Refugee DeterminationCommentary by Howard Adelman

30/10/91 OPS 9

monize refugee determination sa thatthe procedures do not lead to suchradically different results. For ex­ample, the Schengen Treaty groupsFrance, Germany and the Beneluxcountries in a common system ofregulation. In Europe, Turks had a 38percent acceptance rate in France, butonly 3.2 percent in Germany. Thereseems ta be no consistencyin a systemthat was purportedly based on a uni­versalhumanrights doctrine. In NorthAmerica, hardly any Salvadoreanswere accepted in the United Statesuntil recent changes in V.S. legisla­tian, while Salvadoreans had highacceptance rates during the same

period inCanada.Complement­

ing dramaticchanges in theinternational po­litical system,there have beendramatic changesin the domesticpolitics of coun­tries where refu­gee claims arebeing made.These include avotingpublicthatincreasingly dis­trusts politicians,a new upsurge inpopulism andpopulist parties,which have in­creased their sup­portbyexploitinganti-immigrationsentiŒnent.Recog­nition rates ofrefugee claimantshave fallen in vir-tually aIl refugee

2615 2481 2666

JAN-SEPT 1991

~ CONCLUDED AT INITIAL--

2776··

JAN-DEC 1980

that Turkey follow the V.N. Conven­tion and allow the Kurds in NorthernIraqfieeing SaddamHussein'svenge­fuI massacre into Turkey, the Turkswere allowed to close their doors, andFrance, Great Britain and the UnitedStates intervenedmilitarilywithin Iraqto create a safe haven for the Kurdishrefugees.

At the same time, the UNHCR nowstresses repatriation. Only45,000 refu­gees are cited by UNHCR as in needof permanent resettlement. By thisreckoning, virtually none of theSomalis need to be resettled in Can­ada.

There have also been moves to har-

CLAIMS RECEIVED AND PROCESSEDINITIAL AND FULL HEARINGS

(MONTHLY AVERAGE)

JAN-DEC 1889

o RECEIYED (INITIAL) ­

CJ COMPLETED AT FULl--

3500

3000

2800

2000

1800

1000

500

o

The International Context

The Cold War is over. The necessityfor Western countries to prove theyprotect human rights while the com­munist states persecute their own citi­zens is no longer required. Further,the current international crisis replac­ing the Cold War is testimony to thedisintegration ofmultinational states,the fragmentation of sovereignty andthe weakening of state controls ingeneral. This has been accompaniedby a dramatic increase in nationalconflicts and an exchange of popu­lations more characteristic of refugeeflows betweenthe first two world warsthan the refugeeregime that be-came pre-eminentafter the beginningof the Cold War.While Iranians fleea repressive re-gime and Somalisand Sudanese fieecivil war, Kurds,Croats from theareas of Croatiabombarded andcaptured by Ser­bia, Soviet Jewsand Armenians,Tamils from SriLanka, and manyothers fiee due tointer-ethnic con­fiict and persecu­tion.

At the sametime, Westernstates havebecomepro-active on be-h If f h •DASED ON REVISED EIC INTAKE DATA

a 0 t e protec- •• INCLUDECLAIMSWITHDRAWN/ABANDONEDtion of refugees.Instead ofinsisting

8 Refuge Volume Il, Number 2

SOURCE:EIC*LESS THAN ONE PERCENT

MAJOR SOURCE COUNTRIESNATIONAL

% TOTAL1989 % TOTAL1990 % TOTAL1 JAN - 30 SEPT 1991

SRI LANKA 16% 12% 13%SOMALIA 14 11 12LEBANON 10 6 4IRAN 6 6 5CHINA 6 8 5EL SALVADOR 6 6 5POLAND 4 2 *PAKISTAN 2 3 3CZECHOSLOVAKIA 2 1 *GHANA 2 3 4BULGARIA 1 7 2U.S.S.R. * 1 6OTHERS 31 33 40

TOTAL INTAKE 20,742 36,559 22,641

determination systems, givingthe im­pression of an upsurge in non-bonafide claimants, but it maybe the resultof governments tightening up theprocess and refugee adjudicators be­coming more experienced and betterable to recognize repetitious tales.

Canada is in a severe recession. Butso is most of the rest of the world. IfCanada's costs for refugee determi­nation are in excess of $200,000,000,the total world cost is estimated to bein excess of $5 billion.

What then is the result of the wholeprocess? Only a small percentage ofthose rejected are actually deported.If one calculates the costs per casedeported, the figure is enormous. Forhow can you deport someone if theyhave no documents to establish theircountry of origin? Almost 70 percentofaIl arrivaIs are now undocumented.The result is that public support forthe system is undermined and thestaff responsible for controlling ourborders are demoralized. No one canunderstand why aIl this money isbeing spent - to do what?

WhyNow?

Cabinet will once more be asked tochange the way refugee claimants areconsidered and dealt with in Canada.

Why?We still have the rest of the backlog

to clean up. For the first time since theupsurge in refugee claimants beganin the 1980s, the number of refugeeclaims has actually declined from theyearbefore. For the first time the refu­gee determination system is function­ingwell enough that we are notbuild­ing a new backlog. More cases arebeinghandled and processed than arebeing received.

