V. THE RIGHT TO ASYLUM AND ITS ATTENDANT PROTECTIONS AND TO SEEK JUDICIAL PROTECTION THEREFORE

80. In the Canadian refugee context, it is not only the courts that adjudicate the protection of individual rights. As indicated above, it is the relevant branches of the IRB that are authorized to decide the right of non-return. In this regard, while the Canadian system provides for no right to appeal on the merits of a negative refugee status determination decision, it does provide refused claimants with administrative and judicial procedures to seek certain forms of review. What follows is an overview of the applicable procedures to seek review, and an analysis of the concerns raised by the lack of a merits-based review of the underlying claim and existing restrictions on access to judicial review on questions of law. 

A. The Procedures Available to a Refused Refugee Claimant to seek Judicial Review

81. Within the legal system, rejected claimants have two principal judicial remedies through which to seek protection for the alleged infringement of a right in the determination process.52 The claimant may apply for leave to obtain judicial review of the CRDD’s decision in the case of an error in law or violation of procedural fairness, or alternatively, may challenge legislation or state action on constitutional grounds.53 It should be noted that the Minister may also apply for judicial review of a CRDD decision. As will be described, if leave is granted, these procedures provide for review on specific legal grounds, not for an appeal on the merits of the initial decision itself.

82. Once the CRDD has rejected a refugee claim and provided the applicant with written reasons, the claimant has 15 days to apply for leave to the Federal Court Trial Division.54 As the State noted in its observations, an application for leave to appeal such a rejection by the CRDD operates to stay the execution of a removal order until the matter has been determined. Submissions in support must be filed within 30 days thereafter. The parties receive each other’s pleadings and affidavit material, and have the opportunity to cross examine affiants. To obtain leave, the claimant must show a "serious issue to be tried" or that there is an "arguable case."55 The decision is usually made on the basis of the written submissions from the claimant and the Minister. No reasons need be given for the denial of leave, and that decision is not subject to appeal.

83. Federal Court jurisdiction over cases that are accepted extends to consideration of questions of law and of the jurisdiction of the decision-maker, as well as to allegations that findings of fact were capricious, that the decision-maker committed an error of law, or that a principle of natural justice was transgressed. In its observations, the State characterized that "[t]he Court will examine whether the case was decided fairly and legally; however, where fundamental rights are involved, or allegedly threatened, the [C]ourt will examine the merits of those issues." Because the process is a review rather than an appeal, it does not contemplate the submission of new evidence. Quashed CRDD decisions are returned to that body for hearing before the same or a different panel. During the Commission’s on-site visit, State representatives indicated that leave was granted for approximately 20% of the applications filed. Non-state sources indicated that the rate seemed to be slightly lower. According to IRB data for the years 1994 – 1997, 1% or fewer decisions were set aside.56 In its observations, the State indicated that "[a]pproximately 75% of all persons who receive a negative CRDD decision seek leave for judicial review of the decision, representing one third of all finalized claims. Of these, about 10% are granted leave; 40% of decisions reviewed are set aside by the Federal Court."

84. Appeal from a negative Trial Division ruling to the Federal Court of Appeal requires that the judge of first instance certify that the case involves "a serious question of general importance."57 The trial judge’s denial of certification is not subject to appeal. At the time of the Commission’s on-site visit, State representatives indicated that of the approximately 250 Trial Division determinations made annually, approximately 30 would be certified for appeal. It was further explained that this procedure applies to all cases arising in the immigration context, and was implemented as a method of docket control given the vast number of cases.

85. Leave to appeal a negative appellate decision may be sought before the Supreme Court of Canada, where it may be granted on the basis of the "importance of the legal issue," the "importance of an issue of mixed law and fact" or the "significance" of the matter.

86. Independently of an application to seek leave to appeal the CRDD decision, a claimant may challenge the constitutionality of legislation or state action before either the Federal Court or the provincial superior courts, which exercise concurrent jurisdiction in such matters. There is no leave requirement to gain access to this remedy. At the same time, it should be noted that, according to information proffered by the State, under most circumstances in the immigration context an applicant is required to raise Charter issues before the relevant administrative tribunal within the respective proceeding. In the present context, for example, the IRB is competent to address Charter issues. If unsuccessful, the claimant would then be able seek leave for judicial review of that decision before the Federal Court. 

