Refugee claimants in Canada appear before a single decision-maker who determines whether they need Canada’s protection.  The decision is not subject to any appeal on the merits of the case.  This means that a single person decides the fate of a refugee claimant, even though a wrong decision may mean that a claimant is sent back to face persecution, torture and even death.

This is not the refugee determination system that Parliament approved.  In 2001, Parliament passed a new law, the Immigration and Refugee Protection Act, that created a Refugee Appeal Division (RAD) where refugee determinations could be reviewed.  They balanced this new recourse with the reduction of the number of board members hearing the claimant from two to one.  In 2002, the government, without consulting Parliament, implemented the new law without implementing the Refugee Appeal Division.  On the other hand, the government went ahead with the reduction of board members hearing a claim, leaving claimants’ fates in the hands of a single person.

Since then, the government has continued to fail to respect the law passed by Parliament.

Is the RAD necessary to ensure fairness and uphold our domestic and international obligations?

The Refugee Appeal Division is necessary to ensure fairness for the following reasons:

The stakes are high: Refugee determination is one of the few decision-making processes in Canada where a wrong decision can mean death for the applicant.  Even though the stakes are so high, there are fewer safeguards in the system than for other decision-making processes where the stakes are much lower (for example, a minor criminal offence).  As a result, wrong decisions go uncorrected.

Decision-making is inherently difficult: Refugee determination is extremely difficult because it involves deciding what may happen in the future in another country, about which the decision-maker may have limited knowledge, based often on testimony that must pass through an interpreter and that may be confusing because of the traumatic experiences that the claimant has lived through.  Often decision-makers have little documentary evidence that can help decide the case one way or the other, and the credibility of the claimant is a decisive factor.  However, credibility assessments can easily be wrong.

Not all decision-makers are equally competent:For many years, appointments to the Immigration and Refugee Board have been made in part on the basis of political connections, rather than purely on the basis of competence.  As a result, while many board members are highly qualified and capable, some are not.

Decision-making is inconsistent: Refugee determination involves a complex process of applying a legal definition to facts about country situations that can be interpreted in different ways.  Different decision-makers do not necessarily come up with the same answer, leading to serious inconsistencies.  Two claimants fleeing the same situation may not get the same determination, depending on which board member they appear before.  (This was the case with two Palestinian brothers who had the same basis for their refugee claim, yet one was accepted and the other refused.  The refused brother was deported).  An appeal level helps a system to make more consistent decisions, because precedents established at the appeal level must be followed at the lower level when the facts are the same.

Poor representation: Refugee determination is made more difficult because refugee claimants sometimes have no legal representative, or are represented by incompetent and unscrupulous lawyers and consultants.  This problem is quite common because refugee claimants rarely have much money to pay for a lawyer, and legal aid is in some provinces unavailable to claimants and in others it is so meagre that few competent lawyers are willing to represent claimants on legal aid.

Any decision-making process will make mistakes: As human beings, we are all bound to make mistakes from time to time, however hard we try.  An effective system recognizes this and provides a mechanism to correct errors.  We do this in the criminal justice system, which allows anyone who feels they have been wrongly convicted to appeal the decision.  We try to avoid people being wrongly sent to jail here in Canada by providing appeals: why would we not similarly try to avoid refugees being wrongly removed, which could result not only in their being jailed, but tortured and even killed?

The RAD is necessary to uphold our international obligations:

As a signatory to the 1951 Convention relating to the status of refugees, Canada has an obligation not to return a refugee directly or indirectly to persecution.  If a refugee’s claim is wrongly rejected and Canada subsequently returns that refugee to persecution, we have violated our international legal obligation.  Similarly, under the Convention against Torture, Canada must not send anyone to a country where there are substantial grounds for believing that they would be in danger of being subjected to torture.

International bodies commenting on Canada’s compliance with its obligations towards refugees have criticized the lack of an appeal on the merits.

In February 2000, the Inter‑American Commission on Human Rights published its Report on the Situation of Human Rights of Asylum Seekers Within the Canadian Refugee Determination System.  They stated that:

“Where the facts of an individual’s situation are in dispute, the effective procedural framework should provide for their review. Given that even the best decision‑makers may err in passing judgment, and given the potential risk to life which may result from such an error, an appeal on the merits of a negative determination constitutes a necessary element of international protection.” (para. 109)

The United Nations High Commissioner for Refugees (UNHCR) has also consistently maintained the need for an appeal on the merits. After the government’s announcement that the Refugee Appeal Division would not be implemented, the UNHCR wrote to then Minister of Citizenship and Immigration Denis Coderre:

“UNHCR considers an appeal procedure to be a fundamental, necessary part of any refugee status determination process. It allows errors to be corrected, and can also help to ensure consistency in decision‑making. Canada, Italy and Portugal are the only industrialized countries which do not allow rejected asylum seekers the possibility to have first instance decisions reviewed on points of fact as well as points of law. In the past, a measure of safeguard was provided by the fact that determinations could be made by a two‑member panel, with the benefit of the doubt going to the applicant in case of a split decision. With the implementation of IRPA on June 28th, this important safeguard will be lost.”

► Impact of non-implementation on refugees