Good morning. I am going to talk about refugee determination in Canada.
First, to talk about the positives, the fundamentals of Canada's refugee system are sound. Refugee determination is inherently difficult. Beware of those who advise you to throw out the current system in favour of some other supposedly more efficient system. Look at other countries that make amendments to the refugee system as often as they change their socks, supposedly fixing the refugee system, but in reality making it tougher for refugees.
Positive aspects of the refugee determination system include: most claimants get an oral hearing on their merits before the decision-maker; independent quasi-judicial tribunal with expertise in refugee determination; excellent research and documentation services decision-makers can rely on. What we need are some changes to the refugee system to build on it, not dismantle it. The refugee determination system in Canada has a strong foundation.
Now the negatives. Since the current refugee determination system came into effect in 1989, refugees' advocates have consistently drawn attention to two major flaws: the lack of a bill, and the appointment system to the Immigration and Refugee Board. Since then, a third has been added: safe third country agreement. We won't get into this here. We'll refer you to the CCR report on the first years of the safe third country agreement. The name of the report is Closing the Front Door on Refugees: Report on Safe Third Country Agreement It was published August 4, 2005.
The U.S.-Canada safe third country agreement called for a first review of the agreement and implementation no later than 12 months from the date of entering into force. The 12 months were up in December 2005. Nine months later, the reviews have still not been made public.
We take this opportunity to remind you that in December 2002 this committee adopted a report outlining a number of concerns with respect to the safe third country agreement and making a series of recommendations. The last recommendation reads:
The Committee recommends that when the Department performs a full review of the Agreement one year after its implementation, it should report its findings to this Committee. The Department's report to the Committee should include the following information....
There follows a long list of information requested by the committee. This has not been done.
With regard to the Refugee Appeal Division, the act passed by Parliament in 2001 includes a right of appeal. The implementation of the act without the right of appeal subverts the will of Parliament and undermines the democratic process. Members of Parliament agreed to the reduction of decision-makers in each case from two to one, because refugee claimants were still going to get an appeal process. Since 2002, refugee claimants are heard by a single decision-maker, with no right of appeal on the merits.
Inevitably, mistakes are made. Any human decision-making process is subject to error. This is even more the case with refugee determination, a very difficult process involving things happening in different countries, when information is often limited and testimony is usually heard through an interpreter. Yet the consequences of a wrong decision are huge. It may be a matter of life and death. As has been said, since the abolition of the death penalty, refugee determination is the one place where Canada's decision-makers are making life-and-death decisions. And yet there is no meaningful review of a negative decision. The only possible review is a judicial review, which is a narrow legal review, and most importantly, only by leave.
Only one in ten applications for leave to the Federal Court is granted. That means that nine out of ten claimants who ask for even this limited review are denied. There are no other reviews. Other recourses that may be available for refugee claimants are H and C, or humanitarian and compassionate applications, and the pre-removal risk assessment applications. These do not review the initial IRB decision. On the contrary, they regularly use the negative IRB decision against the person who is using these recourses.
On December 14, 2004, the Standing Committee on Citizenship and Immigration unanimously adopted the following motion:
Whereas: the Refugee Appeal Division is included in the Immigration and Refugee Protection Act; Parliament has passed the Immigration and Refugee Protection Act and can therefore expect that it be implemented; the House of Commons and parliamentarians have a right to expect that the Government of Canada will honour its commitments;
...or advise the committee as to an alternative proposal without delay.
The recommendations about this: Ask the government to account for the non-implementation of the committee's earlier motion regarding the Refugee Appeal Division. Support the private member's bill calling for the immediate implementation of the Refugee Appeal Division.
The next topic is the Immigration and Refugee Board appointments. Appointments to the IRB have been a longstanding problem. There have been improvements with the introduction of a merit-based selection process. However, the process still depends on the government in power actually making the necessary appointments in a non-political manner. This has not been happening, and the IRB is facing a crisis now, a deep crisis, due to the failure of the government to reappoint qualified members and to appoint sufficient new members.