B. Procedures to Seek Administrative Review

87. In addition to the foregoing judicial remedies are the two non-judicial review procedures open to refused refugee claimants. First, a claimant who was unsuccessful before the IRB and/or who was unable to obtain leave or whose claim was rejected by the Federal Court, may apply for post-determination review by an immigration official to evaluate whether removal would result in compelling personal risk.58 As the State noted in its observations, this review assesses "risk to life, inhumane treatment, or extreme sanctions," and may provide protection to persons who are not covered by the 1951 Convention and Protocol.

88. The application must be filed within 15 days of the negative decision, and supporting information must be presented within 30 days thereafter.59 The review by the Post Claim Determination Officer is based on the application and written submissions -- there is no hearing. In its observations, the State pointed out that such officers "are specially trained to assess risk and [] have access to information on [the] human rights situation around the world, such as Amnesty International Reports."60 The risk faced by the unsuccessful claimant must be "objectively identifiable" and involve a threat to his or her life, the possibility of excessive penalties (disproportionate to the offense), or the likelihood of inhumane treatment. The claimant must also show that he or she would be affected by the risk throughout the country of return. State officials indicated to the Commission during its on-site visit that, as a policy matter, the Department of Citizenship and Immigration will delay removal until after an application for PDRCC review has been decided.

89. A positive decision will enable the person to apply for permanent residence, subject to certain conditions. According to State statistics for 1993 to early 1997, 26,134 cases had been reviewed, and 878, or 3.35%, had been accepted. According to figures published by the nongovernmental Canadian Council for Refugees, between July 1, 1997 and April 30, 1998, 4478 PDRCC decisions were made. Of those, 1006 (22%) were deemed ineligible, 3364 (75%) were deemed eligible but not at risk, and 108 (2.4%) were deemed at risk.61 A rejected claimant may seek leave to obtain judicial review of the negative decision.

90. Second, at any time during the refugee determination process, a claimant may apply to the Minister of Immigration for admission to Canada on the basis of humanitarian and compassionate considerations. This process essentially allows for an exemption from the general requirement that immigrants apply for and obtain visas abroad. There are no limitations on the situations that are eligible. The immigration officer making the determination must consider all the information submitted and exercises discretion in making the decision. In its observations, the State specified that the officer "has unfettered discretion to use his/her judgment in assigning relative weight to the facts of the case when deciding whether the application warrants approval or refusal." There is no right to be heard. The factors considered are whether the applicant, if removed, would suffer "unusual, undeserved or disproportionate" hardship in comparison with the general population of the home country. The State further indicated in its observations that factors considered may include, but are not limited to "family ties; presence of a spouse in Canada; overall integration within Canadian society; and personalized risk should the individual be returned to his/her country of origin." The application fee is $500 for an adult, and there is no limit on the number of times the process can be invoked.

91. The filing of an application under this procedure does not operate to stay removal (although removal proceedings may be stayed by order of the Federal Court). Should the claimant be removed subsequent to filing and later receive a positive decision, he or she would be permitted to return to Canada. State representatives indicated that the most common grounds for acceptance were marriage to a Canadian resident, or children or grandchildren in Canada. State data at the time of the Commission’s on-site visit indicated that the rate of acceptance for applications by a spouse or child of a Canadian resident was 94%, of parents or grandparents 85%, and of other categories 54%. Leave may be sought to obtain judicial review of a negative decision by the Federal Court. The PDRCC and humanitarian and compassionate review processes can be distinguished on the basis of the factors they apply to: the former looks to the question of risk to the person concerned in their home country, while the latter looks largely to their links to Canada. 

C. The Availability and Efficacy of these Procedures in Light of the American Declaration and other Applicable Law

1. The Availability of Judicial Protection

92. Under the current system, applicants must meet the threshold for leave in order to have access to judicial review. State representatives generally characterize the leave requirement as setting a very low threshold. They consider that the threshold is easily met in a genuine case, and cite supporting jurisprudence. In Bains v. M.E.I (1990), for example, the Federal Court Appellate Division indicated that "[b]earing in mind that the only consideration is whether a fairly arguable case has been disclosed, the requirement for leave is in reality the other side of the coin of the traditional jurisdiction to summarily terminate proceedings that disclose no reasonably arguable case."62 In the view of the State, the fact that the Federal Court grants leave for approximately 20% of the applications filed shows that IRB decision-making is highly effective.

