Canada's Refugee Determination Process
Publication:
The Empire Club of Canada Addresses (Toronto, Canada), 7 Mar 1996, p. 406-417


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Mawani, Nurjehan, Speaker
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Speeches
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A simple message: "Canadians have developed the best refugee determination process in the world." The speaker addresses the topic under the following headings: International Context; The Board and Its Role; Guidelines; Civil War Guidelines; Emerging Issue; Safeguards; Conclusion. Many issues are discussed under these headings, including the plight of refugees, with some statistics; Canada's response to refugees; the difficulties of assessment and determination; the difficulties of determining guidelines; the adoption of similar guidelines by other countries; the issuance of a second set of guidelines on "Civilian Non-Combatants Fearing Persecution in Civil War Situations;" advances and legal issues of refugee protection; the difficulties and complexities of the situation of children; finding a balance; public trust and confidence; upholding the integrity of our system; determining questions of exclusion. The Board's work in the field of refugee determination and how it has contributed to the leadership role Canada plays in the international community.
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7 Mar 1996
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English
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The speeches are free of charge but please note that the Empire Club of Canada retains copyright. Neither the speeches themselves nor any part of their content may be used for any purpose other than personal interest or research without the explicit permission of the Empire Club of Canada.
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Full Text
Nurjehan Mawani
Chair, Immigration and Refugee Board
CANADA'S REFUGEE DETERMINATION PROCESS
Chairman: David Edmison
President, The Empire Club of Canada

Head Table Guests

Ann Curran, President, Curran & Associates and a Director, The Empire Club of Canada; Dorothy Davey, former Assistant Deputy Chairperson, Immigration and Refugee Board and current member, Ministerial Advisory Committee for the election of IRB members; Myriam Mackow, student, Adult Day School, City of York; The Rev. Dr. Malcolm Sinclair, Minister, Metropolitan United Church; Sherry Aiken, National Chair, Canadian Council for Refugees; Haroom Siddiqui, Editorial Page Editor, The Toronto Star; Zoolfikar Samji, Vice-President, His Highness The Aga Khan Ismaili Council for Canada; Anne Libby, Co-Owner, Libby's of Toronto Art Gallery and a Director, The Empire Club of Canada; Jean Guy Fleury, Executive Director, Immigration and Refugee Board; Yilma Makonnen, United Nations High Commissioner for Refugees Representative in Canada; The Hon. Mr. Justice John Morden, Associate Chief Justice of Ontario; and Amir Kassan, President, Rambler Kennedy Properties Inc.

Introduction by David Edmison

in the parable of the two women both claiming to be the mother of a particular baby, we learned of King Solomon's wisdom as he correctly identified the true mother of the child. The legitimate parent was more concerned about the baby's safety, even if it meant not sharing a life with the child. King Solomon was able to make a choice in what seemed, at first, a difficult situation. Today, we admit 200,000 immigrants into Canada each year. We also accept 20,000 refugees from a global refugee population of 27 million people. Difficult choices have to be made, sometimes controversial choices that could result in life or, in some instances, even death.

With us today to explore the challenge of preserving public confidence in the integrity of what, for some, is a crucial lifeline, is the Chairperson of the Immigration and Refugee Board, Mrs. Nurjehan Mawani.

Our guest was born in Mombosa, Kenya. She later moved to London, England where she attended the Inns of Court School of Law and was called to the Bar at Lincoln's Inn in 1968. She was admitted as a Solicitor of the Supreme Court of England and Wales in 1973. After moving to Canada Mrs. Mawani continued her practice with a Vancouver law firm and was called to the British Columbia Bar in 1985. A year later she was appointed Vice-Chair of the former Immigration Appeal Board and was subsequently named Deputy Chair of the Immigration and Refugee Board. She has held her current position as Chairperson since 1992.

Mrs. Mawani is a human rights activist and has pioneered many initiatives, particularly in the area of human rights violations against women. The Board's publication "Guidelines on Women Refugee Claimants Fearing Gender-related Persecution" has been widely acclaimed. She is a much sought-after speaker at both national and international conferences.

Our guest is on the boards of the Canadian Institute for the Administration of Justice and the Canadian Council of Administrative Tribunals. Despite her busy schedule she finds time to volunteer her talents to a number of professional and volunteer organisations, such as Science World British Columbia, the Canadian Centre for Philantrophy and the Aga Khan Foundation.

Mrs. Mawani has received a number of awards during her distinguished career. She is the recipient of the Vancouver Society of Immigrant and Visible Minority Women's Award for Outstanding Achievement; the American Immigration Lawyers Association's 1993 Human Rights Award; the Humanitarian of the Year award from the Indo-Canada Chamber of Commerce; and the YWCA Woman of Distinction Award. Our guest was awarded the Order of Canada for

her contributions to Philantrophy and in addition she has been recognised by His Highness the Aga Khan for services rendered to the Ismaili community.

