There are better ways to protect Canada’s asylum system than Bill C-2

Law360 Canada (June 6, 2025, 11:34 AM EDT) --

Lorne Waldman

Bill C-2, which was tabled in Parliament on June 3, makes significant changes to the Refugee Determination System. According to a press release, “The two proposed ineligibility measures in the bill would protect the asylum system against sudden increases in claims.”

There is no doubt that these provisions have been introduced to deal with two categories of potential claimants. The first provision will render ineligible for a hearing before the Refugee Protection Division (RPD) of the Immigration and Refugee Board people who make a claim more than one year after their initial entry to Canada. This section is geared toward the hundreds of thousands of foreign nationals who came to Canada as students or temporary workers and who now find the doors to permanent residency have closed.

The legislation will also render people who crossed the border illegally from the United States and who remained in Canada for more than 14 days from having a hearing. This change is introduced to deal with the possibility that hundreds of thousands of people in the United States who have recently lost their protected status and who are facing deportation might decide to try their luck in Canada by crossing the border clandestinely and waiting 15 days to make a claim.

Because the Canadian Charter of Rights and Freedoms prevents Canada from deporting a person back to a country where they could face torture or risk to life, the Canadian authorities must do a risk assessment before deporting them and as a result all the people who will be denied a hearing under the proposed changes will be eligible for a Pre-Removal Risk Assessment (PRRA), a written application where an officer determines whether the person is at risk of persecution or torture if returned to their country of nationality.

The government is already faced with a huge backlog of claims that are awaiting a hearing before the RPD and, as a result, is pushing forward with these changes due to concerns that hundreds of thousands of new claims will flood the system. While one can certainly understand the reasoning, these changes will not achieve the desired result. In essence the government has chosen to replace hearings before an independent tribunal with written applications that are submitted to an officer. But there is little evidence to suggest that this new process will be more efficient in dealing with the large volume of claims that will be diverted from the RPD. There is already a backlog of claims awaiting decisions by PRRA officers, so the changes will replace one backlog with another.

PRRA officers have much less training than members of the RPD and, as a result, their decisions are often flawed. I have had clients who have been rejected two or even three times by PRRA officers, only to have all the decisions set aside on judicial review. People who apply for PRRA do not have a right to appeal. The PRRA process does not have any of the safeguards that are part and parcel of the RPD process, where rejected claimants have a right of appeal to the Refugee Appeal Division. Instead, PRRA applicants must seek leave to apply for judicial review in the Federal Court. They are subject to deportation while their judicial review is being processed. As a result, the already overburdened Federal Court will see a huge influx of applications for stays of removal, increasing the strain on an already overwhelmed court.

There can be no doubt that the system for processing asylum claims is in crisis. But instead of solving the problem, the government has chosen to diminish the protections afforded to asylum seekers. Instead of bringing in these changes, which will undoubtedly place real refugees at risk, the government and the RPD should take concrete measures to tackle the huge backlog. They could clear a significant portion of the pending claims by creating a public policy allowing claimants who come from countries where the acceptance rate is over 80 per cent to apply for status. Diverting well-founded claims from the RPD would allow the tribunal to focus on the more contentious claims.

At the same time, the government could offer those foreign nationals who came to Canada in good faith, believing that after studying and working here they would be eligible to apply for permanent residence, a pathway to regularize their status. The policy would not have to grant permanent residence immediately but could offer them the possibility that they could obtain status if they proved that they could establish themselves here in Canada.

The government is seeking a quick fix to a complex problem. But the solutions they have presented will only create other problems and will not deal with the root causes. The immigration system has been mismanaged for years. We need to take our time to find real solutions, and the first step is clearly determining the objectives of our immigration policies. If we want our policies to promote economic growth while respecting our obligations under the UN’s 1951 Refugee Convention, the proposed measures are a step backwards. They will expose refugees to risk and will not achieve their stated objectives.

Lorne Waldman has been practising exclusively in the area of immigration and refugee law since 1979, the year he opened his own law practice, Waldman & Associates. He was co-counsel to Maher Arar at the Commission of Inquiry into his deportation into Syria. He has also been appointed by the Minister of Justice as a Special Advocate. Waldman is the author and editor of Immigration Law and Practice, a two-volume, loose-leaf service published by LexisNexis in 1992. He has appeared very frequently at all levels of the courts in Canada, including the Supreme Court of Canada, the Federal Court and the Federal Court of Appeal, where he has argued many of the leading cases in immigration and refugee law. He was made a Member of the Order of Canada for his contribution to immigration and refugee law.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, LexisNexis Canada, Law360 Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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