Critical spaces in the Canadian refugee determination system: 1989-2002

International Journal of Refugee Law

Volumn 20, Issue 1, 2008, Pages 50-122

  Crépeau, François ^a,b   Nakache, Delphine ^c  

^a UNIVERSITÉ DE MONTRÉAL   (Canada)

^b International Migration Law

^c UNIVERSITY OF ALBERTA   (Canada)

Author keywords

[No Author keywords available]

Indexed keywords

CONCEPTUAL FRAMEWORK; IMMIGRATION; IMMIGRATION POLICY; INTERNATIONAL MIGRATION; MIGRATION DETERMINANT; REFUGEE;

CANADA; NORTH AMERICA;

EID: 48949116715     PISSN: 09538186     EISSN: 14643715     Source Type: Journal    
DOI: 10.1093/ijrl/een011     Document Type: Article

References (77)

1. Jürgen Habermas, The Structural Transformation of the Public Sphere, trans. Thomas Burger (Cambridge, MA: MIT Press, 1996).
2. See, Nicholas Garnham's concise summary of these objections in 'The Media and the Public Sphere' in Craig Calhoun (ed.), Habermas and the Public Sphere (Cambridge, MA: MIT Press, 1992), 359-76.
3. Herbert Marcuse, One Dimensional Man (Boston: Beacon Press, 1964).
4. Hannah Arendt, The Human Condition (Chicago: University of Chicago Press, 1989), 145. Arendt's collapse of the speaker and the spoken (184) into an external subjectivity and her peculiar definition of 'power' in contrast to strength and force (200-07) seem to prefigure the discursive approach of Michel Foucault.
5. Arendt, ibid., 176.
6. See, Gerald Heckman, Lorne Sossin, 'How do Canadian Administrative Law Protections Measure up to International Human Rights Standards? The Case of Independence', (2005) 50 McGill Law Journal 1.
7. Enacted as Schedule B to the Canada Act 1982 (UK) 1982, c. 11, which came into force on 17 Apr. 1982.
8. IRB's tribunals rendered approximately 55,000 decisions on immigration and refugee matters in 2004-2005: Immigration and Refugee Board, 'Performance Report. For the period ending March 31, 2005', Sept. 2005, online: Treasury Board of Canada Secretariat (last accessed: 6 Oct. 2006).
9. See, François Crépeau, France Houle, 'La sécurité des réfugiés et la compétence des commissaires de la CISR: Les silences inopportuns du projet de loi C-11' ('The security of refugees and the abilities of IRB members: The inappropriate silence of bill C-11'), Memorandum for the Minister of Citizenship and Immigration, 2001, online: CDIM (Last Accessed: 10 Oct. 2006)
10. Cécile Rousseau, François Crépeau, Patricia Foxen, France Houle, 'The complexity of determining refugeehood: A multidisciplinary analysis of the decision-making process of the Canadian Immigration and Refugee Board', (2002) 15 J RS 43-70
11. 'Roundtable on Canada's Refugee System: Summary report', University of Ottawa, 12-13 Mar. 2004, online: Human Rights Research and Education Centre (last accessed: 10 Oct. 2006)
12. Peter Showler, Refugee Sandwich: Stories of Exile and Asylum (Kingston, ON: McGill-Queen's University Press, 2006).
13. See also, the report by the Canadian Council for Refugees (CCR), a non-profit umbrella organization committed to the rights and protection of refugees in Canada: CCR, 'The Refugee Appeal: Is no one listening?', 2005, online: (last accessed: 10 Oct. 2006).
14. Rousseau, Crépeau, Foxen, Houle, ibid.
15. Canadian Network Meeting on Separated Children, Toronto, 19 Feb. 2003. Several reports of the conference are available online on the International Bureau for Children's Rights website at: http://www.ibcr.org/PAGE_EN/P5_04E.htm (last accessed: 20 Oct. 2006).
16. Cécile Rousseau, Patricia Foxen, 'Constructing and deconstructing the myth of the lying refugee: Paradoxes of power and justice in an administrative immigration tribunal' in Els van Dongen (ed.), Lying and illness: Power and performance (Amsterdam: Her Spinhuis, 2005).
17. Rousseau & Foxen, ibid.
18. Immigration and Refugee Protection Act, 2001, c. 27.
19. Showler, above n. 9.
20. France Houle, 'Comment mettre fin au patronage à la Commission de l'immigration et du statut de réfugié?', Options Politiques, May 2004, 51-5.
21. See also, François Crépeau, France Houle, 'Commission de l'immigration et du statut de réfugié. La proposition Sgro ne mettra pas fin au patronage: Le gouvernement doit cesser de participer à la sélection des commissaires', Le Devoir, 7 Apr. 2004.
22. Auditor General, '1997 Report of the Auditor General', Chapter 25: 'Citizenship and Immigration Canada and Immigration and Refugee Board - The Processing of Refugee Claims', Ottawa: Office of the Auditor General of Canada, Dec. 1997.
23. CIC, 'Minister Sgro announces reform of the appointment process for Immigration and Refugee Board members', Press Release, 16 Mar. 2004, online: CIC (last updated: 16 Mar. 2004; last accessed: Oct 10, 2006).
