Order out of chaos – why refugee reform makes sense

TheGlobeandMail.com – Opinions
Published on Tuesday, Mar. 30, 2010.  Last updated on Wednesday, Mar. 31, 2010.  By Jeffrey Simpson

What the federal government outlined yesterday is worth a try to bring some greater efficiency and common sense to Canada’s broken refugee-determination system.

Changes will cost Ottawa money – $540.7-million over the next five years at a time of coming overall spending restraint. Changes will send so-called refugee advocates into spasms of indignation – a good reason to give the changes a try. Changes also will irritate refugee lawyers – another reason to see how they work.

But major changes are needed in a system that is way too cumbersome, encrusted by legalisms, unable to render decisions (including deportations) in a timely fashion and, therefore, unfair to some genuine refugees and certainly to taxpayers/citizens.

The answer to these problems is definitely not – as some refugee advocates have argued – to fill vacancies on the Immigration and Refugee Board (since these have been filled) or to throw more resources at the entire system.

More resources without a different system is a recipe for the re-emergence of old problems. What’s needed is a streamlined system that treats likely false claimants differently from others, and cuts down decision times for all. What Immigration Minister Jason Kenney proposed yesterday might do both, and is therefore worth a try.

Mr. Kenney, like all ministers, is trapped by a Supreme Court ruling that said the word “persons” in the Charter of Rights and Freedoms applied to anyone who set foot on Canadian soil. That certainly was not what the Charter’s framers intended (they thought “persons” meant Canadians or people legitimately in Canada), but that was not the court’s view. So anyone in Canada, under whatever guise, had the right to oral hearings, with all the legal protections that flowed from those hearings.

Ideally, Canada would post a list of countries from which it does not accept refugees, period – so we wouldn’t have to hear about a couple from Germany, of all countries, who just applied for refugee status on the grounds they can’t home-school their children in that country. But such a list would defy the Supreme Court’s ruling, and perhaps run afoul of Canada’s international obligations.

So Mr. Kenney will draw up a “safe country” list from which applicants will be given a speedy hearing and fewer appeals than those from other places. It’s easy to imagine, say, Britain or France being on the “safe country” list. The rubber will hit the road for democratic places from which visitors now require visas – such as Brazil, Argentina, Chile, Costa Rica, Colombia and, of course, Mexico. There, the imposition of visas last summer to deal with a surge of mostly bogus claimants drastically cut legitimate travel, caused business losses in Canada, reduced airline flights and gave Canada a diplomatic shiner in that country.

This “safe country” provision does represent deux poids, deux mesures and, therefore, like other elements of these reforms, could be the subject of Charter appeals, given the ingenuity of lawyers and the fierce adherence to the status quo of refugee advocates.

For most refugees – those from countries not on the “safe country” list – the new system is designed to provide more rapid decisions, starting with an initial interview that is supposed to help the applicant organize his or her claim. Public servants, rather than the IRB, will then hear the case within 60 days, instead of the current system under which the file goes to the IRB for a full hearing.

This change, of all the ones outlined, will streamline the process the most, although, again, we can anticipate all sorts of legalistic due process objections. Then will follow what the minister hopes will be shortened time frames for subsequent appeals up to the Federal Court and, where appropriate, faster removals from Canada.

It all looks better on paper than the existing system, if for no other reason that little could be worse. It’s not cynicism but a healthy sense of legitimate doubt to wonder whether the significantly compressed time lines and other efficiencies will actually pan out.

Mr. Kenney, being politically astute, has also announced an increase in refugees from designated camps, many run by the United Nations. Bringing additional refugees from overseas, while slightly tightening the criteria for those who make claims in Canada, seems an appropriate policy tradeoff as part of a package of changes that are worth trying.

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