Another critical piece by Mr Butler on whether refugees have the deck stacked against them in Canada.
To the best of my knowledge Mr Kenney is the only Minister that has made sweeping comments regarding the merits (or lack thereof) of refugee claims from particular countries.
Comments from the Minister of Citizenship and Immigration carry weight. Remember that Members of the IRB are appointed by the GIC and are reappointed at the governments pleasure. It is no great stretch to imagine some influence by the Minister on a supposedly independent Board Member.
Chill of ministerial comments erodes independence of Immigration and Refugee
Board, former chair says
By Don Butler, The Ottawa Citizen November 29, 2011
University of Ottawa law professor and former Immigration and Refugee Board
chair Peter Showler says the ‘IRB and some of its members have discreetly
deferred to negative comments by Immigration Minister Jason Kenny, and the
Federal Court has not held the minister nor the board accountable.’
OTTAWA — The Immigration and Refugee Board describes itself as Canada’s
largest independent administrative tribunal. But according to a former IRB
chair, the board’s independence appears to be eroding.
...in the past couple of years, the board “has taken some measures that indicate that they’re not fully independent,” said Showler, now director of the Refugee Forum at the University of Ottawa’s Human Rights Research and Education Centre. “That’s a very controversial thing for a former chair to say,” he acknowledged.
As evidence, Showler cited the IRB’s handling of cases involving asylum seekers from Mexico, who were publicly accused of abusing the refugee system by Immigration Minister Jason Kenney in 2009. Kenney’s implication was clear — the IRB should not often be accepting refugee claims from Mexicans.
Yet Showler said the IRB has exclusively chosen negative Federal Court
decisions on state protection — those compatible with Kenney’s view — when
posting so-called “persuasive decisions” by the Federal Court on its
website. Persuasive decisions are meant to serve as models to guide IRB
members when they rule on similar claims.
That’s not something a “diamond-straight independent tribunal” would do,
Showler said. “The duty of a tribunal, which is below the court, would be to
reflect both lines of reasoning. In actuality, all of the persuasive
decisions only reflected the negative line of reasoning.”
Kenney’s “blatant” criticism of refugee claimants from Mexico, and similar
comments he made about Roma applicants from the Czech Republic, was
“unprecedented in Canadian refugee law,” Showler said. “The IRB and some of
its members have discreetly deferred to those negative comments, and the
Federal Court has not held the minister nor the board accountable.”
Janet Dench, executive director of the Canadian Council for Refugees, said
Kenney “made it very clear where he stands on those claims. That’s a cold
wind that can influence people.”
If the IRB is deferring to Kenney’s views, it may be partly because the
minister effectively decides who gets appointed to the board. More than 90
per cent of current IRB members — including chair Brian Goodman and his
three deputy chairs — are now Harper government appointees.
...More recent IRB
appointees “are just instinctively less receptive to refugee claims being
made in Canada.” [Showler said].
IRB statistics suggest that may be having an impact. For years the IRB regularly approved between 40 and 48 per cent of the refugee claims it heard. Last year, that dipped to 38 per cent — the lowest in the board’s history — and has remained at that level through the first nine months of this year.
Sean Rehaag, a professor at Osgoode Hall Law School, has examined the rate at which individual IRB members approve refugee claims. Last year, among those with 50 or more decisions, all but one of the 30 members with the lowest grant rates were Harper government appointees.
One of them, David McBean, had not approved a single refugee claim in his time on the board, a record of rejection spanning 169 cases. That was evidently no cause for concern, though; last year, Kenney reappointed McBean to a five-year term.
Kenney’s ability to influence reappointments means members who want to keep their $120,000-a-year jobs may feel they can’t ignore his views, Showler said. While the federal cabinet nominally makes reappointments, Kenney “shepherds all the files with his own recommendation to cabinet,” he said.
When the government’s new Balanced Refugee Reform Act comes into force next. June, current members of the RPD will be replaced by public servants, who. will take over the job of determining refugee claims. Many of the political. appointees who now rule on asylum claims will migrate to a new section of. the IRB, the Refugee Appeal Division (RAD), which will hear appeals from
failed refugee applicants.
Showler doesn’t know if the changes will enhance or further undermine the IRB’s independence. On one hand, merit may play a larger role in deciding. who gets the jobs of determining refugee claims, he said.
“There were more than 6,000 applicants for those positions, which is. extraordinary,” Showler said. Because of that, the public servants chosen for the jobs may make better, more competent decisions than the present group of political appointees.
But, Showler pointed out, the role of public servants is to be deferential to government policy — something that should have no role in determining who gets accepted as a refugee. “Almost certainly there is going to be additional pressures from within the board placed on decision-makers.”
Dench believes putting public servants in charge of determining refugee claims is “a step backwards in terms of independence.” The fact that the new Refugee Appeal Division will be staffed by political appointees also raises a red flag, she said. “The RAD is going to be setting precedents for the RPD. That becomes even more alarming if there is interference with the
There would be fewer worries if the federal government clearly respected judicial independence, Dench said. But that’s not the case. “You have an executive that does not recognize a clear line of independence for judicial and quasi-judicial bodies.”