Why then is refugee determinationup for reconsideration?

There are four factors at work. Theycanbe summarizedas a matter offeet,guts, heart and head. What do 1meanby this?

First, there is the matter of costs ­money enough to put shoes on thefeet of refugees all around the world.Per refugee processed, Canada has

Volume 11, Number 2

the most expensive refugee determi­nation system in the world. If we addante the $90,000,000 it costs to ad­minister the refugee determinationsystem, taking into account only thecosts of running, administering andbacking up the Refugee Board, thecosts of legal aid estimated at$30,000,000 at a minimum, the costs ofwelfare estimated at another$60,000,000 (the longer the procedureleading to the initial inquiry, thegreater the costs), and the costs to theCanadian Employmentand Immigra­tion Commission (CEIC) and otherdepartments for adjudication, federalcourt costs, deportation, etc., we havea system that costs over $200,000,000.Sorne would argue the expenditureson refugee determination are actuallymuch higher, particularly if the costsof the various other bureaucracies atthe federal, provincial and municipallevels are taken into account as well asthe large costs to the department itselfin dealing with refugee entry on acase-by-case basis that underminesaIl the systems put in place to controlborders. This is at a time of huge bud­get deficits and a severe recession,when the costs of ail governmentdepartments are up for scrutiny andwelfare rolls have swollen beyond

Refuge

30/10/91 OPS 7

anything Canadians have ever imag­ined since the GreatDepression. Whenthe UNHCR, dealing with 15 millionrefugees around the world comparedto the 30,000 we deal with insideCanada, has a budget only slightlymore than twice Canada's to dealwith200 times more refugees, and when itis faced with the challenge ofassistingin the repatriation of up to half ofthose 15,000,000 refugees to Vietnam,Cambodia, Ethiopia, Afghanistan,Mozambique, etc., the need to run aleanoperation is readily apparent. Thequestion is, will it become mean inorder to be lean?

There is a second reason - fear.Germany has 260,000 refugee claim­ants. France has over 80,000. WillEuropeans be faced with as many as5,000,000 ormore people in flight fromthe effects of the disintegrating SovietUnion. The Europeans are alreadytightening up their systems. Britain,which experienced an upsurge ofclaims from 5,000 to an estimated50,000 this year, introduced a newAsylum Bill in October 1991 to finger­print refugee claimants and create acommon European data base on refu­gee claimants. In spite of a stingingrebuke of the proposaIs by. theUNHCR, Kenneth Baker, the Home

9

Secretary responsible for the legisla­tion, is forging ahead with its legisla­tion. Refugee claimants determinedto be coming from Safe First Coun­tries, that is, countries deemed to benon-refugee producing, will be de­ported within 48 hours as will claim­ants arriving from other Europeancountries deemed automatically to beSafe Third Countries.

The Dublin Agreement made thecountry where the refugee claimantfirst arrived carry the primary respon­sibilityfor determining the claim. Thisis to prevent refugee asylum shop­pingand duplicate claims. Eight othertests will be used to deny a refugeeclaimant credibility: failure to applyimmediately on arrivaI, failure tomake prompt and full disclosure ofaIlfacts, lack of travel documents, in­volvement in political activities in theU.K., which might make them targetsback home, the failure to seek refugein another part of their country wherethey would not be under threat.(Canadianjustice department lawyersare aIready researching the legalbasisfor such a rule, which could for ex­ample be applicable to Tamils fromSri Lanka.) Other refugee claimantswill be fast-tracked, given only a pa­per review if they are deemed to havelittle merit. (DeniaI of an oral hearingwas made illegal in Canada based onthe Singh case, the catalyst for creat­ing the current refugee determinationsystem.) Legal aid for refugee claim­ants to obtain independent legalcoun­sel will be abolished, as weIl as enti­tlements to housing. Though the refu­gee claimant queue is now aboutfourteen months, Britain plans toprocess a refugee claimant withinthree months.

This is but one step in the allegedattempt to create Fortress Europe,whereby governments are reacting tothe rise of vigilante action againstrefugees and the increase in supportfor populist parties running on anti­immigration, anti-refugee and racistplatforms. Le Pen is only the bestknown of these. In the last Swedishelection, there was a burst of supportfor a populist anti-immigration party.The political efforts are not only di-

10

rected towards dramatically tough­ening up the refugee claims systembut at drastically reducing the ELRs,those granted Exceptional Leave toRemain. For although Europeanspermit a far smaller proportion ofrefugee claimants to win their claims,they deport only a very small propor­tion of those rejected.

As the Europeans tighten their sys­tem, Canadian officiaIs anticipateCanada will more and more becomethe asylum country of choice. Refu­gee claimants will be drawn towardsthe system which is the softest ormostliberal. The overflowfrom Europe willimpact on Canada. The Yugoslav cri­sis has alone produced one milliondisplaced persons, half ofwhom havefled Yugoslavia altogether. This is theresult of a multinational state disinte­grating. There are a myriad of others.