In her present capacity as Chairperson of the Immigration and Refugee Board our guest has the unenviable task of choosing who, among the many thousands who apply, has a legitimate claim to refugee status in this country. It is a task that almost requires the wisdom of King Solomon.

Ladies and gentlemen, will you please welcome our distinguished guest, Mrs. Nurjehan Mawani.

Nurjehan Mawani

Good afternoon, ladies and gentlemen.

To begin I would like to thank The Empire Club for the opportunity you have afforded me to carry my message to this wonderfully diverse global city.

From the mundane to the extraordinary, each one of us makes decisions each and every day. Today, in hearing rooms across the Greater Toronto Area, my colleagues on the Immigration and Refugee Board are rendering decisions that will profoundly affect the lives of the individuals who appear before them. Minutes from now, 40 members of our Refugee Division will begin hearing the testimony of refugee claimants. Information from a vast network of national and international sources is being directed into those 20 hearing rooms-helping members make fair, well-reasoned decisions in accordance with the law. Board adjudicators will conduct more than 30 immigration inquiries and another 14 detention reviews. Some parties who appear before our adjudicators today may be required to leave Canada, while others may be ordered to stay in detention.

Members of our Appeal Division will, in a few moments, begin to conduct six separate hearings. Most of these will deal with appeals from Canadian citizens or permanent residents whose applications to bring close family members to Canada have been turned down by the Department of Citizenship and Immigration.

Day-in and day-out we sustain this level of activity. This year more than 30,000 claims will be referred to our Refugee Division and, in total, our three divisions will process more than 50,000 cases in 1996. It is in this realm of high-volume decision making that the women and men of the Board's three divisions carry out their mandates on behalf of all Canadians. Today I would like to give you an update, particularly on the work of our Convention Refugee Determination Division.

The message I bring to you is a simple message. It is to tell you that Canadians have developed the best refugee determination process in the world. Ours is a process that mirrors the finest qualities of the Canadian character. It is a process that is respected globally-one that has provided international leadership where few others would venture to tread. I feel especially fortunate to have the opportunity to lead this organisation. I am immensely proud to be a part of Canada's response to one of the great humanitarian challenges of our time.

International Context

In 1996, the refugee challenge is without precedent. The numbers are staggering. They continue to grow. Last year, the United Nations High Commissioner for Refugees (UNHCR) reported that there were 27 million refugees worldwide. That is an increase of eight million over the last two years and it represents a 10-fold increase from the Cold-War era. Courtesy of television, we are all witnesses to modern tragedy-chaos in the Balkans, civil war in Sri Lanka, anarchy in Somalia and genocide in Rwanda and Burundi. What you might be surprised to learn is that the top refugee-receiving nations are all thirdworld countries. UNHCR figures from 1994 show that Iran ranked first with 2.2 million refugees within its borders. Zaire ranked second and Pakistan third. The only industrialised country in the top eight was Germany, which had just over one million refugees in the country, of whom

430,000 made their refugee claims in 1994 alone. In comparison, Canada received just 22,000 claims the same year.

Our refugee determination process and others like it do not represent the "answer" to the refugee issue. We are a response to only one aspect of an international challenge. More important are the decisions taken by governments around the globe-decisions that attack the root causes of displacement and the social and economic inequities that undermine the stability and development of communities. This requires an international effort of Herculean proportions. Meanwhile, here in Canada, we continue to face the immediate and practical challenge of responding to those in urgent need of our nation's protection.

The Board and Its Role

The Immigration and Refugee Board is an essential component of Canada's response. Quite simply, we are at the heart of Canada's refugee determination process. In 1988, Parliament established the Board as a quasi-judicial tribunal. Parliament's objective was to create a specialised tribunal, with the expert resources required to effectively assess refugee claims, independent of the Department of Citizenship and Immigration. The fundamental task of our Refugee Division is to make fair and well-reasoned decisions on refugee status. Our panels determine whether a refugee claimant meets the definition of a refugee as set out in the United Nations Convention. Convention refugees are people who, because of a well-founded fear of persecution due to their race, religion, nationality, membership in a particular social group or political opinion are unwilling or unable to return to their country of nationality or former habitual residence. When the Convention speaks of persecution it is referring to a serious violation of fundamental human rights.

