COURT FINDS REFUGEE HEARING PROCEDURES UNLAWFUL
Montreal - The Canadian Council for Refugees today welcomed a recent ruling by the Federal Court of Canada that procedural changes implemented by the Immigration and Refugee Board (IRB) in June 2004 are unlawful.
The IRB changes relate to the order in which refugee claimants are questioned at refugee hearings. Prior to the procedural changes, claimants were generally questioned first by their Counsel. In a stated attempt to increase efficiency the IRB introduced a guideline reversing the order of questioning, making questioning first by Board officials the standard practice.
In consultations leading to the changes, refugee advocates, including the Canadian Council for Refugees (CCR) and the Refugee Lawyers’ Association (R.L.A), expressed grave concerns that the changes would not increase efficiency, but could unfairly prevent refugees, particularly survivors of torture, from adequately presenting their cases. As well, refugee advocates argued that the changes represented an inappropriate interference by the management of the IRB on Board Members’ procedural choices.
To avoid protracted litigation on the issue, refugee advocates asked the Board to seek direction from the Federal Court as to the legality of its procedures. The Board declined to do so, dismissing the concens raised as unmeritorious. So refugee advocates had no option but to take their concerns to the courts themselves. The CCR sought and obtained intervener status in the Thamotharem case.
In a 70 page decision released by Justice Edmond Blanchard on 6 January 2006, the Court agreed that the changes did constitute an unlawful interference upon the independence of individual Board Members.
“The decision represents a welcome recognition of the need to ensure that Board Members are empowered to give refugee claimants a full and fair hearing, taking their individual circumstances into account. Because the guideline in question was applied to all refugee hearings across the country since its implementation, the court’s findings could have wide ranging implications, involving multiple re-openings,” stated Catherine Bruce, counsel for the intervener in the case, the Canadian Council for Refugees. “The irony is that this result could have been avoided had the Board listened to the concerns of seasoned refugee advocates in the first place, instead of simply dismissing them as being unsophisticated,” Bruce added.
the centrality of procedural protections to liberty and to justice, the
decision represents a significant victory for refugees whose procedural
protections have been significantly eroded in recent years.
The Thamotharem decision can be found from the Federal Court bulletin page.