Thus, although the number of refu­gee claimants arriving in Canada hasbegun to shrink, and the existingworld refugee population is expectedto decline dramatically as repatria­tion proceeds, Western states arehaunted by fears that they are vulner­able ta forces they cannot control orhandle once set in motion. If Canadamerely declared the United States aSafe Third Country, one-third of theclaimants who arrive via the UnitedStates could be sent back for process­ing there. Somalis and Tamils whoarrive via New York would be sentback to the U.S., putting pressure onthe American Government to imposea visa requirement on those countriesthat are sources of refugee claimants.

In addition to money and fear, verybasic and primary forces, there areothers just as fundamental though notas spectacular in terms of money andnumbers. These include political sen­sitivity to the consequences of storiesappearing in the press about peopleallegedly either taking advantage ofthe refugee process or being victim­ized by il. No minister or departmentlikes to see headlines and front pagestories day after day as convictedmurderers in the United States orterrorists elsewhere use the refugeeprocess to delay and hopefully pre­vent extradition. Bambi may have

Refuge

been the victim of a frame-up. But is avictim of a miscarriage ofjustice in theUnited States a refugee? If she is, doesthat open the door to every criminallyconvicted individual to escape toCanada and claim refugee statuswhere the Canadian Government, atgreat cost to the taxpayers, will berequired to determine whether thereindeed has been a miscarriage of jus­tice. When the stories tell a tale of anindividual allegedly victimizedby theAmerican justice system, the Ministerand the department get it from bothsides, condemned for coddling aconvicted murderer and for using thefull weight of the bureaucracy ta forcea poor victim back into the jaws of aconspiratorial system of which she isa victim. No minister likes to read thatan Iranian woman, who was alleg­edly arrested at a private party for notwearing a veil and then tortured, isabout to be deported as a rejectedrefugee claimant. Because of the pri­vacy of a file, the Minister cannotexplainwhythe claimantwas rejectedor why he did not accept the claimantinitially on humanitarian grounds.The clear public impression is that thesystem has inflicted further cruelty ona woman who has already sufferedmore than enough.

Money! Fear! Sensitivity! But thereis also another reason. This is an excel­lent time to make repairs to a systemthat is not presently under pressure.Further, there is a general move to­wards rationalization and harmoni­zation amongst the receiving coun­tries - the Dublin Agreement, theSchengenTreaty, etc. The requirementof rationality has been given an impe­tus in Canada. We will be hosting aninformaI consultation of Westernstates on refugee determination inJune 1992. Canada wants to show itssystem at its best. That means puttingin process measures to correct flawsin the system nowfor implementationprior to the June consultation.

For Canadians concerned with theprotection of rèfugees, however, thequestion remains the same. WillCanada follow Britain's lead andimplement the Safe Third Countryprovision of Bill C-SS? In the effort to

Volume 11, Number 2

make the systemmore efficaclous, willfairness be sacrificed? Or will thesearch for rationalization make thesystemmore effective so that it is fairerboth for the refugee and the Canadiantaxpayer, citizen and voter?

Issues of Access

The best way to manage a refugeedetermination system is to alIow asfew claimants as possible entry intothe system. It will keep out abusers,claimants fleeing refugee producingsituations and perhaps many whowould be considered ConventionRefugees even under the most re­strictive system. What are the tech­niques?

Visa controls are one way to limitthe numbers of those who can arriveat the ports of entry of your country.Interdicting people about to boardairplanes with illegal documents isanother method. Fining airlines fortransporting individuals with im­proper documents is a third technique.AlI three are widely used now, thoughmany airlines don't pay the fines(KLM) and dare the Canadian Gov­ernment to take them to court. Theairlines prevent many from gainingaccess to the port of entry so that theycannot even access the refugee deter­mination system.

There are another set of techniquesavailable to turn people back whoreach a port of entry. They are simplydenied access to the refugee determi­nation system. The new British legis­lation will provide for designatingcountries as Safe Countries of Origin- SCOs (not to confuse Safe Countryof Origin with Safe Third Country).Sweden would presumably be des­ignated as such. Though there is theodd American and European whoclaim refugee status in Canada, theseare few and far between. Since such aprovision has been deemed to be inbreach of the Convention by theUNHCRand wouldlikelybe deemedby the 5upreme Court ofCanada to bein breach of the Canadian Charter, ithardly seems worth the effort. For thesubstance of a refugee determinationhearing is to determine whether the

Volume Il, Number 2

INITIAL HEARING

Objectivesto deny access to persons:• who, for example, have been recognized by any

other country to be Convention refugees or who canhave the merits of their claims decided in another "safe" country

• whose claims have no "credible basis "

DecisionsThere are three types of decisions made at the initial hearing, in the followingorder:

1. immigration issues (adjudicator only):• lis the person inadmissible to Canada?

has the person violated immigration law?should the personbe admitted, allowed to come into or remain in Canada?should the person be detained or released?

2. eligibility (adjudicator & Immigration and Refugee Board member):did the claimant pass through a"safe third country"? [not implemented]does the claimant have refugee status in another country?has the claimant, since last coming into Canada, beenfinaIly determined to be a refugee?has the claimant, since last coming into Canada, been finally determined

not to be a refugee or to have abandoned his or her claim?

