The Immigration and Refugee Protection Act:

One Year Later

Friday 20 June 2003, by Shula SUTKER

June 28, 2003 marks the one year anniversary of the Immigration and Refugee Protection Act, commonly known as IRPA. Several major differences from the previous immigration law have made it even more difficult for refugees to be accepted into Canada.

IRPA is a piece of framework legislation, which means that only the broad principles are set out in the law itself. The details of issues such as selection of immigrants, inadmissibility, and determination of the eligibility of refugee protection claims are left for the government to expand upon through its regulatory power. Amendments can be made to the law without going through parliament. Groups such as the Canadian Council for Refugees (CCR), a non-profit organization dedicated to the protection of refugees in Canada, have expressed concern over the wide ranging regulatory power this gives the department of Citizenship and Immigration Canada.

The new law has been portrayed by the government as "tough" and places a great deal of emphasis on measures to protect Canada from criminals and those who would abuse the refugee process. IRPA increases and toughens government powers of detention, expands inadmissibility criteria, and reduces rights of appeal. According to the CCR, this serves to reinforce negative stereotypes of refugees and persuades Canadians to think that they need to be protected from newcomers to Canada.

One of the most significant changes to effect refugee claimants is the introduction of the single member "panel" to determine refugee hearings. Previously, refugee hearings were before two to three members of the Immigrant and Refugee Board (IRB). This is extremely important, as positions on the IRB are political appointments, and new appointees may have little to no prior experience with refugee issues. For example, if a woman comes to Canada on false documents after her husband was killed by the security forces in her home country, an IRB member who is not well versed in gender issues or in the political realities of the area may still refuse her claim.

CCR has long urged a transparent, professional and accountable selection process for board members. Marianne van der Meij, head of the settlement department at the Victoria Immigrant and Refugee Centre Society in Victoria, British Columbia states that "since the introduction of the single member panel, there have been more negative decisions. This could be due to the single member decision, it could also be due to increased bias since 9/11 and its aftermath, or a combination of the two. What I know is the result: more of my clients have been unsuccessful in their claim in the past year, and I hear this concern also from lawyers and other advocates."

The introduction of the single member panel is all the more important as there is currently no way for refugees to appeal negative decisions based on the merits of their case. While leave to appeal may still be granted on legal or technical grounds, for example in cases where the IRB member makes a procedural mistake during the hearing, there is still no recource for the majority of denied refugee claimants. A Refugee Appeal Division (RAD), which would conduct an on paper merit based review, was intended to be established when IRPA was first introduced. However, the RAD has yet to be implemented, nor does it appear likely to be in the near future. Dennis Coderre, Minister of Citizenship and Immigration Canada, announced in April that "the Canadian refugee determination system is facing an unprecedented increase in refugee claims. The number of claims almost doubled over the last three years, with the most dramatic increase in 2001. Because of the pressures on the system, we are delaying the creation of the Refugee Appeal Division within the IRB and focusing first on current challenges, namely, implementing other aspects of the Act while reducing the inventory and processing times."

It remains to be seen what long-term effects IRPA will have on the numbers of refugees accepted to Canada. When asked about the challenges refugees contend with, van der Meij stated that "Post-IRPA, I believe the greatest challenge refugees in Canada face is the inadequacy of the refugee determination system due to: one-member panel (and) no RAD…Apart from IRPA, the greatest challenge is the increased bias, in the system and in the wider mainstream, since 9/11."

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