Poste - Canadian Coalition for the Rights of Children

Lack of appeal mechanism
C A N A D I A N C O A L I T I O N F O R T H E R I G H T S O F C H I L D R E N
There is also concern that claimants found not to be
refugees have no opportunity to show that the decision
was a wrong one (absence of an appeal on the merits).
According to the Joint Centre of Excellence for Research
on Immigration and Settlement—Toronto, procedures
that limit appeals and judicial reviews violate the
guarantee of fundamental justice given by the Canadian
Charter of Rights and Freedoms and the guarantee of
a fair hearing given by the Canadian Bill of Rights.” 90
Although these claimants can apply to have a riskassessment
done by an Immigration officer, “experienced
refugee lawyers and advocates uniformly have found that
this process cannot be relied on to pick-up strong and
deserving cases. There is no hearing or interview
involved. Officers making the decisions receive sparse
and inadequate training... The acceptance rate under
[this] process has generally stood at under five percent.” 91
Detention
Refugee claimants can be detained in Canada under the
Immigration Act when “Immigration believes that a
person will not appear for immigration proceedings
(interviews, hearings, or removal from Canada) or poses
a danger to the public in Canada. In certain cases, persons
may also be detained if they are unable to prove their
identity.” 92
“Although children are not detained in immigration
detention centres in their own right,” said the House of
Commons Standing Committee on Citizenship and
Immigration recently, “they are allowed to stay with their
detained parents if the family wishes to stay together.”
The Committee noted that detention is particularly trying
for children for it not only “deprive(s) them of many of
their normal activities” but it also “interrupts their
education.” The Committee therefore “believes that
special provision should be made for children who have
lived in a detention centre for longer than seven days.
Children in this situation should be provided with some
formal education and language training, with the
expenses paid by the federal government.” 93
When a person is detained, the law provides for regular
reviews of detention and identifies conditions under
which a person may be released (within 48 hours, 7 days
or 30 days). An adjudicator (an independent decision
maker) may order release from detention on the posting
of either a cash deposit, the signing of a performance
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bond, or on the detainee’s acknowledgement of imposed
terms and conditions. 94 The Immigration and Refugee
Board, in its recent Guidelines on Detention, said that
“given these provisions, together with the basic
assumption that detention should be an exceptional
measure in Canadian society, adjudicators should, in all
cases, consider whether it would not be appropriate to
impose certain conditions to reduce the risk of the person
concerned failing to appear for an examination, an
inquiry or removal from Canada, or to reduce the risk
that such a person may pose to the public.” 95
Minors may be detained if officials believe they or their
parents are either a danger to the public or they would
fail to show for examination, inquiry or removal from
Canada. According to Citizenship and Immigration
Canada officials, in practice, the detention of children,
particularly unaccompanied children, is rare. 96 However,
Citizenship and Immigration Canada director Neil
Cochrane wrote in January 1998 that the department
“does not capture statistics regarding the number of
minors in detention or whether or not they are
accompanied by a parent or guardian.” 97
Decisions regarding the detention of refugee children,
according to 1998 IRB guidelines, “should be made in a
manner that is consistent with not only the Canadian
Charter of Rights and Freedoms but also the UNHCR
Handbook on Procedures and Criteria for Determining
Refugee Status and the Convention on the Rights of the
Child.” 98 Policy dictates that detaining a child for more
than a short period of time (the time required to ensure
that the child will receive proper care away from the
facility) should be a measure of last resort, and references
in immigration manuals allow for the special treatment of
unaccompanied minors in enforcement-related matters. 99
Many of the Committee’s non-governmental
witnesses reported to us their impression that
decisions to detain people on the ground that
they presented a flight risk were often arbitrary
and inconsistent. Moreover, it was their opinion
that the criteria were applied in a different
fashion in different parts of the country, and
that the length of the period of detention also
varied across the country... It is troubling to the
Committee that so many witnesses believe that
there is faulty decision-making in this area. 100
—House of Commons Standing Committee on
Citizenship and Immigration