3. credible basis (adjudicator & IRB member):is the claim arguable? (l'm a refugee because 1was unemployed")is the claim believable? (1 was persecuted because of my religion")this access test has a low threshold: it was intended to deter the most

flagrant forms of abuse

Step-by-Step

1. Senior Immigration Officer (SIO)admits to Canada or "directs back" to USA until hearing date is available"out of status" claimants:• prepares report for immigration inquiry• photographs and fingerprints claimantsschedules initial hearing and refers to Case Presenting Officer (CPO)

2. Case Presenting Officer (CPO)reviews Personal Information Form (PIF); decides whether to contest orconcede Il credible basis"ifconceded, Simplified Inquiry Process (SIP):•completes paperwork to aIlow:

•claimant to concede certain facts at issue;•EIC to concede that claimant is eligible and has a credible basis

ifnot conceded, presents case to adjudicator and Refugee Division membermakes recommendation respecting conditional removal order or depar­turenotice

3. Adjudicator & IRB memberif contested, claim is heard by adjudicator and IRB member; other partici­pants: cpo, interpreter, claimant, counsel• adversarial: CPO can cross-examineif not eligible/no credible basis: in inquiry cases where the allegations arefounded, persons are subject to removal pending review, with leave, byFederal Court of Appeal (FCA)

Refuge 11

DEFINITION OF SAFE THIRD COUNTRY

The safe country provisions are found in s. 46.01 of the Immigration Act46.01(1)(b) in the case of a claimant who is the subject of an inquiry caused pursuant to paragraph 23(4)(a), theclaimant came to Canada from a country, other than the country 9f the claimant's nationality, the country ofthe claimant's habituaI residence,

(i) that has been prescribed ~s a country that complies with Article 33 of the Convention, eitheruniversally or with respect to persons of a specified class of persons of which the claimant is a member, and

(ii)whose laws or practices provide that aIl claimants or claimants of a particular class of persons ofwhich the claimant is a member would be allowed to return to that country, if removed from Canada, orwould have the right to have the merits of their claims determined in that country;

(3) For the purposes of paragraph 1(b)

(a) a claimant who is in this country solely for the purpose of joining a connecting flight to Canada shaHnot be considered as coming to Canada from that country; and

(b) a claimant who cornes to Canada from a country shall be considered as coming to Canada from thatcountry whether or not the person was lawfully in that country.

(4) For the purposes of paragraph (1)(b); where a person who has come to Canada in a vehicle seeks tocome into Canada without a valid and subsisting passport or travel document issued to that person andclaims to be a Convention refuge, the burden of proving that the person has not come to Canada fromthe country in which the vehicle last embarked passengers rests on that person.

country from which the refugee isfleeing is a refugee-producing coun­try. Preempting the decision by gov­ernment fiat undermines the verypurpose of the system.

Safe Third Country does not havethe same problem. The refugee claim­ant is not being returned to the coun­try from which they fled, but to thecountry they transited, which is asignatory to the Convention with arefugee determination process.

But a rose is not a rose is not a rose.There are almost as many genera ofrefugee claims systems as there arecountries that have signed the Con­vention. Denmark, the U.K. (up untilnow) and Australia still base theirsystems on a minister conducting aninvestigation to determine whether arefugee claimant qualifies as a refu­gee. InDenmark, the decision is basedon a paper review of the transcript ofa police interview and, in the U.K.from an interview with an immigra­tion official. There are no oral hear­ings, rights to counsel or independentadjudicators.

12

In other countries, such as France,Germany and the United States, thesituation is more akin to the old daysof the Refugee Status Advisory Com­mittee (before the inauguration oforalhearings); they use the services of anindependent decision making bodyto investigate the claim rather than apolice or immigration department of­ficial. But there are relatively few oralhearings, no legal aid and no right tacounsel in France. There are oral hear­ings in Gerrnanyand the UnitedStates,but no legal aid and only sorne legalrepresentation.

Further, not only do the proceduresdiffer, but so do the definition of per­secution and how evidence is to beassessed. Much of the evidence inCanada is assessed based on givingthe claimant the benefit of the doubt,while in rnost other jurisdictions astricter rule measuring the balance ofprobabilities is used, while in stillothers the onus of proof is on theclaimant.

Thus, if Safe Third Country is im­plernented we would be sending

Refuge

claimants back to countries with gen­erally stricter screening and ad­judication systems that are less in­dependent and more subject to ideo­logical factors. That is, of course, if thecountry of transit would accept theclaimant back. And why should theyif documents have aIready been de­stroyed or passed back to the agentwho had provided the false docu­ments justbeforeboardingan aircraft.If it could not be determined howlong the clairnant had sojourned inthe Safe Third Country, or if no onecould establish that the refugee claim­ant had not merely been in transit, aterrific political uproar would result.The refugee support communitywould then be energized again toattack the government, with littleactual change ina systemneither moreefficacious nor fair to the refugee.Charter challenges would ensue. Atthe same time, the politically fearedforces ofanti-refugee sentimentwouldbe stirred up.

