Globe and Mail, 2 August 2004
Catherine Dauvergne

Immigration Minister Judy Sgro has tried to reassure Canadians that there’s no need for churches to provide sanctuary to people under threat of deportation. “We currently have between six and 20 avenues of appeal” for failed refugee claimants, she said last week. She’s wrong.

A failed refugee claimant in Canada has three options: the Federal Court, an application for a humanitarian exception, or a risk assessment. Puzzling through what each of these means is vital to understanding Ms. Sgro’s comment. None of them is an appeal.

The Federal Court option involves first asking for leave. That is, asking the court, on the basis of very brief submissions and without a hearing, if it will hear the case. The answer is no about 90 per cent of the time. If the court says yes, the ensuing case is not a true appeal but a judicial review. The court considers whether the refusal was made within the parameters of the law, not whether someone else would have made the same decision. A successful judicial review leads to another hearing before the Immigration and Refugee Board, not to refugee status.

Applications for humanitarian exceptions are made to Citizenship and Immigration Canada bureaucrats for an opportunity to remain in Canada, despite the law. The success rate for failed claimants may be as high as 20 per cent; statistics are not broken down enough to tell.

Risk assessments are processed primarily by the Canada Border Services Agency, and must be based on some new evidence. The success rate was about 3 per cent in 2003.

There is no opportunity, in any of these avenues, to argue that the original decision-maker simply got it wrong. Canada is the only major Western refugee-receiving nation without a merit-appeal option for claimants.

How do these three options translate into the six to 20 avenues suggested by the Immigration Minister? Probably because, in some cases, the Federal Court will allow a further look by its appeal division — but the court must authorize this, not merely paid for by the claimant. Perhaps because the Supreme Court of Canada may also grant leave, as it has done in half a dozen refugee cases in the past decade. Possibly because if a new hearing is granted, a new judicial review could follow. Potentially because humanitarian decisions, risk assessments and removal orders can also be put to the Federal Court.

The confusion is understandable, but not for the Minister of Citizenship and Immigration. Ms. Sgro’s six to 20 comments inflame rather than rationalize public debate. A vulnerable government should know better. For the overwhelming majority of claimants, refugee determination in Canada is a one-step process. New legislation in 2002 formalized single-member panels for refugee hearings. Marina Jiminez’s Globe article last Saturday regarding acceptance rates at the Immigration and Refugee Board tells how unpredictable this step can be.

The same new legislation promised an appeal division at the IRB. There are good reasons to be concerned about how appeals would be handled from within the same board that makes the original decision, but this is a compromise that Canada’s advocacy community is optimistically prepared to support. It is certainly better than nothing.

There is much talk these days of the need to reform the refugee system. The highest costs of long drawn-out claims are not paid by the government, but the claimants themselves. An obvious answer to long delays is to devote more money to the IRB, to legal aid and to community organizations. My guess is, this is not on the agenda.

Meaningful public debate on refugee law reform cannot take place against a backdrop of misinformation and misunderstanding. And it cannot take place when policy options are not put before the public. Ms. Sgro’s comments are distressing on both counts. Canadians deserve better lessons in refugee law.