93. In its observations, the State reiterated that "[t]he leave mechanism is a way to ensure that the cases which come before the Court meet a minimum threshold." The State characterized the case law as indicating that "if there appears to be any possibility of an applicant succeeding at the hearing application, the applicant should be given the benefit of the doubt and granted leave." It noted that the Court must grant leave if the applicant meets the legal test, and that the leave requirement had "been challenged and found not to violate the Charter."

94. Advocates, observers, and even some officials expressed to the Commission their strong concern that the standard for obtaining judicial review is applied in a way which unreasonably restricts claimants’ access to judicial protection. Such persons characterize the leave requirement as highly restricted in practice, indicating that the "arguable case" standard is interpreted more strictly than its wording suggests. While the Government indicated in its observations that this was not the case, a number of sources, including several State functionaries as well as practitioners and others working within the system, characterized the leave requirement as providing a form of docket control. A highly reliable source indicated that, because the Federal Court is flooded with applications from asylum seekers, it tends to grant leave in "only the most meritorious" cases. Because no reasons need be given for denying leave, there is no check on consistency or means of ensuring accountability. These sources reported that judges interpret and apply the applicable standard differently, resulting in disparate treatment for similarly situated persons.63 Further, obtaining leave and pursuing judicial review are costly and complex procedures. According to these sources, the extremely low rate of decisions set aside through judicial review is the result of this unduly restricted access, and fosters a disregard for accountability within the IRB with respect to its decision-making.

95. The American Declaration of the Rights and Duties of Man provides in Article XVIII that every person has the right to "resort to the courts to ensure respect for [] legal rights," and to have access to a "simple, brief procedure whereby the courts" will protect him or her "from acts of authority that … violate any fundamental constitutional rights." The right of access is a necessary aspect of the right to "resort to the courts" set forth in Article XVIII.64 The right of access to judicial protection to ensure respect for a legal right requires available and effective recourse for the violation of a right protected under the Declaration or the Constitution of the country concerned.

96. Further, pursuant to Article II of the Declaration, "[a]ll persons are equal before the law and have the rights and duties established in this Declaration, without distinction as to race, sex, language, creed or any other factor." One of the Declaration’s objectives, in fact, was to assure in principle "the equal protection of the law to nationals and aliens alike in respect to the rights set forth."65 The notion of equality before the law set forth in the Declaration relates to the application of substantive rights and to the protection to be given to them in the case of acts by the State or others.66

97. The Canadian Charter provides a similar guarantee in section 24(1), which establishes that:

Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

The Singh decision of the Supreme Court of Canada, referred to in section II, supra, clarified that refugee claimants present in Canada are entitled to Charter protection. It further set forth that the procedure for determining refugee status must be consistent with the precepts of fundamental justice, and that claimants must have the opportunity to state their case and to know the standards they must meet. Under both inter-American and domestic norms, asylum seekers must be accorded the same right of access to judicial protection as other persons.

98. The effect of this right is to require the provision of a domestic remedy which enables the relevant judicial authority to deal with the substance of the complaint and grant appropriate relief where required. In addition to the explicit rights to judicial protection and equal protection of the law, implementation of the overarching objective of the Declaration – ensuring the effectiveness of the fundamental rights and freedoms set forth – necessarily requires that judicial and other mechanisms are in place to provide recourses and remedies at the national level.

