration System Act will help to end the abuse of Canada’s immigration system by human smugglers. It will ensure the integrity and fairness of Canada’s immigration system, the security of Canada’s shores, and ensure that those who apply to come to Canada legitimately and play by the rules are not penalized by those who try to jump the queue.
Backgrounder 5…Tougher Penalties for Ship Owners and Operators who use their Ships for Human Smuggling
The Marine Transportation Security Act (MTSA) provides the Minister of Transport with the authority to put in place measures to protect the security of the marine transportation system. Since its enactment in 1994, the international security environment has changed significantly, particularly in the wake of the events of September 11, 2001.
To help ensure that Canada’s national security interests remain protected, and in response to more recent events such as the arrival of the vessels Sun Sea and Ocean Lady on Canada’s shores, the Government of Canada is introducing the Preventing Human Smugglers from Abusing Canada’s Immigration System Act to end the abuse of Canada’s immigration system by human smugglers. As part of this overall action to combat human smuggling, the Harper Government is proposing changes to the Marine Transportation Security Act.
Under the current Marine Transportation Security Act regime, certain type and size vessels bound for Canada must file pre-arrival information at a certain time before arriving in Canadian waters, depending on the length of the voyage. The proposed amendments to the Marine Transportation Security Act would see an increase in penalties for individuals who fail to file this information.
As well, the MTSA currently provides the Minister of Transport with the authority to direct any vessel to not enter, leave, or travel to another area in Canadians waters when there are reasonable grounds to believe the vessel may pose a security threat. Another proposed amendment would ensure stiffer penalties for individuals and corporations who fail to comply with a Ministerial direction. This proposed amendment also introduces the concept of subsequent offences. In other words, there are even higher fines for a repeat offender.
The proposed amendments to the Marine Transportation Security Act would also include stiffer penalties for failing to report required pre-arrival information before the vessel enters Canadian waters and an increase in penalties for individuals and corporations who fail to comply with Ministerial direction or who provide false or misleading information. In addition, the Crown will also be able to proceed by indictment if such information is not provided.
In addition, the proposed amendments to the Marine Transportation Security Act would also provide for higher fines for subsequent offences, and vessels would be subject to the same fine amounts as individuals.
Additionally, the proposed amendments would see a new regulation making an authority provision under the MTSA that would enhance the Department or Transport’s ability to share information on vessels of interest with federal departments and agencies that have mandates to ensure the safety or security of Canada or Canadians.
Marine security is an important component of overall transportation security. The Government of Canada, including Transport Canada, is committed to working with its partners, to ensure that Canada’s marine transportation system remains one of the safest and most secure in the world.
Proposed Enhanced Penalties and Information Sharing under the Marine Transportation Security Act
Below are tables outlining the proposed amendments to the Marine Transportation Security Act as part of the action surrounding the Preventing Human Smugglers from Abusing Canada’s Immigration System Act.
Failure to File Pre-Arrival Information
Under current regime
Under proposed amendments
On conviction of indictment:
Individual
N/A
A fine not exceeding $75,000 and/or a prison term not exceeding one year
On summary conviction:
Individual
A fine not exceeding $5,000 and/or a prison term not exceeding six months
A fine not exceeding $50,000 and/or a prison term not exceeding six months
Failure to Comply with Ministerial Direction
Under current regime
Under proposed amendments
On conviction of indictment:
Individual
A fine not exceeding $10,000 and/or to a prison term not exceeding one year
A fine not exceeding $200,000 and/or a prison term not exceeding one year, and for any subsequent offence, to a fine of not more than $500,000 and/or imprisonment for a term of not more than two years
Corporation
A fine not exceeding $200,000
A fine not exceeding $500,000, and for any subsequent offence, a fine of not more than $1,000,000
On summary conviction:
Individual
A fine not exceeding $5,000 and/or to imprisonment not exceeding six months
A fine up to $100,000 and/or a prison term not exceeding six months, and for any subsequent offence, a fine of up to $200,000 and/or imprisonment for a term of not more than one year
Corporation
A fine not exceeding $100,000
A fine not exceeding $250,000 and for any subsequent offence, a fine of up to $500,000.
