Changes to the Refugee
Determination System
CBA CLE Citizenship and Immigration
CLE Conference
May 4-5, 2001
by
Peter Showler
Chairperson
Immigration and Refugee Board
(Check against delivery)
After approximately a year and half in office as Chairperson of the
Immigration and Refugee Board, I thought the topic of Changes to the
Refugee Determination System would be an appropriate subject matter
for today's presentation. I propose to talk about two quite different
types of change. The first is legislative. Bill C-11 is before the Standing
Committee on Citizenship and Immigration and I will highlight the most
significant provisions in the Bill that will affect the refugee process
at the IRB. Secondly, I would like to describe some of the changes to
the refugee determination process which have been taking place at the
IRB over the past year.
Bill C-11
There are three significant elements in Bill C-11 that relate directly
to refugee determination expanded grounds of protection, single
member panels and the new Refugee Appeal Division (see Annex A). I suggest
that the three should be viewed together as a package which is the future
direction for the inland refugee determination process if the Bill is
proclaimed.
Expanded Grounds
The Refugee Protection Division (the RPD), as the current CRDD is called
under the proposed Act, will have the authority to grant protection
under "expanded and consolidated grounds". There will be three
grounds by which a person can be granted protection. The first is the
Convention refugee ground which is the same as the Convention refugee
definition under the current Immigration Act, including the
cessation and exclusion clauses. A Convention refugee continues to be
defined as a person who, by reason of a well-founded fear of persecution
for reasons of race, religion, nationality, membership in a particular
social group or political opinion is outside of each of their countries
of nationality (or former habitual residence if there is no country
of nationality) and is unable or, by reason of that fear, unwilling
to avail themselves of the protection of each of those countries (see
s. 96).
The second ground is the Convention Against Torture (the CAT) ground
which applies to persons who would be subject to a danger, believed
on substantial grounds to exist, of torture within the meaning of Article
1 of the Convention Against Torture if removed to the person's country
of nationality or former habitual residence (see s. 97(1)(a)). This
ground has not been part of the IRB's jurisdiction in the past and so
there is little IRB jurisprudence on the interpretation of the Convention
Against Torture. I expect considerable jurisprudence will evolve during
the first few years of the new Act, jurisprudence that should clarify
the various types of harm that would come within the definition of torture.
Clearly not all forms of persecution would meet the test. We are not
entirely bereft of jurisprudence on the subject however. The CRDD has
certainly considered the CAT when determining the definition of persecution
within the Convention refugee definition. In fact, the Chairperson's
Guidelines on Women Refugee Claimants Fearing Gender-related Persecution
(issued March 1993 and updated November 1996) make specific reference
to the CAT for assessing whether the harm feared amounts to persecution.There
are some fundamental distinctions between the CAT and Convention refugee
grounds of protection which should be noted. Most importantly, under
CAT, it is not necessary to establish a linkage or nexus between the
persecution feared and one of the five Convention grounds, such as race,
nationality, etc. One additional issue under CAT is the involvement
of the state in the act of torture.
The third ground deals with "risk to life or to cruel and unusual
treatment or punishment" (see s. 97(1)(b)). Historically, this
type of protection decision has been made by Citizenship and Immigration
officials as part of the Post-Refugee Determination in Canada Class
(PDRCC) procedures. It is a new ground for the IRB and one which represents
a genuine consolidation of protection grounds within the refugee determination
process.
In general, both new grounds fit naturally within the IRB's jurisdiction
and it makes sense that the Refugee Protection Division would consider
all three. The central theme of all three grounds is the concept of
protection from serious human rights violations occurring outside of
Canada. I must note however that the consolidated grounds are not without
their legal complexities and logistical challenges for both the IRB
and counsel. What types of evidence will be relevant to each of the
three grounds? Will it be necessary to plead and hear evidence under
all three grounds? What are the relevant tests to determine the likelihood
of harm under the two new grounds? There will undoubtedly be interesting
legal work for you and for Board members as the jurisprudence develops.
Single Member Panels
Since 1989, two member panels have made refugee determinations. Rabbi
Gunther Plaut proposed this type of panel, in 1985, in the Plaut Report.
The Immigration Act provides that a split decision, that is,
one member determines the person to be a Convention refugee and the
other member determines the person not to be a Convention refugee, is
resolved in favour of the refugee claimant. This was seen by many as
a procedural safeguard for refugee claimants given the s. 7 Charter
rights that are invoked in refugee determinations. Interestingly, over
the past several years, fewer than one per cent of claims were decided
by split decision, although that statistic does not adequately describe
the dynamic of the decision making process where panel members frequently
engaged in a collaborative, consensus-building analysis of the issues
and evidence before reaching a unanimous decision.
