Thank you.
I want to thank the committee members for receiving us today and for taking time to hear us.
I'd like to draw your attention to the recommendations we have made on pages 9 and 10 of the English version of our brief. We have them in two different parts. One is immediate recommendations, which would require no legislative change, and the other section is longer term and requires legislative change.
The first recommendation is the implementation of the refugee appeal division of the Immigration and Refugee Board. As I'm sure all of you know, this has been on the books since 2002, but it has not been put into effect. The reason we recommend it is that the Immigration and Refugee Board, like any system of adjudication, is open to human error.
To give you an idea of the possible scope for human error, earlier in our paper we cite the range of acceptance rates in 2005 for IRB members who heard and decided on at least 100 cases. As you will see, they vary between 5% acceptance and 88% acceptance. It's not to say that the IRB is better or worse; it's a system of adjudication that deals with human beings. It's open to human error. The stakes are actually higher than for any administrative or judicial decision taken in Canada. Given that Canada has abolished the death penalty, this is the only judicial or quasi-judicial decision in Canada that could lead to somebody's torture or even death.
Those are the stakes. With all due respect to some members who have said the contrary, even in the House of Commons, there is no appeal from an Immigration and Refugee Board decision. There is no appeal on the merits.
The possibility of judicial review exists at the Federal Court, but this has many obstacles. First of all, you must apply for permission to have your case heard by the Federal Court. There are 89% of cases that are refused at that level; they are never heard. If they are heard, the court can only intervene if it finds there has been a manifest error. It's not simply a question that the decision was not correct. A true appeal is when one tribunal looks at a lower court's decision and asks if it arrived at the correct decision. Here, it must be manifestly unreasonable, which is an extremely high standard to meet. It really is not fair to describe that as an appeal.
On the pre-removal risk assessment, which is the topic of our presentation, we have listed--at great length--different problems with it. My colleague Claudette has even provided some additional examples. But it was never conceived as an appeal. It was conceived as a way of looking at changes in circumstances or new evidence that becomes available after the Immigration and Refugee Board hearing. It was certainly never conceived as an appeal on the merits.
The other recourse, which is sometimes described as an appeal, is an application for permanent residence on humanitarian and compassionate grounds. This involves no independent assessment of the risk that claimants face if they were returned to their country. The risk assessment is carried out by the same PRRA officer. It's really not reasonable to call it an independent recourse, much less an appeal. And as Claudette mentioned in one of her examples, very often people are removed from Canada while awaiting a response on their humanitarian application. She mentioned a concrete example.
We'd like to point out, although I'm sure you're aware, that this would require no legislative change. In fact, it would simply require implementing existing legislation.
Our second recommendation is enhancing the training of PRRA officers with regard to the assessment of evidence and the interpretation of Canadian legislation, including the charter and human rights instruments. We feel this training should include the participation of representatives of the UNHCR and NGOs such as Amnesty International and the Canadian Council for Refugees.
Our third recommendation concerns disclosure by Citizenship and Immigration Canada of the qualifications and other requirements for being nominated as a PRRA officer, as well as the conditions of tenure, such as their expected workload, length of contracts, if applicable, job performance evaluation, and quality control of decision-making.
We note in our brief that one of your members on December 5 asked a question of Citizenship and Immigration Canada about the level of training and qualifications of PRRA officers. As the courts have mentioned, they are making extremely important decisions and are often applying complex legislation, like the UN Convention relating to the Status of Refugees, IRPA, and the Canadian Charter of Rights and Freedoms.
The member has been kind enough to provide me with some of the information that either has been or will be distributed. One thing that jumps out is that in Quebec the majority of PRRA officers have less than 24 months' prior job experience. These are people whom you would expect to be very senior agents with a great deal of immigration experience, a great deal of experience dealing with people facing persecution. I don't want to comment more. You'll have a chance to analyze this--I haven't--but it seems to be treated as something of a junior position.
One last immediate recommendation concerns oral hearings for the pre-removal risk assessment. As you may know, and as we point out in our brief, an oral hearing before the officer who will decide the pre-removal risk assessment is not guaranteed. Not only is it not guaranteed, it's almost never granted.
We cite a section of the IRPA regulations that has always seemed very ambiguous to me. It points out that an oral hearing should be granted when “there is evidence that raises a serious issue of the applicant's credibility”. We find it very strange that virtually all the decisions, whether at the IRB or the PRRA, are decided on issues of credibility, yet there are virtually no oral hearings.
This is something that has never been clear to us; therefore, we feel the immigration manual that applies here should be modified to make it clear that where credibility is an issue, there should be an oral hearing, especially where someone was not afforded a hearing before the board. Since 2002 there has been a category of people who claim refugee status in Canada but will never have an oral hearing before the board. This includes a person who made a claim some time in the past. They may have returned to their country and there may be a complete change in circumstance, but since they made a prior claim some time in the past, they will never get another oral hearing before the board.
We feel if that's the case they should at least be guaranteed an oral hearing before the PRRA officer. We cite a Federal Court decision stating not exactly that, but that generally where credibility is an issue, a person should get an oral hearing before the PRRA. We feel that should be codified into the immigration manual.
On longer-term recommendations that would require legislative change, we feel that ultimately it makes most sense for the PRRA to be taken completely out of the hands of Citizenship and Immigration Canada and placed in the hands of the Immigration and Refugee Board. This would solve all the problems of institutional independence, expertise, and training that we mention in our brief. More generally, it seems to be illogical to have two sets of officers--one at the IRB and one at Citizenship and Immigration Canada--who are applying the very same definitions of refugee and protected persons. Why not have only the experts at the IRB apply this? It seems like a needless duplication of services, and it raises all the difficulties of duplicating training, or possibly inadequate training and experience.
A second recommendation is to abrogate paragraphs 101(b) and 101(c) of IRPA that prevent someone who previously made a refugee claim in Canada from having another hearing in their lifetime before the Immigration and Refugee Board.
Finally is to enhance the powers of the IRB to reopen inquiries where there has been a significant change of circumstances, so they can re-hear a case, examine it, and grant refugee status. Right now, the IRB is very limited in the types of cases where it can reopen a hearing. It's limited to questions of natural justice, so it's just when there was a real problem of fairness in the hearing. Even if there has been a major change in circumstances, even if 10 years have passed since an earlier decision, the IRB cannot revisit the claim or reopen it for a further hearing. We feel this change is likely to avoid the need for the pre-removal risk assessment in many cases.
So those are our recommendations.