24. IRB Chairperson's Letter to the Editor of Le Devoir (16 Apr. 2004), in reply to a newspaper article written by Houle & Crépeau, above n. 16.
25. We proposed in the past several recommendations for ensuring competent individuals to fill jobs at the IRB: Crépeau & Houle, above n. 9.
26. Nicholas Keung, 'Refugee panel "in chaos": Immigrant hearings routinely cancelled as backlog grows. Tories criticized for failing to replace 34 board members', Toronto Star, 3 Oct. 2006.
27. Paragraph 153(1)(a), Immigration and Refugee Protection Act, (SC 2001, c. 27). The provision has been carried over from the Immigration Act, 1976, when the former replaced the latter in 2002.
28. For a discussion of what it means to be an independent decision-maker in the IRB context, see the speech by Peter Showler, the then Chairperson at the Immigration and Refugee Board, 'Consistency in decision-making', Speech to the Council of Canadian Administrative Tribunals, 12 June 2000, online: IRB (last updated: 13 Sept. 2006).
29. Subsection 153 (4), Immigration and Refugee Protection Act, (SC 2001, c. 27). The provision has been carried over from the Immigration Act, 1976, when the former replaced the latter in 2002.
30. For an in-depth analysis of the relationship between the IRB board member and the 'lying refugee claimant', see, Rousseau & Foxen, above n. 12.
31. See, the Statement of Qualifications for IRB GIC Members, online: IRB (last accessed: 22 Jan. 2007).
32. Immigration and Refugee Protection Act, SC 2001, ch. 27. This official reduction related to approximately 20% of the cases, as in most of the other cases, one-member panels were already standard by consent of the claimant and his-her lawyer.
33. 'Convention refugee' is defined in s. 96
34. and 'person in need of protection' in s. 97 of IRPA.
35. The test for the well-foundedness of a refugee claim was first stated in Adjei v. Canada (Ministes of Employment and Immigration), [1989] 2 FC 680 (CA), 683. It was further clarified in Ponniah where Desjardins J.A. stated: '"Good grounds" or "reasonable chance" is defined in Adjei as occupying the field between upper and lower limits; it is less than a 50 per cent chance (that is, a probability), but more than a minimal or mere possibility.
36. There is no intermediate ground: What falls between the two limits is "good grounds"' Ponniah v. Canada (Minister of Employment and Immigration), (1991), 13 Imm. L.R. (2d) 241 (FCA), 245.
37. See also, France Houle, 'Pitfalls in Relying on the Common Law Rules of Evidence by Administrative Tribunals', 9th Annual Aija Tribunals Conference: 'Tribunal Practice in an International Context', Apr. 2006, Rydges, Lakeside, Canberra, 25-6; online: Australian Institute of Judicial Administration, (last accessed: 10 Oct. 2006).
38. See, IRPA, paragraphs 170g) and h).
39. See also, IRPA, para. 162(2): 'Each Division shall deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit'.
40. See finally, R. v. Brouillard, [1985] 1 SCR 39, para. 25 (whatever the valid reason for which the member chooses to intervene, he or she must be tactful and show some deference in addressing the claimant and in formulating the questions that he or she would like to ask the claimant).
41. For further analysis of the implications of the inquisitorial model, see, France Houle, Lorne Sossin, 'Tribunals and guidelines: Exploring the Relationship Between Fairness and Legitimacy in Administrative Decision-Making', (2006) 49 Canadian Public Administration.
42. Immigration and Refugee Board, Legal Services, Weighing Evidence, 2003, ch. 6, 8.
43. Local Government Board v. Arliage, [1915] AC 120, 133 (HL)
44. Board of Education v. Rix, [1911] AC 179, 182 (HL).
45. For an in-depth explanation of the assessment of credibility in claims for refugee protection in Canada, see, IRB, Legal Services, 'Assessment of Credibility in Claims for Refugee Protection', 2004.
46. UNHCR, 'Handbook on Procedures and Criteria for Determining Refugee Status', 1979, re-edited, Geneva, Jan. 1992, doc. HCR/IP/4/Eng/REV.1.
47. Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593, para. 142 & 145.
48. See, among others, Yaliniz v. Canada (Minister of Employment and Immigration) (1989), 7 Imm. L.R. (2d) 163 (FCA)
49. Mahathmasseelan v. Canada (Minister of Employment and Immigration) (1991), 15 Imm. L.R. (2d) 29 (FCA).
50. For an enumeration of the pertaining case law, see, Brian Gorlick, 'Common Burdens and Standards: Legal Elements in Assessing Claims to Refugee Status', 15 IJRL 371 (2003).
51. See also, IRB, Legal Services, 'Assessment of Credibility in Claims for Refugee Protection', 2004, para. 2.1.1. ('Considering the Evidence in its Entirety'), 11.
