1. What is the Refugee Appeal Division?
2. What reasons has the government offered for not implementing the RAD?
3. Why has the government not implemented the RAD?
4. Are there not other appeals already available to refugee claimants?
5. Wouldn’t the introduction of the RAD increase the processing times for the refugee determination system by adding an additional step?
6. Wouldn’t the introduction of the RAD increase the costs to the government?
7. Is the question of an appeal best reviewed in the context of an overall reform of the refugee determination system?
8. Who is calling for the implementation of the RAD?

Q.1 What is the Refugee Appeal Division?

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). 

Q.2 What reasons has the government offered for not implementing the RAD?

The reasons change with the circumstances.

Q.3 Why has the government not implemented the RAD?

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:

Q.4 Are there not other appeals already available to refugee claimants?

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:

“The Committee observes that at its twenty-fifth session, in its final observations on the report of the State party, it considered the question of requests for ministerial stays on humanitarian grounds. It expressed particular concern at the apparent lack of independence of the civil servants deciding on such appeals, and at the possibility that a person could be expelled while an application for review was under way. It concluded that those considerations could detract from effective protection of the rights covered by article 3, paragraph 1, of the Convention [i.e. return to torture]. It observed that although the right to assistance on humanitarian grounds is a remedy under the law, such assistance is granted by a minister on the basis of purely humanitarian criteria, and not on a legal basis, and is thus ex gratia in nature.”

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.

Q.6 Wouldn’t the introduction of the RAD increase the costs to the government?

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.

Q.8 Who is calling for the implementation of the RAD?

The calls for the implementation of the RAD come from a wide range of organizations, in addition to the Canadian Council for Refugees.

“Whereas: The Refugee Appeal Division is included in the Immigration and Refugee Protection Act; Parliament has passed the Immigration and Refugee Protection Act and can therefore expect that it be implemented; and The House of Commons and parliamentarians have a right to expect that the Government of Canada will honour its commitments; The Standing Committee on Citizenship and Immigration requests that the Minister of Citizenship and Immigration, implement the Refugee Appeal Division or advise the Committee as to an alternative proposal without delay.”

“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.”

“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)

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