On March 30, 2010, the government tabled legislation in the House of Commons to reform Canada’s Inland Refugee Protection System, Bill C-11. The Bill sets out to make the refugee claim process faster and fairer. In the Ottawa Citizen op-ed “Toward fast and fair,” Peter Showler, Director of the Refugee Forum at the University of Ottawa, argues that the reforms announced Tuesday represent a good start to rebuilding Canada’s refugee system.
Here is Peter Showler’s op-ed:
All of the major asylum systems of the world aspire to be both fast and fair, but none of them are.
Canada’s asylum system has been renowned as the fairest, but has suffered more than its share of criticism. It was often praised internationally while being criticized at home from both the left and the right.
The current government was particularly critical last summer, blaming the refugee system for the necessity of imposing visa restrictions on Mexico and the Czech Republic. At that time, the government promised refugee reform, and now it has delivered a package of reforms that could strike an effective balance between fast and fair.
Making refugee decisions has never been an easy task.
Most of the evidence and witnesses for a refugee claim remain inaccessible in the refugee’s home country. The sole witness is the refugee, and he or she is a notoriously poor one. Refugees must normally testify through an interpreter, they are frightened and haunted by their own persecution, they can’t remember key events or can’t find the words to describe them credibly. They don’t understand legal procedure. Some of them have been told to lie by smugglers or relatives. The quality of their legal representative varies from heroic to incompetent and unethical, and refugees can’t tell the difference.
It is not easy for Immigration and Refugee Board members to distinguish between the frightened, the confused and the false witness and, collectively, they must do it 35,000 times per year. It is heart-rending, complicated justice that operates on a high-volume basis, like trying to serve excellent cuisine out of a fast-food outlet.
At the same time, some of the principal criticisms of Canada’s system have merit. The system is too slow, under-resourced and over-burdened. The appointment of board members has been inefficient, secretive and sometimes political. There is no reliable appeal, there are too many stages to the removal process, they take too long and result in little tangible difference in the outcome.
The system has been foundering. There is a backlog of 61,000 claims at the IRB. The wait time is currently 18 months and it will get longer. The average time in Canada for failed claims is 4.5 years and many take far longer. Academic studies demonstrate unacceptably wide variances between the asylum granting rates of individual IRB members, as well as between Federal Court judges. That smacks of arbitrary justice. Government officials talk of “five levels of appeal” while there is not one decent, reliable appeal as it is understood by lawyers and jurists.
In the government’s proposal, all eligible claimants will still receive a full hearing before an independent IRB member, who will now be a public servant, but one who works within the penumbra of the board’s independence. The government has resourced the position to produce a continuing corps of professional decision-makers that will not be subject to the uncertainties of political re-appointment.
There will be a true appeal to a new Refugee Appeal Division (RAD) of the IRB. The appeal procedure will be better than the stillborn appeal system in the current legislation that never saw the light of day. This new appeal could be an effective catcher and correcter of first-level mistakes.
The government has dismantled and accelerated the removals process. Claimants who come from designated safe countries will not be allowed to appeal their first-level decision. Alternative humanitarian applications to remain in the country will not be allowed after a claim is refused. There will be no pre-removal risk assessment if the claimant is removed within one year.
These are tough provisions, but are not unfair if the first-level decision and the appeal are well done.
There is one serious flaw that must be corrected. Under the current proposal, a refugee claimant would be referred to the IRB for an interview within eight days of making a claim and would then receive a hearing within 60 days of the interview. That is an unrealistic time frame that leaves insufficient time for effective legal representation.
Poor legal representation has been one of the quiet scandals of the current refugee system. This proposal makes it worse. Some see lawyers as a complication to the system, an inconvenience that gums up the works. The truth is that good lawyers facilitate good decisions and poor lawyers confuse and delay the process. A tough solution is at hand: eliminate the consultants, fund legal aid adequately and allow four months to hear the claim.
The government has struck a reasonable balance between fast and fair, but dangers abound. If the minister places unsafe countries on the safe country list, the system disintegrates. If the public servant decision makers import departmental biases into their role as independent decision makers, they will render incorrect decisions and the system will founder. If the cabinet reverts to patronage in appointing RAD members, the reliability of the RAD is lost and the integrity of a fast removals process is lost.
At the end of the day it is the integrity of the refugee claim decisions that drive the system. If the IRB gets it right both at the first level and on appeal, then the government will be able to promptly remove failed claimants.
The real secret of an effective system is that fast and fair are not opposites, they are complementary. The government appears to understand this principle. Apart from granting more time before the first hearing, this proposed system will work as long as it is fairly and reasonably implemented.
It is devilishly difficult to make a refugee decision, to figure out whether one particular individual does or does not have a well-founded fear of persecution in his or her home country. It is even more difficult to design an entire refugee claim system that is both fast and fair. The Conservative government has done just that, striking a reasonable balance between the two. But now the devil is in the details.
Former IRB chairman Peter Showler is director of the Refuge Forum at the University of Ottawa Law School and author of Fast, Fair and Final: Recommendations for Refugee Reform.
(Originally published by Peter Showler in the Ottawa Citizen as “Toward fast and fair“).