99. While applicants do not necessarily have an unlimited right of access to judicial remedies, controls on that right may not be unreasonable or such as to deprive the right of its essence.67 It is a general principle that restrictions on fundamental rights, where permissible, must be required to maintain public order and applied without discrimination.68 Expressed more specifically, they must further a legitimate objective, and the means must be reasonable and proportionate to the end sought.69

100. With respect to the foregoing criteria, the Commission finds several reasons for concern with respect to the leave requirement regime of the Canadian refugee system. First, even a brief review of applicable jurisprudence indicates that the leave standard is subject to varying interpretations by judges. Given that the decision rests with a single judge, that rejections need not be reasoned, and that there is no appeal of such rejections, applicants may have difficulty ascertaining the standard to be met, and there appear to be no effective checks to ensure consistency and equality of access to applicants.70

101. Second, while questions of the volume of claims and the need to preserve judicial resources for important questions may present a reasonable and justified aim, this must be balanced against the nature of the individual rights at issue – which may involve the protection of life, liberty and physical integrity. While the right of appeal in administrative areas of a technical nature may legitimately be subject to certain restrictions, the interests at stake in the refugee context may involve the security and life of the person concerned. In this regard, the Commission understands that, under other federal statutes, administrative mechanisms may provide for various levels of review, as well as judicial review, including on the merits, as of right.71

102. Third, applicants may well require the services of an attorney to adequately pursue their rights in this process, and reports indicate that legal aid is increasingly restricted for such actions, and not available in certain provinces.72

103. As noted, the right of an applicant to have access to judicial protection, including on appeal, may be subject to certain limitations, particularly at a second or third level of review. In this regard, the Commission notes several specific concerns in relation to the process for seeking leave to challenge a negative decision of the Federal Court Trial Division in terms of its capacity to redress the substance of individual claims. Because leave requires that the judge who denied the claim certify a question for appeal, he or she becomes the gatekeeper for further review. Convincing such a decision-maker to essentially indicate that he or she has possibly erred in applying the law may present an inherent difficulty. Further, the nature of the grounds for certification, namely that a serious question of general interest is raised, indicates that challenges based primarily on factual or credibility determinations are unlikely to succeed. As noted above, such determinations are an essential aspect of many, if not most refugee claims, and the resulting CRDD decision-making. Moreover, the Commission has received information to the effect that, once a question has been certified, cases raising substantially the same issue may not be certified because the matter of general interest is already pending review. This level of review provides an important means of safeguarding the coherence and interests of the system, but appears to play a more limited role vis-a-vis the particular interests of the individual concerned.

The Federal Court has the primary role in reviewing immigration and refugee decisions. All decisions made, whether by the IRB or by CIC officials, such as senior immigration officers, are subject to judicial review by the Federal Court. This includes decisions concerning refugee determinations by the IRB.

The State further noted that the independence of its judiciary is guaranteed under the Constitution. Judges serve on terms of good behavior. "They are removable from the Bench by the Governor General on address of both houses of Parliament, and are required to retire at age 75."

53 The Commission was informed by State officials that this is fairly rare, and occurs most often in cases where criminality or another exclusionary ground is alleged.

54 As of late 1997, the filing fee was $50.

55 The grounds for leave are set forth in the Federal Court Act, 18.1(4). With some exceptions, a person who applies for leave has the right to remain in Canada pending the decision.

56 IRB Performance Report 1998, supra, at p. 9.

57 The cases cited by the State in this regard, Chaudhry, Sinnapu, Pushpanatham and Baker, suggest that the questions addressed at this stage are of great seriousness and significant import for the system as a whole. It should be noted that, as the State indicated in its observations, the appellate court is not limited to the certified question(s) when rendering its decision.

58 Eligibility for PDRCC class parallels eligibility for entering the refugee determination process.

59 Immigration may consider information submitted thereafter, but can issue its decision at any point after the 30 day deadline.

60 The State further indicated that "[t]raining of PCDO’s involves sessions on the Charter and international human rights obligations, such as the Convention Against Torture, the International Covenant on Civil and Political Rights and the American Declaration." "These training courses were developed and delivered in close cooperation with Canadian non-governmental organizations."

61 Canadian Council for Refugees, Refugees in Canada: Canadian refugee and humanitarian immigration policy, (1998), at p. 73.

62 109 N.R. 239 F.C.S.A.D.; see also, Virk v. M.E.I. (1991), 13 Imm.L.R. (2d) 119 (F.C.T.D).

