NATIONS UNIES HAUT COMMISSARIAT POUR LES REFUGIES		UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES
Délégation pour le Canada		Branch Office for Canada
Fax: (613) 230 9120 Téléphone: (613) 232 0909 Téléfax: (613) 230 1855		280 Albert Street, Suite 401 Ottawa, Ontario CANADA K1P 5G8

7 January 2000
 

Dear Minister Caplan,
 

I am writing in response to your invitation, extended when we met in your office on 22 November, to submit UNHCR's views on the introduction of an appeal on the merits into the Canadian refugee status determination (RSD) system.

UNHCR believes that an appeal on the merits of negative decisions at first instance is a fundamental feature of a credible refugee status determination system. In our opinion, an appeal procedure could be designed which would meet the requirements of fair procedure without lengthening the processing times of the current system. We would like to offer our views on why such a procedure is necessary and how it could work in practice.

A Fundamental Feature of RSD Systems

The refugee status determination hearing has been described as "probably one of the most difficult judicial or quasi-judicial events existing in Canada." ⁽¹⁾

For this reason, the provision of a meaningful appeal is a fundamental requirement in the context of refugee status determination, where the consequences of an erroneous decision can be particularly serious.

Since the establishment of the current system, UNHCR has repeatedly expressed its view that an effective appeal on the merits is a fundamental element of due process and as such should be introduced into the Canadian refugee status determination system. The absence of such an appeal of negative decisions diminishes the stature of the Canadian system as a model procedure for States Parties to the 1951 Convention relating to the Status of Refugees and does not reflect best practices internationally.

The 1951 Convention provided a refugee definition but did not specify a procedure for determining refugee status. States Parties were accorded the flexibility to design procedures which would be compatible with their existing legal systems.

Recognizing the important link between substantive and procedural rights, UNHCR's Executive Committee, of which Canada is a member, in 1977 adopted its Conclusion No. 8(XXVIII) entitled "Determination of Refugee Status" which enumerated certain basic requirements, including:

… (vi) If the applicant is not recognized, he should be given a reasonable time to appeal for a formal reconsideration of the decision, either to the same or to a different authority, whether administrative or judicial, according to the prevailing system."

(vii) The applicant should ... be permitted to remain in the country while an appeal to a higher administrative authority or to the courts is pending….

(emphasis added)

The Conclusion, in using the language that it does, envisaged an appeal which considers the merits of the first instance decision. The term "formal reconsideration" goes beyond a review of limited scope and clearly implies a new consideration of the case including the reasons for the initial decision. Thus, judicial review, an inherently limited form of redress standing alone, does not meet the minimum standards established by the Executive Committee. Moreover, preparation is required to effectively exercise a full right of appeal, hence the Executive Committee' s guidelines afford applicants a "reasonable time" to make their submission. Lastly, appeal rights are to be taken seriously, which is why they should have suspensive effect.

The recommendations contained in the Executive Committee's Conclusion are viewed by UNHCR as an important part of a set of substantive and procedural guarantees designed to ensure international protection for persons in need of it. The importance of the appeal right is also recognized by the practice of similarly situated States Parties. Of the 21 principal asylum countries of Europe, Oceania and North America whose procedures we have surveyed,⁽²⁾ all but Italy and Canada provide for an appeal on the merits.

In light of the potentially grave consequences of an erroneous decision, the importance of an appeal mechanism was reiterated by the UNHCR Executive Committee in 1983 in its Conclusion No. 30(XXXIV) which urged that an appeal procedure be maintained, even within the context of accelerated procedures designed to handle manifestly unfounded or abusive claims. The Committee said:

…(e) (iii) an unsuccessful applicant should be enabled to have a negative decision reviewed before rejection at the frontier or forcible removal from the territory. Where arrangements for such a review do not exist, governments should give favorable consideration to their establishment. This review possibility can be more simplified than that available in the case of rejected applications which are not considered manifestly unfounded or abusive.

An Acceptable Appeal Procedure

Notwithstanding the fundamental comments set out above, we acknowledge and share your publicly stated concern for efficiency, as well as fairness, in the system. We therefore wish to emphasize our belief that a written appeal within the IRB would not lengthen the overall process if implemented with several other changes, i.e., faster referral to the Board and other case management strategies, a shift to single member panels, consolidation of the refugee status and PDRCC decisions.

We view the current Canadian refugee status determination procedure as consisting of three phases prior to judicial review: the eligibility determination by the Senior Immigration Officer and subsequent referral to the CRDD/IRB; convocation of the claimant and hearing of the claim by the CRDD; and the post determination assessments in the case of negative CRDD decisions prior to removal (including PDRCC and sometimes H&C).

