More refugee claimants get 2nd chance with new appeal process
Advocates warn process still too restricted, mistakes not being caught
The first available figures from Canada's new Refugee Appeal Division show more refugee claimants are being given a second chance than under the old federal court review process.
The figures obtained by CBC News from the Immigration and Refugee Board from 2013 and the first three quarters of 2014 show that about 19 per cent of finalized claims were successful in either being overturned in favour of the claimant or sent back to the Refugee Protection Division for reassessment.
In 2013, 820 appeals were finalized by the Refugee Appeal Division. Of those, 45 were overturned during appeal while another 107 were referred back for reassessment due to errors.
This year, 707 claims were finalized in the first three quarters. Of those, 17 were overturned by the Refugee Appeal Division and another 120 were referred back for reassessment due to errors.
The new appeals division was only set up in 2012, even though its existence had been legislated for years.
Refugee experts say the numbers reveal how many mistakes weren't being caught under the old system. But they add many more mistakes are still going undetected because the process is too restrictive, and those mistakes could be sending people back into dangerous or even deadly situations.
'They're doing a better job'
Under the old system of judicial review, only about seven per cent of rejected claimants were granted leave to appeal their cases to the Federal Court. That means the number of people who are now getting a chance at an appeal has nearly tripled.
"They're doing a better job, a much better job than the previous federal court process," said Peter Showler, professor emeritus at the University of Ottawa and a former chair of the Immigration and Refugee Board. "[But] that's because that process was so drastically limited."
Under the old system, the standard for overturning a decision was too narrow, Showler argued. Federal Court judges could only consider whether the decision reached by the refugee board was "reasonable" in law. That filter, he said, prevented many legitimate claims from being reviewed.
"One way of seeing it is the Refugee Appeal Division is certainly doing a better job of identifying mistakes than the federal court," he said.
"Another way of seeing this is we've had 10 years of lack of justice in this country where claimants were incorrectly refused and we did not catch those mistakes."
A spokeswoman for Immigration Minister Chris Alexander's office said the changes introduced in 2012 mean that people in need of protection get it faster, while those rejected claimants are removed more quickly.
"Decisions are made based on the merits of the specific facts presented in an individual case, and in accordance with Canada’s immigration laws. All failed asylum claimants can ask the Federal Court of Canada to review a negative decision," Nancy Caron wrote in an email to CBC News, adding that Canada has one of the fairest and most generous asylum systems in the world.
But some experts say that while the numbers are encouraging, there are still far too many restrictions on who gets to appeal their case.
Refugee lawyer Lorne Waldman noted that claimants from so-called safe countries like Hungary and Mexico are barred from appealing their cases, as are claimants who arrive and lodge a refugee claim at the U.S. border.
"There's no reasoning for that," Waldman said. "If their claims are rejected they should have an appeal ... Given that there is a significant number of cases that are being overturned [by the appeal division], it is very concerning that there are severe restrictions on access to appeal."
Another concern, Showler said, is that the number of people who actually file an appeal after their claims are rejected remains low.
Either they cannot meet the very tight deadlines, or they're unable to get a lawyer to help them do it. That's of concern— Peter Showler, former Immigration and Refugee Board chair
In 2013, there were 9,897 negative decisions or rejected claims — of those only 822, or about eight per cent, were appealed.
Some of those claimants would have been barred from an appeal due to restrictions like the safe country designations, but Showler said the number is still disheartening.
"If the appeal division was able to say, 'In 18 per cent of the decisions we've looked at, there was a mistake,' and when we know [more than] 90 per cent of the other [negative] decisions they didn't even look at, there is a very serious concern that again, a great number of mistakes are not being identified within the appeal or judicial review process."
Other lingering concerns about the new system include a significant number of claims that were "not perfected" — or dismissed because they didn't meet strict deadlines for providing documentation. In 2013, nearly 10 per cent of claims were dismissed because they were not perfected, and so far in 2014 , nearly 13 per cent were not perfected.
"This tells us two things," Showler said. "Either they cannot meet the very tight deadlines, or they're unable to get a lawyer to help them do it. That's of concern."
Overarching all these concerns is a federal court ruling handed down this summer that found the standard of review being applied by the Refugee Appeal Division since it came into being in late 2012 is too narrow.
The government is now challenging the ruling, which found the appeal division should be using a much broader scope for reassessing refugee claims than simply looking at the reasonableness of the board's initial decision.
Showler said the decision, if adopted into practice, will mean the appeal division will find even more errors in first decisions by the board.
"The court has said the board can do even better, that they are not using all the powers of review they have," he said. "If they did, one can assume certainly they would be overturning even more decisions."
The Federal Court of Appeal is expected consider the question of the scope of the appeal division some time in 2015.