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  • The Refugee Appeal - Is No One Listening?
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“It seemed liked no one was listening to us… We just wanted an appeal – like normal people in Canada have.” Husband of Moroccan woman recently deported despite her fears of persecution.

(This is an abbreviated version of the CCR report. The full report is available at http://www.ccrweb.ca/refugeeappeal.pdf)

Background

Refugee claimants in Canada appear before a single decision-maker who determines whether they need Canada’s protection. The decision is not subject to any appeal on the merits of the case. This means that a single person decides the fate of a refugee claimant, even though a wrong decision may mean that a claimant is sent back to face persecution, torture and even death.

This is not the refugee determination system that Parliament approved. In 2001, Parliament passed a new law, the Immigration and Refugee Protection Act, that created a Refugee Appeal Division (RAD) where refugee determinations could be reviewed. They balanced this new recourse with the reduction of the number of board members hearing the claimant from two to one. In 2002, the government, without consulting Parliament, implemented the new law without implementing the Refugee Appeal Division. On the other hand, the government went ahead with the reduction of board members hearing a claim, leaving claimants’ fates in the hands of a single person.

Since then, the government has continued to fail to respect the law passed by Parliament.

Why an appeal is needed

The stakes are high: Refugee determination is one of the few decision-making processes in Canada where a wrong decision can mean death for the applicant. Even though the stakes are so high, there are fewer safeguards in the system than for other decision-making processes where the stakes are much lower (for example, a minor criminal offence). As a result, wrong decisions go uncorrected.

Decision-making is inherently difficult: Refugee determination is extremely difficult because it involves deciding what may happen in the future in another country, about which the decisionmaker may have limited knowledge, based often on testimony that must pass through an interpreter and that may be confusing because of the traumatic experiences that the claimant has lived through. Often decision-makers have little documentary evidence that can help decide the case one way or the other, and the credibility of the claimant is a decisive factor. However, credibility assessments can easily be wrong.

Not all decision-makers are equally competent: For many years, appointments to the Immigration and Refugee Board have been made in part on the basis of political connections, rather than purely on the basis of competence. As a result, while many board members are highly qualified and capable, some are not. . . . (Despite recent changes), board members appointed under the old political patronage system continue to decide on the fate of refugee claimants.

Decision-making is inconsistent: Refugee determination involves a complex process of applying a legal definition to facts about country situations that can be interpreted in different ways. Different decision-makers do not necessarily come up with the same answer, leading to serious inconsistencies. Two claimants fleeing the same situation may not get the same determination, depending on which board member they appear before. . . An appeal level helps a system to make more consistent decisions, because precedents established at the appeal level must be followed at the lower level when the facts are the same.

Poor representation: Refugee determination is made more difficult because refugee claimants sometimes have no legal representative, or are represented by incompetent and unscrupulous lawyers and consultants. This problem is quite common because refugee claimants rarely have much money to pay for a lawyer, and legal aid is in some provinces unavailable to claimants and in others so meagre that few competent lawyers are willing to represent claimants on legal aid.

Any decision-making process will make mistakes: As human beings, we are all bound to make mistakes from time to time, however hard we try. An effective system recognizes this and provides a mechanism to correct errors. We do this in the criminal justice system, which allows anyone who feels they have been wrongly convicted to appeal the decision. We try to avoid people being wrongly sent to jail here in Canada by providing appeals: why would we not similarly try to avoid refugees being wrongly removed, which could result not only in their being jailed, but tortured and even killed?

Non-implementation shows disrespect for the rule of law: Parliament approved a law (in 2001) that included a right to an appeal on the merits for refugee claimants. This right was balanced by a reduction in the number of board members hearing a case from two to one. During debate there was never any suggestion that the implementation of the appeal would be indefinitely delayed and there is no indication that Parliament would have passed the law if the government had proposed it as it is now being implemented.

International obligations

As a signatory to the 1951 Convention relating to the status of refugees, Canada has an obligation not to return a refugee directly or indirectly to persecution. If a refugee’s claim is wrongly rejected and Canada subsequently returns that refugee to persecution, we have violated our international legal obligation. Similarly, under the Convention against Torture, Canada must not send anyone to a country where there are substantial grounds for believing that they would be in danger of being subjected to torture.