The Immigration Act also provides that a claim can be determined
by a single member with the consent of the refugee claimant. The percentage
of claims that have been determined by a single member has been increasing
over the years. The most recent statistics show that approximately 55%
of all claims are now being determined by single members nationally.
The regional variance is from 80% to 37%. An interesting statistic is
that there does not appear to be a correlation between the percentage
of single member hearings and the acceptance rate of claims. Thus, the
region where 80% of all claims are determined by a single member is
also the region with the lowest acceptance rate.
Bill C-11 proposes that all refugee claims will be determined by single
member panels except for those cases where the Chairperson assigns a
three member panel. It is anticipated that three member panels will
be used in two different circumstances: First, for professional development
purposes particularly where new members have been appointed to the Board
and second, for cases which are exceptionally important or complex either
legally or factually. The CRDD already has a lot of experience with
conducting inquiries into refugee claims by single member panels. I
am confident that the transition to single member claims, if Bill C-11
becomes law, will be a smooth and fair transition.
I do not expect to see a significant variation in the Board's overall
acceptance rates although that is a matter of speculation. For those
who are concerned about the loss of the "benefit of the doubt"
principle contained within the two member panel, I would say that the
single member amendment should be considered in concert with the new
Refugee Appeal Division (RAD). In my view, the single member decision,
which is reviewed on the merits by the RAD, is both a fairer and more
efficient method of refugee determination than the model in the current
Act.
Refugee Appeal Division (RAD)
Bill C-11 proposes that the Refugee Appeal Division review all RPD
protection decisions by way of a paper appeal. Both the claimant and
the Minister have a statutory right of appeal. The RAD will also hear
appeals on cessation and vacation applications. The RAD's jurisdiction
will not extend to appeals of withdrawal or abandonment decisions. Similarily,
it will not hear appeals on interlocutory matters.
It is anticipated that the RAD will be centrally located and that all
appeals from all the regions will be dealt with at this central location.
It is my expectation that members of the RAD will need to have refugee
determination experience as sitting members of the CRDD.
An innovative element of the RAD will be its capacity to set precedent
for the Refugee Protection Division. Bill C-11 provides that a single
member of the RAD will determine RAD appeals. However, as is currently
the case for the IAD, the Chairperson will be able to designate three
member panels of the RAD. Bill C-11 indicates that a decision of a three
member panel of the RAD has, for the Refugee Protection Division and
for a panel of one member of the RAD, the same precedential value as
a decision of an appeal court has for a trial court (see s. 171(c)).
This incorporates the concepts of stare decisis and precedent
into this administrative tribunal setting.
This precedential element is essential if the RAD is to serve two separate
but equally important functions. First, it can correct errors that are
made at the Refugee Protection Division quickly and efficiently. Second,
it has the capacity to provide binding jurisprudence on the Refugee
Protection Division to promote consistency of decision-making at the
lower level. The fact that the decisions are also binding on single
member panels of the RAD will also promote consistency at the RAD itself.
Other Changes to the Refugee Determination Process
Although Bill C-11 is interesting and will be a focus of the IRB's
energies over the next year if it is enacted by Parliament, it is only
a Bill at the present time. It is not law. I will, therefore, address
some of the current changes to the refugee determination process that
we are currently implementing.
Expedited Process
For many years, the CRDD has attempted to resolve refugee claims that
would appear on their face to be well-founded by way of the expedited
process. Historically, the process has operated differently in different
regions. For example: in Montreal, a central unit decided expedited
claims while different geographic teams decided them in Toronto. There
has been a wide regional variation in the use of the expedited process
and mixed views, within the Board, on the efficacy and integrity of
expediting claims. Because of these inconsistencies in frequency of
use, methodology and ideology, the CRDD began to develop a national
policy on the use and the mechanics of the expedited process in October,
2000. Personally, I am confident that a well-managed expedited process
is a good tool for resolving cases. In the words of today, it is a mechanism
of "alternate resolution" of claims that need not go through
the cost and time of a full hearing. At the same time, I recognize that
any expedited process must have integrity for all users of the system
the refugee claimant, counsel, IRB staff, IRB decision-makers,
the Minister and ultimately, the Canadian public.
The consultation process on the expedited policy took place throughout
the fall of 2000 and the winter of 2001. The main proposal for the expedited
process that seems to have caused counsel some concerns was the taping
of the expedited interview conducted by a Refugee Claim Officer. The
policy proposes that the interview be taped and a report prepared at
the end of the interview. If the matter goes to a full hearing, then
the report would be provided to the panel hearing the claim. If there
is a dispute as to what was said at the interview, then the tape would
be available for use in the full hearing. As I understand it, counsel's
concerns are that the interview will become an examination for discovery
and the claimant's statements at the interview may be used against her
at the full hearing. This would change the character and nature of the
expedited process and would diminish the overall historical thrust of
the process which was that it would be a without prejudice way of attempting
to resolve claims that should be resolved quickly. I can only assure
counsel that the expedited process will not become a discovery process.
