'Justice delayed is justice denied': Fewer than half of refugee claims being heard on time

In the first four months of this year, only 44 per cent of refugee claims were heard on time. In 2016, about 52 per cent made it to the board on time, a drop from 70 per cent in 2013, according to numbers from the Immigration and Refugee Board of Canada.

In the first 4 months of this year, only 44 per cent of refugee claims were heard when scheduled

Razak Iyal was supposed to have his refugee claim hearing in March, but now it has been delayed. (CBC)
When Razak Iyal nearly froze to death walking across the border into Manitoba with Seidu Mohammed on Christmas Eve, he says he was looking for freedom and safety.

Soon after arriving, the Ghanaian asylum seekers, who lost their hands to frostbite, both made their refugee claims and were scheduled a hearing in front of the refugee board — for Mohammed it was March 23 and for Iyal it was March 27.

Mohammed's date came and he won his case to stay, but for Iyal his future remains uncertain.

"I am very, very happy me and Seidu came together and he had his hearing … He knows everything now and he can move on with his life, but what about me?" Iyal said.

"I am stuck now. I don't know what I am going to do. I don't know whether I am going back home or staying."

Iyal, like a growing number of people making a refugee claim in Canada, had his hearing postponed.

In the first four months of this year, only 44 per cent of refugee claims were heard on time. In 2016, an average of about 52 per cent made it to the board on time, a drop from more than 75 per cent in 2013, according to numbers from the Immigration and Refugee Board of Canada (IRBC).

"In Razak's case specifically he is in the vast majority of cases, the vast majority of cases are postponed," said Iyal's Winnipeg-based immigration lawyer Bashir Khan.

Khan said they received a letter from the refugee board saying that Iyal's case was "administratively postponed," which means his security clearance, done by the Canada Border Services Agency in partnership with the Canadian Security Intelligence Service, has not been completed in time for the hearing or there isn't a board member available to hear his claim.

Khan said that kind of letter is becoming far too common.

Bashir Khan, Razak Iyal's immigration lawyer, says the refugee hearing delays are becoming far too common. (CBC)

In April, only 41 per cent of refugee hearings were held on time. Five per cent were finalized without a hearing.

Of those delayed, two per cent were because of scheduling issues, 13 per cent were delayed due to a backlog in the security screening, seven per cent were delayed for "reasons of fairness and natural justice" — which can include things like counsel illness, claimant illness or interpreter issues — and 32 per cent were delayed because of operational limitations in the Refugee Protection Division (RPD).

Operational limitations are mainly due to high intake relative to the RPD's capacity to hear refugee protection claims, said IRBC spokesperson Anna Pape in an email to CBC. Most of those delays are because there is no member available to hear the case, but it can also include things like technical issues with the video conference, which is how they are heard in Winnipeg.

"The Refugee Protection Division has been experiencing a steady increase in new referrals, which is causing some operational pressures," Pape said.

National RPD intake has grown steadily over the last three years and now the number of people coming into the system outpaces the number of people finishing the process. 

There were more than 23,000 new refugee protection claims waiting to be heard as of the end of April 2017, IRBC said. RPD intake for 2016 was over 23,600, an increase of 69 per cent from 2014.

"I've been seeing delays for a while, actually, for far too long considering the nature of what's at stake here," said Maureen Silcoff, a Toronto-based immigration lawyer and co-chair of the Canadian Association of Refugee Lawyers litigation committee.

"We are dealing with people who are seeking protection from refugee problems and the stress from having to wait for hearings or having delays is really taking a toll on people."

A change in legislation and a drop in numbers

Silcoff, who previously served five years as a member of the Immigration and Refugee Board, said it's linked to a little-known piece of legislation enacted at the end of 2012 — the Balanced Refugee Reform Act (BRRA).

Prior to BRRA, refugee claimants had to wait an average of about 18 months for an initial decision on their claim. The act amended the Immigration and Refugee Protection Act with a goal to improve efficiency and reduce the wait.

A key provision means the CBSA has to schedule hearings within specific time frames. Those time frames distinguish between "designated country of origin" (DCO) and non-DCO claims. DCOs are countries that the government says do not normally produce refugees. There are currently 42 such countries.

For DCO claims made at a port of entry, hearings must be set within 45 days. For those made inland, it's 30 days. For all others, including non-DCO claims, the time frame for a hearing is 60 days, regardless of where people make the claim.

Silcoff said the act, and actions by the former Harper government, sent a message to refugees around the world.

"I think there was a real message put out: 'Don't come. It won't be easy,'" she said.

After BRRA passed, the then-government purchased billboards and distributed flyers in Hungary to discourage Roma refugees from seeking asylum in Canada. They also used ad campaigns, web banners and pop-up messages to raise awareness about the new system.

It lead to a significant drop in refugee claims, so Silcoff said the numbers of claims are just getting back to normal — but now with legislated deadlines that just aren't achievable.

"These reforms came in and required that hearings take place in a very short time frame and that's simply unworkable," she said.

"It is quite traumatic for refugee claimants, many of whom are already facing serious trauma because of their experiences," she added.

'I don't know my status now'

Iyal said after his hearing was postponed he started to have nightmares.

"I've been thinking about it every day because I can't get good sleep because I don't know my status now. I don't know whether I am going to stay here in Canada or I'm going back to Ghana," he said.

"When I sleep I dream about a lot of the things that are going on back home in Ghana. So, it made me scared and it made me feel uncomfortable. So I am very, very worried about the delay," he added.

