You probably saw me jump a number of times during his presentation. I'm pleased to have the opportunity you've afforded me to react to some comments with which I don't agree.
In fact, I'll first react to something I do agree with. Mr. Fadden emphasized that we recently observed a sudden increase in the number of refugee claimants from countries whose acceptance rate at the Immigration and Refugee Board is relatively low. The example he cited was Mexico, and he added that, ultimately, only 42% of all refugee claimants are processed and found to be valid. That's true.
In my opinion, that shows just how dysfunctional the system is. Is there another government system that has such a low success rate? Imagine if only 42% of passport applications were accepted! Someone would say that something's not working somewhere.
How have we come to this point? Contrary to what Mr. Fadden said, the Refugee Appeal Division is not only for refused claimants. Subsection 110(1) of the Immigration and Refugee Protection Act states: “A person or the Minister may appeal [...].”
What happens now? Since it's arbitrary, since there's no case law and the system operates like a lottery—the “board member lottery”—a lot of people file claims hoping they'll wind up with a sympathetic board member. If we had a system with good, well-settled case law, an effective appeal division, if people knew from the outset that they had no chance, because even if they wound up with board member X, the minister would appeal and they would lose, these people would not file. As a result, the success rate would not be so low.
There was another comment I wanted to react to. It concerns the possibility of filing an appeal. There is currently no opportunity to file an appeal on the merits. I moreover noted in my text that when we talk about other mechanisms, we prudently talk about recourse mechanisms, but we never talk about real appeal mechanisms. The reason for that is very simple.
First, very few applications for judicial review are accepted by the Federal Court of Canada. And when they are dismissed, no reasons are given. We can't know whether the court has dismissed them because it does not want to examine the issue on the merits or because of procedural issues: it does not give reasons for its decisions. Consequently, I do not understand how Mr. Fadden can come to the conclusion that the court engages in appeals on the merits: it does not give reasons for its decisions to dismiss.
Then—this time correctly—he recalled that the Federal Courts Act enables the Federal Court to overturn a decision based on “an erroneous finding of fact... made in a perverse or capricious manner”. It is these criteria that rule out the majority of cases. Obviously, in an extreme case where a decision has been made in a perverse or capricious manner, someone might have a chance to make his point in Federal Court. The fact nevertheless remains that, in the majority of cases—the Federal Court has said so in judgments—there is no opportunity for appeal on the merits.
I am not the only person to think this. There's the Canadian Bar Association, which knows the law quite well. There's the Quebec Immigration Lawyers Association, which also knows the law quite well.
In December 1997, the Legislative Review Advisory Group, appointed by the Minister of Citizenship and Immigration, published a report entitled, “Not Just Numbers: A Canadian Framework for Future Immigration.” According to page 94 of the report, that working group, appointed by the minister, felt that the system of judicial review of decisions concerning refugees was too restrictive because of the requirement that leave be obtained to appeal and the fact that the grounds of appeal were limited to the legality of the decision.
In concluding, I'll give you a brief report on the discussion that took place before this committee on Tuesday, February 10, 2009. Mr. Thierry St-Cyr said: “However, the Refugee Board is the only tribunal in the Canadian justice system that does not provide for appeals on the merits. Am I correct in saying it is not possible to appeal on the merits?” In response, the Honourable Jason Kenny said: “Technically, you're correct, Mr. St-Cyr [...].”
In my opinion, when you make the laws, you make them so they will work. You can't say that, technically, there's no appeal on the merits, but, in certain cases, the courts may have the necessary discretion to provide for one.
Although it has to be admitted that there are other mechanisms, other remedies, there is no appeal on the merits, and that's a major fault in the justice system. In Canada, refugees are the only ones who do not have access to this elementary legal procedure.