Friday, June 1, 2007

Stalled Refugee Appeal Division Gets a Nudge

Embassy, May 30th, 2007

Voted into law in 2001, the Refugee Appeal Division remains non-existent following three governments. Now a new bill is on its way in an attempt to rescue the still-born law.

By Lee Berthiaume
Opposition MPs and human rights activists are hoping a private member's bill will push the government to enact another piece of legislation and establish an appeal mechanism for asylum-seekers.

Parliamentarians are expected to send Bill C-280–which would require the government to establish a Refugee Appeal Division–to the Senate following a vote today, a week after Amnesty International raised concerns about the division's absence in its annual report on the state of human rights around the world.

"We don't see [the Refugee Appeal Division] anywhere in the near future, but the determination within human rights and refugee organizations and a significant number of parliamentarians remains high," said Alex Neve, secretary-general of Amnesty International Canada, "and we won't relent, we won't give up, until this very notable shortfall in Canada's refugee laws is corrected."

When the Liberal government under Jean Chrétien overhauled the Immigration and Refugee Protection Act in 2001, it decided to include an appeal division, which advocacy groups and immigration lawyers had been calling for since the Immigration and Refugee Board was established in 1988.

As a trade off, however, the two-member boards that heard applicants was reduced to one member. At the time, said Mr. Neve, a former IRB member and immigration lawyer, it was felt that trade off was acceptable.

"Then to turn around and find out that, contrary to the will of Parliament, the safeguard isn't going to be implemented, was a significant disappointment to us, obviously, and continues to be," he said.

"We would not have believed for a minute that a significant piece of legislation, drafted and introduced by the government of the day, voted for and supported by Parliament, would then almost instantly be partially abandoned, ignored and overlooked by that very same government."

Originally, the Liberals said they needed to deal with the IRB's massive backlog of cases, which at one point numbered tens of thousands, before implementing the appeal division. The fear they expressed was that doing so prematurely would only increase the backlog as applicants take longer to go through the system.

That backlog was all but eliminated as of last year. But since taking office in January 2006, the Conservatives have, for whatever reason, appointed only a handful of new IRB members despite the screening of about 50 potential candidates. The government has also failed to re-appoint members whose terms have expired. As a result, about one-third of the IRB's 156 positions are vacant, and the backlog is increasing again.

At the same time, the government has been accused of politicizing the appointment process by doing away with an advisory board that was responsible for screening potential candidates. That prompted a number of high-level resignations at the IRB earlier this year.

Last week, Immigration Minister Diane Finley announced Canada will be accepting up to 5,000 Bhutanese refugees who have been living in eastern Nepal since the early 1990s. The announcement came a week after the government agreed to accept 150 Vietnamese refugees who have been living in the Philippines since the 1970s.

Mr. Neve said refugees accepted from abroad go through a different process than asylum-seekers and immigrants who apply once they're in Canada.

"There are many who feel that's where Canada's main, or even entire, focus should be," he said. "That we should be able to totally decide and control through visits to refugee camps and other locales abroad who it is we should accept and bring to Canada as refugees.

"There's always been tension between those two systems, playing one off against the other. And our view is there's a need for both. We should have a vibrant overseas resettlement program that's looking for deserving, high-priority cases abroad and bringing them to Canada for resettlement. But we have to recognize that there are those who will make it here of their own volition."

Since 2001, two Liberal governments and now the Conservatives have refused to implement the division despite reports that, at least in the early stages, plans to do just that were in the advanced stages.

In testimony to the Standing Committee on Citizenship and Immigration on Nov. 7, then-immigration minister Monte Solberg said: "I'm concerned that the system can be tied up for months and years on end because of the various avenues of appeal people have.

"I'm not opposed to having a discussion about the RAD, but it has to be done in concert with a larger discussion about making the whole system more efficient."

While Ms. Finley's office did not respond to requests for information, those concerns were repeated during discussion of Bill C-280 in the House on Monday.

"Implementing this legislation would be unfair to refugees as it would add months to the process," Conservative MP Nina Grewal said. "While our in-Canada refugee determination process is fair and even generous, many have said that it is already complex, slow and costly. As we deal with these realities, we must also ensure that we are able to help individuals who really need protection."

Liberal Immigration critic Omar Alghabra said in the past, the Liberal governments of the day were working through some challenges, like the backlog, that made implementing the appeal division impossible.

But Mr. Alghabra said the Conservatives have only themselves to blame for the number of cases pending increasing again given their handling of the IRB.

"It's either they don't care about the system, or they are trying to politicize it," he said. "This is not just a matter of fairness. It's a matter of security."

He said if the Liberals were in power they would be going forward with establishing an appeal division because the backlog had been reduced.

NDP Immigration critics Bill Siksay said it is "ridiculous" that Bill C-280, which was introduced by Bloc Québécois MP Nicole Demers, is even needed.

"Here we have a piece of legislation to implement legislation that's already been passed by Parliament," he said. "I don't think anything could be sillier. And yet I think it's very, very important that Parliament speak again on this issue."

Experts and advocates have warned that IRB members have a heavy responsibility because they must decide whether an asylum-seeker's story is credible and whether to let them stay in the country or send them back, which potentially is a life or death decision.

Mr. Siksay hopes Bill C-280 will increase pressure on the government to implement the appeal division, though he acknowledged even if the Senate eventually approves the legislation and it becomes law, there's nothing saying the government can't ignore it as well.

"But I think at some point they have to break down and say: 'This is what the elected representatives of Canadians have said on two occasions. When are we going to get on with this?' The extra pressure, I think, means a lot in this circumstance."

The Amnesty International report also raised concerns with the Canada-U.S. "safe third country" agreement and the failure of immigration laws to ensure individuals, like Mahmoud Jaballah, are not deported to countries where they face a serious risk of torture.