The first-ever audit into the way Canada reviews immigration detention cases reveals a system that unfairly keeps people behind bars for months on end due to ill-informed adjudicators and a culture that favours incarceration.

The damning findings, including decision-making based on inaccurate information, unchallenged faith in border enforcement officials and inadequate legal representation for detainees, have shocked even the most seasoned critics and rights advocates.

“Non-citizens have a right to liberty and to be protected from cruel and unusual treatment, but as this report shows, this right is routinely flouted under immigration legislation,” said Janet Dench of the Canadian Council for Refugees.

Last year, 3,557 people were held in immigration detention in Canada. Eighty-eight per cent of detainees were released within 90 days. But in 80 cases, people were held for more than a year behind bars.

A Star investigation last year found an immigration detention system that indefinitely warehouses non-citizens, away from public scrutiny and in conditions intended for a criminal population, with hundreds of unwanted immigrants left to languish behind bars. Ebrahim Toure, 46, a failed refugee claimant who has been detained for five years pending deportation to Gambia, is currently the longest serving immigration detainee.

The audit into the fairness of long-term detention reviews at the Immigration and Refugee Board found that last year, 13 per cent of all detainees were held because they were deemed a danger to the public, while 77 per cent were detained because officials feared they were a flight risk. The rest were detained because of an inability to confirm their identity.

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“In many of the decisions reviewed, the assumption seemed to be that any risk was enough risk. As long as there was a chance that the person might not appear, that justified detention. As long as there was a chance that the person would commit another theft, that justified continued detention,” concluded the audit, conducted by Katherine Laird, an adjudicator and mediator with the Social Justice Tribunals of Ontario, a group of eight tribunals that includes the Human Rights Tribunal of Ontario, Social Benefits Tribunal and the Criminal Injuries Compensation Board.

“At times, it seemed like the (immigration tribunal) had its own ‘dangerous offender designation,’ (allowing them to be held indefinitely) without any of the safeguards of that process in the criminal justice system,” said the report.

The independent audit, commissioned by the refugee board and released Friday, reviewed 312 detention hearings for 18 immigration detainees whose files were closed between April 2016 and August 2017. The detainees involved had all been held for at least 100 days.

Normally, each immigration detainee is eligible for a detention hearing 48 hours after their arrest, followed by a seven-day and 30-day review if an immigration division adjudicator rules the detention should continue.

Among the issues identified by the audit:

Inconsistencies being referred to and recycled at each review and eventually becoming part of the accepted history for the detained person.

Adjudicators relying on inaccurate statements made by Canada Border Services Agency officers who may have been unfamiliar with the cases.

Adjudicators not questioning unreasonable delays.

Decision-makers failed to actively consider alternatives to detention such as bail proposals made by community groups and families.

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The audit recommended increased oversight of immigration detention cases, that border enforcement officials be questioned “vigorously” in cases of delays, that all current long-term detention files be immediately reviewed, and that hearing protocols and policies on bonds and terms of release be updated.

Nationally, continued detention was ordered at almost 60 per cent of hearings; detainees were represented by a lawyer at 61 per cent of detention reviews and by an immigration consultant at another 6 per cent of the proceedings, the audit found.

“Too often in these hearings, it appeared that the onus of proof had slipped over to the detained person who was almost always unrepresented and powerless to articulate a fresh argument for release or to demonstrate rehabilitation while incarcerated without access to supportive programming,” said the audit.

“In many of these hearings, the (adjudicator) did not appear to give meaningful consideration to the evidence or submissions offered by the detained person, failing to allow them to give affirmed evidence and failing to make findings on the credibility of their testimony.”

Dench, of the Canadian Council for Refugees, said steps have to be taken to “address the ways in which racism and xenophobia contribute to make it acceptable to deny the basic rights of non-citizens, based on assessments of risk and public danger that are informed by stereotypes and prejudices.”

The refugee board’s deputy chair Roula Eatrides, who oversees the immigration division, said she was upset by the report’s findings, but reiterated that the board is fully committed to improving the process and implementing the cultural, operational and procedural changes recommended by the audit.

“This is the beginning of a long dialogue. It’s really critical. An audit by nature identifies areas of improvement. We agreed with the recommendations in the report. That’s a pretty big deal. We agreed there has to be substantive change to the way we manage and conduct detention reviews,” Eatrides told the Star in an exclusive interview.

“The change is really a rethink and cultural shift to how we do business. We are eager to start implementing change,” she said, adding there is no decision more important than one that deprives someone of their liberty.

Eatrides said a new guideline for adjudicators to conduct detention hearings to be released in August will cover many of the suggestions made in the audit

The audit also highlighted the impact of lengthy detention on those with mental health problems, including the case of a man who suffered a complete mental collapse and stopped attending hearings after 16 months in detention. He also stopped talking and became “catatonic and “immobile.”

For almost two years after his mental collapse, both the border agency and the detention review decisions “barely acknowledge his mental health issue,” and at one hearing described him as “mumbling incoherently.”

Prosper Niyonzima, 36, who came to Canada in 1995 after his parents were killed in Burundi, told the Star he suffered a mental collapse while in immigration detention. Niyonzima was detained from 2012 to 2016 on the grounds he was a danger to the public as well as a flight risk. He was ultimately released under the Toronto Bail Program in late 2016 and is staying with relatives.

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