Why, then, would officiaIs considerimplernenting the Safe Third Country

Volume Il, Number 2

NOT CONCEDED AND SUCCESSFULLV ARGUED BV CPO

47%5458

NAT'L

NAT'L

91%9292

30/10/91 OPS 10

43%6144

BC

BC

84%9189

PR

74%6663

PR

38%5144

sponsibility be­tween two verydifferent branchesof government sothat one branchcannotbe made ac­countable for theresults. It length­ens the hearings.In Canada, 10-20cases per officerper month can beprocessed,whereas in Ger­many the equiva­lent figure is 40and in the UnitedStates it is 72. Evenfrom a file man­agement point of

view, it means two duplicate systems- one in CEIC and one with the Im­migration and Refugee Board (IRB),or else passing files between agencieswith aIl the risk of misplacement. Ineffect, integrated case management ismade impossible in order to contestless than ten percent of cases.

To speed up the process, an averageof about 40 percent of claims are expe­dited, that is, never given a full hear­ing but accepted upon a paper re­view. Any negative result requires afull hearing.

At present, no legislative provisionis included in the Act to allow for anexpedited process. The system israther inflexible in law. It does not

ONT

90%9492

ONT

49%4676

51%4143

QUE/ATL

94%9093

QUE/ATL

CREDIBLE BASIS CONCEDED BV CPO

19891990JAN-SEPT 91

19891990JAN-SEPT 91

LEGISLATIVE PROVISIONS

Hearings

Do we need the initial hearing? Itslows down the process. It uses upresources. The threshold for passingthe credible basis test is low so thatonlya small percentage are contestedat the first hearing.

But where a case is contested, we, ineffect have virtually a full hearing. Toestablish a credible case, virtuallyeverythingneeded to establish a refu­gee case is put on the table. Further,since the hearing is adversarial ratherthan investigative, the wrong tone isset from the beginning.

Even from a management perspec­tive it is a bad policy. It divides re-

23(5) Where, pursuant ta subsection (4), a senior immigration officer is requiredto cause an inquiry to be held with respect to a person who is residing orsojouming in the United States, the officer may, where an adjudicator is natreasonably available ta preside at the inquiry, direct that persan ta retum ta theUnited States until such time as a adjudicator is available.

The following are the direct-back provisions in the Immigration Act

20(2) Where an immigration officer at a port ofentry is of the opinion that it wouldormaybe contrary ta this Act of the regulations to grant admission ta or otherwiselet come into Canada a person who is residing or sojouming in the United States,the officer may, where a senior immigration officer to whom the officer wouldotherwise make a report pursuant to paragraph l(a) is not reasonably available,direct that persan ta retum to the United States until such time as such seniorimmigration officer is available.

prOViSion in thepresent law? Onereason is the needto distribute re­sponsibilitiesamong Westerncountries. Oneway to do that is tofollow the prece­dent of the DublinAgreement andmake the countrywhere the refugeefirst arrives proc­ess the claim. Butthe effect of thismeasureislikelytobe refugees shift­ing towards thesystem with thefairest system of adjudication and/or, even more importantly for claimsunlikely to be successful, towardsstates which have a poor history ofdeporting unsuccessful claimants.

It is a system based on putting thegreatest pressure on the. weakest (orfairest, though the two are not equiva­lent) access point in the system, thuspressuring everyone to tighten uprather than attempting to create asystem that is fair to refugee claim­ants, fair to those responsible for car­rying out the responsibilities of con­trollingborders and processingclaim­ants and, most of aIl, fair to the refu­gees themselves.

One method of speeding up theprocess is to provide sorne incentivefor lawyers or legal-aids to ensurethat the Personal Information Formsso critical to scheduling are filled outas quickly as possible. At the presenttime, for weak claims, there is everyincentive to drag the process out aslong as possible both for the claimantand the counsel for the claimant charg­ing the fees to legal aide

The key access issue are:Safe Country of Origin;Safe Third Country;Visas;Interdiction;Airline Fines;Direct-Backs;Documentation;PIF - Personal InformationForms.

Volume Il, Number 2 Refuge 13

30/10/91 OPS 19

EXPEDITED CLAIMS:0/0 OF ALL CLAIMS HEARD

9

5

4

27256554

B.C.

30/10/91 OPS 15

40498370

33

PRAIRIES

34157462

9

36

19575110

ONTARIO

7162749

PROCESSING TIMESINITIAL AND FULL HEARINGS

SEPTEMBER 1991

10~ FULL

8 't:=r INITIAL

M 60 6NTH 4S

2

0QUE/ATl

FULL 4

INITIAL 2

EXPEDITEDALl elAIMS

PERCENTAGE

allow for a positive determination atany stage in the process where a claimis manifestly founded. It does not al­low for generic rather than case-by­case determination. Because a hear­ing requires so many people - theRefugee Hearing Officer (RHO), twoboard members, an interpreter, therefugee claimant, counsel for the refu­gee claimant - there are many op­portunities for adjoumments with fewincentives in the process to get onwith the case.

