APPENDIX E

 

 

PAST STATEMENTS AND COMMITTEE RECOMMENDATIONS

REGARDING IMPLEMENTATION OF THE RAD

INTRODUCTION

The Immigration and Refugee Protection Act (IRPA)[1] which received royal assent on 1 November 2001 and came into force on 28 June 2002, created a new division within the Immigration and Refugee Board (IRB):  the Refugee Appeal Division (RAD).  The sections of the IRPA that would have instituted the RAD have not been brought into force and the new appeal mechanism has never been established.  From 2001 to the present, officials from Citizenship and Immigration Canada (CIC) and the IRB, as well as former Ministers of Citizenship and Immigration, have gradually backed away from the plan to implement the RAD.  The Standing Committee on Citizenship and Immigration (the Committee) has recommended implementation of the RAD on one previous occasion.

STATEMENTS ON THE IMPLEMENTATION OF THE RAD

DURING THE ENACTMENT OF IRPA

During the passage of Bill C-11,[2] the legislation that enacted IRPA, officials from CIC and the IRB gave testimony before the Committee on the provisions of the Bill that would have instituted the RAD.  Under the old Immigration Act, refugee claims were heard by two-member panels.  In the event of a split decision, the decision favourable to the refugee claimant was deemed the decision of the Board.[3]  When officials discussed the move from two-member to single-member refugee hearings under the IRPA, the RAD was promoted as an important guarantee of the integrity of refugee determination decisions.  In the initial news release accompanying the introduction of IRPA, CIC stated that the legislation committed the government to “faster but fair decisions” by consolidating the process and “by combining the increased use of single-member panels with an internal paper appeal before the Board.”[4]

The then Chair of the IRB, Peter Showler, gave the following testimony before the Committee in the course of its study of Bill C-11:

In contrast to the present model, where claims are normally heard by two-member panels, the vast majority of protection decisions will be made by a single member.  Single-member panels are a far more efficient means of determining claims.  It is true that claimants will no longer enjoy the benefit of the doubt currently accorded them with two-member panels, and I think that should be noted.  However, any perceived disadvantage is more than offset by the creation of the refugee appeal division, the RAD, where all refused claimants and the minister have a right of appeal on RPD decisions.[5]

CIC Assistant Deputy Minister Joan Atkinson testified that RAD decisions would serve as useful precedents that would add consistency to IRB decisions, and were essential to streamlining the system.[6]  Ms. Atkinson also stated that the RAD was meant to serve as a balance against the reduction of the number of IRB members needed to make the initial decision.  In the clause-by-clause analysis on Bill C-11, Ms. Atkinson affirmed that: 

The use of single-member panels is one of the key components of making the refugee determination system more efficient and more streamlined….

The decisions of one-member panels are reviewable by the refugee appeal division.  In addition to reviewing those individual cases, one of the primary objectives of the refugee appeal division is to provide for some consistency in the decision-making by the single-member panels, because the refugee appeal division will be able to issue precedent-setting decisions that will guide the subsequent decision-making of cases at the refugee protection division.

So the single-member panel is a key element of our streamlining of the system, so that people who are in need of protection get through more quickly – as will those who are not in need of protection – and it’s balanced by the refugee appeal division.[7]

The Minister of Citizenship and Immigration at the time, the Honourable Elinor Caplan, also made a connection between the RAD and the reduction in the number of IRB member’s needed to hear a case.  In her testimony before the Committee the Minister stated that:

Bill C-11 reintroduces key improvements to our refugee protection system.  It consolidates several current steps and criteria into a single protection decision.  It combines greater use of single-member panels with an internal paper appeal and a new division of the IRB.  Together these measures will see that the important decision of whether to allow a refugee claim will be made more quickly, but fairly, with an opportunity for an effective review.[8]

Former Minister Caplan made similar statements during the debate on C-11 at second reading in the House of Commons: 

By consolidating several current steps and protection criteria into a single decision at the IRB and, moreover, by combining increased use of single member panels at the board with an internal paper appeal on merit, we will see faster but fairer decisions on refugee claims.[9]

STATEMENTS FROM MINISTERS OF CITIZENSHIP AND IMMIGRATION

ABOUT IMPLEMENTING THE RAD AFTER THE PASSAGE OF IRPA

In April 2002 it was announced that implementation of the RAD was being delayed due to “pressures on the system.”[10]  Former Minister Coderre is reported to have promised at the annual general meeting of the Canadian Council for Refugees (CCR) in May 2002 that he would implement the RAD within one year.[11]  In response to a question in the House of Commons in May 2002, Minister Coderre said he would “not suspend, but delay the implementation of [the] appeal division to ensure that we do it properly”, and that the plans would be finalized within a year.[12]  However in March of 2003, in an appearance before the Committee, Minister Coderre stated that he said that at the CCR meeting, he had only committed to “providing options” within one year.[13]

When former Minister Sgro appeared before the Committee in March 2004, she suggested that CIC would be studying implementation of the RAD as part of an overall process of streamlining the system and would be “looking at that particular section of it and seeing just how we might incorporate it into the review process, if that’s appropriate.”[14]  However, when Minister Sgro appeared before the Committee in November of 2004, she indicated that the RAD would not be implemented because of concerns over the backlog, stating that it was “important that people who seek protection in our country receive it as quickly as possible” and that “to introduce at this particular time the appeal system…would have completely…brought the system to a halt.”[15]

By 2005, the government had not implemented the RAD, but had still not rejected the idea.  When former Minister Volpe appeared before the Committee in March of 2005, he stated:

We have had some 6,000 more refugees accepted into our country in this last year than we did in the previous year, so if one of the functions of the RAD would have been to give people a greater opportunity to get a positive response, I think increasing your refugee intake through the system currently in place by in excess of 20% tells me the system is efficient – it is working quite efficiently already.

While I haven’t closed the door on the RAD…I didn’t see the same urgency I have for some of the other priorities in play, given the fact we’ve had an increase in refugees that have gone through that system.[16]

However on 1 November 2005, in response to questions posed during a Committee hearing on the supplementary estimates, Minister Volpe announced that the department would not implement the RAD.  The Minister testified that his decision was based on lack of necessity, since the IRB was a professional body, and other safeguards, such as the pre-removal risk assessment, made the system as it was workable.  The Minister stated that “protection is really what counts and that’s what the current system delivers.”[17]

In November 2006, former Minister of Citizenship and Immigration, the Honourable Monte Solberg stated before the Committee that he was “not closing the door on anything.  But if we’re going to have a discussion about the refugee appeal division, we have to have a larger discussion about the refugee determination system in general.”[18]

COMMITTEE MOTION ADVOCATING

THE IMPLEMENTATION OF THE RAD

On 14 December 2004, the Standing Committee on Citizenship and Immigration unanimously adopted the following motion: 

Whereas:  The Refugee Appeal Division is included in the Immigration and Refugee Protection Act; Parliament has passed the Immigration and Refugee Protection Act and can therefore expect that it be implemented; and The House of Commons and parliamentarians have a right to expect that the Government of Canada will honour its commitments; The Standing Committee on Citizenship and Immigration requests that the Minister of Citizenship and Immigration, implement the Refugee Appeal Division or advise the Committee as to an alternative proposal without delay.[19]