A sign near Emerson, Man., where refugees have been crossing the closed border port into Canada. (John Woods/Canadian Press)

Iyal said he has spoken with other refugee claimants in Winnipeg who have also had their hearings postponed and everyone is anxious and frustrated.

He has prepared diligently, getting documents and working with his lawyer, but the worry doesn't go away.

"In a way justice delayed is justice denied," Khan said.

"And I think that's causing a tremendous amount of stress to refugees and the refugee community across Canada when you don't have your claim heard within the timeline stipulated."

Jacqueline Bonisteel, an Ottawa-based immigration lawyer, said she experiences delays with about one in every five cases.

"For me, because my cases are heard in Montreal, we are travelling there and sometimes we don't even get the notice until the day of the hearing," she said.

Travel for some hearings, then last-minute delays

"So my clients could already have pulled kids out of school and be on their way to Montreal and then we get the notice that it's not being heard that day. So it can be incredibly frustrating and particularly difficult for vulnerable refugee claimants."

The length of delays vary, she said, sometimes it's a few weeks or months, occasionally it is more than a year.

"It can be extremely difficult, as you can imagine, many refugee claimants are dealing with post-traumatic stress, with severe anxiety, depression, emotional issues," she said.

"So they are incredibly anxious waiting for this hearing to happen. Then when you find out at that very last minute that everything you've been waiting for and worrying about is being delayed and you are being kept in limbo is very difficult."

Pape said IRBC is committed to doing everything possible to ensure the refugee claim intake and caseload is managed as effectively as possible within its existing resources.

The RPD is aiming to achieve a 15- to 20-per-cent increase in overall productivity over the next two years through a few actions.

It has designated claims from Syria, Iraq, Eritrea, Afghanistan, Burundi, Egypt and Yemen under a new expedited processing policy, which allows the board to accept claims without a hearing in appropriate circumstances, meaning decisions will come sooner. Front-end security screening is still required.

Starting in June, IRBC also changed its approach for scheduling hearings, deploying half the RPD capacity to address the backlog of claims, and allowing certain straight-forward claims to be scheduled for a shorter hearing, under two hours instead of the half-day or full-day hearings currently. Countries with an acceptance rate of about 80 per cent or higher will be the first to be considered for short hearing process.

The RPD is also trying to increase members, the people who make a decision on a refugee claim, where possible. As of May 24, there were 127 members across the country.

"However, all positions for which the RPD is currently funded are staffed," Pape said.

'It just really isn't realistic'

The immigration lawyers said it's a good step, but the problem will not go away under the current time limitations.

"Frankly, particularly with the security clearance issue, it just really isn't realistic to expect all cases to be ready within that 60 days. But that's the legislated timeline so the IRB, there's nothing they can do," Bonisteel said. "They have to set the hearing date."

Silcoff added that there's also a serious cost to the delays.

"Many of the cases are legally aided. So it means money being spent on preparation and it's something that is really unfair to the refugee claimants to keep them in limbo," she said.

The Legal Aid Program is a cost-shared program that provides funding to the provinces for legal aid services for people who couldn't otherwise afford the expense. The funding is for criminal legal aid and court-ordered counsel in federal prosecutions.

In six provinces — British Columbia, Alberta, Manitoba, Ontario, Quebec, and Newfoundland and Labrador — it also helps to cover immigration and refugee legal aid.

While not every asylum seeker pursues legal aid in the province or at all, Legal Aid Manitoba said from April 2016 to April 2017 it had 308 immigration cases, the majority of which were asylum seekers. From April 1 to June 4 this year alone, there were 214 new cases.

While the majority of claims come from traditional points of entry, in the first four months of the year, RCMP intercepted 2,719 asylum seekers — 1,993 in Quebec, 477 in Manitoba and 233 in British Columbia.

Under a current agreement with the United States, Canada generally does not allow refugee claims from within the U.S., designating that country a "safe third country."

However, Canada is also a signatory to the United Nation's 1951 Convention on Refugees, which protects a migrant from prosecution for illegally crossing an international border to make a refugee claim.

Once inside the country, a migrant has the right to make a refugee claim in Canada, provided they pass security checks.

Razak Iyal lost all his fingers and a thumb to frostbite crossing the border into Manitoba from the United States on Christmas Eve. (CBC)

While the numbers of people crossing the border have stagnated, they haven't gone away, and Khan said neither will the backlog in refugee claims unless something significant is done.

He said IRBC needs more resources to hire more members and other staff, as does CBSA, to get security clearances done on time. But there also needs to be a serious look at whether the legislated deadlines are even possible anymore.

"These deadlines are very unrealistic, they are very arbitrary deadlines," he said.

"I think we need to re-evaluate and remove legislative mandated timelines because they are impossible to carry out in the current scenario and they are only creating nothing but a lot of headaches."

Mario Dion, chair of the Immigration and Refugee Board of Canada, said he has faith in the system. 

"I think we have to... prove that we have done our best to be as efficient as possible," he said. "And if the government can afford to give us more resources, I'm sure it will do."

Iyal said for him it's a simple solution, let him argue his case and get on with his life — ideally eventually as a Canadian. His hearing is now scheduled for next week.

"I don't know who I am," he said.

"I don't know whether I am staying here in Canada or I am going back. So I am very, very worried and I am very, very frustrated about it."

with files from Brett Purdy