IMMIGRATION: Refugee determination: Better judges needed

IMMIGRATION: Refugee determination: Better judges needed

I was surprised to discover in 1989 that the vast majority of the judges that the federal cabinet had appointed to the newly-created Immigration and Refugee Board (IRB) to hear refugee claims had no refugee-related experience whatsoever.

A Supreme Court of Canada ruling forced the government to create a more transparent and fair refugee determination system. Instead, the Mulroney government used the opportunity to meet its patronage obligations to its friends and relatives. When the Conservatives lost power in 1993, the IRB continued to be a trough, but this time for Jean Chrétien’s Liberal party.

One would think that a judge who is appointed to the Refugee Protection Division (RPD) of the IRB should have, at a minimum, a law degree. After all, they will be making important rulings involving the Immigration and Refugee Protection Act, the 1951 UN Convention Relating to the Status of Refugees, not to mention Canada’s Charter of Rights and Freedoms. They must ensure procedural fairness and weigh evidence very carefully.

Lives depend on it.

Had the government decided to award these positions on the basis of legal training, experience and integrity, it would have had a competent, albeit small, pool of refugee lawyers to draw from. However, these lawyers are usually centered in Canada’s major cities. This would have made it difficult to reward political friends from Canada’s rural areas. Also, seasoned lawyers would have arguably been more loyal to the law than to the political pressures that are always swirling around the IRB.

The fact is that the IRB doesn’t consider it self a “court of law”. It refers to its decision makers as “Members”, not judges. Therefore, it doesn’t expect its members to meet “judicial” standards.

A recent amendment to our immigration laws made it a requirement that that at least 10% of the 90 Members of the RPD be members of a provincial bar for at least 5 years

It has always been my view that this should be 100%. Unfortunately, RPD Member, Steve Ellis, who was recently alleged to have attempted to trade refugee status for sex, was not just a city councilor, but also a lawyer.

Nonetheless, I am still convinced that a judicial or quasi-judicial appointment should require formal legal training, extensive experience in the subject matter, and a level of integrity confirmed by ones peers.
The IRB is short 34 members. This is a good time for it to reconsider its selection criteria.

Guidy Mamann practices law in Toronto at Mamann & Associates and is certified by the Ontario Law Society as an immigration specialist. Reach him at 416-862-0000.

Confidential e-mails may be directed to Mr. Mamann at metro@migrationlaw.com or philreporter@migrationlaw.com