IMPERFECT EVIDENCE AND UNCERTAIN JUSTICE: AN EXPLORATORY STUDY OF ACCESS TO JUSTICE ISSUES IN CANADA'S ASYLUM SYSTEM.

• Author: Bond, Jennifer
• Position: ARTICLES

INTRODUCTION

Canada's refugee determination system is multi-faceted and complex. So too are the individual characteristics and collective circumstances of the asylum claimants who seek the protection of this system. While not all of these individuals are able to successfully demonstrate that they are legal refugees entitled to protection, the system itself must aim to guarantee access to justice for each of them, regardless of the underlying and compounding complexities of their cases. In this article, we identify and cluster a series of issues that arise for asylum seekers in relation to the acquisition, presentation, and assessment of the evidence that is needed to support their claim for refugee status in Canada. Ultimately, we conclude that the ability of claimants to access justice is rendered uncertain by shortcomings in the way that the refugee determination system engages with imperfect evidence.

Our observations are based on close examination of 40 refugee claims submitted within the Canadian asylum system. A consent-based information sharing agreement with Canada's Immigration and Refugee Board (IRB) provided researchers with complete case files for each of these claims. A series of custom-designed tools were then created to assess the files from an access to justice perspective, with a specific focus on the acquisition and presentation of evidence. This paper offers an overview of the cases and key findings, and notes two overall observations: first, that the system appears to respond unevenly to issues relating to both the sufficiency and consistency of key evidence, particularly in relation to how it acknowledges and accommodates the impact of the social context of claimants; and second, that certain features of Canada's refugee claims system have the potential to create or exacerbate evidence-related issues. In combination, these circumstances raise concerns about whether the system is providing adequate access to justice in all cases. At a time when Canada's asylum system is under both increased pressure (1) and increased scrutiny, (2) both of these exploratory findings warrant more comprehensive study.

The research presented in this article emanates from the University of Ottawa Refugee Assistance Project (UORAP), an initiative founded in 2010 in response to pending changes to Canada's refugee claims system. Draft bills and statements by the Government of Canada about the purpose of the new legislation indicated to many experts that the modified system would very likely cause serious access to justice issues for vulnerable claimants. (3) The UORAP was created both to study the modified system from an access to justice perspective, and to mitigate the anticipated deficits via direct programming. (4)

Canada's reformed refugee system came into effect in 2012. (5) As anticipated, a number of the new features raised access to justice concerns--a phenomenon we explore in detail in "Troubling Signs", an article devoted to comparing the predicted outcomes with what actually materialized when the modified claims system was introduced. (6) The research that underlies the current article has a different objective: rather than compare anticipated and actual access to justice deficits, researchers undertook a detailed study of 40 cases from within the modified system, with the goal of identifying areas of concern and considering their systemic dimensions.

This paper reports on that research and proceeds over four parts. Section one outlines the key features of Canada's refugee claims process and explains the conceptualization of access to justice that frames our analysis of the system. Section two summarizes our methodology and profiles the 40 cases that are at the heart of this work. Section three builds on the first two sections by clustering and exploring--from an access to justice perspective--three specific evidence issues that appeared across the UORAP cases. Finally, the last section describes four specific features of Canada's asylum system that have the potential to create or exacerbate evidence-related access to justice deficits. We conclude by noting the need for further study in this area.

1. REFUGEE ACCESS TO JUSTICE: CLAIMS SYSTEM AND SOCIAL CONTEXT

   Both Canada's asylum system and the personal characteristics and circumstances of refugee claimants are multi-faceted and complex. In this section, we provide a brief introduction to each of these considerations, with the goal of informing the analysis of evidence issues that follows.

   1. KEY FEATURES OF CANADA'S REFUGEE CLAIMS SYSTEM

      A refugee claimant seeking protection in Canada must prove her identity and establish that she meets the legal definition of a refugee. (7) Claims are submitted to the IRB's Refugee Protection Division (RPD), (8) a body that is comprised of independent board members who are empowered to grant or deny refugee status. In order to determine whether protection is legally warranted, board members make a series of decisions about both the process that will be followed and whether all elements of the claim have been successfully demonstrated. (9) For example, members routinely consider whether to allow late submission of evidence, whether to postpone hearings, and whether to grant the special allowances associated with a successful vulnerable person application. They must also assess the substantive merits of the claim itself, a determination which very frequently hinges on key findings regarding the claimant's credibility. (10)

      Central to the Canadian refugee system is the guarantee that every asylum seeker has the right to present her claim for protection at an oral hearing. (11) While the RPD is bound by certain legislative requirements, hearings are not conducted in accordance with the usual legal or technical rules of evidence, and the process is thus imbued with a significant degree of flexibility. Further, the guidance and principles provided to decision makers regarding both procedural and substantive decision making are generally non-binding and not public (except where they also exist in some independent legal authority, such as relevant legislation or jurisprudence), (12) placing even greater significance on the broad power and discretion given to individual board members. IRB-produced National Documentation Packages (NDP) provide board members with information about conditions in specific countries of origin and are publicly available. (13)

      Most asylum seekers choose to prepare for, and appear at, their oral hearing with the support of a lawyer or immigration consultant (14) who assists with documenting and presenting the claim for protection. (15) Access to counsel has been established as a major factor affecting outcomes in refugee determinations, and those who are not represented are much more likely to have their cases withdrawn or declared abandoned. (16) The primary evidence at most refugee hearings is the claimant's own oral testimony, and language barriers frequently necessitate the use of a simultaneous interpreter. The IRB provides these services via accredited interpreters who are either present in person or available via phone. (17) Interpreters are under a legal obligation to interpret exactly what is being said by the claimant, (18) and IRB training materials instruct them to adjust their tone and level of language to match the claimant's style. (19) The claimant must also submit a written version of her story in advance of the hearing on a special "Basis of Claim Form" (BOC), and may choose to submit additional corroborating evidence, including witness testimony or supporting documents. (20) Claimants are responsible for absorbing the cost of translating all written materials into either French or English. (21)

      While Canada's system is generally designed to be non-adversarial, the ministers of immigration and public safety have the right to intervene in cases where there are concerns about fraud, credibility, system integrity, or certain forms of criminality which may affect the claim. (22) These interventions can occur either at the request of the board member (23) or at the discretion of government officials who may determine that a particular aspect of the application triggers the need for further review. Procedurally, the minister must issue notice to the claimant of an intention to intervene and provide the RPD with both a copy of this notice and a written statement indicating how and when the claimant was advised. (24) The notice itself must specify the reason for the intervention, and indicate whether it will occur in person via ministerial submissions at the hearing, in writing, or both. (25)

      While protection must ultimately be provided to any asylum seeker who meets the legal requirements, Canada's status determination system differentiates between certain groups of claimants with regards to the claims process itself, including in relation to applicable timelines. For example, the system stipulates via legislation that claimants from certain countries (those termed "designated countries of origin" (DCOs)) must have their hearings heard within 30 days of filing a claim from within Canada or 45 days from filing a claim at a port of entry. (26) Further, if the claim originates at a port of entry, a completed BOC must be submitted within 15 days of receiving the form. (27) Claimants from all other countries must also file their BOC within 15 days of making a claim at a port of entry but their hearings can occur within 60 days, rather than 45. (28) All claimants must submit any supporting documentary evidence no more than 10 days before the hearing date. (29)

      Asylum seekers who are successful in their claim for protection before the RPD receive permanent resident status in Canada. Those who are unsuccessful generally have the option of appealing to the Refugee Appeal Division (RAD) for a full fact-based appeal,although access to the RAD is restricted for certain categories of...