Fairness challenge: refugees.

• Author: Pask, E. Diane

Once again, cries are being heard in the land. No, not the call of the loon. It's the call of the fairness-challenged, sighting potential asylum seekers: "Send them home"; "The process takes too long"; "Suspend the Charter."

For those concerned to maintain existing asylum rights, there is a sense of frustration. The issue of fairness, which is part of Canadian daily life, seems in this one area to be always subject to attack. The attackers never directly spell out what it is they want to do away with and how this will affect fair procedure in the refugee status determination process. The fundamental question is how is fair procedure to be defined and applied in this context? Let's begin with a summary of the system and then move to identifying key ways in which fairness is part of the system.

Claimants for Convention Refugee status must meet the definition of a Convention Refugee, found in the Immigration Act and derived from the 1951 UN Convention and 1967 Protocol on the status of refugees. The matter is decided by members of the Convention Refugee Determination Division (CRDD) of the Immigration and Refugee Board (IRB) of Canada. The question is `Is this person unable or unwilling to seek the protection of his or her country because of fear of persecution based on race, religion, nationality, membership in a particular social group or political opinion?'

If so, Canada -- as well as the other nations which have signed the United Nations Convention and Protocol -- has promised not to return this individual to the country of persecution and, separately, has promised not to return any individual to a country of torture.

The answer to this question is only as good as the evidence on which that answer is based. That evidence has to be gathered, presented to, and heard by a decision-maker. The quality of that evidence and whether it is actually heard and understood depends upon the fairness of the process. The computer-based phrase, garbage in, garbage out, applies here, except that the result of bad decision-making in this area can be death -- slow or fast.

Elements of Fairness

In the process of making this determination, there are several key points at which the fairness or otherwise of the procedure has a major impact on the ability of claimants to put their circumstances forward and on the ability of the decision-maker to hear, understand, and correctly interpret the implications of those facts. Although not all of these elements of...