Further, the adversariaI nature ofthe initial hearingand the formaI courtstyle introduced in sorne jurisdictionsat the full hearing acculturated sornelawyers to a litigation culture inwhichthe responsibility of counsel was notsimply to make sure any relevant factwas not overlooked, but to make sureevery fact andevery possible argumentwas set before the Board.

Eliminating the first hearing andensuring the full hearing was trulyinvestigative and not adversarialwould free upan estimated halfof theprocessing time. Can changes also bemade at the Full Hearing Stage tospeed up the process?

Though the Full Hearing Stage isworking rather weIl, a number ofimprovements in both style and con­ception could allow for dramaticallyimproved efficiency. Others couldonly be introduced at the cast of fair­ness.

For example, a change from twomember panels to one hearing officerwould make significant savings, butonly at great cost on the appeal sideand on the learningcurve for theboardmembers. It is probably true thatsharing a panel reduces the sense ofresponsibility and accountability ofany one Board member. But sharedresponsibility, particularlywhenthereis only one full hearing, is important.

Similarly, arguments will be putforth to shift the onus of proof fromgiving the benefit of the doubt to theclaimant, to one of a balance of proba­bilities, or even putting the onus ofproof on the claimant. For those whowant ahigher rejection rate, this wouldbe a crucial change.

But the issue, surely, is not high or

14 Refuge Volume Il, Number 2

low acceptance rates, but a systemwhich errs on the side of the claimantand is at the same time speedy so thatit is not abused and refugee claimantsare processedexpeditiouslyandfairly.What puts the system in doubt is thatthe public does not understand why8percent of Czech claims, 19 percent ofPolish claims or even 55 percent ofArgentinean claims are being ac­cepted, when these are now supposedto be democratic regimes. Nor, on theother hand, is there any understand­ing of why the acceptance rates ofthose fleeing the Peoples Republic ofChina have dropped so dramaticallywhen Western leaders going to Chinareceive so much publicity about theirprotests to the Chinese leadershipconcerning human rights abuses.

Appeals

Other than the initial hearings, whichnow seem redundant, the main issueis one of appeal. Most rejected casesrequest leave to appeal to the FederalCourt. Over 25 percent are grantedleave to appeal and over half of theseare allowed at appeal. This meansthat of the cases turned down by theBoard, about 15 percent are reversedat the appeal stage.

This reversaI rate is enough to jus­tifY an appeal system. But can it beexpedited while protecting refugeeclaimants? Does the absence of a re­view mechanism within the Boardlead to more appeals and more rever­saIs? Would it be prudent, cost effec­tive and fair to allow for a reviewofficerat everyfull hearingwho, whilenot participating in the hearings,would have the power to reverse thedecision? For consistency, that reviewofficer could also work with otherofficers on a central panel to set guide­lines for board members.

This would not eliminate the needfor retaining a right to appeal, but itmight eut down the number of casesthe Federal Court granted leave toappeal. Further, it might reduce evenfurtherthenumberofcasesgivenstaysof deportation.

After aIl, 95 percent of cases heardare fact specifie. The onlyway one can

Volume 11, Number 2

FULL HEARING

Objectivesmeet Convention and Charter obligations to protect genuine refugeesagainst return to country against which the claim to refugee status is madeSingh decision requires only one oral hearing on merits of claimsafeguards to reduce need for appeal on merits:

•2 decision-makers•non-adversarial hearing·independent and expert body (IRB)

Decision• Is the claimant a "Convention refugee"?

Act contains definition used by 1951 Geneva convention and proto­colIl weil-founded" fear of persecution: race, religion, nationality, socialgroup, political opinionclaimant must demonstrate a well-founded fear of persecution, butmay be given the "benefit of the doubt"ail evidence must be unclassified and available to claimantfor response

Step-by-Step

1. Refugee Hearing Officer (RHO)

checks Personal Information form (PIF) and decision at initial hear­ingmay hold pre-hearing interview with claimant and counseldecides whether to concede (" expedited" process) or contest (" tradi­tional" process)

2. Board Members

"Expedited" Process (concede)

one member holds hearing to confirm RHO's recommendationif RHO's recommendation is confirmed, claimant is eligible to applyfor permanent residence ("landing")

"Traditional" Process (contest)

two members preside over hearing on merits of the refugee claimRHO presents facts at issue• uses country information from IRB documentation centre• may question claimant, present other evidencelawyer or other counsel presents claimant's caseifaccepted, claimant is eligible to apply for permanent residenceifrejected, mayremainin Canada pending disposition ofappeal, withleave, to the Federal Court of Appeal

Refuge 15

1800

ACCEPTANCE RATES (FULL HEARING STAGE)

FULL HEARING STAGE:CLAIMS COMPLETED· (MONTHLY AVERAGE)

55%33238

73948886711965939572

B.C.

JAN-SEPT 1991

30/10/91 OPS 18

30/10/91 OPS 24

Cl JAN-DEC 88

~ JAN-DEC 90

EJ JAN-SEPT 91

PRe

35%47441478848878872179928959

JAN-DEC 1990

69%N/A747585859187857389979650

JAN-DEC 1989

aUE/ATL ONT.

