What does it take to win protection? Lessons from the Song Dae Ri case

The case of Song Dae Ri, a refugee claimant from North Korea, has recently attracted the attention of the Canadian public. According to media reports, Mr Ri was denied refugee protection by the Immigration and Refugee Board on the grounds that he was deemed undeserving of Canada's protection because he served in the North Korean government as a trade official.⁽¹⁾ The danger to Mr Ri if returned to North Korea does not appear to be in doubt: he is expected to be executed. His wife has already been executed. Mr Ri’s six-year-old son was accepted as a refugee.

The case illustrates a number of flaws in Canada's refugee determination system.

Broad application of exclusion clauses
Mr Ri has been found to be undeserving of Canada’s protection because of his participation in the North Korean government.  The 1951 UN Convention relating to the Status of Refugees excludes people from refugee protection if there are serious reasons for considering that they have committed various categories of serious crimes.⁽²⁾  Canada gives a very broad interpretation to these provisions, known as exclusion clauses.  Refugee claimants in Canada are often denied refugee protection not because they have committed a crime themselves but because they have been in some way associated with others who have committed crimes (for example, young men conscripted into an army that has committed abuses).  Mr Ri is not being accused of having himself committed any crime, but has been found guilty by association because of his membership in the North Korean government.⁽³⁾

IRB appointments
Refugee claims in Canada are heard by the Immigration and Refugee Board (IRB) which is made up of members appointed in a political process.  A single Board member hears and decides each refugee claim.  The quality of the Board members varies greatly, largely because appointments are made based on partisan political considerations, rather than on who the most competent candidates are.  As a result, refugee determination can resemble a lottery: if a claimant happens to appear before one member she may be accepted, while the same claimant might be refused if another member hears the case.  In Mr Ri’s case, it is reasonable to suppose that if he had been heard by another Board member he might have been granted refugee protection.

Lack of appeal
Mr Ri has been denied any appeal on the merits of the decision that he is not deserving of Canada’s protection.  The Immigration and Refugee Protection Act, as passed by Parliament, includes a right of appeal for refused refugee claimants.  However, the government has not implemented this part of the law and has failed to live up to its promises to implement the appeal.  As a result, a single board member’s decision that Mr Ri is not deserving of protection goes without review, even though this decision exposes Mr Ri to execution and even though another board member might have decided the case differently.  The only way to review a decision on a refugee claim is by applying for judicial review to the Federal Court, but this review is only available if the Court grants permission.  In Mr Ri’s case, the Court did not grant permission.

Excessive complexity of the system
Mr Ri’s experience illustrates the unnecessary complexity of the refugee determination system.  Instead of having a simple and fair process to determine who should be protected, the Immigration and Refugee Protection Act creates categories of people who can’t have their refugee claim heard or granted by the Immigration and Refugee Board, and then establishes a separate (and flawed) process to review those cases.  A person such as Ri who has been excluded cannot be granted refugee protection by the Immigration and Refugee Board, but may be granted a temporary stay of removal in a process called the Pre-Removal Risk Assessment.  This assessment itself involves three separate decisions: one to assess the risk to Ri, one to assess the danger he represents to Canada and a third to weigh these two decisions.

This process, already complicated, has recently become yet more confused with the decision by the Prime Minister to send some immigration functions to the newly created Canada Border Services Agency.⁽⁴⁾  There are now not only three individual decisions involved, but also two separate departments.  The decision on the risk is made by an official at the Canada Border Services Agency, while the decision on danger to Canada and the weighing of the two earlier decisions are made by two separate officials at Citizenship and Immigration Canada.

Perversely, the protection opinion is done by the enforcement agency (Canada Border Service Agency) while the opinion on the enforcement-related matters is done by the department that is supposed to be responsible for protecting refugees and immigrants (Citizenship and Immigration Canada).

Failure to respect the absolute bar on return to torture
Canada is a signatory to the Convention Against Torture which prohibits absolutely the return of any human being to torture.  This prohibition reflects the international community’s abhorrence for torture: no one deserves to be tortured, no matter what crimes he may have committed.  Canada has however refused to incorporate this absolute prohibition into its domestic law, leaving the door open to returning people to torture and even death.  This is wrong in international law.  Since Canadian law does not prohibit return to torture and death, Mr Ri faces the prospect of being deported from Canada, even though the government acknowledges that he would likely be executed.

Absence of provisions for family unity for refugee children
A person who is recognized as a refugee in Canada can include their spouse or common-law partner and dependent children in their application for permanent residence.  This means that if a parent is accepted as a refugee and the children are refused refugee status, the children do not face deportation.  However, the reverse does not apply: the law does not allow a child to include his or her parents in the application for permanent residence.  Mr Ri’s six-year-old son has been accepted as a refugee but he cannot include his father on his permanent residence application and thus faces the prospect of being separated from his one remaining parent (and orphaned, since his father is threatened with execution).  Similarly, if an unaccompanied child comes to Canada and is recognized as a refugee, there is nothing in the law to allow that child to be reunited in Canada with his or her parents and siblings.
  

1. The Canadian Council for Refugees' knowledge of this particular case is drawn from media reports.

2. The Refugee Convention states that its provisions "shall not apply to any person with respect to whom there are serious reasons for considering that: a) He has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; c) he has been guilty of acts contrary to the purposes and principles of the United Nations." (Article 1F).  Mr Ri was excluded based on paragraph a).

3. Canada doesn't follow UNHCR Guidelines on the Application of the Exclusion Clauses (4 September 2003) which recommend that decision-makers first consider the persecution that the claimant would face, and only then consider whether the exclusion clauses may apply. This allows a balancing of the consequences of exclusion against the gravity of the offense. In the Canadian process, the reverse occurs, with the arguments on exclusion being considered first. The guidelines also make clear that exclusion is only justified if there is shown to be individual responsibility for the crimes committed: "In general, individual responsibility flows from the person having committed, or made a substantial contribution to the commission of the criminal act, in the knowledge that his or her act or omission would facilitate the criminal conduct." (Para. 18)

4. This was done in a series of Orders in Council adopted 12 December 2003.