Asylum applicants face long waits and uncertain results

Most Canadians consider this country a welcoming haven for refugees, with good reason.

Last year, more than 20,000 refugees became permanent residents of Canada – 9 per cent of all immigrants.  Just under half are sponsored refugees, approved by the government before arriving.  The remainder are accepted only after they or a family member came to Canada and asked for asylum.

But less than half of those seeking asylum in Canada are granted refugee status.  The rest either give up or are refused, told their stories are not credible or that they should seek help within their own country.

Most Canadians don’t know how the government decides who should be given asylum. But that process is essential for Canada to fulfill its legal and moral responsibility not to turn away anyone facing persecution, while still avoiding a flood of spurious claims which would undermine the entire immigration system.

A rejected applicant is bound to have complaints.  But according to refugee advocacy groups, the real problem is that decisions of the federal tribunal that hears claims are inconsistent and unpredictable.

Sean Rehaag, a law professor at York University, has shown that the acceptance rate for refugee claims varies considerably between different members of the Immigration and Refugee Board (IRB), even after one accounts for differences in the type of cases each member considers.

“A lottery”

Janet Dench, executive director of the Canadian Council for Refugees, describes the system as “a kind of lottery, where your fate depends upon which decision maker hears your case.”

Seven years ago, a new immigration law was supposed to improve consistency by creating an appeal process for failed claimants.  Instead, the government at the time focused on speeding up the process to reduce a large backlog.

Today, however, the backlog of asylum claims is worse than ever. While the government is still using the backlog to justify not implementing the appeal system, the politicians currently in charge seem even less interested in reducing delays than in improving outcomes.  Last month’s report from Auditor General Sheila Fraser laid the blame for much of the current backlog on the federal Cabinet’s failure to fill vacancies at the IRB.

Members of the IRB are independent decision-makers directly appointed by Cabinet.  The planned refugee appeal system would involve experienced IRB members reviewing the records of disputed decisions; its rulings would set precedents for all future cases.  But implementation of the system has been indefinitely “delayed.”

Prior to 2002, a claimant could request a decision by a panel of two members, but this was eliminated by the same law that defined the appeal process.  The result has been a system never approved by Parliament, where “a refugee’s fate hangs in the balance of a single person,” in Dench’s words.

The government argues that the appeal system would be redundant, a “fourth level of appeal” after three other options available to failed refugee claimants.

But these other “appeals” do not re-consider the merits of the case.  One is a last-chance petition to the Minister.  Another is a pre-deportation review, which only considers new evidence not available when the original decision was made.

The third option is judicial review by the Federal Court; however, Court judges will only interfere if the decision is “unreasonable” or contains legal errors.  With only truly unreasonable decisions being struck down, inconsistent decisions continue.

Money matters

The government’s second argument against the appeal system is its cost:  approximately $10 million up-front, plus $15 to 25 million annually, according to recent statements by Conservative MP Rick Dykstra, Parliamentary Secretary to the Immigration Minister.  The annual costs double, he says, if one includes legal aid and social services for applicants during the estimated five extra months it would take to process their appeal.

He didn’t mention that applicants now wait on average 19 months for their original decision – 7 months longer than when the Conservatives took power – after the IRB was left with a 35% vacancy rate for over a year.

Opposition MPs are trying to force the government to establish the refugee appeal system with a bill to remove Cabinet’s power to delay implementation.  A similar bill was close to adoption before last fall’s election, but its replacement will likely take another year to work through Parliament.

That bill won’t fix all the problems in Canada’s asylum system.  But hopefully it will increase awareness of them.  Right now, the government seems to be hoping that most Canadians aren’t paying attention.