Frequently Asked Questions
The Refugee Appeal Division (RAD) is an additional division of the Immigration and Refugee Board (IRB), created by Parliament in the Immigration and Refugee Protection Act, adopted in 2001. The law gives refugee claimants the right to an appeal on merit against a negative decision from the Refugee Protection Division of the IRB.
However, in April 2002, the government announced that the RAD would not be implemented at the time that the Act was to come into force (28 June 2002).
The reasons change with the circumstances.
Only the government can tell the real reasons for the failure to respect the law passed by Parliament and the basic rights of refugees. However, it is undoubtedly relevant that:
In the absence of an appeal on the merits, there is no other mechanism that can ensure that errors are corrected. A refused refugee claimant can apply to the Federal Court, but only with leave (or permission) from the Court and only on some types of error. Leave is only given in 10% of cases and the Court does not even provide a reason when it denies leave.
The Federal Court is the only forum in which the refugee determination made by the IRB will be reviewed and potentially overturned. Refused claimants may apply for a Pre-Removal Risk Assessment or for humanitarian and compassionate consideration, but neither of these recourses serve as a mechanism for correcting errors made in the initial refugee determination.
A refused claimant applying for a Pre-Removal Risk Assessment (PRRA) can only raise new evidence, not argue that the initial decision by the Immigration and Refugee Board was wrong. This point was recognized by the UN Committee Against Torture which pointed out that in a PRRA application “it would only be any fresh evidence that would be taken into consideration, and otherwise the application would be rejected. In its view, therefore, this procedure would not afford the complainant an effective remedy […]”
In 2005, only 3% of decisions at the Pre-Removal Risk Assessment were positive.
Applications for humanitarian and compassionate consideration (H&C) also fail to offer any meaningful recourse for claimants who have been wrongly rejected. The measure is a discretionary one and the applicant can be deported before a decision on H&C has been granted. The UN Committee Against Torture made the following comment on the ineffectiveness of H&C as a recourse:
Q.5 Wouldn’t the introduction of the RAD increase the processing times for the refugee determination system by adding an additional step?
This argument is regularly advanced by the government. This is a regrettable emphasis, because we are talking about people’s lives. The focus on processing times suggests that the government considers refugee claimants primarily not as human beings whose fundamental rights may be threatened, but as a bureaucratic problem to be managed.
Furthermore, it is far from clear that the RAD would increase processing times (at least by the five months suggested by the government). Of course, it is difficult to know what the government’s analysis actually is, since it is has not made it public, or even discussed it with representative groups such as the Canadian Council for Refugees.
Implementation of the RAD will almost certainly reduce significantly the numbers of applications for judicial review to the Federal Court, as well as the numbers of cases granted leave. This can be assumed for several reasons: many of the wrong decisions will be corrected by the RAD and therefore not require a judicial review; claimants who have had one review of a negative decision are less likely to want to pursue an expensive judicial review; the Federal Court will presumably have less reason to grant leave since most cases with reviewable errors will have been dealt with by the RAD. After an initial period, the plan was not to grant a stay of removal pending judicial review of a negative decision from the RAD.
Implementation of the RAD will improve efficiency and consistency at the first level hearing, by providing precedents that must be followed in similar cases. This will assist decision-makers who will be able to use the jurisprudence of the RAD to simplify decision-making.
If the government is preoccupied by the time it takes to finalize cases, it should address the delays for which it is responsible. The Cabinet has left many positions at the IRB unfilled, leading to a shortage of decision makers. As a result, processing times for refugee determination are rising. The government could also address delays at the Pre-Removal Risk Assessment stage. Many claimants wait months before they are asked whether they want to apply for a Pre-Removal Risk Assessment and, when they do, many more months for a decision.
Again, this argument is raised by the government, but it should not be our primary concern when we are considering what is needed to ensure that refugees are protected from persecution. The costs in human terms of sending a refugee back to persecution far outweigh the limited financial costs of the RAD.
In any case, it is not clear how the government is arriving at its costs estimates.
In December 2004, the Chairperson of the Immigration and Refugee Board estimated that the Refugee Appeal Division would cost an estimated $2 million to set up and $8 million annually to run. This is a modest sum in the context of government expenses, reflecting the very modest nature of the appeal approved by Parliament, which is limited to a paper review.
Two years later, the government claims that the RAD would cost the federal government $12 million a year and would increase social assistance costs to the provinces by approximately $21 million annually.
These figures do not appear to take into account what refugee claimants contribute in taxes, nor the cost-savings that would accompany the implementation of the RAD. Its costs would be mitigated by some cost-savings for the government at the Federal Court, since fewer cases would need to be addressed at that level. Dealing with cases at the Federal Court is much more expensive because of all the formal requirements of judicial proceedings, involving expenses for the govenment not only for the Court itself but also for the Department of Justice lawyers who must prepare documents and appear before the Court.
Again, if the government is concerned about costs to the provinces, it should make the necessary appointments and re-appointments to the IRB, to stop the growing backlogs of refugee claims waiting for a decision maker.
Q.7 Is the question of an appeal best reviewed in the context of an overall reform of the refugee determination system?
Ever since 2002, when the implementation of RAD was postponed, successive Ministers of Citizenship and Immigration have said that they are studying alternatives. The government is of course always free to consider possible future reforms, but in the meantime the law already passed by Parliament needs to be respected. In any case, given that nothing has ever come out of the repeated undertakings to review the system overall, it looks like it is mostly a delaying tactic.
The calls for the implementation of the RAD come from a wide range of organizations, in addition to the Canadian Council for Refugees.