International bodies commenting on Canada’s compliance with its obligations towards refugees have criticized the lack of an appeal on the merits. . . .

In February 2000, the Inter-American Commission on Human Rights published its Report on the Situation of Human Rights of Asylum Seekers Within the Canadian Refugee Determination System. They stated that:

“Where the facts of an individual’s situation are in dispute, the effective procedural framework should provide for their review. Given that even the best decision-makers may err in passing judgment, and given the potential risk to life which may result from such an error, an appeal on the merits of a negative determination constitutes a necessary element of international protection.” (para. 109). . . .

(In a letter to the then Minister of Citizenship and Immigration, the United Nations High Commissioner for Refugees (UNHCR) wrote: . .

“UNHCR considers an appeal procedure to be a fundamental, necessary part of any refugee status determination process. It allows errors to be corrected, and can also help to ensure consistency in decision-making. Canada, Italy and Portugal are the only industrialized countries which do not allow rejected asylum seekers the possibility to have first instance decisions reviewed on points of fact as well as points of law. In the past, a measure of safeguard was provided by the fact that determinations could be made by a two-member panel, with the benefit of the doubt going to the applicant in case of a split decision. With the implementation of IRPA on June 28th, this important safeguard will be lost.”

Current situation

In the absence of an appeal on the merits, there is no other mechanism that can ensure that errors are corrected. A refused refugee claimant can apply to the Federal Court, but only with leave (or permission) from the Court and only on technical legal matters.

Leave is rarely given and the Court does not even provide a reason when it denies leave. From 1998 to 2004, 89% of applications to the Federal Court for judicial review of refugee claim determinations were denied leave. If we compare the number of applications granted leave during this period (under 4,000), with the number of claims refused by the Immigration and Refugee Board during this period (just under 87,800), we find that only 4% of refused claimants had the opportunity to have the decision against them reviewed by the Federal Court. The vast majority of negative decisions are never allowed any kind of review.

Even if a claimant is granted leave by the Federal Court, mistakes will not necessarily be corrected since the Court can only intervene if there is a “reviewable error.” Reviewable errors include mistakes such as the decision-maker failing to take into consideration relevant evidence or drawing unreasonable conclusions from the evidence. However, if the original decisionmaker considered all the evidence in a reasonable way, but reached the wrong conclusion, the Court will not intervene.

It is particularly difficult to get a decision overturned when the decision-maker has based the conclusions on the credibility of the claimant, since the Court will usually say that the decision-maker who heard the claimant is best placed to judge whether they were credible. From 1998 to 2004, 57% of judicial reviews of refugee determinations heard by the Federal Court were denied. This means that even after getting over the difficult hurdle of leave, claimants are still more likely to be turned down by the Court than have the negative decision against them rejected. (If we compare grants of judicial review with the numbers of refugee claims rejected by the IRB during the period 1998 to 2004, we find that only 1.6% of negative decisions by the IRB are overturned by the Federal Court.)

The Federal Court is the only forum in which the refugee determination made by the IRB will be reviewed and potentially overturned. Refused claimants may apply for a Pre-Removal Risk Assessment or for humanitarian and compassionate consideration, but neither of these recourses serve as a mechanism for correcting errors made by the IRB.

A refused claimant applying for a Pre-Removal Risk Assessment (PRRA) can only raise new evidence, not argue that the initial decision by the Immigration and Refugee Board was wrong. This point was recognized by the UN Committee Against Torture . . . (which) pointed out that in a PRRA application “it would only be any fresh evidence that would be taken into consideration, and otherwise the application would be rejected. In its view, therefore, this procedure would not afford the complainant an effective remedy”.

Thus, a refugee claimant who was wrongly rejected might be protected in the PRRA process if they happened to have some new evidence. But this is rarely so and in any case very few claimants are accepted in this process. In 2003, only 2.6% of decisions at the Pre-Removal Risk Assessment were positive.

