Fast at the expense of fair?

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Restructuring Canada’s refugee system

Recently, Citizenship and Immigration Minister Jason Kenney proposed sweeping changes to Canada’s refugee system. He is promising more efficiency and speed from employing more public servants at the independent Immigration and Refugee Board (IRB), reducing wait times for a first hearing to 60 days for all claimants, a new Refugee Appeal Division (RAD), and the development of a “safe country of origin” list.

These proposals are motivated by a backlog of over 60,000 refugee claimants and a wait time of at least 19 months for a first hearing, one of the slowest in the world and partly the result of insufficient resources for the IRB as well as a disorganized and drawn out appeal process.

The greatest emphasis within Kenney’s reforms is the need for speed, so claimants with the greatest need for protection are welcomed into Canada as quickly as possible. Canada’s refugee system was one of the fairest in the world, because all cases were examined equally. But will this new emphasis on speed diminish fairness within Canada’s refugee policy?

Most refugee advocates agree that 19 months is too long to wait for a first hearing. But there is such a thing as too fast. With documented evidence often not easily accessible from countries of origin, 60 days is too short a period to get the legal evidence organized. Advocates are pushing for at least 120 days.

In addition, there are specific concerns associated with refugee claimants. Many, if not most, have been traumatized by persecution, and the process of sharing information must be handled with care. Refugee lawyer Heather Neufeld told the Ottawa Citizen it can take several weeks, if not months, for clients to trust legal representatives and reveal full details of persecution. Rushed decisions could end up hurting those most in need.

Another reason for concern is the proposal of a “safe country of origin” list. Claimants from these countries will have a first hearing, but will not be permitted to appeal rejections to the new Refugee Appeal Division. They will have to appeal directly to the Federal Court. Kenney proposes such a list include countries that are free from widespread persecution, such as democracies with strong human rights records.

Safe country lists are not new. Most European democracies have them, some with as few as two countries. However, the development and use of safe country lists come with significant risks concerning fairness.

First, there is the question of how such a list is developed, and which countries are considered safe. Minister Kenney claims the list will not be very long and mainly referred to the European Union countries as prospects, but he also made references to several countries in Latin America. However, given the recent histories of instability in many Latin American countries, including ongoing drug and gang related violence, many advocates and commentators question whether such countries should be included.

Second, there is a danger that claims will be judged solely by their country of origin and not on the basis of individual merit.

United Nations High Commissioner for Refugees (UNHCR) Antonio Guterres is wary of safe country lists for this very reason because persecution can occur anywhere. “There are certain areas where, even if you live in a…political democracy, you still have a certain number of important grounds for a well-founded fear of persecution to be real.”

One of the motivations in developing a safe country list is cracking down on socalled bogus refugees. Minister Kenney has used Hungary as an example. Last year, Hungary, a European democracy, was the leading source of refugee claims but over 95 percent of them were rejected or withdrawn. Kenney says claims like these are clogging the system.

However, not all rejected claims are bogus. Many are claims by individuals who genuinely believe they were in danger, but did not meet the criteria for refugee status. Claimants should not be presumed to have an alternative agenda based on their country of origin.

The proposed refugee reforms have the potential to speed up the process in Canada, but to ensure that the system remains fair, special precautions must be taken. Expanding the waiting period before a first hearing to 120 days, as proposed by refugee advocates, would account for time sensitive issues and specific vulnerabilities of refugees. As for the safe country list, it will only work and remain fair if unsafe countries are not included, cases are given fair and equal consideration at the first hearing, and claimants are never presumed to be bogus before making their case.

Speed does not necessarily have to come at the expense of fairness, but it does increase the risk of unfairness within the system. The bar is set high for meeting these conditions.

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