52. The PIF is the key written document in the application for refugee status. Most of the PIF questions, as in the eligibility form, are related to issues of identity, the route to Canada and other travel and immigration related information, education and employment history, family links and members, marital and immigration status, criminality, either refugee claim or convention refugee status elsewhere, removal from Canada and, the most important one, why the person fled his/her country. The PIF's addendum addresses some procedural and legal issues of the case. Amendments to the PIF can be made up until the actual day of the refugee hearing. There is an obligation to provide the completed PIF within the specified 28-day deadline.
53. See, precisely on this, Rousseau & Foxen, above n. 12, 61-8.
54. IRB, Legal Services, 'Assessment of Credibility in Claims for Refugee Protection', 2004, 87.
55. See, the case law in IRB, Legal Services, above n. 31, 37.
56. See also, France Houle, 'Le fonctionnement du régime de preuve libre clans un système non-expert: Le traitement symptomatique des preuves par la Section de la protection des réfugiés', (2004) 38 Revue juridique Thémis, 263-358.
57. Houle, above n. 29.
58. For further details, see, Houle, ibid.
59. See, the case law cited in: IRB, Legal Services, above n. 31;
60. IRB, Legal Services, 'Refugee Protection Division: Assessment of Credibility in Claims for Refugee Protection', Chapter 2.4.7.: 'Preferring Documentary Evidence to the Claimant's Testimony'.
61. See also, Houle, ibid., 8.
62. Adu v. Canada (Minister of Citizenship and Immigration), [1995] FCTD no 114 (EAC) (QL), Hugessen, Strayer and Robertson JJ., Jan. 24, 1995, para. 1: 'In our view it was no error for the Board to infer that the absence of any documentary evidence as to the existence of the law under which the appellant claimed to have been persecuted indicated that there was no such law. The fact that the appellant had sworn that there was such a law was not necessarily sufficient evidence of the law's existence. A law is a very public fact and where, as here, there is comprehensive documentary evidence of country conditions, it is entirely reasonable to expect that such a law, if it exists, will be mentioned. Accordingly, the Board was well within its rights when it found that "the absence of documentary evidence...suggests that no such law exists"'.
63. Houle, above n. 29.
64. Houle, above n. 41.
65. Houle, above n. 29.
66. Houle, above n. 41, 327 ('L'objectivité synonyme de fiabilité').
67. Guermache v. Canada (Minister of Citizenship and Immigration), 2004 FC 870, IMM-9067-03, 16 June 2004, paras. 4 & 5.
68. For an analysis of the relationship between fairness, speed and consistency, see, Houle, Sossin, above n. 30.
69. For a doctrinal analysis of the external constraints causing imbalance between efficiency and fairness, see, Houle, above n. 29.
70. In several cases before the Federal Court, decisions of the Board were challenged on the ground, inter alia, that the manner in which a member of the Board intervened in examining the claimant at the hearing was excessive and improper: Yusuf v. Canada (Minister of Employment and Immigration), [1992] 1 FC 629 (CA) (a member made 'sexist, unwarranted and highly irrelevant observations')
71. Membreno-Garcia v. Canada (Minister of Employment and Immigration) [1992] 3 FC 306 (TD) (the Court commented adversely on the 'frequent interruptions' by the panel members)
72. Mark, Lazaros v. M.E.I. (FCTD, no. 92-T-1993), Reed, 24 Jan. 1994 (both panel members approached the claim 'with hostility' and entered into a 'vigorous cross-examination of the claimant and his witnesses');
73. Gauji, Shalah Namdar v. M.C.I. (FCTD, no. IMM-3632-96), Gibson, 29 Aug. 1997 (the panel had seized control of the claimant's case over the thwarted objection of the claimant's designated representative);
74. Farkas, Szilvia v. M.C.I. (FCTD, no. IMM-5890-99), Heneghan, 12 Mar. 2001, 2001 FCT 190 (the persistent and aggressive questioning by the panel member went too far);
75. Toth, Miklos v. M.C.I. (FCTD, no. IMM-2394-00), Dawson, 6 Mar. 2001, 2001 FCT 149 (the transcript did not provide any apparent justification for the presiding member's interjection into what appeared to be an orderly direct examination conducted by counsel);
76. Guermache v. Canada (Minister of Citizenship and Immigration), above n. 49 (the gratuitous and uncalled for comments as well as the member's tone, impatience and aggressiveness at the hearing were unjustified by a search for the truth).
77. Valente v. The Queen, [1985] 2 SCR 673, para. 16-22.