Speaking Points
St Lawrence
Forum
given by
Mr. Jean-Guy
Fleury
Chairperson
Immigration and Refugee Board
February 19, 2004
(Check against delivery)
I would like to begin by thanking the St Lawrence
Forum, OCASI
and C H I N Radio for inviting me to participate in the
discussion tonight. The fact that we are all here tonight sharing our
different perspectives is a tribute to Canadians' commitment to freedom
of expression and citizen engagement, which are crucial elements of our
democratic system.
Freedom of expression and active citizen participation are denied to
many people around the world. At the Immigration and Refugee Board many
of these people appear before us to claim refugee protection. Of these
claimants, many tell stories of horrific abuse which the Board, as a human
rights tribunal, must hear.
The IRB
is an administrative tribunal that renders decisions according to the
Immigration and Refugee Protection Act, the United Nations Convention
on the Status of Refugees, the UN
Convention Against Torture, and other international instruments. Our Charter
of Rights and decisions of higher courts also guide decision-makers: the
Federal Court and the Supreme Court of Canada.
Under the law, independent decision-makers must look at whether a person
is included in the definition of a refugee under the UN
convention and whether or not the person should be excluded from Canada's
protection.
The heart of Canada's refugee determination system lies in hearing a
story, the story of a person who claims to have a well-founded fear of
persecution, a danger of torture or a risk to life or risk of cruel or
unusual punishment based on one of the grounds enumerated in the definition:
race, religion, nationality, political opinion and membership in a particular
social group.
The Members of the Refugee Protection tribunal of the Immigration and
Refugee Board (IRB)
must decide if the person is telling the truth. To do this, they question
the claimant and other witnesses, and carefully evaluate all the evidence
submitted in support of the claim. They may also direct that research
be conducted into the specific circumstances of the claimant or of the
country of origin.
It is important to understand that refugee protection decisions are
made according to a strict legal definition, not according to broad humanitarian
and compassionate criteria. This is not to suggest that IRB
Members lack compassion: it is simply not their job to make decisions
on humanitarian and compassionate applications.
I have said this often: refugee determination is one of the most difficult
forms of decision-making. Members must stay abreast of changing country
conditions, the evolving jurisprudence, and statutory and policy changes.
Last year the IRB
finalized more than 42,000 of these complex matters while maintaining
the high quality of its decisions.
The mandate of the Refugee Protection tribunal is limited to deciding
the claims of people referred to the IRB
by the Department of Citizenship and Immigration Canada. The Board does
not determine who is entitled to make a claim and who is not. When the
Board rejects a claim, it is the Canadian Border Services Agency (CBSA),
which will take steps to remove the person from Canada. The IRB
does not remove people from Canada. Basically, the process works like
this:
Refugee claimants first apply to the Department of Citizenship and Immigration
where an officer determines if the claim is eligible to be heard by the
IRB.
Cases the Department rejects as ineligible can include someone recognized
as a Convention refugee by another country, cases previously rejected
by the Board, someone who is a serious criminal, a security risk or a
member of organized crime.
Hearings are held before a single decision-maker. The hearing is non-adversarial
unless a representative of the Minister of Immigration intervenes. This
normally happens when the person may be excluded from Canada's protection
because the person has committed crimes against humanity or war crimes.
The claimant has the right to be represented by a lawyer or other counsel,
to present evidence, to question witnesses and to make representations.
The Board provides an interpreter if one is required. As required by the
law, the hearings are held in private.
Decision-makers may render their decisions orally at the end of the
hearing or reserve their decision. Reasons - oral or written - are required
for all final decisions.
If the decision is positive, the person may apply to CIC
for permanent residence in Canada, for themselves and their immediate
family members in Canada.
Unsuccessful claimants, or the Minister, may apply to the Federal Court
to have the Board's decision reviewed. If the Federal Court upholds the
Board's decision, there is no further review of the Board's decision.
If the Board's decision is overturned, the claim is returned to the IRB
for re-hearing. The Federal Court overturns approximately 1% of decisions
of the IRB.
Unsuccessful claimants can also apply to the Canadian Border Services
Agency to remain in Canada because they face risk that has arisen since
the Board's decision was issued. This is called a Pre-Removal Risk Assessment
(PRRA). They can also apply to CIC
to remain in Canada on humanitarian or compassionate grounds.
Over the last 8 years our acceptance rate has remained relatively stable
and averages at about 45%. I sometimes hear that Canada is overly generous
and grants refugee protection too easily. In my view this is a myth. In
fact, our acceptance rate is similar to that of other industrialised countries,
and in the past few years it has been lower than that of the United States
which was about 49% in 2002.
One significant difference: most other countries have a lengthier, heavier
process, with multiple appeals, like the US
and the UK. Canada
tries to get it right the first time, thus saving time and money.
However, for me there is something that is more important than the numbers,
the averages and the statistics. That is that each person is entitled
to tell their story in a fair hearing before a decision is made that will
affect them for the rest of their life.
It is also gratifying to me that the Board is recognized internationally
as one of the best tribunals of its kind. Refugee law judges in other
countries come to the Board for professional development. The Board also
contributes to international forums for the advancement of refugee law,
procedures and policies.
Conclusion
Before closing, I want to mention that over the last few weeks, specific
cases and decisions of the Board have generated extensive media coverage.
While acknowledging that the public is naturally interested in what are
very compelling matters, I must tell you that the IRB
cannot publicly debate its decisions or discuss the specifics of any case.
As the Chairperson of the IRB,
I may not interfere with the independence of my decision makers.
I want to conclude by talking about the challenges facing the Board.
In recent years, Canada and other Western countries had seen an upsurge
of persons seeking refugee protection. While it appears that this trend
has slowed in the last year, we still need to deal with an accumulated
backlog of cases. The challenges that arise out of this are:
- We must become the master of our own process, to take control of the
tribunal process.
- We must reduce processing time from our current 14 months to 6 months:
Justice delayed is justice denied.
- We must become more transparent and accountable through better communications.
- We must do this in an environment where no additional resources will
be given to the IRB.
Thank you and I look forward to your questions.
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