An Appeal for Refugee Rights
Why Canada must put in place the long-promised Refugee Appeal Division
In Canada, you can appeal a parking ticket– but you can't appeal a negative decision about your refugee status.
— Refugee activist Tom Clark
In July 2004 Immigration Minister Judy Sgro called on the Canadian churches to stop offering sanctuary to refused refugee claimants. The churches responded that the problem lies not with sanctuary, but with a system that does not allow appeals even if claimants are to be deported back to possible torture or death.
Canada is morally and legally obliged to welcome people fleeing persecution. A fair and just refugee determination system is essential to meeting that obligation. But our system is complicated and flawed. Chief among its flaws is the continued lack of a process for claimants to appeal a negative decision on the merits of their case.
It's time to change this dangerous situation. Join with KAIROS, the social justice organization of the Canadian churches, and with refugee advocacy partners to call on the government to immediately implement the long-promised Refugee Appeal Division.
What are Canada's obligations to refugees?
As a party to the 1951 Convention relating to the Status of Refugees, Canada has an obligation not to send refugees back to persecution. Canada must therefore determine who is a refugee and who is not. If a mistake is made and a refugee is denied protection and sent back to persecution, Canada is in violation of its international obligations.
Canada also has obligations under the Convention against Torture, which prohibits it from returning anyone to a substantial risk of torture.
Who decides who is a refugee - and how?
People fleeing persecution can claim refugee protection at a border point when arriving by land, sea or air, or from within Canada at an immigration office. Citizenship and Immigration Canada (CIC) receives the claim and decides whether or not it is eligible for review.
Refugee claims that are found to be eligible are referred to the Immigration and Refugee Board (IRB). The case and accompanying evidence are reviewed by a single decision-maker. IRB members make life and death decisions about politically complex events taking place far away, and about which there is often little evidence beyond the claimant's testimony, which usually must be interpreted from another language.
The refugee claim process can be particularly traumatizing for vulnerable persons, such as survivors of torture and children. Sensitivity must also be shown to women claimants, who may find it difficult to testify in front of a male IRB member about experiences such as sexual assault. If the system fails to take account of such factors, some of the relevant information about the claim may not be brought forward and a claimant may be wrongly rejected.
Why is an appeal process so important?
An appeal process is crucial because it offers one means of correcting wrong decisions or countering poor information. The situation is complex and the stakes are high, especially for the refugee. Peoples' lives are often at risk and deportation can mean imprisonment, torture, or death.
Mistakes can be made, which is why a way of correcting them is so urgently needed-and why Canada has been criticized for failing to provide such a mechanism. An appeal process is a safety valve whose importance is recognized by international bodies. Canada remains one of the few countries in the Western world that lacks a merits-based appeal process.
Doesn't Canada already have a way for refugees to appeal decisions?
No. There is no appeal. Canada does allow reviews on humanitarian and compassionate grounds, and a federal review on process to deal with procedural problems, not with the merits of a refugee's claim. There is currently no way to re-examine the substance of a case, and no way of reviewing a negative decision. That’s why we are calling for the implementation of
a merits-based appeals process.
But hasn't the government already promised to do this?
When the government brought in the Immigration and Refugee Protection Act in 2002, it reduced the number of adjudicators who hear refugee claims from two people to one and agreed to add a formal appeal process that would allow refugee claimants to appeal the substance of a negative decision.
But in 2002 the government implemented the Act without the appeal despite widespread protest. In May 2002, then-Minister of Immigration Denis Coderre promised that the government would implement the appeal process in one year's time. In February 2003 KAIROS launched a letter-writing campaign calling on the government to fulfill its promise of a Refugee Appeal Division. Over 1,000 responses were received, yet no action resulted. Nothing has been done since.
Won't an appeal process simply add to the backlog, or even allow people to abuse the system?
Any backlog of refugee claimants is a problem that is best solved by putting more resources into the system, so that claims are processed quickly and fairly. There is no evidence that an appeals process would necessarily add to the backlog, and absolutely no reason to believe that a merits-based appeal would allow anyone to abuse the system.
What about security concerns?
There is absolutely no evidence generally linking refugee claimants with terrorism and violence. However, in the post-September 11 world, many argue that we must be more concerned about 'security threats'. Some have even suggested that refugees pose a security threat.
There is great concern that the federal government is increasingly putting 'security' concerns ahead of human rights. For example, the federal government's National Security Policy (April 2004) makes links between refugees and national security, and Minister Sgro's public comments in the summer of 2004 twice linked refugees to concerns about security.
The Canadian churches and refugee advocacy groups have strongly criticized the government for drawing this false and alarmist link. We are concerned that in the current context, this sweeping connection will contribute to a more hostile climate for refugees. It is simply wrong to link refugees with security concerns.
What can I do?
1. Show the government that welcoming refugees is a priority for Canadians, and that a merits-based appeal process is an essential part of a fair and just system through continued letter writing and discussions with your MP.
2. Help ensure that Canada keeps its borders and its mind open to those in danger. Through communication with your Member of Parliament, tell the government it must cease inappropriately linking refugees and security concerns. Discuss this issue with your friends, family and co-workers: public opinion is important to politicians. And only with public education will we put an end to dangerous stereotypes about refugees.
3. Educate! Use resources are available to support your important work, including a booklet of activities and workshops called “Welcoming Uprooted Peoples Post 9-11”, plus emerging work in the area of refugees and migrants.
Many thanks to the Canadian Council for Refugees for background information: www.web.ca/~ccr
