Sunday, April 4, 2010

Will a new bill save the refugee mess?

Nicholas Keung Immigration Reporter
Source: The start

Jaime Carrasco Varela came to Toronto from Nicaragua on a refugee claim in 1991. It took 19 years for the asylum seeker, once allegedly part of a death squad, to exhaust legal avenues for staying in Canada.

While Varela's case is a complex rarity, it illustrates what some say are the real problems plaguing Canada's refugee system: It is too slow for legitimate claimants and doesn't weed out ineligible ones quickly enough.

This week, Citizenship and Immigration Minister Jason Kenney introduced Bill C-11 to overhaul the system. Among its most controversial provisions: borrowing from the British model, it would have bureaucrats pre-screen candidates based on whether their country of origin is deemed to be safe (the "White List") or unsafe.The government plans to expedite the hearing process for applicants from safe, democratic countries deemed to have human rights, since it expects almost all of them would fail.

Those rejected claimants would not have the right to a full appeal before the new appeal division that's to be created. They could still, however, go to the federal court to have negative decisions reviewed over arguments of law (rather than the merits of the case for their refugee status).

That is currently the only appeal process available to failed applicants. The best outcome from a federal court review, however, is a reassessment.

C-11 has had mixed reviews from refugee advocates and lawyers.

Many experts welcome the creation of an appeals process to reassess the merits of a case and with the power to reverse decisions and grant status, but some are strongly opposed to preventing refugee claimants from appealing a negative decision if they're from countries deemed safe. They also detest the idea of allowing civil servants – as opposed to members of the Immigration and Refugee Board of Canada, an independent tribunal – to decide on initial claims.

Canada's refugee system is often seen as too generous and ultimately dysfunctional because close to half of all claims are rejected, withdrawn or abandoned – and thus deemed fraudulent. Kenney has said this about claimants from Mexico and the Czech Republic.

"We will take the political risk," Kenney told the Star Wednesday during a whirlwind day in Toronto packed with 16 meetings and interviews with editorial boards and broadcast outlets.

The proposed changes would speed the process, but some parties ask if they also would compromise the fairness of a system that's won Canada international acclaim.

Under the new legislation, decisions would be made on new claims within 60 days. Currently, the Immigration and Refugee Board takes an average of 19 months to determine claims. Outstanding cases have tripled from fewer than 20,000 in 2006 to 63,000 last year, largely because the Conservative government left board vacancies unfilled for two years.

But critics of the new legislation do not believe the new safe/unsafe country system is an acceptable solution. They fear that politics will affect which nations the government deems to be democratic, and that a legitimate applicant from a supposedly "safe" country might not get a fair hearing.

Critics also argue that Canada needs to deal seriously with the backlog of cases sitting in the system long after a negative decision from the refugee board. They say there haven't been enough resources to process pre-removal risk assessment (PRRA) applications, humanitarian/compassionate applications and federal court reviews.

According to Peter Showler, who teaches refugee law at the University of Ottawa, it can take a long time for the Canada Border Services Agency to deport failed claimants after they exhaust their legal options in federal court.

"During that dead space of two to three years, nobody takes responsibility for that file," says Showler, who chaired the refugee board from 1999 to 2002. "The longest period of delays is at the back end of the system. From a refusal decision by the federal court to the actual removal of the person, it can be a matter of years."

When they're interviewed in preparation for deportation, failed claimants can apply for PRRA, which determines whether it's safe for them to return home. That job falls to Citizenship and Immigration Canada. A government report this year found the average time between a removal order and the day the person actually leaves the country has jumped to 611 days. Before 2002, it was 437 days.

Kenney's solution is to not allow failed refugee claimants to apply for pre-removal risk assessment or humanitarian/compassionate relief until a year after their claim is rejected – by which time they may have been deported. The minister also said he would offer a $2,000 removal incentive to failed refugees.

Gulsum Koca's life has been in limbo since August 2002, when she says she fled persecution in Turkey. Koca, 37, is a member of the Alevi Muslim minority. The refugee board rejected her claim in April 2004, and the federal court refused to review her case; the federal court process allows reviews only on errors made in the administration of justice, not the actual evidence for her asylum claim.

More than two years later, Koca was contacted for a pre-removal risk assessment. Last April, immigration officials decided it was safe for her to return to Turkey and rejected her application to stay on humanitarian grounds. Another judicial review followed.

Raoul Boulakia, former president of the Refugee Lawyers' Association of Ontario, said a practice of designating countries such as Turkey to be "safe and democratic" would allow room for diplomatic pressure and political manoeuvring in the system. It could also exclude from consideration people who have a legitimate fear of persecution by states or by a third menacing party, such as drug lords.

The latest figures show that, in Britain, with its safe/unsafe country system, the average refugee processing time was just 127 days. Only 19 per cent of the 19,400 claims were accepted at the initial stage. But 34 per cent of appeals of rejected refugee claims were granted. In Canada, the refugee acceptance rate hovers around 50 per cent.

"The implication is that there is often poor decision-making at the initial stage and that there is a systemic culture of disbelief (of the claimants) by bureaucrats," says Colin Harvey, head of the school of law at Queen's University Belfast. "This does not recommend itself as a model to follow. There is also the risk that decision-making itself can become broadly politicized."