UNAPPEALING: AN ASSESSMENT OF THE LIMITS ON APPEAL RIGHTS IN CANADA'S NEW REFUGEE DETERMINATION SYSTEM.

• Date: 01 January 2016
• Author: Grant, Angus

1. INTRODUCTION

   Refugee adjudication is hard.

   It is hard because adjudicators must decide how likely it is that claimants may be persecuted in foreign countries due to their race, religion, nationality, membership in a particular social group, or political opinion. (1) Not only does this involve predictions about what may happen in the future, (2) but it also involves factual findings about conditions in unfamiliar places, where information may be scant and unreliable. (3)

   It is also hard because much of the evidence is testimony given by claimants, who have a strong interest in the outcomes of their claims. (4) Credibility is often a determining factor, but the refugee law context makes credibility difficult to assess consistently. (5) In refugee hearings, cross-cultural communication failures are common, (6) and are compounded by challenges posed by hearing testimony through interpreters, sometimes of poor quality. (7) Moreover, claimants, who are often under great stress, may be suffering from post-traumatic stress disorder or other conditions that affect their ability to testify persuasively. (8) Refugee claimants may also lack meaningful assistance in preparing their claims and in putting together their evidence because some are not represented by counsel. For those who do secure counsel, quality varies dramatically. (9)

   Refugee adjudication is hard, also, because of the decision-making process itself. Refugee hearings are brief. (10) Decision makers have heavy case loads, (11) and they are encouraged to decide cases quickly--immediately after the hearing, if possible. (12)

   Moreover, refugee adjudication is hard because there are systemic challenges in terms of consistency. (13) Some adjudicators adopt skeptical attitudes towards refugee claimants and view their role as largely about protecting the integrity of Canada's immigration system. Others are more generous and understand their roles to be primarily about giving effect to human rights. (14) This leads to large adjudicator-by-adjudicator variations in recognition rates. (15) As a result, refugee adjudicators cannot easily identify consensus positions on whether a particular claim--or even a particular type of claim--is well founded. (16)

   In addition to being hard, refugee adjudication involves high stakes. False negatives may result in refugees being deported to countries where they face persecution, torture, or even death. (17) Such a result would put Canada in breach of international law. (18) False positives also have serious consequences, because they may undermine the integrity of Canada's immigration system and encourage future unfounded claims, thereby eroding public confidence in the refugee determination system. (19)

   Because refugee adjudication is hard, mistakes are inevitable. Because the stakes are so high in a decision-making process where mistakes will occur, advocates for refugees, human rights organizations, international organizations, scholars, and parliamentarians have long called for a robust appeal mechanism in Canada's refugee determination process. (20)

   Partly in response to these calls, when Canada's refugee determination system was revised in 2012, (21) the new process included a quasi-judicial administrative appeal on matters of both fact and law at the Refugee Appeal Division (RAD) of the Immigration and Refugee Board (IRB). (22) Under the new process, however, many claimants are denied access to the RAD. (23)

   This article assesses these limits on access to the RAD, drawing mostly on quantitative data obtained from the IRB and Citizenship and Immigration Canada (CIC) through access to information requests. Our aim is to provide evidence-based analysis and recommendations for reform. Essentially, our conclusions are that the bars on access to the RAD are arbitrary and dangerous, and that the system should be reformed to provide access to the RAD for all refugee claimants.

   The article proceeds in two parts. First, we set out the context for our research, explaining why access to the RAD matters. Specifically, we discuss the history of the RAD, explain how the process works, explore the difference between the appeal and judicial review, and provide an overview of the results from the revised system's first two years of operation. Next, we examine in detail each of the bars on access to the RAD for claimants whose applications were refused at first instance. The article ends by setting out our conclusions.

