Toronto Star. August 29, 2008. Nicholas Keung

If you came from a dangerous and volatile country such as Iraq, Afghanistan or Colombia and were here illegally, would Canada put your life at risk by sending you back? You might not be personally targeted by insurgents or face kidnapping by warlords and guerrillas, but should you live under that threat?  And having lived, worked, attended school and been established in Canada for years, would you suffer “unusual, undeserved and disproportionate hardship” if booted out of the country?

Canadian immigration officers face these tough questions each day in deciding “risk” and “hardship” applications from refugee claimants facing deportation.

Normally these would be separate applications, handled by different immigration officers.

But an Immigration Canada practice introduced in 2006 allows a single officer to handle both applications from a single claimant. As a result, immigration lawyers say, failed refugee claimants are not being given a fair chance to fight deportation.

In the past, officers charged with handling a “Pre-Removal Risk Assessment” would determine if it was safe to return a failed refugee claimant or non-status person to their country of origin. This assessment takes about six months, but only 2 per cent are successful.

Officers handling an application on humanitarian grounds, however, consider how established the person or their family is in Canada and if uprooting them would create unnecessary hardship. This process, which can be based on an assessment of personal safety, can take as long as three years, but some lawyers claim it yields a much higher 20 per cent success rate.

“(Risk-assessment) officers seem to be more enforcement-minded. Their mindset is to ensure that people are deported,” said Toronto refugee lawyer Raoul Boulakia. “The culture is to find a reason to reject an applicant.”

Increasingly, lawyers are seeing cases where a risk-assessment officer is doubling up to review the same client’s humanitarian application. Lawyers are challenging this Citizenship and Immigration Canada practice, claiming the risk-assessment officers are applying the wrong legal tests in rejecting their clients’ attempts to stay in Canada.

Immigration Canada spokesperson Danielle Norris said efficiencies gained by this new “single decision-making model” have allowed the department to process more applications for permanent residency and reduce the immigration backlog. The acceptance rate for humanitarian and compassionate applications is actually on the rise: 72 per cent last year compared to 49 per cent in 2003, mainly due to the increasing success of family sponsorship and spousal sponsorships applications.

But statistics are not available to show how many humanitarian and compassionate applications are being rejected because the wrong standards are being applied to humanitarian applications, which worries immigration lawyers.

In some cases, however, the court has ruled in favour of applicants who have challenged removals made under this model.

Last month, a federal court judge gave Toronto resident Chuks Nwawulor Ebonka, a failed refugee claimant from Nigeria’s Niger Delta, a last-minute reprieve from deportation, concluding “there are serious issues that require further examination.”

In her arguments, Ebonka’s lawyer, Amina Sherazee, claimed the same immigration officer who had rejected his Pre-Removal Risk Assessment relied on those findings to deny the humanitarian case.

“Those are two different mandates. It seemed that the same officer never took off the (risk-assessment) hat to look at the humanitarian application,” Sherazee said in an interview, adding that Ebonka, 40, has married a Canadian and would experience hardship if separated from his wife and a stepson whom he supports.

Lawyer Chantal Desloges said the bar is set much higher in assessing risk than it would be for a humanitarian and compassionate (H&C) case. “An H&C is based on risks (inherent in) generalized conditions. Someone might not try to kill me in Iraq, but it is a dangerous place to be. So that could be an undue, undeserved and disproportionate hardship appropriate in an humanitarian case,” she explained.

“It just seems that the decision-making qualities of the (risk-assessment) officers vary widely.”

Last year, a coalition of refugee advocates, including Amnesty International, appeared before Parliament’s citizenship and immigration standing committee demanding the two decisions be made independently. They recommend transferring the risk-assessment job to the Immigration and Refugee Board, whose members have more expertise in assessing risk.

Although the committee passed the recommendation, it has yet to be acted on.