Public confidence in the integrity, as well as the efficiency of our refugee determination process, is crucial to public support. Our challenge has been to pursue fairness in the conduct of our process while ensuring that we safeguard and preserve the integrity of the immigration and refugee system. For seven years, we have achieved that balance. The issues that we confront in the hearing room are complex. We are constantly challenged to remain sensitive to the vulnerability of refugee claimants. Many of the women, men and children who appear before us come from different cultures with different languages and traditions. They often come from situations where they do not deal with authorities on their own. In fact, they often come from countries where people in positions of power and authority are feared and mistrusted.

Female refugees, who may have suffered physical abuse, rape or torture, frequently find it very difficult to recount their experiences, especially when they come from communities that ostracise women who have suffered sexual violation. Our members must assess not only what transpired in the past, but look ahead, to assess what could happen in the future.

Decision making is never easy when someone's life or freedom could hang in the balance. Recently a young man told a Refugee Division panel in Vancouver that he feared arrest if he was returned to China. For five years he had served as a member of a local birth-control committee, helping to enforce his country's one-child policy. His job, he said, was to arrest pregnant women who were in violation of that policy, regardless of the stage of the pregnancy, and to send them to a local hospital to undergo forced abortions. The parents of one of his prisoners pleaded with him to release their daughter, a woman eight-and-a-half months pregnant. The claimant said he released the girl before her abortion could be performed. After helping her, he fled China. The claimant feared arrest and punishment because of his humanitar-

ian act, but he openly admitted to the panel that he had participated in forcing abortions on women for more than five years. In considering this case, a decision maker would have to determine whether the claimant feared prosecution by the authorities for failure to do his job, or whether he feared persecution because of his political opinion. Is a person who has participated in such activities deserving of Canada's protection as a Convention refugee? Would you grant Convention refugee status to such a claimant?

Guidelines

Recognising the complex nature of decision making at our tribunal, we've worked hard to develop measures that help to ensure fairness and consistency in our decisions. Our members, who serve as independent decision makers, are supported by highly specialised training programmes. From Vancouver to St. John's, board members have access to world renowned documentation centres where information on country conditions from around the globe is constantly renewed. In fact, both the Americans and United Nations have used our centres as models for their own facilities. We have the capacity to hear cases in over 90 different languages and dialects. We continually monitor-assessing the consistency of decisions throughout the Board. We are always looking at emerging issues such as those that pose a unique challenge to decision makers. We also look at issues where there may be either an absence of jurisprudence or some ambiguity.

To help respond to those kinds of issues, in 1993, Parliament gave the Chairperson of the IRB the authority to issue guidelines. Guidelines are an innovative tool to assist members in their assessment of claims. They recommend an approach to deciding cases that involve a particular issue or set of issues. They not binding because board members, like judges, are independent decision

makers. Nonetheless, members are expected to consider guidelines when deciding a claim.

Three years ago this month, after extensive consultations, the Board issued its first set of guidelines. They confront the tragic reality of violence against women and are applied to cases of women refugee claimants who fear gender-related persecution such as bride-burning, forced abortion, female genital mutilation or rape. To date, the number of people accepted in cases where these guidelines were applied has been small-less than two per cent of those referred to our Refugee Division. Our first set of guidelines has been hailed by the United Nations High Commissioner for Refugees (UNHCR) as an important advance in refugee protection. Last summer, the United States adopted a similar set of guidelines based on our work. In fact, less than two weeks ago, at a UNHCR- sponsored Symposium on Gender-Based Persecution in Geneva, we learned that three other countries, namely Switzerland, Australia and New Zealand, are on the verge of adopting guidelines and that many others are developing a gender-sensitive approach similar to ours.

Civil War Guidelines

Today, I am equally proud to announce the issuance of our second set of guidelines. They will be known formally by the rather long title, Guidelines on Civilian NonCombatants Fearing Persecution in Civil War Situations. Like our first set of guidelines, these have been developed following extensive external and internal consultation. They will be used to assist members in dealing with cases of people fleeing the persecution and terror of civil war. Determining refugee status when the claimant fears return to a civil-war situation is very complex. Civil wars are often waged for the very reasons that a person fears persecution-religious or ethnic reasons. Clearly, everyone living in a war zone has some risk to his life.

We all remember the anarchy we saw in Somalia. The situation there was such that all the clans in Somalia were fighting each other and all the clans were victims. There was no state apparatus to offer protection to anyone. How do you determine refugee status when a country is in anarchy-when all clans are fighters and all clans are victims? For example, a refugee claimant belonged to one clan that lived in Kismayo. Another clan attacked the city. The man was not home at the time of the attack, but when he returned he found the bodies of his wife and father. He fears that if he returns to Somalia, he also will be killed. The guidelines recommend that our members not compare the risk of persecution of claimants, like this man, with the risk of other individuals or groups in his country of origin. There should not be a comparison between who is more at risk or who is differentially at risk in a civil-war situation. It is not a question of whether an individual or group is facing more problems that anyone else in the country. The issue to be resolved is whether the claimant, either individually or as a member of a group, is being targetted for persecution. If the claimant is being targetted for persecution then it does not matter that other groups are also being targetted.

