Refugee Reform – One Month Later

January 15, 2013 marked the one month anniversary since the government embarked on a radical reform of refugee law in Canada.  A common misconception amongst critics of Canada’s refugee system is that the old refugee system was beyond repair and in desperate need of overhaul.  They argue wait times were in excess of two years and people were left to languish even where their claims failed.  In fact, wait times for refugee hearings were in the range of one year before the Conservatives came to power.  However, the government’s failure to appoint new members to the Board, combined with natural attrition resulted in a severe shortage of members to hear cases which in turn generated the backlog that eventually reached a two year wait time.

Enforcement is a completely separate matter.  Enforcement was lacking under the old system and will be no better under the new system if the government fails to take active steps to remove people who have no right to remain in Canada. Neither the old nor the new system will function effectively if the government does not enforce removals.

The question in my mind is whether the government could have accomplished its goals of quick hearing times and efficient removals without the upheaval now underway to implement the new refugee system.  As indicated removals is a separate issue and simply a matter of enforcing the orders made by Immigration.  Enforcement did not require new legislation, it simply required resources.  Presumably the government has now decided to devote sufficient resources to the task.  Any improvement in the area of enforcement will be unrelated to the new refugee regime.

The more difficult question is in respect to the actual refugee process itself.  The government was sitting on a system that had evolved over a 20 year period with a clearly established jurisprudence.  The delay between the time claimant’s submitted their claims until the time they were called in for hearings was simply a function of manpower.  There was simply not sufficient infrastructure in terms of administrative staff or board members to meet the demand.  Rather than scrapping the old system, the government could have simply chosen to hire more hands to process the claims.  If the government’s view was that the long delays were in part motivating people to make fraudulent claims, it would have been simple enough to bring down wait times by allocating more resources to the project and thereby reducing the incentive to make fraudulent claims.

Instead, the government has opted to scrap the old system and embark on a radical reform. On paper the potential benefits are obvious.  New claims are to be commenced within 30-60 days and those who are determined negative are projected to be removable within one year of their arrival.  A large number of new Civil servants have been hired to hear new claims and prevent a backlog from developing.  In addition the government has developed a number of mechanisms to expedite claims from designated countries which it believes do not generally produce refugees.

The government’s decision to radically revamp the system rather tweaking the old system is a risky gamble.  First, in doing so the government scraps 20 years of jurisprudence which resolved various constitutional and procedural issues related to the old system.  The government will now have to begin that process again and it will likely take many years for some of the legal issues to work their way through the courts.  Second, ridding the system of delays is not so simple as declaring laws that prevent it from occurring.  The new laws have to be sensible and workable in the field.

Early indications suggest that the timelines the government has implemented may not meet either of these two requirements. The most predictable headache has been the issue of scheduling.  In the past the tribunal was solely responsible for scheduling, however the CBSA has now taken over jurisdiction of scheduling cases as claims are made.  It’s unclear whether this was done because of a distrust of the IRB but creating two separated scheduling streams almost certainly guarantees chaos at the Board.  At the present time the CBSA is not coordinating with the Board so the Board has not only lost control over its ability to schedule but it presently has no ability to anticipate how it must allocate resources in the future.

As second scheduling problem will only grow with time.  The government’s enthusiasm to ensure cases are heard within 60 days ties the Board’s hands in various ways.  The statutory requirements simply fail to provide the Board with sufficient flexibility to deal with various exigencies such as the availability of board rooms, interpreters, members and lawyers in order to comply with various timeline requirements. If the intake of new cases is substantial one imagines the Board will simply implode under the weight of these statutory timelines.

There is some chance the Board will overcome these kind of obstacles and the new system work effectively.  One possibility is that the chaos of the new system and changed perception that Canada is no longer hospitable to refugees may combine to result in a precipitous drop in the number of people making claims in Canada.   Rumours at the Board suggest intake levels are down as much as 80% since implementation.  If these numbers are accurate and the intake remains very low, it may be the new system will succeed despite the systemic issues.

It is my hope Canada continues to open its doors to legitimate refugees and that the new system is not so systemically confining that it provides such people with a fair opportunity to make their claims.  If the intake levels grow I fear the new system will implode for reasons noted above.  If it succeeds, I fear that it will only do so because so few people opt to choose Canada as their refuge from persecution.  In the back of my mind I wonder whether this “success” wasn’t the government’s objective all along.