UNHCR supports efforts to shorten all of these phases. This could be done, inter alia, through faster referral to the CRDD/IRB, ⁽³⁾ more efficient scheduling of CRDD hearings, and consolidation of all risk assessments into the CRDD phase, which would effectively eliminate the third phase in its entirety. The third phase (post determination assessments) involves issues about the risk of return - issues that are not unrelated to the 1951 Convention - and so it would be reasonable to consolidate these risk considerations into the CRDD phase. This would mean that CRDD members would make several decisions in one proceeding: a refugee status determination under the 1951 Convention criteria, a broader risk review and an assessment of humanitarian and compassionate factors. Taken collectively, these decisions would form one generic "protection" decision.⁽⁴⁾

Such consolidation, we believe, would result in a simpler and more efficient process. However, the fact that all three determinations would be made by the same individual or individuals would make an effective appeal on the merits all the more necessary.

The appeal could be administrative or quasi-judicial in nature, which is why we suggest an appeal procedure be placed within the exisiting administrative tribunal handling first instance decisions (the IRB). This would have the further advantage of ensuring the independence of appellate decision makers. The most experienced and qualified legal experts among CRDD members could form an appellate body to reconsider cases which have been appealed in writing. If a member, sitting on an appeal, is not satisfied that the matter could be resolved on the basis of the written record, he or she could use discretion to hear the claimant in person. The option to re-hear, however, would be the exception, not the rule.

In order not unduly to lengthen the process, the time limit for filing an appeal could be kept to a minimum. Our survey of the appeal mechanisms of the 21 countries mentioned above found a wide range of time limits for filing of appeals after receipt of a negative decision, from one week (in the U.K.), to no limits at all (in Finland and Ireland). Most countries impose limits for presentation of an appeal on the merits of two to four weeks, with much shorter deadlines for individuals who are kept in detention. Similarly, there are some countries which require that the appeal decision be rendered within a specified time limit. The IRB could implement similar case management strategies.

Despite our concern over certain aspects of the current system, using two member panels does contain an inherent safeguard, since only one member of the panel need accept a claim for recognition. This safeguard would be lost with a move to single member panels and so we continue to support the use of two member panels in the context of the current system. However, we would have no objection to a shift to single member panels if an appeal procedure as outlined above were established concurrently.

The establishment of a procedure for an appeal on the merits would have at least six principal advantages, some of which enhance efficiency as well as fairness. A written appeal would:

1. afford an opportunity to correct errors in the refugee determination process;

2. offer precedent for first instance decision makers, which would help to ensure quality and consistency in decision making;

3. allow for decisions which substitute for the initial decision, thereby eliminating the current need for a full re-hearing in cases of reviewable error;

4. have the potential to reduce the need for judicial review and ease the burden on the Federal Court;

5. utilize decision-makers with their specialized knowledge concerning refugee affairs, status determination, international standards and Canadian procedures and law; and

6. be administratively simpler than judicial proceedings.

Conclusion

In summary, UNHCR strongly urges the Canadian government to introduce a written appeal on the merits within the IRB. At the same time, UNHCR supports Canada's efforts further to streamline the refugee status determination process while maintaining its fairness. If the Canadian government introduced an appropriate appeal on the merits, we would have no objection to (indeed, we would be in a position to welcome) a shift to single member panels and/or a single, consolidated "protection" decision.

With respect to the appeal itself, we would have no objection to the appeal being a written request for reconsideration of the case on an administrative or quasi-judicial basis, with strict time limits, as long as the appellate body:

(a) is comprised of highly qualified and experienced legal experts; (b) has the option to hold a new hearing if necessary; and (c) has independent decision-making capacity.

Thank you for this renewed opportunity to present UNHCR's views. My colleagues and I are available for further discussion of this matter at any time.
 
 

Minister Elinor Caplan
Office of Minister of Citizenship and Immigration
Jean Edmonds Tower South, 21^st floor
365 Laurier Avenue
Ottawa, Ontario K1A 1L1
 

1.
per La Forest, J in Chan v. Canada (MEI), [1995] 3 S.C.R. 593 at 619 (SCC).

2.
Australia, Austria, Belgium, Canada, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxemburg, Netherlands, New Zealand, Norway, Poland, Spain, Sweden, Switzerland, the U.K. and the U.S.A.

3.
In this regard, UNHCR is on record as being opposed in principle to front-end reviews which limit access to the relevant decision-making authority.

4.
This is consistent with your Ministry's 1999 proposal to "assess in a single decision the need for protection, not only under the Geneva Convention, but also under other instruments to which Canada is a signatory and that relate to the life and security of the person, such as the Convention against Torture." See Building on a Strong Foundation for the 21^st Century: New Directions for Immigration and Refugee Policy and Legislation (January 1999) at 43.