Singh v. Minister of Employment and Immigration (1985)
The broad issue was one of procedural fairness toward refugee applicants. The 1978 Immigration Act had clearly established that the definition of a refugee under Canadian law was the same as that established by the United Nations Convention in 1951, as amended in a 1967 protocol:
any person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, a) is outside the country of his nationality and unable or, by reason of such fear, unwilling to avail himself of the protection of that country, or; b) not having a country of nationality, is outside the country of his former habitual residence and is unable or, by reason of such fear, unwilling to return to that country.
The difficulty lay in separating the genuine refugee from others who used the claim as a tool to enter the country and reside indefinitely, as an enormous backlog of cases made quick resolution of cases impossible. By the provisions of the Immigration Act, a multistage appeal process was instituted that provided for an examination before an immigrant officer, with right of counsel and the opportunity to correct the transcript, which was then forwarded to the Refugee Status Advisory Committee (RSAC), which reviewed the case and sent its recommendations to the minister of Employment and Immigration. If the minister denied the claim, the refugee claimant had right of appeal to the Immigrant Appeal Board (IAB). If even one of the three members of the board believed that the claim had a chance to be successful, a hearing was scheduled. But if the appeal was denied, it could then be appealed to the Federal Court of Canada. By 1981, there was a backlog of 1,500 cases; by the end of 1983 the number of cases reached 9,000. As the government sought advice about possible reforms, the backlog continued to grow, to 15,000 by 1984, and in the meantime the government was providing jobs and welfare benefits to those awaiting judgment.
In the midst of this crisis came the matter of six Asian Indians and one Guyanese who claimed UN Convention refugee status on the basis of their political activities. Four of the Indians were denied admission at the border; one evaded inquiry upon entry in 1971; one arrived as a temporary “visitor” in 1980; and the Guyanese came on a false passport in 1979, was later granted temporary status, then arrested in 1981 for working illegally. All had been denied refugee status by the minister and denied applications for redetermination by the Immigration Appeal Board. The Federal Court of Appeal refused applications for judicial review. The Supreme Court then heard the appeal from the refusals. Invoking the Canadian Charter of Rights and Freedoms (1982), which provided legal equality for those facing discrimination “based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability,” the court ruled that claimants could not be denied the right to an oral hearing in the final determination of refugee claims. According to the ruling, the charter’s language guaranteeing protection for “everyone” included all who were “physically present” in Canada.
As a result of the decision, four previous studies recommending oral hearings at an early stage of the hearing process were affirmed. A temporary Bill C-55 was passed in 1985, increasing the number of refugee claims adjudicators, but the measure proved unable to meet the three-year backlog of cases. The second Bill C-55 (Refugee Reform Bill, introduced 1987) restructured the process for determining refugee status, replacing the IAB with the Immigration and Refugee Board (IRB) and two divisions, the Immigration Appeals Division (IAD) and the Convention Refugee Determination Division (CRDD). It also provided for a two-stage hearing process. In the first stage, which sought to eliminate patently unfounded claims, a preliminary joint inquiry by an independent adjudicator and a CRDD member would first determine a claimant’s admissibility. The second stage of the process involved a full hearing before two members of the Convention Refugee Determination Division.