CCR


REFUGEE DETERMINATION SYSTEM
CCR ESSENTIAL PRINCIPLES

14 July 2004


GENERAL PRINCIPLES

1.    International obligation to protect refugees
As a party to the 1951 Convention relating to the Status of Refugees, Canada is obliged to protect refugees from persecution.  Refugee protection is not an act of charity but an obligation under international law.

2.    Refugee protection as goal
The refugee determination system must have as its primary goal the protection of refugees.  The system must be designed so that all refugees receive protection.

3.    Respect for international human rights obligations
The refugee determination system must fully respect Canada’s international human rights obligations.

4.    Compliance with the Canadian Charter of Rights and Freedoms
All persons in Canada, regardless of their immigration status or lack thereof, are entitled to full protection under the Canadian Charter of Rights and Freedoms.  The refugee determination system must therefore fully comply with the Charter.

5.    Respect for human dignity
The refugee determination system must respect the fundamental human dignity of all refugee claimants, whether or not they are found to need Canada=s protection.

6.    Humanitarian considerations
The refugee determination system must include access to remedies for refugee claimants who, while not meeting the definitions of refugee or persons in need of protection, deserve to remain in Canada, on humanitarian grounds or because their removal would be contrary to Canada’s international human rights obligations.

7.    Increased resettlement does not justify reducing the rights of claimants or restricting access
Enhanced resettlement must not be at the price of a deterioration in the protection of the rights of those who make a refugee claim in Canada.  Nor may resettlement be used as a trade-off for restricting access to asylum in Canada. Canada can and should resettle more refugees.  However, refugee claimants in Canada engage our international human rights obligations, notably the obligation of non-refoulement.  Canada is obliged to uphold international human rights norms when its actions block access to asylum through measures such as interdiction and safe third country agreements. Increased resettlement does not affect these obligations.

8.    Efficiency as secondary goal
Efficiency of process is as a rule in the interests of both claimants and the government.  Claimants have a right to a hearing within a reasonable period of time.  What constitutes a reasonable period of time depends on the individual claimant’s circumstances (for example, whether the claimant is separated from family).   Efficiency must not, however, be made a goal above claimants’ rights.

9.    Family reunification
The refugee determination system must respect the right of families to be together.

10.    Detention a last resort
Refugee claimants should not be detained except as a last resort, and only where there are no reasonable alternatives to detention.  Claimants who are detained must have access to legal counsel and resources to assist them in establishing their claim and their identity.

11.    Separated children
Special procedures should be in place to protect the interests of separated children making refugee claims.

12.    Transparency
All government institutions involved in the refugee determination system must provide transparency.  Decision-making should not take place in secret.  The public should have access to any information that is used in making decisions, and be able to feed relevant human rights data into the system.

13.    Accountability
The government bears responsibility for the ability of the system to meet all the above general principles.  This responsibility is a serious one, since claimants’ life, liberty and security of the person are at stake.  The government must have in place mechanisms, such as an Ombudsperson, to ensure that the system functions correctly and to protect individuals whose cases are dealt with incorrectly or unfairly.

ACCESS

14.    Access to refugee determination system
All those who make a refugee claim in Canada or at a Canadian port of entry should have access to an oral hearing.

15.    Access to consideration on all grounds of protection
All claimants have the right to be considered on all grounds of protection.  In the case of the 1951 Convention refugee definition, issues of inclusion should be considered before any issues of exclusion (i.e. the risk to the individual should be assessed before any consideration of whether they do not deserve protection).  In the case of other grounds of protection (Convention against Torture and International Covenant on Civil and Political Rights), there are no exclusion clauses and none should be applied.

16.    Access to protection for interdicted asylum seekers
Canada bears a responsibility towards asylum seekers whom it interdicts outside Canada. The international obligation of non-refoulement requires that Canada ensure that interdicted asylum seekers have access to protection.

DECISION-MAKERS

17.    Independence of decision-makers
Refugee determination must be undertaken by decision-makers who are fully independent, both individually and institutionally.  Among the criteria that must be met before decision-makers can be considered independent are that they are appointed for a fixed term, through a non-political process of appointment and reappointment, and that they work within an independent quasi-judicial tribunal.

18.    Quality of decision-makers
Decision-makers must have all the competencies necessary to make crucial and complex refugee determinations in a sensitive manner.

HEARINGS

19.    Hearings
Unless accepted through an expedited process, claims must be determined by a qualified, independent decision-maker through an oral hearing (not an interview), where claimants have full opportunity to present their case, be represented by counsel, and hear and respond to any questions about their claim.

20.    Non-adversarial hearings
The refugee hearing should be non-adversarial, when there is no exclusion clause at issue.

21.    Adequate preparation time
All refugee claimants should have adequate time to prepare their case.

22.    Treating each individual claim on its merits
Each claim should be examined on its individual merits.  The system should not reduce procedural guarantees or bias decision-makers against claims based on group characteristics (for example, “safe country of origin” or “manifestly unfounded” categories).

23.    Representation
Refugee claimants should be assured adequate legal aid coverage.  Given that refugee claimants are sometimes poorly represented by incompetent or unscrupulous counsel, the refugee hearing process should as far as possible avoid penalizing claimants who are poorly represented.

24.    Sensitivity
The refugee hearing should be designed to be as sensitive as possible towards claimants.  In particular, sensitivity needs to be shown towards claimants who are women, children, survivors of torture, elderly and people with disabilities.

25.    Quality of interpretation
The refugee hearing process depends on the quality of the interpretation. Interpreters should be held accountable through accreditation, licensing and codes of conduct.

26.    Documentation
Effective refugee determination depends on decision-makers having access to comprehensive, accurate, up-to-date, neutral and open information about the conditions in the countries fled.  The system must make this information available.  However, in making determinations, a balance is needed between the reliance on documentation and the recognition that it is frequently not possible to verify individual claims.  Board members should be encouraged not to seek to corroborate each element of an individual claim.

27.    Disclosure
All information used in a refugee determination must be disclosed to the claimant in advance of the hearing.

28.    Reasons
Written reasons must be given for decisions.

APPEAL AND REOPENING

29.    Appeal on the merits
The refugee determination system must offer refused refugee claimants an appeal on the merits.  An appeal must offer a transparent process, competent and sensitive decision-makers and accountability.  The appeal process must include the possibility of an oral hearing.  The appeal process should be designed to be as sensitive as possible to the realities of the claimant.  This includes taking into account that competent (or any) counsel is not always available.  For these reasons, it is important that there be flexible time limits.

30.    Reopenings
The body making refugee determinations should have ongoing jurisdiction up to the time of removal to reopen a refused, abandoned or withdrawn claim in the event of a change of circumstances or new information becoming available.

31.    Review by the courts
Refused refugee claimants must have access to the courts, without leave, for judicial review of the decision.

32.    Stay of removal
There should be a stay of removal pending determination of the appeal or review of the refugee determination decision.

REFUGEE REFORM

33.    Process of reform
Before moving towards the implementation of any reform to the system, the government should make public the model or models they are considering, giving a reasonable opportunity for those interested to respond.

34.    Maintaining strengths of existing system
Despite the flaws in the refugee determination process in place in Canada since 1989, the system has many significant strengths that have earned it high international standing and served many refugee claimants well.  The known advantages of the current system should not be sacrificed in favour of unknown and uncertain hypothetical benefits of a different system.