OP-ED FOR VANCOUVER SUN
27 January 2005
By Jean-Guy Fleury
Each day in hearing rooms across Canada, independent decision-makers make determinations on a number of immigration and refugee matters. These men and women work at the Immigration and Refugee Board (IRB). The Board is made up of three different tribunals, but the Refugee Protection Division (RPD) does the bulk of its work: determining refugee claims made in Canada.
Judging by public commentary, the actual work of the RPD is little understood, perhaps because these proceedings are private under law. This is not to protect the IRB from scrutiny (proceedings of the other two IRB tribunals are public); it is to protect the refugee claimants. There is a good reason for this: refugee claimants fleeing persecution need a secure environment in which to tell their sometimes harrowing stories, free from worry about their own safety and that of relatives, witnesses and associates in Canada and their home country.
Transparency is harder to achieve when proceedings are private. That is why I asked to meet the editorial board of the Vancouver Sun two weeks ago. I want Canadians to have a better understanding of the IRB's work, the challenges the tribunal faces and how we are meeting them.
First of all, it is necessary to know what the IRB does and does not do, as it is just one discrete part of Canada's larger immigration and refugee system. The IRB is an independent tribunal that makes decisions on several specific parts of the law. It is not part of Citizenship and Immigration Canada nor the Canada Border Services Agency.
It is a tribunal, not a court. What this means is that it can be more flexible and faster in its proceedings through using the format of an enquiry. In the case of the Refugee Protection Division (RPD), the proceedings are non-adversarial, with the emphasis on providing an atmosphere that allows claimants to be comfortable in sharing their story.
Decision-makers are not judges, although like judges, they must have certain abilities including conceptual and analytical thinking, information gathering, self-control and the ability to make decisions. These abilities are assessed under a new independent merit-based selection process. In addition, IRB members undergo rigorous and continual professional training in areas such as legal matters, interview techniques and conditions in countries from which claimants arrive.
Decision-makers in the RPD decide only whether refugee claimants meet the legal definition of a refugee or not. They do not make decisions whether someone is to be removed from Canada nor if someone can become a permanent resident. Those are immigration decisions.
A tribunal to determine refugee status would not be necessary if everyone who claimed to be a refugee did meet the definition of refugee. There are people with compelling stories who do not, unfortunately, meet the definition of a Convention refugee and the IRB cannot give them a favourable determination even though they may have many humanitarian and compassionate reasons for remaining in Canada and even though they may make a positive contribution to Canadian society. Equally, there are other people who abuse the refugee system in an attempt to by-pass the immigration process.
All claimants who receive a negative decision from the RPD, also receive written reasons (or a transcript in the case of an oral decision) that explain the reasons for the decision. Although the IRB cannot comment on cases, failed refugee claimants who go public with their stories can choose to share these reasons with others.
Often it appears that cases quite similar in circumstance receive different decisions. That makes sense when you consider that every case is heard individually and decided on its own merits. It is the claimant's own story, told in his or her own words to an independent decision-maker, that is the heart of the refugee determination process. Different people, different stories, different outcomes. Yet it is not arbitrary and claimants may ask the Federal Court to review their IRB decision.
As appropriate for an administrative tribunal, there are internal measures to ensure consistency without fettering the independence of decision-makers, for example, professional development and the support of an internationally renowned research unit.
The refugee determination system may appear in some ways, complex and difficult to understand, but it is dealing with legal determinations in an incredibility complex domain. Yet, it is less complex than some systems in other countries and is greatly admired and even emulated abroad.
The Immigration and Refugee Board's mandate is to render quality decisions in a timely manner in accordance with the law. The IRB continues its efforts to deliver its mandate with the transparency and fairness that Canadians expect. I believe the record shows that the Board achieves its mandate.
Jean-Guy Fleury is the Chairperson of the Immigration and Refugee Board.
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