Tom Clark

Is our Refugee Protection System in need of Reform?
July 2009

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Jason Kenney, the federal Minister of Citizenship and Immigration announced earlier this year his intention to end the “wide-scale and almost systematic abuse” of Canada’s refugee determination system. I worked with Ed Corrigan to produce an article (to be published) and a proposed Op Ed (not published) in response. The thoughts below are adapted from the Op Ed.

The Minister’s underlying assumption is wrong. Abuse is not the challenge. Protecting refugees is the primary objective of the system and accomplishing this in a fair and cost effective way has always been the challenge. Implementing the simple paper appeal within the Immigration and Refugee Board, IRB, is the biggest remaining piece of unfinished business towards a fair and efficient process. Over the years, talk of abuse has been just 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. The decisions are difficult and trained independent decision makers are essential.

There is no structural dysfunction in the refugee process just because there is a backlog of cases waiting to be heard. The backlog arose naturally when the current government failed to replace IRB members in a timely manner. The necessary level of IRB members is known and must be maintained. And 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 then they made cuts to the level of justice. Cuts in justice over the past couple of decades have done nothing to reduce the backlogs and have made the protection of those who need it harder. Fixing a backlog must 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 began again in Parliament during spring 2009. So in fact 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 when the present law was being developed.

Some say a refused refugee can always “appeal” to the Federal Court. But the Court procedure offers no quick simple correction to a mistake at the IRB. It is restrictive and it is costly. Access is amongst the most restrictive in Canadian law. The court applies a secretive “leave” test to make sure a 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. It cannot then and there resolve the refugee claim at issue. Remarkably, the Federal Court finds legal errors in around 10% of the Immigration cases submitted.

Others suggest that petitions to government officials can take the place of an appeal. They cannot. 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 to correct, or suited to 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 and fair appeal as the Inter-American Commission on Human Rights proposed in 2000, but it could catch some glaring mistakes. It would ensure more refugees got recognized and protected quickly, and it could reduce costs and increase efficiency in the overall 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 mislead. 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.

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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