In light of Osgoode’s International Legal Partnership (ILP)’s work on Advocacy Week (February 27- March 2, 2012), I have been reflecting on an often overlooked aspect of our refugee system. From the moment a refugee claimant arrives in Canada, her or his future rests in the judgment of others. This vulnerability is a fundamental legal and human reality.
Bill C-31 is the latest attempt at reforming Canada’s refugee determination process. Both Bill C-31 and the debate surrounding it, in my view, miss an important point. Laws do not decide who is a refugee. People do. And yet, while we focus on the design of the refugee system (including Bill C-31’s new ministerial powers to determine which countries will be considered “safe” and therefore allow refugee claims from those countries to be fast-tracked and with rights of appeal in those contexts curtailed), we tend to underestimate the importance of the people who implement the system.
While legal rules matter, judgment and discretion often matter more. Just rules can be abused to lead to unjust results through the misuse of discretion, just as discretion exercised in intelligent and progressive ways can mitigate and limit the effects of unjust rules. In the refugee context, we have seen both dynamics at work.
The 1999 Supreme Court decision in Baker recognized new standards of decision-making in the field of humanitarian and compassionate leave applications (where a person, for example, alleged that they would be at risk if returned to their country of origin after a failed refugee claim). Shortly after the decision, I participated in a training and education initiative with humanitarian and compassionate leave decision-makers at several regional offices in Ontario. This was an eye-opening experience. Whereas the law speaks in broad principles (in that case, being alert and alive to the best interests of the child when exercising discretion under the Act), the officers made decisions influenced by a host of factors – some legal, some practical, some intuitive. For example, those regional offices which had less volume conducted interviews with applicants for exemptions from the Act on humanitarian and compassionate grounds while those with more volume did not.
Refugee determinations tend to turn on credibility. This is why an oral hearing is so crucial. Is a person’s story to be believed? The 1985 Supreme Court decision in Singh, one of the first decisions under then newly minted Charter of Rights, established that all refugee claimants are entitled to an oral hearing before the decision-maker. This was also one of the first cases in which a Charter result required the Government to rethink its allocation of resources. Oral hearings before the decision-maker cost more than a written process. In its brief section 1 analysis in Singh, the Supreme Court for the first time affirmed that “administrative convenience” could not justify the infringement of constitutional rights.
Who decides whether a refugee applicant is credible? While appointments to the IRB have been the subject of extensive scrutiny (most recently in November of 2011 when the Minister, Jason Kenney, had to defend his record of appointments to the IRB from the criticism of former Chair Peter Showler, who asserted that Conservative appointments are “instinctively less receptive to refugee claims”), we know remarkably little about front-line decision-makers. What few empirical studies there have been typically are not taught in law school. Focusing on decision-makers beg important questions? Should refugee decision-makers be representative of the diverse make-up of Canadian society? What training and education ought they to have? When a significant Supreme Court decision is released, how do front-line decision-makers learn of its content and implications?
While law students excel at parsing the laws and cases which govern the refugee system, we often pay too little attention to the lived reality of those caught up in that system. Rights are never self-executing. If the Charter has been successful, it is because a culture of respecting rights has been internalized by government officials ranging from the police to Ministers to immigration and refugee decision-makers. If law is to lead to justice, it must do so through relationship between decision-makers and those affected by their decisions. So while many in this edition of the Obiter focus on statutes, conventions, treaties and judicial decisions, we should also direct our attention to guidelines and manuals, to budgets and staffing levels, and to the people which shape our refugee determination process.