2. CONTEXT: THE REFUGEE APPEAL DIVISION AND THE REVISED REFUGEE DETERMINATION SYSTEM

   1. HISTORY OF THE RAD

      In the mid-1980s, Ed Ratushny and Gunther Plaut were separately commissioned to provide reports on the state of Canada's refugee determination system and the direction it should take. Their reports called for an overhaul of the system such that it would include an initial oral hearing into the merits of refugee claims and a robust appeal process. (24) The recommendation for an appeal was, at least in part, a response to the United Nations High Commissioner for Refugees (UNHCR), which had suggested that a full merit-based appeal process was a "basic requirement" of a fair refugee determination system. (25)

      While critics argued that the government of the day appeared intent on ignoring the reports, (26) the government could not ignore the Supreme Court of Canada, which, in its 1985 decision in Singh v Minister of Employment and Immigration, (27) found that oral hearings into refugee claims, at least where credibility is at issue, are required by both the Canadian Bill of Rights (28) and the Canadian Charter of Rights and Freedoms. (29) The IRB was established in 1989 in response to the Singh decision. Yet, while the new IRB provided for first-level oral hearings into refugee claims, it did not include an appeal process for refugee determinations. Instead, a claimant's recourse following a negative refugee determination was initially limited to an appeal to the Federal Court of Appeal, (30) and then, after a subsequent round of legislative changes, to a highly circumscribed judicial review process before the Federal Court (31)--processes that, according to empirical scholarship, resulted in arbitrary limits on access to mechanisms to correct errors in refugee determinations. (32)

      Throughout the 1990s, rights groups pressured the government to create an administrative appeal. (33) International organizations also took notice. For example, the UNHCR indicated that Canada should "afford a clear opportunity for the review of decisions on their merits in the post-claim review process." (34) Similarly, in 2000, the Inter-American Commission on Human Rights criticized the lack of a merit-based appeal in Canada's refugee determination system:

      Where the facts of an individual's situation are in dispute, the effective procedural framework should provide for their review. Given that even the best decision-makers may err in passing judgment, and given the potential risk to life which may result from such an error, an appeal on the merits of a negative determination constitutes a necessary element of international protection. (35) In 2001, Parliament passed the Immigration and Refugee Protection Act. (36) It provided, at least notionally, a response to these critiques. (37) The IRPA restructured the IRB, eliminating dual-member panels that had previously conducted first-instance refugee hearings at the (newly renamed) Refugee Protection Division (RPD). (38) The shift to one-member refugee determination hearings was controversial because, under the previous regime, any disagreement on the overall merits of a refugee claim was settled in favour of the claimant and, as such, dual-member panels were viewed as an important safety valve. (39) At the same time, the costs associated with two-member panels, together with the allure of being able to virtually double the number of hearings conducted, were sufficient to carry the day. (40) To compensate for the elimination of two-member panels, the government created (at least on paper) a new appeal division of the IRB: the RAD. (41) However, in a move that refugee rights groups have long felt amounted to a bait and switch, (42) the government of the day refused to implement that which it appeared to have legislated into existence. (43)

      When then-Immigration Minister Denis Coderre first announced that the RAD would not be implemented immediately, the decision was characterized as a "delay" for up to a year due to "pressures on the system." (44) The year, however, passed without implementation. Governments since that time appeared content with an appeal process that had been duly legislated by Parliament, but left to wither unimplemented on the desks of successive immigration ministers.

      Not surprisingly, refugee rights groups were extremely disappointed with the elimination of the procedural safeguard of two-member panels and the corresponding failure to implement an appeal. (45) Once again, the international community took notice, with the UNHCR calling on Canada to implement the appeal, which it called "a fundamental, necessary part of any refugee status determination process." (46) Even the Parliamentary Committee on Citizenship and Immigration, typically dominated by the government of the day, was frustrated with the failure to implement the RAD and unanimously called on the Minister to either implement it or advise the Committee of an alternative proposal. (47)

      There were a number of responses to the government's somewhat bizarre course of (in)action on refugee appeals. Advocacy campaigns were mounted to pressure the government into implementing the RAD and, in 2006, a private Members bill was introduced to compel its implementation. (48) The bill appeared to have considerable support, but it died on the Order Paper with Parliament s proroguing in 2007. The bill was reintroduced during the next session, and while it was approved by both the House of Commons and the Senate, it too...