Refugees escape backlog by taking board to court
Critics say timely processing of claims shouldn’t be limited to those who can afford it
Refugee claimants stuck in Canada’s growing backlog have a chance to get their cases heard speedily — if they can afford to take the Immigration and Refugee Board to court.
The Star has learned that at least a dozen asylum cases in which claimants took the board to court, including some that have been in the queue since 2012 and earlier, have been scheduled for hearings by the board since July.
By giving asylum seekers their longawaited hearings, the board avoided the possibility that the Federal Court would rule according to its handling of the backlog.
Critics say the timely processing of asylum claims should not be available only to those who pursue legal action against the government.
“Those who have money can go to the expensive litigation and may be able to get a resolution for themselves,” said lawyer Raoul Boulakia, who represented two asylum claimants, a Sri Lankan man and a Burundian woman. “But this is not the answer for the vast majority of refugees in the backlog who don’t have the money or are too afraid to litigate against the Canadian government.”
There are about 5,500 so-called legacy asylum claims, those that were filed before 2012 reforms that required new cases to be heard within 60 days. While the refugee board has focused on the new claims, the legacy cases were put on the back burner. Even some of the new cases have been delayed, meaning the backlog has continued to grow.
Exacerbating the situation is the surge of asylum seekers crossing the border since U.S. President Donald Trump came into power.
The board declined to comment on the litigation, saying it doesn’t comment on individual cases or private proceedings. Board spokesperson Anna Pape said the refugee backlog stood at 25,365 in June 2017 and is currently growing at a rate of about 1,000 cases per month.
“Over the past 18 months, the (board) has been facing mounting workload pressures amid a rising intake of refugee claims and fixed output capacity. These pressures have led directly to lengthening processing times,” she said.
So far, Ottawa hasn’t provided additional funding to the board, which has the capacity to hear about 21,000 claims a year.
In 2015, some frustrated claimants in the backlog initiated what’s known as “mandamus” litigation with the Federal Court of Canada in an effort to challenge the inaction of the board on their files and order officials to adjudicate their cases.
The backlog has created tremendous hardship for some claimants, who are often separated from their families and cannot plan their lives without permanent status.
Legal Aid Ontario does not usually cover mandamus litigation, but it did fund some of the claimants — from several countries, including Afghanistan, Burundi, Democratic Republic of Congo, Somalia, Sri Lanka and Turkey — represented by Boulakia and the Refugee Law Office in To- ronto. Similar cases were handled by other lawyers.
One of Boulakia’s clients, Ingrid Ntahigima, was a member of the Movement for Solidarity and Democracy, an opposition party in Burundi. She fled to Canada and made an asylum claim in October 2012 due to political persecution.
For years, the refugee board didn’t hear her case, despite her repeated pleas and a psychiatric report that showed she suffered from post-traumatic stress disorder due to trauma in Burundi and severe depression as a result of the inability to get her asylum resolved.
“I didn’t have any option. I felt so powerless. I didn’t see any hope. I didn’t see any future,” said the 25-year-old, who works as a customer service representative. She paid more than $3,000 for the litigation out of her own pocket.
In July, the refugee board agreed to schedule the asylum hearing for Ntahigima and the other litigants. After previewing the woman’s file before the hearing, a judge decided to grant her asylum status immediately because she had such a strong claim. Once she was given a hearing date, her court case was over.
“The violence that reigns in Burundi includes acts of violence motivated by ethnic hatred against the Tutsi minority,” wrote adjudicator Robert Riley in his decision.
“Since the claimant is identified as being an opponent of the current regime, she risks being targeted, arrested and abused by the Burundian authorities. The political opinion of the claimant, combined with her ethnicity, establishes a nexus to the (United Nations) Convention refugee definition.”
Although Ntahigima is relieved that she can now move on with her life, she feels the delay was unnecessary.
“Justice delayed is justice denied,” said Ntahigima, who is trying to save up money to apply for permanent residency and continue her education in international studies and business.