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Canada is a signatory to the 1951 Geneva Convention and 1967 Protocol, and it regulates the international protection of refugees, specifically the right to asylum, in the Immigration and Refugee Protection Act (L.C 2001, Chapter 27 with subsequent amendments).
Once the asylum application has been submitted, the competent authorities must determine whether or not it is acceptable. Eligibility is not determined by the country of nationality of the asylum seeker. In theory, citizens of any country, as well as stateless people, can apply for asylum in Canada. However, some people cannot:
- Those who have been banned in Canada for security reasons or for violating basic human rights, international rights, serious crime or organized crime
- People who have already been granted asylum in Canada or another country or whose previous asylum applications have been rejected.
- People who have waived one or more previous asylum applications.
- people arriving in Canada from countries defined by immigration regulations, other than the country of nationality – these are only the United States at border points and those with which Canada has entered into a safe third country agreement.
What does high crime or serious crime mean? This is a class of crimes for which Canadian law provides a maximum penalty of at least ten years, regardless of where it was committed. For example, under Canadian law, theft of something whose value does not exceed $ 5,000 CAD is punishable by a maximum of two years in prison. However, if the value of the stolen property exceeds this value, the maximum penalty is imprisonment for a maximum of ten years, which makes the crime fall into the category of high crime or serious crimes, and the perpetrator may not be eligible for asylum in Canada.
For crimes committed outside Canada, the Immigration Department will consider equating crimes committed in a foreign territory with Canadian rulings for the same acts.
Pre-trial detention by CBSA
Canada Border Services Agency agents may order pretrial detention of an asylum seeker if they have reason to suspect that he poses a public security risk (terrorism, serious crime, violent crime, etc.) or he will not appear for control or subsequent investigations. Canada Border Services Agency agents may also order pretrial detention of people whose identities cannot be determined. We emphasize that the burden of proof of identity rests with the individual, not the Canadian Border Services Agency.
There are deadlines by which the Commissioner (immigration judge) must verify the legality of the detention, respectively 48 hours, 7 days and 30 days of a person’s detention. In principle, on these dates, according to the law, release is the rule and retention of custody is the exception. However, a person will not be released if:
- The person threatens the public safety.
- There is a suspicion that the person will not appear before an inspection or investigation, or on the dates specified for leaving Canada.
- The Minister investigates whether a person is banned in Canada due to security, high crime, organized crime, or international or human rights violations.
- The person’s identity cannot be confirmed.
The Immigration Commissioner may also consider alternatives to detention. When deciding to release a person, the Immigration Department may impose conditions it deems necessary, including a guarantee of performance.
Usually, a guarantor is someone who is a Canadian citizen or permanent resident who has no criminal record, income, or property, and knows the detainee well. A guarantor must have credibility and influence over the person whom he/she guarantees in order to comply with the conditions or orders imposed by Immigration. A guarantor may deposit a security whose monetary value is determined by the commissioner. He/she will lose this amount if the person does not comply with the conditions.
With regard to minors, the provisions are restrictive and detention is provided only as a last resort.
As mentioned above, the person’s country of origin does not determine the admissibility of his asylum application, nor does it determine its rejection. In other words, an application from a citizen of a particular country of origin is not automatically rejected. However, this asylum application, once accepted, is processed more quickly, so that those with a real need for protection from Canada can obtain it quickly, and those with unfounded applications are expelled just as quickly.
However, the current Canadian asylum system is currently overburdened and federal authorities are working to process both old and existing applications.
A work permit for an asylum seeker from a specific country (COD) must be issued upon submission of the application within 6 months of receiving the asylum application.
We remind you that the Ministry of Immigration introduced the COD system at the end of 2012, after a wave of asylum applications from countries considered safe. Currently, this list includes 42 states.