The policy specifically makes this clear and time limits have been placed
on the interview. The interview is limited to a maximum of one hour
and the interview is to be terminated as soon as it is evident that
the claim cannot be resolved without a full hearing. Refugee Claim Officers
will receive training on the appropriate parameters of the interview.
If counsel has concerns about the interview in a particular case, they
can either bring the matter to the attention of Board management or
if the case goes to a full hearing counsel, can raise it with the panel
assigned to hear the claim.
Taping the interview is an integrity element of the expedited process.
There have been instances where the claimant has made statements at
the interview and then given profoundly contradictory testimony at the
full hearing. There is also a particular need for a verbatim record
for vacation applications where the claimant has been accepted as a
Convention refugee in the expedited process. A vacation application
decision requires an assessment of the claim and the evidence adduced
at the time the claimant was found to be a Convention refugee. In the
absence of a record of the expedited interview, it is very difficult
for a member hearing a vacation application to make an informed decision.
I believe that the integrity of the system requires that there by a
verbatim record of what occurred at the interview. At the same time,
I expect there will be very limited use of the tapes at full hearing.
That is our experience to date. We taped expedite interviews in the
Toronto region as a pilot project and found that only a few transcripts
of the interview were required at the full hearing. Additionally, claimants
do make a declaration to tell the truth, but as much as possible, the
interview will retain a high degree of informality to facilitate direct
and effective communication without the procedural trappings of the
full hearing.
I believe a fairly managed expedited process benefits everyone. It
is an efficient and fair way of resolving those cases that are well-founded
on their face. We expect expedited claims to be processed within three
months, one third the time required for a full hearing because of scheduling
delays. The benefits to claimants are obvious: rapid decisions relieve
their legitimate anxieties and allow them to get on with their lives
in their country of refuge. However, the Board also benefits from well
expedited cases, permitting us to spend our time and resources on the
more complicated cases that require a full hearing.
Consistency Initiatives
I would like to comment briefly on some consistency initiatives underway
at the CRDD. I consider the encouragement and promotion of consistency
to be a very important element of the refugee determination system.
It is not acceptable in a national tribunal that deals with something
as important as refugee status to have unjustified divergent results
within a region and between regions for the same types of refugee claims.
At the same time, the independence of the individual decision-makers
must be preserved. In my opinion, consistency and independence are not
incompatible. The key is to strike a balance between the two.
In the last few years, the Board has looked at regional acceptance
rates for refugee claims as a preliminary indicator of inconsistency.
However, as we know, statistics can deceive. The claimant profiles from
a given country in each region may be quite different, justifying a
different result. At the same time, there may also be correctable regional
differences, such as variations in documentary evidence or legal interpretation.
Consequently, we are working on several initiatives to assess and correct
regional inconsistencies.
The CRDD has identified particular countries with apparently inconsistent
decisions between regions. The CRDD has created "geographic networks"
for various regions of the world (such as Eastern Europe and Africa)
with country specialists on each network from each of the IRB offices.
As you probably know, members of the CRDD specialize in certain countries.
These "networks" meet monthly by conference call. One of their
main objectives is to share new information on country conditions such
that all regions have access to the same information. At the same time,
they are reviewing the standard country information packages to ensure
uniformity. Obviously, it would be virtually impossible to have consistent
decision-making if the foundational information were different from
office to office. Where variations in documentary content are identified,
the new country information is introduced to the geographic teams for
discussion and analysis during monthly training sessions. As an adjunct
to this function, we have instituted a member exchange between regions
whereby members actually go to another region to determine refugee claims.
The goal is that members begin to discuss inter-regionally their views
of the evidence.
In addition, the CRDD has embarked on a pilot project for the profiling
of refugee claims. One frustration for the IRB has been that we have
ot had a good mechanism for capturing anything other than tombstone
data on a refugee claim. We have purchased some software that will allow
us to capture all the pertinent details of a refugee claim including
the basis of the decision. The profiling has been piloted for several
countries in the Pacific region and nationally for Mexican claims. We
hope to expand the scope of the profiling to all major countries with
serious regional inconsistencies. The essence of the profiling pilot
project is that the PIF is reviewed and the details of the claim are
entered into the database. At the conclusion of the claim, the reasons
for decision are noted. This pilot project has just begun but we are
hoping that it will allow us to identify more precisely those areas
of inconsistency for particular countries of nationality.