400

1450

200

1200

1400

-INCLUDES CLAIMS WITHDRAWN AND ABANDONED

ACCEPTANCE RATES (FULL HEARING STAGE)

JAN-DEC 1989 JAN-DEC 1990 JAN-JUN 1991 JUL-SEPT 1991% % % %

QUE/ATL 87 74 71 58ONTARIO 1 -90 81 83 69ONTARIO Il 80 64PRAIRIES 90 86 71 60BC 86 55 57 50NATIONAL 88 77 76 62

30/10/91 OPS 23

ARGENTINABULGARIA*CHINA*CZECHOSLOVAKIAELSALVADOR*ETHIOPIA*IRAN*LEBANON*PAKISTAN*POLANDROMANIA*SOMALIA*SRI LANKA*U.S.S.R.

*ONE OF THE TOP 10 COUNTRIES IN THE IRB'S CASELOAD IN 1991

C 1000L

~ 800MS 600

An Overview

Quite aside from reforms of theImmigration Act, three other areasshould be addressed to improve theexisting system. The first 1refer to asthe Xeroxing of CEIC. The second is amove towards multilateralism inprocessing refugee claims. The thirdis the expansion of a pro-active policyon behalf of the V.N. to protect refu­gees and intervene in circumstancesproducing refugees.

really understand if an injustice hasbeen done is to hear aIl the facts. Yet,a full rehearing of any appealleads toconsiderable delay and much greatercost. A paper review might not pro­vide enough protection to satisfy theFederal Court so that appeals to it aregranted less frequently. Further, thereis no present method of ensuringconsistent guidelines are provided toboard members in different regions,though a panel undertaking a paperreview might be an improvement onthis issue.

An appeal mechanism on the sub­stance of the case could ensure fair­ness while reducing costs and delays.

Xeroxing CEIC

At the meeting of the various im­migration office managers referred toat the beginningof this special issue ofRefuge on refugee determination, theChair of the Board of Xerox gave aluncheon speech describing howXerox had been in danger of goingdown the tubes and how strategieplanning reversed the process. Onecritical aspect of strategie planningentails setting a common set of goalsfor aIl parts of a corporate structure. Ifone part is pulling in one directionand another part in another, the or­ganization is schizophrenie.

CEIC is clearly schizophrenie. Theenforcement branch, which seemsdedicated, efficient and committed toprotecting Canadians from unwantedvisitors and arrivaIs, is also dedicatedto ensuring that as few refugee claim­ants reach our shores as possible. After

16 Refuge Volume 11, Number 2

OVERALL ACCEPTANCE RATES*

*BASED ON TOTAL NUMBER OF CASES CONCLUDED AT INITIALAND FULL HEARINGSTAGES, INCLUDING WITHDRAWN CASES.

JAN-DEC 1990 JAN-JUNE 1991 JULY-SEPT 1991

SOMALIA 92% 94% 89%IRAN 88 90 85SRI LANKA 88 95 94PAKISTAN 82 75 48ETHIOPIA 82 96 82LEBANON 77 87 75EL SALVADOR 76 76 62ROMANIA 69 58 71BULGARIA 44 36 26CHINA 43 25 15ARGENTINA 9 23 40JAMAICA 0 0 0TRINIDAD&TOBAGO 0 0 0

aIl, in their calculations, for everyrefugee claimant that does not arrive,the Canadian taxpayer saves $50,000V.S. in administrative and processingtime. They understand the protectionof Canada aspect of their mandate,but the humanitarian aspects of theImmigration Act are not seen to betheir responsibility.

As a result, a major preoccupationof the enforcement branch is inter­dicting, through OperationShort Stop,the arrivaI of refugee claimants usingfalse documents, instead of workingwith refugee and ethnic organizationsto detect the moveplent of criminals,drug dealers and professional peoplesmugglers. If the CEIC enforcementbranchwould endorse that a commongoal of CEIC is to provide protectionto genuine refugees, and that this goalis as much a part of their mandate asthat ofany otherbranch, we would goa long way to restoring refugee sup­port groups' trust in the CEIC. Thenthese groups too could and shouldassume sorne sensitivity to and re­sponsibility for enforcement insteadof merely giving it a rhetorical assent.

McCamus, the Chair of Xerox, notonly stressed the need for everyone inthe system to support aIl the goals sothat the corporate structure developscoherence, but that each member andpart of the organization had to recog­nize who their clients are, understand

Volume 11, Number 2

them andbe dedicated to givingthemtop quality service. The clients of onepart of an organization are not otherparts of the organization.

When Xerox employees began tosee their job primarily in terms ofputting out fires and participating inpublic relations exercises, it was a suresign that rot had entered into theorganization. The depressing realityof the situation was that one part ofthe organization saw that its primeclientele were other parts of the or­ganization.

