Poste - Canadian Coalition for the Rights of Children

Visa Restrictions
C A N A D I A N C O A L I T I O N F O R T H E R I G H T S O F C H I L D R E N
The Immigration Review Advisory Group notes that
Canada has, at times, used “visa requirements as a tool
for limiting in-Canada refugee claims, both by groups
having a high percentage of non-genuine claims (Chile)
and by those making many successful claims (Sri Lanka,
Czech Republic).” 55 There is concern that using visa
requirements to limit the flow of refugee claimants may
hinder “genuine asylum seekers from reaching Canada.”
Canada currently requires nationals of more than 100
countries to obtain a visa in order to enter the country.
As well, the Joint Centre of Excellence for Research on
Immigration and Settlement--Toronto says that:
Persons subject to persecution, as defined by
article 1 of the Geneva Convention and
Protocols, are not likely to have the time or
freedom to participate in a lengthy visa
acquisition process. In effect, Canada is asking
asylum seekers to demonstrate the legitimacy of
their asylum claims from the country in which
the persecution is taking place. This is in direct
contravention of article 3 of the Geneva
Convention and Protocols, which protects
asylum applicants from discrimination based
on their country of origin. 56
Convention Refugee Determination
Division Process
Refugee status in Canada is determined through a hearing
into the refugee claimant’s circumstances to determine
whether there is a serious likelihood that he/she will be
persecuted if he/she returns to his/her home country.
Summary of the Process57 When a person claims Convention refugee status in
Canada, the process is as follows.
• Person makes claim of being a Convention refugee to
an immigration officer.
• Senior immigration officer determines if claim is
eligible under the Immigration Act. (For ineligible
claims, see box below.)
• If claim is eligible, it is referred to the Refugee
Determination Division (also known as the Refugee
Board).
• The claim is heard in an oral hearing which is to be
conducted in an informal and non-adversarial manner.
Generally, two Refugee Board members (who are
independent decision makers) hear the claim and in
108
most cases, a favourable decision by only one
board member will determine that a person is a
Convention refugee. (For decisions requiring a
favourable decision by both members, see sidebar.)
• Claimants have the right to full participation in the
process.
• Claimants have a right to be represented by a
lawyer, a friend, a relative or anyone else who can
help them make their submission.
• Claimants have the right to services of an
interpreter if necessary.
• Claimants have the full protection of the Canadian
Charter of Rights and Freedoms.
• The presentation and acceptance of evidence is not
restricted by technical or legal rules of evidence.
• If the panel determines that the claimant is a
Convention refugee, then the claimant may apply
to become a permanent resident of Canada.
Immediate family members, whether in Canada
or abroad, may be included on the application.
• If the panel decides that the claimant is not a
Convention refugee, the claimant may apply for a
judicial review by the Federal Court, Trial Division.
If leave is granted, the claimant will have the case
reviewed by the Federal Court. The Federal Court
can return the claim to the Refugee Division for a
rehearing. Or, if the Federal Court does not hear
or rejects the claim, immigration officials may
conduct a post-determination review to determine
if removal from Canada would result in significant
personal risk to the claimant. Prior to May 1997,
post-determination risk reviews were automatic.
However, new regulations permit risk reviews,
but eligibility criteria are tightened.
• If the post-determination review finds that the
claimant is a Convention refugee or would be at
great risk if removed from Canada, the claimant is
entitled to apply for permanent residency.
• If the above review makes a negative finding, a
removal order is made against the individual.
• At any time throughout the refugee determination
process, an individual may apply to the Minister
for an exemption from a regulation or for admission
to Canada based on compassionate or humanitarian
considerations.