The issue of recourse for refugee claimants is very difficult, and I think quite confusing. Madame Folco is very knowledgeable on this, having served on the board.
People talk about all this recourse that claimants have. But if you look under the current act, they have their hearing before a single member of the refugee division. They then have the right to seek leave for judicial review. That's not getting to the court; that's getting permission from the court to go to the court. I don't know what the current statistics are, but when I did the study only about 12% of cases got leave. So this meant that of those who were rejected and who sought leave, 88% were out of luck at that point.
Then their other recourse is the humanitarian and compassionate application, which is available to all immigrants. And it has nothing to do with the asylum claim; it has to do with the circumstances the individual finds himself in, family circumstances and things like that, and whether removal from Canada would be an undue hardship. And it's, at the end of the day, a discretionary remedy that rests with the minister.
The other remedy is the pre-removal risk assessment, which only kicks in if there is a significant delay in removing a failed refugee claimant; and that only deals with allegations of changed circumstances in the country of origin.
So the claimant never has the chance to re-litigate the matters that were heard by the single member before the refugee division. That case is closed, unless it's overturned by the Federal Court on judicial review.
In the pre-removal risk assessment, they can bring forward, if such evidence exists, evidence of changed circumstances in the country, if there's a coup or if there's a civil war started, or something like that, that would make removal to that country dangerous. But that's a very limited process. So the total bundle of recourse that's available to refugees is not in fact as broad as some of our newspaper editorialists would have us believe.
The big problem in the system is slowness in removing failed claimants, and that's a resource problem for the Department of Immigration. I don't think it's lack of will on their part, particularly during the period when we had 45,000 claimants a year coming and a significant number of these were rejected. The task of having these people removed or going and collecting them and effecting the removal is very difficult, and you find that a very significant percentage of them just never get removed. That is a fundamental problem in the system, but it's not a problem with the recourse.
So I would see the RAD as being a vital element in this system, but I wouldn't see removing the pre-removal risk assessment process or the H and C. And as I mentioned in my earlier comments, access to the Federal Court is a legal remedy that's available because of the status of the refugee board as a statutory tribunal. What I would hope would happen, as a practical matter, is if the quality of decisions at the refugee board, the RAD, were demonstrably high, the incidence of judicial review being granted and the delay that's associated with it would be eliminated.