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August 7, 2009

Does our refugee protection system need reform?

Tom Clark and Edward C. Corrigan

Jason Kenney, the federal Minister of Citizenship and Immigration recently announced his intention to end the “wide-scale and almost systematic abuse” of Canada’s refugee determination system.

This approach is misguided.  It assumes abuse is the challenge. It is not.

Protecting refugees is the primary objective of the system and implementing the simple paper appeal within the Immigration and Refugee Board, IRB, should be the objective.

Talk of abuse is a recurring distraction. People legitimately claim refugee status in Canada from mixed situations. Canada’s legal obligation is to protect refugees.

Not all applying turn out to be refugees, but that is hardly an abuse. The whole point of a refugee system is to make this difficult politicised judgment. There is no structural dysfunction in the refugee process because of a backlog of cases. That was caused when the current government failed to replace IRB members in a timely manner.

The necessary level of  IRB members must be maintained. There is nothing outrageous about the present 30,000 annual refugee claims. Since 1989, annual arrivals have remained largely in the 25,000 – 30,000 range, typical of larger Western countries.

Minister Kenney’s predecessors made promises of reform but they made cuts to the level of justice.  Cuts in justice over the past couple of decades have done nothing to reduce the backlogs. Fixing a backlog should not mean cuts in justice. 

Before the Immigration and Refugee Protection Act 2002, most hearings at the IRB were conducted by two members and a Refugee Protection/Hearing Officer. Today hearings are typically conducted by one member.  Doubling the available decision makers and introducing a paper review made sense, but the appeal was not implemented.

It is astonishing that 7 years after the law was passed, the opposition parties should have to pass legislation to implement the appeal. Yet legislation is well underway again in Parliament.

This Minister has an opportunity: he can easily implement the proposals developed in 2002 by the then head of the IRB in 2002 for the IRB’s Refugee Appeal Division, RAD, to do a simple paper review.

Any court or tribunal with a single decision maker is more prone to mistakes as indicated by the present discrepancy in refugee decision-maker records at the IRB.

Some have nearly 100% rejection rates and others have nearly 100% acceptance rates for refugee claimants from the same country situations. 

Both the UN High Commissioner for Refugees and the Inter-American Commission on Human Rights advised Canada to introduce an appeal.

The Federal Court offers no quick simple cost effective correction to a mistake at the IRB. There are hurdles and expenses. Access is amongst the most restrictive in Canadian law. 

The court applies a “leave” test to make sure the case qualifies. If leave is granted a Federal Court Judge reviews the decision. The review can only say an “error in law was made or that or that a “perverse error” in fact was found and require a re-hearing. Remarkably, the Federal Court finds legal errors in around 10% of the Immigration cases submitted.

Petitions to government officials cannot take the place of an appeal. The paper Pre-Removal Risk Assessment (PRRA) provides rejected claimants with an opportunity to present new evidence to immigration officials. The acceptance rate is approximately 2%. Individuals can also make an application for consideration by government officials on Humanitarian and Compassionate grounds but they must pay a substantial fee. The acceptance rate is around 3%. Neither of these procedures is intended, or suited, for correcting an error made in the hearing of a refugee claim.

There is no simple quick way to correct a mistake by an IRB member. Implementing the paper review within a RAD would not bring a full appeal, but it could catch some glaring mistakes. It would ensure refugees got protected quickly and it could reduce costs and increase efficiency in processes for rejected claimants.

Canada has a tradition of helping refugees, which earned the people of Canada the Nansen Medal of the UN High Commissioner for Refugees in 1986.

When Minister Kenney stirs up fears of abuse, Canadians should not be misled. The simplest most sensible reform is what parliamentarians are proposing: implement the RAD – a simple paper appeal - already written into the law.

Tom Clark was for 18 years the coordinator of the Inter-Church Committee for Refugees. He was the first coordinator of the Summer Course on Refugee Issues at the York University Centre for Refugee Studies. He also is the author of ‘The Global Refugee Regime: Charity Management and Human Rights” which is now in its 2nd edition.

Edward C. Corrigan is a Barrister & Solicitor certified as a specialist by the Law Society of Upper Canada in Citizenship and Immigration Law and Immigration/Refugee Protection Law.

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