Bill C-31 - What it means

Claims for refugee protection will be heard by the Refugee Protection Division (currently Convention Refugee Determination Division) of the Immigration and Refugee Board. Claimants will normally have an oral hearing before a single member (currently there are two-member panels). A decision by the Refugee Protection Division can be appealed to a new Refugee Appeal Division. Appeals can be made by both the claimant and the Minister (i.e. from negative and positive decisions). The Refugee Appeal Division will not hold a hearing but will base its decision on written submissions. Decisions at appeal, usually to be made by a single member, can confirm the original decision, change the decision or send the claim back to the Refugee Protection Division for a new hearing.

• The Bill fails to do anything to change the appointment process for Board members. If refugee decisions are to be made by single member panels, the quality of the decision-makers is more critical than ever, since only one person will hear the claimant. Yet, according to the bill, appointments will continue to be political and there will still be no transparent, professional and accountable selection procedure.

 
• The introduction of an appeal on the merits (S. 105-106) addresses one of the fundamental flaws in the current refugee determination system. The lack of an appeal mechanism has recently been criticized by the Inter-American Commission on Human Rights in a report on Canada's refugee system.

• The bill provides no guarantees of the independence of the Refugee Appeal Division and of the superior expertise of its members in the field of refugee determination. If the appeal is to function as an effective mechanism for correcting errors, the Refugee Appeal Division must be clearly a separate and higher tribunal (as is the case in other tribunals).

 
• The bill gives equal rights of appeal to the refugee claimant and the Minister. The stakes are, however, not equal: for the claimant it is potentially a matter of life and death; for the Minister, the interests are very much less significant. Quite apart from the appeal, the Minister has ample opportunity to protect the integrity of the system through interventions in hearings and appeals and through applications for vacation of refugee status.

 
• Although there is a possibility of judicial review of an appeal, there will no longer be an automatic stay of removal (S. 43-44). This will be particularly problematic in cases where the claimant is granted refugee protection and then loses it on appeal by the Minister. The person will go almost overnight from being recognized as a refugee, to being removable.