Law Times

Page 2 September 8, 2015 • Law timeS www.lawtimesnews.com NEWS Study raises red flag about bars to refugee appeals BY TALI FOLKINS Law Times oo many refugee claimants are finding it impossible to appeal rulings against them, argues a new study by a pair of researchers at Osgoode Hall Law School. In the study, Angus Grant, a refugee lawyer and doctoral candidate at Osgoode Hall, and Prof. Sean Rehaag take a look at access to the Immigration and Refugee Board's refugee appeal division, the body launched in 2012 to handle appeals of refu- gee cases. The study, published recently in the UBC Law Review, con- cluded that rules barring certain groups of refugee claimants from access to the appeal division are "arbitrary and dangerous" and called for reforms that would do away with them. "For people who are able to access it, it is proving to be an effective remedy to large numbers of applicants," says Rehaag of the appeal divi- sion. "Important rights are at stake, and I believe that where important rights are at stake, it's important to have robust mechanisms. So I would say everyone should be able to ac- cess the appeal." According to rules gov- erning the process, six types of refugee claimants aren't eligible to appeal to the ap- peal division: those coming to Canada via the United States; those coming from designated countries of origin considered safe by the Immi- gration and Refugee Board; those with claims found to have no credible basis or to be "manifestly unfounded;" those designated foreign nation- als because of their irregular ar- rival in Canada; those who quit or withdrew their applications; and those who have already had refugee status granted but then revoked "through cessation or vacation processes." These barriers to the appeal division, according to the study, are particularly concerning be- cause, since its launch more than two years ago, it has reversed a considerable number of deci- sions and thus appears to have been "a key means to correct false negative refugee determi- nations, and to prevent Canada from deporting refugees to face persecution, torture or death." A particularly arbitrary bar to the appeal division, says Re- haag, is the rule that governs claimants coming to Canada via the United States. It's also, according to the study, the largest bar with 2,253 claim- ants denied access for that reason in 2013. "Your mode of entry into Canada has absolutely noth- ing to do with how strong your application for refugee pro- tection is and it doesn't have anything to do with whether or not you do in fact face perse- cution or torture or death back home," says Rehaag. Calling on politicians to amend existing legislation is one way to remove those bars, he says. Another is to bring consti- tutional challenges to them. On July 23, a Federal Court judge ruled in favour of a challenge launched by a Croatian man and the Canadian Association of Ref- ugee Lawyers to the bar denying access to claimants from certain designated countries. On its web site, the Immi- gration and Refugee Board says that in light of that decision, it is now "informing failed refu- gee claimants from [designated countries of origin], whose de- cisions were issued on and after July 23, 2015, and who are not otherwise barred from appeal- ing to the [appeal division], that they may file an appeal to [it]." The government has said it will appeal the decision, howev- er. Meanwhile, Rehaag expects challenges against other provi- sions to follow. The study by Grant and Re- haag also drew attention to another potential concern: a seemingly wide divergence in the likelihood of adjudicators to allow appeals. One adjudicator, according to the study, allowed 100 per cent of her appeals while another dismissed all of her cas- es. While the sample sizes were very small, even adjudicators who handled more cases often displayed considerable variance in their tendency to allow or dis- miss appeals, says Rehaag. Elyse Korman, a lawyer with immigration law firm Otis and Korman, says her clients often encounter those issues. Mak- ing matters more difficult for clients, she says, is the fact that if they can't appeal to the appeal division, they lose their right to any stay of removal. Meanwhile, she says, it's pos- sible a loophole to an existing restriction has closed. For more than two years, she notes, clients she has represented who have entered Canada from the United States but then applied for refu- gee status inland rather than at a point of entry have been able to access the appeal division. In late July, however, Korman says she received three separate deci- sions from the same adjudicator stating that the appeal division didn't have jurisdiction over the appeals because the claim- ants had come to Canada via the United States even though they had crossed the border illegally. Asked whether the current bars to the appeal division are preventing too many refugee claimants from appealing de- cisions against them, Citizen- ship and Immigration Canada spokesman Remi Lariviere said: "Canada's asylum system con- tinues to ensure that all eligible claimants — regardless of their country of origin — have access to a full, fact-based hearing be- fore the Immigration and Refu- gee Board of Canada. The [board] is a quasi-judi- cial, independent body, which provides a fair hearing to asy- lum claimants." LT With more than 1,400 pages of essential legal references, Ontario Lawyer's Phone Book is your best connection to legal services in Ontario. 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(prices subject to change without notice) 2015 ONTARIO LAWYER'S PHONE BOOK THE MOST COMPLETE DIRECTORY OF ONTARIO LAWYERS, LAW FIRMS, JUDGES AND COURTS Untitled-6 1 2015-09-02 1:59 PM Everyone should be able to access the refugee appeal division, says Sean Rehaag. T

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