Canada’s proposed refugee reforms need rethinking
By Stephen Fogarty • May 30, 2010
“In view of the nature of the risks involved and the grave consequences of an erroneous determination, it is essential that asylum-seekers be afforded full procedural safeguards and guarantees at all stages of the refugee status determination procedures.”
– UNHCR brief on Bill C-11
On Tuesday, June 1st, 2010, a committee of the House of Commons of Canada is scheduled to begin voting clause by clause on Bill C-11, the Canadian government’s proposed Balanced Refugee Reform Act. Although this proposed legislation has many strong points, it contains some serious flaws which require rethinking prior to adoption.
Ensure realistic and fair timeframes to determine claims
The first major area of concern is the speed with which refugee claims are to be determined. Citing long delays in the past, the Conservative government, when announcing the proposed changes, vowed that the refugee determination process would become more efficient. That, in itself, appears quite laudable.
An often heard legal saying is “justice delayed is justice denied”. For example, if judicial procedures take too long to get to the hearing date, a person may have difficulty in remembering and testifying about past events, as well as finding witnesses or evidence. No refugee advocate wants that. Or, as stated by the government ministers announcing these changes, persons making false refugee claims can live in Canada for many years prior to their removal from the country. In some cases this can amount to an abuse of Canada’s generosity.
However, a corollary of the “justice delayed” principle is that when a legal system imposes unrealistically short deadlines to finalize cases, fairness may lose out in favour of administrative efficiency. The result may be termed a “rush to judgment”. This second type of situation is hardly better than the first one.
Under the proposed new Canadian refugee determination rules, according to many published sources, an individual coming to Canada to seek recognition as a refugee would have a meeting with a government official within about eight days after arriving in the country. This would be to collect documents, data and information relevant to their refugee claim.
About 60 days later, flowing from what is established at the first meeting, the refugee claimant will then undergo a hearing with another government official. This will be the first-stage determination of their claim at the Immigration and Refugee Board of Canada (“IRB”). If accepted at that stage, in most cases the individual would be allowed to stay in Canada.
This looks good in the abstract. But in practical terms, the delays are far too short. Remember that genuine refugees are fleeing persecution in their home countries. In many instances, they have to exit quickly and will not be in possession of all necessary documents to back up their claim or to corroborate their identity. Often it will not be possible to obtain everything from their home country in 68 days. In addition, a refugee claimant will usually want to seek assistance from a lawyer. This time frame is not adequate to find a lawyer, learn how to organize one’s evidence (even presuming all of it is available), and how to testify properly at a refugee hearing.
So the officials who hold the first-level refugee determination hearings will be faced with the very difficult job trying to decipher the truth and apply the legal criteria all the while faced with inadequately prepared refugee claimants and incomplete information. Surely that cannot be what the Canadian government had in mind to reform the refugee system.
A delay of 180 days to hold the first-level hearing would still provide for speedy determination as well as a reasonable period of time for refugee claimants to present their cases. That would be a fair compromise.
Ensure the independence of decision-makers
A second area of concern expressed by many in the Canadian legal community has been over the fact that the first-level refugee hearings will be conducted by a government official or civil servant, rather than a so-called “independent” commissioner, as is currently the case.
In my own experience of 23 years as a lawyer, plus some three years prior to that working at the Canadian Parliament, I have gained sufficient faith in the Canada’s public servants that they will be capable of undertaking their duties in a fair manner. It is also noteworthy that under the proposed changes, the only persons eligible to sit on first-level refugee determination hearings would be employees of the independent IRB. So persons working for either of the federal government departments charged with immigration matters (CIC and CBSA) would not be eligible to do so. That makes good sense.
However, I believe an additional safeguard could be made to increase the credibility of the system. It is often the case that government employees are appointed on short-term contracts of six months or one year. To ensure complete fairness in the process, only career public servants with the IRB should be permitted to hold a first-level refugee determination hearing. That means only persons who have permanent contracts. In my view, this would eliminate the fear expressed by some commentators that the officials charged with the first-level determination hearings might think they have to curry favour by rejecting a high percentage of claims.
This brings us to the third major area of concern.
Reconsider the proposed appeal restrictions
If, following the first-level determination, the claim is rejected, some refugee claimants will be permitted to access the newly constituted Refugee Appeal Division of Canada’s IRB.
The resurrection of the Refugee Appeal Division (“RAD”) of the IRB is a very positive step by Canada’s Conservative government. The former refugee legislation, which was brought in by the then Liberal government during 2001-02, provided for the RAD. However, that part of the legislation was never brought into force during the eight years since.
This is a very good reform since by having access to the RAD, most refugee claimants will have an automatic right of appeal. If successful at the RAD, they will be recognized as refugees. This will be a big improvement on the current system, whereby all failed refugee claimants have no effective option for redress except through the Federal Court of Canada. That process is cumbersome, since permission must be obtained to attack the decision, the applicant must demonstrate that the impugned decision has no reasonable basis (a very difficult task), and, even if successful, the most the Court can do is award the applicant with a new hearing. The Federal Court does not have the power to declare that an individual is a refugee.
Unfortunately, once again there is a big problem with the proposed legislation. Under the new rules, refugee claimants coming from a list of so-called “safe third countries” would not have access to the RAD. Remember that all refugees will be expected to finalize their first-level hearing within about 68 days of landing in Canada. Given such time restraints, erroneous decisions are bound to take place. If the Canadian government is to eliminate RAD appeal rights for persons arriving from safe third-countries, the first-level determination process must be given a more reasonable time period to ensure full and fair treatment of claimants.
If the short deadlines are to remain for the first-level determination hearings, any and all failed refugee claimants must have access to the RAD. To do otherwise would be simply unfair, given the likelihood of errors at the first stage.