While today's Civil-War Guidelines mark an important advance in refugee protection, they only address a narrow, but important, legal issue. They do not exempt individuals from the need to present convincing proof of their refugee claims. Nor do I expect that these guidelines will have a significant impact on the number of claims accepted by our panels.

Emerging Issue

Recently the Board has experienced a marked increase in the number of unaccompanied children in our hearing rooms. They pose a unique challenge since they represent a particularly vulnerable group in society, but even within this group, the complexity of the cases demands

careful deliberation. For example, in one recent case, a 15year-old South American claimant told a Refugee Division panel, here in Toronto, that he had been recruited by the army to interrogate people. After the interrogation, he turned the prisoners over to a specialised army unit. The claimant admitted to knowing that the unit almost always tortured and killed these individuals. Could this 15-yearold truly understand the consequences of his actions? Should we hold him accountable for those actions? Would you grant him Convention refugee status? This is a difficult and complex case, and it captures the challenge our panels face in ensuring fairness, while preserving the integrity of our refugee determination process.

Safeguards

At the Board, we are keenly aware of the importance of this balance. Public trust and confidence in our refugee determination process rests on it. That's why various mechanisms were built into the design of our immigration and refugee legislation-to help us uphold the integrity of our system. The mix of measures that we employ at the Board are complemented by the work of the Department of Citizenship and Immigration. The Department supervises entry to the refugee determination process. It is the Department that makes an initial assessment to determine whether a newly arrived claimant is eligible to be refugee to the Board. For example, if the Minister finds a person to be a danger to Canada, or if he already has refugee status in another country, then he is ineligible to seek status here.

At the Board, a Refugee Division panel has the obligation to determine questions of exclusion. Exclusion is a legal concept established in international law. Individuals who we have reasonable grounds to believe have participated in war crimes, or in crimes against humanity, such as torture, can be denied protection as a refugee. Exclusion also applies to individuals who have engaged in

acts that are contrary to the purposes and principles of the United Nations. For example, our panels were the first in the world to invoke the exclusion clause to deny Convention refugee status to people who had participated in international drug trafficking.

In the case of the l5-yearold South American claimant that I mentioned a moment ago, the Refugee Division panel excluded him on the basis that he was an accomplice in crimes against humanity. That decision was upheld by the Federal Court of Canada.

The Department of Citizenship and Immigration can also apply to the Board to have refugee status revoked if it believes that an individual has obtained refugee status based on fraudulent or misrepresented information, or on the basis of suppressed or concealed facts. Over the past few years, the Immigration Act has been modified several times to ensure that adequate safeguards are in place to protect the integrity of our immigration and refugee system.

Conclusion

My objective this afternoon has been to report to you the role that the Immigration and Refugee Board plays in honouring our country's international obligation to refugee protection. IRB members and staff represent the whole of Canada's community. They bring to the Board a wide range of experience and perspective. I would like to take this opportunity to commend them for the high degree of objectivity, professionalism and commitment with which they carry out their responsibilities in a field which has been described by experts as among the most difficult forms of adjudication.

My intent has been to demonstrate that the Board's work in the field of refugee determination has contributed to the leadership role Canada plays in the international community. Today, as other countries turn to Canada for insights into the development of refugee determination

systems, we have an obligation to preserve the fairness and integrity of the process we have built and the quality of the decisions that we make.

At the IRB, we are committed to achieving that goal in a manner that does honour to our country.

Thank you

The appreciation of the meeting was expressed by Ann Curran, President, Curran & Associates and a Director, The Empire Club of Canada.

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Canada's Refugee Determination Process


A simple message: "Canadians have developed the best refugee determination process in the world." The speaker addresses the topic under the following headings: International Context; The Board and Its Role; Guidelines; Civil War Guidelines; Emerging Issue; Safeguards; Conclusion. Many issues are discussed under these headings, including the plight of refugees, with some statistics; Canada's response to refugees; the difficulties of assessment and determination; the difficulties of determining guidelines; the adoption of similar guidelines by other countries; the issuance of a second set of guidelines on "Civilian Non-Combatants Fearing Persecution in Civil War Situations;" advances and legal issues of refugee protection; the difficulties and complexities of the situation of children; finding a balance; public trust and confidence; upholding the integrity of our system; determining questions of exclusion. The Board's work in the field of refugee determination and how it has contributed to the leadership role Canada plays in the international community.