The Honourable Mark MacGuigan
Minister of Justice
House of Commons
Ottawa, Ontario
KLA OA8

Dear Mr. MacGuigan:

I am writing to inform you of our Association’s opposition to the recommendations outlined in the Federal Law Reform Commission’s report to you entitled: “Obtaining Reasons Before Applying for Judicial Scrutiny—Immigration Appeal Board.”

Although we agree that the procedures for obtaining written reasons for Immigration Appeal Board decisions require amendment, and are pleased that the Commission has taken a special initiative to draw this to your attention, we are concerned that the proposed solution will not deal adequately with the problem that has been identified. The problem, briefly, is that individuals who wish to dispute decisions of the Immigration Appeal Board have only a brief time to file for a judicial review—either ten or fifteen days following the decision depending on whether a review is sought under the Federal Court Act or Immigration Act. Written reasons for Board decisions are rarely, if ever, available in these time periods since they are only prepared if requested, following the actual determination. As a result, counsel for an individual whose status has been examined by the Board may be forced to file an uninformed application to preserve a client’s right to seek judicial review. The problem is compounded by the Federal Court of Appeal’s apparent reluctance to grant extensions to the relevant limitation periods outlined in the Federal Court Act and Immigration Act.

The Commission’s proposed solution is to establish two specific limitation periods: one following a Board decision during which written reasons can be requested, and one following receipt of these reasons during which an appeal may be filed. The limitation periods vary depending on whether the review is sought under the provisions of the Federal Court Act or Immigration Act.

We oppose this proposal for the following reasons. First, because reasons are still only prepared and provided if requested, it is probable that in some cases individuals who do not request reasons will be adversely affected by decisions that were not properly substantiated by the Board—and this will not ever be brought to the attention of those individuals. Second, in light of the high cost of obtaining counsel and the cutbacks to legal aid that are presently taking place all over this country, we expect that more individuals will be appearing unrepresented at Immigration Appeal Board hearings. It is more likely that such individuals may not be informed that they may request reasons for a decision within a certain time period and that this will extend the period for filing an appeal to after the reasons are received. This situation would be easily avoided by having reasons given with all decisions. Finally, we are not convinced by the Commission’s arguments against requiring the Board to provide reasons with all of its decisions.

In this last regard, the Commission argues “it is not necessary to implement such a broad recommendation to solve the narrow problem at hand”. We are not sure why it should be considered a “broad recommendation” to require reasons to be provided in all cases when, as the Commission itself notes, written reasons are already prepared for ninety percent of all cases coming before the Board. We are also not sure that this is a “narrow problem” given the Appeal Board’s reportedly heavy caseload. The Commission also argues “it could be that the imposition of a duty to give those reasons with the decision would cause as yet unidentified difficulties in the immigration system, both for immigrants and administrators”. It is difficult to see what these might be, and no concrete examples are provided by the Commission to clarify their reservations. Ironically, the Commission points out earlier that providing reasons with all decisions “would probably not increase the Board’s workload significantly”, and that “certain economies of time could be realized”. Lastly, the Commission says that it has stopped short of recommending that reasons be given with all decisions because this question is being examined in a forthcoming report. We note that this is not really an argument for or against requiring the Board to provide reasons with its decisions, except that the Commission may be concerned that such a recommendation may be inconsistent with its later findings.

As may be inferred from the above, the B.C. Civil Liberties Association would prefer that an amendment be made to the Immigration Act requiring the Immigration Appeal Board to provide written reasons with all its decisions. It is a principle of fundamental justice that individuals ought to be informed of the reasons for any decision that may adversely affect them. We do not believe that the Commission has provided a compelling argument to mitigate this principle. Furthermore, it does not appear to us that hardship would be caused to the Board if it were required to prepare reasons for all cases, since it already does so in an overwhelming majority of cases. Moreover, no evidence has been presented to suggest that undue delay and uncertainty might be caused by such a proposal. Indeed it could be argued that the Commission’s proposal is just as likely, if not more likely, to cause delays, since it may be more difficult and time consuming to prepare reasons following a decision when the Board is no longer immersed in the particulars of a case and would have to re-familiarize itself with the submissions and facts. It could also be argued that requiring written reasons to be presented with all decisions of the Board would encourage better, more carefully thought out decisions, since reasons would be prepared in the process of reaching a decision.

For all the reasons given here, we strongly urge you to reconsider the recommendations of the Federal Law Reform Commission in this matter, and introduce an amendment to the Immigration Act to require that reasons be given with all immigration Appeal Board decisions. I would appreciate it if you could inform me of your views on this issue, and whether there are any plans to introduce legislation to deal with the problem identified by the Commission.

Sincerely,

R.A.H. Robson
President

R.A.H. Robson
P.O. Box 24833, Station “C”
Vancouver, B.C.
V5T 4E9

Dear Mr. Robson:

I am replying to your request that the Immigration Act be amended to require the Immigration Appeal Board to provide reasons with all its decisions.

The recommendation of the Law Reform Commission proposing an amendment to section 84 of the Immigration Act has been reviewed by senior officials and legal advisors of the Commission. The proposed change to section 84 of the Immigration Act initially appears to be equitable to the person concerned and could result in fairer appellate procedures. However, there are possible negative implications for the effective administration of the immigration program which must be given thorough consideration. Persons under removal order frequently attempt to find ways to delay their removal from Canada. For example, there have been many cases of persons filing applications with the Federal Court and the Supreme Court of Canada only to withdraw their applications just before the hearing. The proposal from the Law Reform Commission based upon the experiences of this Commission with persons under removal order would therefore appear to have considerable potential for abuse as an additional delaying tactic.

I can see considerable merit in your suggestion that the Immigration Appeal Board be required to produce reasons in all cases provided that these reasons are within a restricted time period. This would have the effect of limiting the possibility of extending delay beyond that period. However, the proposal would have resource implications for the Board. Although difficult to estimate at this time my officials have suggested that the resource implications would be significant.

In view of the potential for abuse and the possible resource implications, any proposal to amend the Immigration Act must await the resolution of these serious issues.

Yours sincerely,

John Roberts
Minister of Employment and Immigration