Vessel
N/A
A fine not exceeding $100,000, and for any subsequent offence to a fine of not more than $200,000
Providing False or Misleading Information
Under current regime
Under proposed amendments
On conviction of indictment:
Individual
A fine up to $10,000 and/or up to a year in jail
A fine up to $200,000 and/or up to 6 months in jail and a fine up to $500,000 and/or up to a year in jail for any subsequent offences
Corporation
A fine up to $200,000
A fine up to $500,000 and a fine up to $1,000,000 for any subsequent offences
On summary conviction:
Individual
A fine up to $5,000 and/or up to 6 months in jail
A fine up to $100,000 and/or up to 6 months in jail and a fine up to $200,000 and/or up to a year in jail for any subsequent offences
Corporation
A fine up to $100,000
A fine up to $250,000 and up to $500,000 fine for any subsequent offences
Backgrounder 6…Better Tools to Successfully Prosecute and Impose Mandatory Prison Sentences on Human Smugglers
Human smuggling is a criminal enterprise that spans the globe. It involves organizing the illegal entry of persons into a country in order to receive a financial or other material benefit. Human smuggling is big business, generating significant profits for sophisticated criminal organizations and others who engage in this crime and abuse Immigration systems designed to help those in genuine need.
The Immigration and Refugee Protection Act (IRPA) already contains stiff penalties for human smuggling: fines up to $1 million and up to life imprisonment for smuggling 10 or more people. Yet by strengthening the current legislation, law enforcement and prosecutors would have an enhanced ability to more effectively investigate and prosecute human smugglers.
The proposed changes in the Preventing Human Smugglers from Abusing Canada’s Immigration System Act would strengthen the criminal law’s responses to human smuggling, better protect the integrity of Canada’s refugee system, and enhance the ability of law-enforcement and prosecutors to effectively investigate and prosecute human smugglers.
Under the proposed legislative changes, provisions related to human smuggling would be broadened to better capture the different ways that the crime of smuggling occurs and to make it easier to prove that the offence was committed.
Currently, the ability to prosecute for human smuggling requires proof that the accused knew that the individuals who were being smuggled did not possess the documents lawfully required to enter Canada.
The proposed amendments would expand the scope of the ability to prosecute for human smuggling to include ANY violation of IRPA. For example, this would include the act of bringing people into Canada in a way that avoids their presenting themselves for examination, as required by the Act. In addition, the proposed amendments would include the additional element of recklessness into the offence. This would mean that a prosecutor could prove this offence of human smuggling had occurred by demonstrating that the accused was aware (but didn’t know with certainty) of the substantial risk that the smuggled person was or would be entering Canada illegally, but simply didn’t care.
The amendments also provide for escalating mandatory prison sentences for persons convicted of smuggling, reflecting the Government’s intention to more effectively deter and denounce this criminal activity. Under the proposed legislation, the number of people smuggled and the presence of aggravating factors would determine which mandatory prison sentence would be imposed upon conviction.
The two aggravating factors are:
The offence was committed for profit or for the benefit of, at the direction of, or in association with, a criminal organization; and
The person, in committing the offence endangered the life or safety, or cause bodily harm or death to, any of the persons smuggled.
The mandatory prison sentences would be, where less than 50 persons are smuggled:
3 years imprisonment if one of the above aggravating factors was present.
5 years imprisonment if two of the above aggravating factors were present.
The mandatory prison sentences would be, where 50 or more persons are smuggled:
5 years imprisonment if one of the above aggravating factors was present.
10 years imprisonment if two of the above aggravating factors were present.
The proposed amendments in the Preventing Human Smugglers from Abusing Canada’s Immigration System Act would further ensure that the definition of “criminal organization” used for criminal law purposes in the current law is consistent with the definition used in the Criminal Code.
An additional aggravating factor, namely, whether the life or safety of any person was endangered by the offender during the commission of the offence, will also be added to s. 121 of IRPA.
Lastly, the amendments would expand the limitation period for summary conviction offences to five years, from the current six months.
Backgrounder 7…Deterring Individuals from Coming to Canada as part of a Human Smuggling Operation
Cracking down on Human Smugglers who Abuse Canada’s
Immigration System
While Canada has a proud history and tradition of welcoming immigrants who wish to start a new life here, Canada’s generous immigration system has become a target for human smuggling operations. We must take action to end the abuse of Canada’s immigration system by human smugglers.
To do so, we must have laws and measures in place that will deter and prevent these operations.
Under the Preventing Human Smugglers from Abusing Canada’s Immigration System Act, individuals who illegally enter Canada as part of a human smuggling operation will face the following action:
· If an individual is successful in obtaining refugee or protected person status, they can be re-assessed within five years to determine whether they still need protection or can be returned to their country of origin. During this five year period:
o the individual would be restricted from travelling outside of Canada and would not be able to apply to immigrate to Canada through other means. As a result, they would not be eligible to sponsor family members into Canada or become Canadian citizens, and
o the Minister of Citizenship and Immigration may apply to have their continued need for protection reassessed if conditions change in their country of origin;
· If an individual is unsuccessful in obtaining refugee or protected person status, they would not have access to an appeal at the Immigration and Refugee Board, could be removed from Canada, and would be barred from applying to immigrate to Canada through other means for a five-year period; and
· The individual would not have access to a health and benefits package that is more generous than what Canadians receive from the government.