Conclusion
This is a challenging time for the IRB. We are looking at the possibility
of new legislation within the next year and the resources that are required
to implement the new legislation are huge. At the same time, we are
seeing an unprecedented increase in the number of refugee claims, more
than a forty per cent increase over the past two years. This trend is
not limited to Canada; many of the developed countries have received
comparable increases and there is no reason to expect current claim
levels to diminish. So the Board and the inland refugee process are
confronted with formidable challenges. We have limited resources, an
imminent expansion of our mandate and a growing caseload. Certainly
the Board will require increased resources if we are to continue to
reduce case processing time but that is primarily a matter for discussion
with the government. In the interim, we will continue to go about our
business which is the deciding of refugee claims in as fast, fair and
efficient a manner as possible. And I hasten to add that, although there
is considerable room for increased efficiency in our decision making
process, at the end of the day, the emphasis will always be on fairness.
Without that, all the efficiencies in the world, would be meaningless.
ANNEX A
Bill C-11 Provisions
95. (1) Refugee protection is conferred on a foreign national when
(a) the foreign national has been determined
to be a Convention refugee or a person in similar circumstances under
a visa application and becomes a permanent resident under the visa or
a temporary resident under a temporary resident permit for protection
reasons;
(b) the Board determines the foreign national
to be a Convention refugee or a person in need of protection; or
(c) except in the case of a foreign national
described in subsection 112(3), the Minister allows an application for
protection.
(2) A protected person is a foreign national on whom refugee protection
is conferred under subsection (1), and whose claim or application has
not subsequently been deemed to be rejected under subsection 108(3),
109(3) or114(4).
96. A Convention refugee is a person who, by reason of a well-founded
fear of persecution for reasons of race, religion, nationality, membership
in a particular social group or political opinion,
(a) is outside each of their countries of nationality
and is unable or, by reason of that fear, unwilling to avail themself
of the protection of each of those countries; or
(b) not having a country of nationality, is outside
the country of their former habitual residence and is unable or, by
reason of that fear, unwilling to return to that country.
97. (1) A person in need of protection is a foreign national in Canada
whose removal to their country or countries of nationality or, if they
do not have a country of nationality, their country of former habitual
residence, would subject them personally
(a) to a danger, believed on substantial grounds
to exist, of torture within the meaning of Article 1 of the Convention
Against Torture; or
(b) to a risk to their life or to a risk of cruel
and unusual treatment or punishment if
(i) the foreign national is unable or, because
of that risk, unwilling to avail themself of the protection of that
country,
(ii) the risk would be faced by the foreign
national in every part of that country and is not faced generally by
other individuals in or from that country,
(iii) the risk is not inherent or incidental
to lawful sanctions, unless imposed in disregard of accepted international
standards, and
(iv) the risk is not caused by the inability
of that country to provide adequate health or medical care.
(2) A person in need of protection is also a foreign national in Canada
who is a member of a class of persons prescribed by the regulations
as being in need of protection.
98. A person referred to in section E or F of Article 1 of the Refugee
Convention is not a Convention refugee or a person in need of protection.
110. (1) A foreign national or the Minister may appeal, in accordance
with the rules of the Board, on a question of law, of fact or of mixed
law and fact, to the Refugee Appeal Division against a decision of the
Refugee Protection Division to allow or reject the foreign national's
claim for refugee protection.
(2) A determination that a refugee protection claim has been withdrawn
or abandoned may not be appealed.
(3) The Refugee Appeal Division shall proceed without a hearing, on
the basis of the record of the proceedings of the Refugee Protection
Division, and may accept written submissions from the Minister, the
person who is the subject of the appeal, and a representative or agent
of the United Nations High Commissioner for Refugees, and any other
person described in the rules of the Board.
111. (1) After considering the appeal, the Refugee Appeal Division
shall make one of the following decisions:
(a) confirm the determination of the Refugee
Protection Division;
(b) set aside the determination and substitute
a determination that, in its opinion, should have been made; or
(c) refer the matter to the Refugee Protection
Division for re-determination, giving the directions to the Refugee
Protection Division that it considers appropriate.
(2) The Refugee Appeal Division shall make the referral described
in paragraph (1)(c) if it is of the opinion that a hearing is required
or if it has allowed an appeal by the Minister that was based on a question
of the claimant's credibility.
163. Matters before a Division shall be conducted before a single member
unless, except for matters before the Immigration Division, the Chairperson
is of the opinion that a panel of three members should be constituted.
171. In the case of a proceeding of the Refugee Appeal Division,
(a) the Minister may, after giving notice within
the period that is required by the rules, intervene in the appeal, including
for the purpose of filing submissions;
(b) the Division may take notice of any facts
that may be judicially noticed and of any other generally recognized
facts and any information or opinion that is within its specialized
knowledge; and
(c) a decision of a panel of three members of
the Refugee Appeal Division has, for the Refugee Protection Division
and for a panel of one member of the Refugee Appeal Division, the same
precedential value as a decision of an appeal court has for a trial
court.
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