63 Reference was made, for example, to a statistical study analyzing acceptance rates for leave applications and finding an extremely high association between the individual judges assigned to make the decision and the outcome of the applications. Ian Greene and Paul Shaffer, "Leave to Commence Judicial Review in Canada’s Refugee-Determination System: Is the Process Fair?" 4 Int’l Journal of Refugee Law, 71 (1992).

64 See generally, IACHR, Resolutions Nš 3/84, 4/84 and 5/85, Cases Nš 4563, 7848 and 8027, Paraguay, published in Annual Report of the IACHR 1983-84, OEA/Ser.L/V/II.63, doc. 10, 24 Sept. 1984, at pp. 57, 62, 67 (addressing lack of access to judicial protection in proceedings involving expulsion of nationals; linking right to freely enter and remain in one’s own country under Article VIII of the Declaration to the rights to a fair trial and due process under Articles XVIII and XXVI). See also, Report Nš 47/96, Case 11.436, Cuba, in Annual Report of the IACHR 1996, OEA/Ser.L/V/ II.95, Doc. 7 rev., 14 March 1997, at para. 91, (citing Annual Report of the IACHR 1994, "Cuba," at p. 162, and addressing failure of State to observe freedom of movement of nationals under Article II via denial of exit permits from which no appeal is allowed).

In the context of the American Convention, see generally, IACHR, Resolution Nš 30/81, Case 7378, Guatemala, in Annual Report of the IACHR 1980-81, OEA/Ser.L/V/II.54, doc. 9 rev. 1, 16 Oct. 1981, p. 60, at 62 (addressing denial of right to judicial protection in expulsion of foreigner absent any form of due process), Report Nš 49/99, Case 11.610, Mexico, Annual Report of the IACHR 1998, OEA/Ser.L/V/II.102, Doc. 6 rev., 16 April 1999, Vol. II; see also, Eur. Ct. H.R., Ashingdane Case, Ser. A No. 93 (1985) para. 55.

65 See, Inter-American Juridical Committee, "Draft Declaration of the International Rights and Duties of Man and Accompanying Report," (1946), p. 56. Because fundamental rights inhere in the person by virtue of his or her humanity, they apply in principle to all on the basis of non-discrimination and equality. See e.g., UNHum.Rts.Comm., General Comments 15 and 18, published in, "Compilation of General Comments and Recommendations adopted by Human Rights Treaty Bodies," HRI/GEN/1/Rev.3, 15 Aug. 1997, at pp. 19, 26.

66 "Draft Declaration and Accompanying Report," supra, at p. 53. See, for example, IACHR, Report Nš 51/96, Case 10.675, United States, in Annual Report of the IACHR 1996, OEA/Ser.L/V/II.95, Doc. 7 rev., 14 March 1997, p. 550, paras 177-78 (finding violation of right to equal protection under Article II of the American Declaration with respect to interdiction of one group consequently prevented from being heard on asylum claims, while other groups permitted to enter and be heard).

67 See e.g., Eur. Ct.H.R., Golder v. the United Kingdom, Ser. A No. 18, 1 E.H.R.R. 524 (1975); Belgian Linguistics Cases, Ser. A Nos. 5, 6 (1967, 1968); Winterwerp v the Netherlands, Ser. A No. 33, 2 E.H.R.R. 387 (1979).

68 See, "Draft Declaration," supra, p. 54.

69 See generally, Eur. Ct.H.R., Ashingdane Case, supra.

70 An intensive study of decisions on leave applications decided by single judges of the Federal Court of Appeal done in 1990 (before the leave decision was transferred to single judges of the Trial Division) indicated wide discrepancies in rates of acceptance, ranging between 3 and 57%, related to the particular decision-maker. The researchers indicated concern that applicants for leave under the Immigration Act may not have an equal chance of convincing a decision-maker that their application should be granted, given that certain judges were statistically much more predisposed to deny leave. I. Greene and P. Shaffer, "Leave to Appeal and Leave to Commence Judicial Review in Canada’s Refugee-Determination System: Is the Process Fair?" 4 Int’l J. Refugee L., 70, at p. 82.

71 See, inter alia, Canadian Human Rights Act, R.S.C. 1985, c. H-6; Public Service Employment Act, R.S.C. 1985, c. P-32; Canada Labor Code, R.S.C. 1985, c. L-2.