Processing at the Immigration and Refugee Board
Under the Preventing Human Smugglers from Abusing Canada’s Immigration System Act, those who arrive via a human smuggling operation would have access to only a hearing at the Refugee Protection Division of the Immigration and Refugee Board. In the event of a negative decision, they would be ineligible for an appeal to the new Refugee Appeal Division. While they could apply to the Federal Court for judicial review of this decision, they would not benefit from an automatic stay of removal from Canada while this application was being considered.
The provision for ineligibility to appeal to the Refugee Appeal Division (RAD) would come into effect once the legislation outlining in the RAD comes into force, or once the RAD is established.
Limited benefits
Canadians enjoy health services that are among the best in the world. However, it is unfair that those who have not followed the rules be rewarded for their crimes by having access to more generous benefits than the average Canadian receives. The proposals would ensure that the health benefits for those who arrive illegally in Canada are not more generous than what Canadians receive from the government.
Currently, asylum seekers, resettled refugees, failed asylum seekers awaiting removal, detained individuals, and victims of trafficking are provided with temporary health coverage through the Interim Federal Health (IFH) program. This program provides both basic and supplementary health care coverage, including some forms of dental care such as certain fillings and vision products such as eyeglasses. The IFH also provides for the Immigration Medical Exams that refugee claimants must take upon arrival in Canada in order to ensure they do not pose a risk to public health or safety.
With the proposed changes, the scope of services provided under the IFH program would be limited for those who arrive in Canada illegally via human smuggling operations. They would only receive basic coverage, including medically necessary care, and Immigration Medical Exams. It would exclude supplementary coverage such as medications, dental, vision products, and assistive devices such as wheelchairs or canes and walkers.
Exceptions could be made to continue to provide supplemental coverage for vulnerable persons.
Backgrounder 8…Protecting our Streets and Communities from Criminal and National Security Threats
In cases of suspected human smuggling operations, authorities face many challenges in identifying individuals involved in the case. Due to the premeditated nature of the operation, oftentimes individuals do not have documents, have fraudulently obtained documents, or have destroyed documents in order to hide their identity.
In instances of this nature where identity is unconfirmed, authorities cannot identify potential security and criminal threats, including human smugglers and traffickers, terrorists, or individuals who have committed crimes against humanity. It is an unacceptable risk to release into Canadian communities individuals whose identities have not been determined and who could potentially be inadmissible on the grounds of criminality or national security.
In order to ensure the fairness and integrity of Canada’s immigration and refugee systems, and to protect the safety and security of the Canadian public, it is essential that government authorities have the ability to detain, to impose conditions of release, and to remove those who are inadmissible to Canada.
More robust detention rules for individuals who arrive as part of a designated human smuggling event are necessary to ensure government authorities have sufficient time to:
· Conduct thorough and focused investigations and examinations of the facts;
· Positively confirm the identity of any individual who attempts to remain in Canada; and
· Identify potential security and criminal threats to the Canadian public.
Mandatory detention for designated human smuggling events
Under the Preventing Human Smugglers from Abusing Canada’s Immigration System Act, an individual arriving as part of a human smuggling event would be detained for up to 12 months or until a final positive decision by the Immigration and Refugee Board (IRB) is made on their refugee claim, upon which they would be released.
If after 12 months a refugee claim has not been decided, the IRB would review the case and decide based on the facts presented whether there are grounds to continue the individual’s detention or to release the individual with mandatory terms and conditions (see below). If, after an examination of the facts the detention is continued, the individual would be entitled to a detention review at the IRB every 6 months after that.
Those individuals whose refugee claims are denied by the IRB would, if still detained after 12 months, are entitled to a detention review before the IRB and then every 6 months pending their removal from Canada. This provision would mitigate the risk of failed refugee claimants going underground or fleeing Canada to avoid removal.
Detained individuals may apply for early release from detention, in which case the Minister of Public Safety will review the facts of the case and decide whether there are exceptional circumstances that may warrant the person’s release.
Mandatory conditions of release
In cases where release is granted, mandatory terms and conditions of release could be imposed, and other additional conditions may be imposed. These terms and conditions would be outlined in the Immigration and Refugee Protection Regulations to promote transparency, consistency and fairness in decisions related to release with conditions.