Yet that is precisely how the CaseManagement Branch defines its mis­sion and clientele. Instead of seeingitsjob as the elimination of situationswhich give rise to contentious cases,just as Xerox redefined the mission ofits damage controlbranches, it sees itsresponsibility as the effective man­agement of cases appealed to theMinister or sensitive and high-profilecases. As such, it sees its clients as theMinister (the equivalent to the Chairof the BoardofXerox), National Head­quarters and the regional offices. Butthe clients are the immigrants, therefugees and the refugee supportgroups.

The result of this misconception ofgoals and clients, and of the in­coherence in the organization is thatthose at the front lines - ports ofentry at border crossings and airports

30/10/91 OPS 25

Refuge

- are given a schizophrenie task. Theyare responsible for deciding in 45seconds whethera person has a properpassport, identity, the appropriatevisa, etc. Yet anyone who simply saysthey are a refugee can waltz right byand enter the system with relativelyfew ever being deported. OfficiaIs atentry points don't understand whythey exercise such care, on the onehand, and the system seems so care­less on the other. Clearly, enforce­ment and humanitarianism must beintegrated and not seen as polar oppo­sites splitting the organization.

At the same time, the case-man­agement personnelmust redefine theirfocus to concentrate not on the vari­ous parts of the bureaucracy as theirclients; rather, theymust become part­ners to those on the front lines ofdecision making to serve those whoare properly defined as CEle clients.

The problem within CEIC is not oneoflazy or incompetent civil servants.Everyone with whom1have ever dealtin CEIC, with very few exceptions, isboth dedicated and overworked. Theyare bright, intelligent and committed.But they are working within an or­ganization that has not yet givencoherence to its twofold mission. Theyare working in an organization thathas not properly defined its clientele.Obviously, CEIC could benefit fromthe lessons of Xerox in streamliningits operations, providing internaIcoherence ta its entire structure and,perhaps most importantly, definingits clientele. What is needed is theXeroxing of CEIC.

Towards Multilateralism

But the cure, and not just more pal­liative action, requires something elsebeyond the borders of Canada. Refu­gee claimants are a problem for thewhole Western world. An isolatedCanadian solution could merely shiftmore of the problem on to others if weare mean-spi;rited, or possibly ontoourselves if we are fair and generous.Further, in a system supposedlybasedon universal principles, the inconsis­tencies, ideological distortions and

17

FEDERAL COURT (FULL DETERMINATION)

LEAVES APPEALS

REQ'D DEC'D % GRANTED # DEC'D %ALLOW'D

1989 655 496 28% 4 50% Auuuai Diuuer1990 2242 1728 28 24 6301-08 1991 3480 1869 26 107 52

TOTAL 6377 4093 27 135 54

% GRANTED LEAVE %ALLOWEDATAPPEAL OVERALLSUCCESSRATE

OVERALL RATE OF SUCCESS AT APPEAL

1989199001-08 1991

28%28%26%

xxx

50%63%52%

14%18%14%

30/10/91 OPS 27

The Centre forRefugee Studies'

annual dinner will he heldon Thursday,

6 Fehruary 1992,6:30 p.m. at the

International Restaurant,421-429 Dundas St. W,

3rd Floor, Torontoand will feature a

10-course meal.wide variations in the system addlittle to enhance its credibility. Bilat­eral or multilateral arrangements thatmerely shift the problem from onejurisdiction to another do little toaddress the core ofthe refugee protec­tion problem for those who claim tobe Convention Refugees.

What we need is a multilateral(perhaps initially bilateral) quasi­judicial organization for processingrefugee claims as well as an agree­ment to burden share and resettlesuccessful claimants. What we haveinstead are irregular structures re­peated from country to country. Weinvite asylum shopping by the verystructures we build. The refugees,then, are blamed for abusing a faultysystem that invites such practices.

Wouldn'ta multilateral system tendta mave toward the meanest systemrather than the best one? There aremany reasons to argue that the re­verse couldbe true if the system is notbuilt on a beggar thy neighbour prin­ciple. The best elements of varioussystems would be integrated.

This is particularly true of the bor­der between Canada and the UnitedStates. Of 113,000 entries into Canada

18

lastyear,106,OOOcamefromtheUnitedStates. The vast bulk of our resourcesare used to control entry from a coun­try with whom we now have a freetrade agreement, but only capital, notpeople, move freely backand forth. Ifour control resources could be rede­ployed to control the entry of 7,000rather than 113,000, how much moreeffective could they be?

The development of a bilateral, andeventually a multilateral, refugeeclaims system would be a step in thisdirection. The Americans are alreadyusing our country profiles. Movestowards greater integration wouldmean that any Safe Third Countryprovision would be a waste of re­sources. But such a mave will requirethe best of both systems and not theworst.

Pro-active InterventionWith the intervention on behalf of theKurds in Northern Iraq~we witnessedeither idiosyncratic behaviour or anew precedent for protecting refu­gees. If it is the latter, such measurescould eventually prevent the need forany refugee determination process inthe first place.

Refuge

Tickets are $60.00.

The Vincent Kelly Award,presented each year by theCentre for Refugee Studiesto Canadians for outstand-

ing ,vork on hehalf ofrefugees, will he

presented atthe dinner.

Please see page ?? for moreinformation.

Volume Il, Number 2