Applications for humanitarian and compassionate consideration (H&C) also fail to offer any meaningful recourse for claimants who have been wrongly rejected. The measure is a discretionary one and the applicant can be deported before a decision on H&C has been granted. . .”

Consequences of not implementing the RAD

In the absence of an effective appeal mechanism, refugees who have been wrongly rejected face deportation from Canada to a risk of persecution, torture and even death. In order to avoid this fate, some have gone underground and are living in insecurity and deprivation. Others have been deported. . . .

Others have sought sanctuary in a church, offered this protection by church members who have felt morally obliged to provide the protection that the Canadian government was failing to provide. Churches have no desire to take over the government’s role, nor do they pretend to have particular expertise in refugee determination. But representatives of a church have felt that they must act when they hear the compelling evidence of the human beings before them and learn that there is no opportunity to correct mistakes in the decision because the government has not respected the law and implemented the appeal.

“We have come to the conclusion that the refugee determination process is unfair. Churches who open their doors to provide sanctuary are defying this unjust policy. We believe that refugees have a right to life and liberty, that human life is sacred and must be preserved at all costs. Moral institutions cannot obey laws that are unjust and religious leaders are prepared to accept the penalty for this civil initiative that is the sanctuary movement.” Rev. Darryl Gray, Union United Church, Montreal.

Implications of implementing the RAD

The government has repeatedly justified its failure to respect the law by reference to management concerns such as backlogs, numbers of claimants and processing times. This shows that the government considers refugee claimants primarily not as human beings whose fundamental rights may be threatened, but as a problem to be managed. In taking this approach, the Canadian government not only puts people’s lives in danger but also damages Canada’s credibility as a country that tries to treat refugees right. . .

Furthermore, it is far from clear that the government is right in its analysis of the management issues. Of course, it is difficult to know what the government’s analysis actually is, since it is has not made it public . .

However, certain aspects are known or can be surmised.

• The Refugee Appeal Division would cost an estimated $2 million to set up and $8 million annually to run. This is a modest sum in the context of government expenses, reflecting the very modest nature of the appeal approved by Parliament, which is limited to a paper review.
• The costs of implementing the RAD would be mitigated by some cost-savings for the government at the Federal Court, since fewer cases would need to be addressed at that level. Dealing with cases at the Federal Court is much more expensive because of all the formal requirements of judicial proceedings . . .
• Implementation of the RAD will almost certainly reduce significantly the numbers of applications for judicial review to the Federal Court, as well as the numbers of cases granted leave. . .
• Refused claimants who have had an opportunity to have their case reviewed at the RAD will not need to try to use the Pre-Removal Risk Assessment or H&C as a way to overturn the original refugee determination decision. Even though these mechanisms do not provide a recourse for a wrong refugee decision, claimants who have been denied an appeal on the merits naturally try to make these mechanisms work as a substitute for an appeal.
• Implementation of the RAD will improve efficiency and consistency at the first level hearing, by providing precedents that must be followed in similar cases. This will assist decision-makers who will be able to use the jurisprudence of the RAD to simplify decision-making.
• If the government is preoccupied by the time it takes to finalize the cases of people who don’t need Canada’s protection, it could most usefully address the delays for which it is responsible. Many claimants wait months before they are asked whether they want to apply for a Pre-Removal Risk Assessment and, when they do, many more months for a decision.

CONCLUSION

Throughout the debate over the Refugee Appeal Division the government has never once been able to put forward a logical principled reason for their failure to do what the Immigration and Refugee Protection Act requires. All we have been presented with are vague concerns about cost, inventories and lengths of processing times. No convincing facts or figures have ever been put forward. There are reasons to believe that the government’s concerns are groundless. It is quite possible that implementation of the RAD would save money and speed up processing. In the light of the overwhelming evidence that the lack of a RAD seriously jeopardizes the safety of refugee claimants, the use of such thin grounds for their continued refusal to implement RAD makes the government appear petty and uncaring. It is high time that this shameful delaying by the government end. The Refugee Appeal Division should be implemented immediately because it is the humane, just, and right thing to do.

(The CCR website includes a number of other reports on the refugee process and on efforts to persuade the federal government to implement the RAD as legislated in 2001).