Enhanced grounds for detention
Investigation into criminality, serious criminality and organized criminality would be added as grounds for detention that would be considered by the IRB during a detention review. In the context of organized human smuggling into Canada, these new grounds would allow for the detention of suspected human smugglers. Adding to the existing grounds for detention (which already include security and human or international rights violations), will serve to further protect the safety of Canadians while an investigation is being conducted.
Backgrounder 9…Revoking status of refugee fraudsters who return to their country of origin
Canada’s generous refugee system delivers help for vulnerable persons who genuinely need it, and does so in a fair, ordered and compassionate manner. In order to ensure the system continues to serve that function, it is important to protect its integrity from those who would abuse Canada’s generosity. There must be consequences and deterrents for such abuse.
The Government of Canada is taking action to stop such abuse of our laws and generosity by bolstering Canada’s ability to revoke the ‘protected person’ status of immigration fraudsters who arrive, for example, as part of a human smuggling operation, through both rules of ‘cessation’ and ‘vacation’.
Is there no longer a need for protection?
If an individual who is in the process of claiming refugee status can safely, and of their own initiative, return to the country they purport to be fleeing — for example, on a holiday, or for longer-term residency — then it is a clear indication that the individual is not dependent on Canada’s protection and does not qualify to be considered a United Nations Convention Refugee. Likewise, an individual who is in the process of applying for refugee status is also not in need of Canada’s protection if conditions improve in their country of origin.
Additionally, in such cases, the Minister of Citizenship and Immigration may apply to the Refugee Protection Division for a determination that their refugee protection has ceased. The Preventing Human Smugglers from Abusing Canada’s Immigration System Act will ensure that if an individual is subject to a ‘cessation’ application hearing, their application for permanent residence would not be processed until a decision is made on the Minister’s application. If the Refugee Protection Division upholds the Minister’s application for cessation, the individual would be removed from Canada.
Was the protected person status obtained fraudulently?
If an individual has directly or indirectly misrepresented or withheld material facts surrounding the facts relevant to their situation, or of the facts surrounding their identity in order to gain the status of a United Nations Convention Refugee, then that status was gained fraudulently.
In such cases, the Minister of Public Safety may apply to the Refugee Protection Division to vacate the individual’s refugee protection status. If the original decision is nullified or cancelled, and no other grounds for protection remain, the individual would be removed from Canada.
The new legislation prevents illegal migrants from human smuggling operations who become refugees from applying for permanent residence for five years. During this time, the Minister of Citizenship and Immigration can make an application for “cessation” or “vacation”, either of which, if successful, would result in the individual being removed from Canada.
The proposed amendments would also eliminate access to the Refugee Appeal Division for people who want to appeal a revocation decision, including those who arrive by human smuggling operations. They would, however, be able to ask the Federal Court to review a revocation decision.
Karygiannis expresses serious concerns over new anti-human smuggling bill
OTTAWA – The Honourable Jim Karygiannis, Member of Parliament for Scarborough-Agincourt, expressed concern over the new “Preventing Human Smugglers from Abusing Canada’s Immigration System Act” unveiled yesterday by the Minister of Public Safety, Vic Toews, and the Minister of Citizenship, Immigration and Multiculturalism, Jason Kenney.
“I have no problem with the provisions to deal harshly with the smugglers.” said Mr. Karygiannis. “However, it is the measures dealing with their victims, the refugees, which cause great concern.”
The new Act will call for:
Mandatory detention of illegal migrants for up to one year to allow for the determination of identity, inadmissibility and illegal activity.
“We just passed Bill C-11, the so-called “Balanced Refugee Reform Act”, which guaranteed an assessment within 48 hours.” Mr. Karygiannis stated. “Harper, Toews and Kenney are creating two classes of refugees.”
The new Act will also call for:
Refugee status can be re-assessed within five years to determine whether they still need protection or can be returned to their country of origin;
The health benefits that the illegal migrants receive not be more generous than those received by the Canadian public from the government;
Refugee or refugee applicants who were illegal migrants not to be able to come back to Canada if they return to the country from which they sought refuge, or if they demonstrate in other ways that they are not legitimately in need of Canada’s protection; and
Preventing illegal migrants from sponsoring family members for five years.
“These people are being victimized twice – first by the smugglers and now by the Harper government.” Mr. Karygiannis commented. “Canadians don’t like two-tiered systems – not in our health care and not in our protection of refugees.”
