Citizenship and Immigration Committee on March 29th, 2007

[Paul Aterman, Director General, Operations Branch, Immigration and Refugee Board of Canada]

Thank you very much, Mr. Chair.

I have an opening statement. I'll try to be brief.

One thing I'd like to emphasize at the outset is that the board is an independent administrative tribunal. It doesn't engage in the broader policy questions.

I hope to give you an overview of the refugee appeal division, the legislation and how it would work, the implications in terms of cost and processing time, and to highlight for you some of the particular challenges the board might face if we were called upon today to implement the RAD.

As I indicated, the board is an independent administrative tribunal. I'm sure all of you know that one of its functions is to make determinations in matters of refugee status.

In 2006 the refugee protection division of the board made about 20,000 determinations. Of those, status was granted in about 9,300 cases, about 8,100 were rejected, and the remainder were either abandoned or withdrawn in the process.

The refugee appeal division would add a fourth division to the board--an entirely new organism. The function of this division in the legislation would be to provide for an appeal of an RPD decision. A claimant whose claim is rejected, or the minister in a case where status was granted, would have a right of appeal. The right of appeal does not exist for those individuals who the RPD has decided have abandoned or withdrawn their claims. It's restricted to decisions that are made on the merits of the case.

Like any appeal process, the RAD would serve two functions. One of them is to do justice in individual cases. The other one is a broader systemic function to promote consistency of decision-making at the RPD by providing guidance and direction.

The reason we want to put this forward is that sometimes there are misperceptions from comments in the media about the RAD. It's important to illustrate what it would not do. Number one, it's an appeal that would be decided on the facts of the case as they existed at the time the RPD made its decision. In other words, the RAD would not entertain any new evidence.

It's a paper process. The RAD would not conduct any oral hearings; it wouldn't hear testimony from individuals.

Finally, the RAD's sole function is to determine whether a person is a refugee. In other words, it would not include the functions of the pre-removal risk assessment, nor would it adjudicate on issues such as humanitarian and compassionate grounds for remaining in Canada.

When the RAD makes its determination, it can do one of three things: uphold the decision the RPD made, set it aside and substitute its own decision, or set aside the RPD decision and direct that the matter be heard again.

As Mr. Stevens pointed out in the previous testimony, the moment someone gets a negative decision from the RPD, they can seek leave of the Federal Court for judicial review under the legislation. If the RAD were implemented, a person could only access the Federal Court by first going through the RAD.

I would like to talk to you about the context at the time the RAD was deferred and the context today. When the implementation of the RAD was initially delayed, the volume of claims was at an all time high in the system, that is about 52,000 were waiting to be heard.

During this period of time, when the board worked to ensure the successful implementation of other reforms introduced in the new act, we also began...

[The Chair, Conservative, Norman Doyle]

We can hear the English, yes.

[Paul Aterman]

... to direct our attention to addressing the crisis of the growing backlog.

Our former chairperson has spoken to this committee on several occasions on the transformation agenda that was launched in 2003. This plan consisted of more than a dozen specific initiatives that sought to standardize and simplify processes, provide decision-makers with greater institutional guidance to enhance the quality and consistency of decision-making, and improve the efficiency of hearings. We standardized our country-of-origin documentation, introduced chairperson's guidelines and jurisprudential guides, and provided ample opportunity for members to discuss best practices in decision-making in order to promote consistency.

As well, temporary funding was secured by the IRB to hire additional resources to address the backlog. By mid-2006, our inventory had been reduced to less than 20,000 claims.

Today, however, our inventory of claims waiting for a decision is growing again. We project that, by the end of the fiscal year, our inventory will have climbed back to over 26,000 claims waiting for a decision.

Turning to the implementation of the RAD, as I've indicated before, the board does not want to make pronouncements on policy. Obviously the question of whether to pass this bill is strictly a matter for Parliament. What I would seek to do is to give you some sense of what implementation might mean for the board in terms of cost, processing time, and member recruitment.

In relation to cost, certain one-time start-up costs would be incurred in the first year of operation. Thereafter, there are the regular operating costs of a division. All of the estimates that I'm referring to are very preliminary, I'd like to stress that, and we might need to revisit them in the course of implementing.

Exclusive of information technology costs, we estimate that the one-time start-up cost relating to implementation would be around $2 million. Most of that is directed at ensuring that we get the right people with the right skills in place on the day that an appeal is first filed. Much of that is targeted at human resources work. It involves creating competency profiles for decision-makers, recruitment of decision-makers, recruitment of staff, and classification actions. A lot of training would need to be done. In addition, we need to develop the rules of the refugee appeal division, and we need to address our mind to such issues as accommodations and equipment.

I'd like to mention very briefly the question of information technology. In 2003 the board began work to replace what is an outdated case tracking system. We would have to institute a case management system for the refugee appeal division that would be compatible with the one that we've now developed for the refugee protection division.

We've taken a very preliminary look at the business requirements for the RAD, and that's a one-time cost that we estimate at $6 million. The one-time start-up costs that we see are $6 million for IT and $2 million for everything that is non-IT-related.

In relation to the operating costs, this is largely driven by the demand--in other words, the overall volume of appeals that the RAD would receive every year. That obviously is a function of how many cases the RPD finalize. We would anticipate that in any given year the operating costs would be somewhere between $6 million and $8 million. Again, it's something that depends on the volume of appeals that are filed.

To have a fair process, the law requires that the person appealing the case be given the time to review the original decision and prepare their written arguments. That would take about 45 days from the original decision. It would take the RAD a further three to three-and-a-half months to complete the case, so we estimate that, on average, the appeal process would add an additional five months to the board's overall average processing time.

Those are the costs and timeframes that the board can speak to; there are other costs that may be incurred by other federal organizations or other levels of government until the appeal is resolved. The success of the RAD depends on getting the right kind of decision-maker. The work that is done in adjudicating appeals in a paper process is different from the work required to conduct an oral hearing, where parties are present and give evidence.

The RAD members would need to have a practical approach to the appeal process, so past experience in adjudicating refugee claims at the first level would be a great asset.

I've given you a summary of what it would take in preparation and implementation. Taking all of those various elements together, the board estimates the RAD would be ready to function within 12 months of legislation being passed.

I'd like to stress, however, that the one-year window is really dependent on certain critical assumptions. One is that the funding is available for the board to do this job. Two is that there are timely appointments or reappointments of decision-makers. And the important third assumption, which really is critical to the success of the RAD, is that it doesn't come into existence with a backlog of appeals waiting to be adjudicated.

If the board does not have sufficient lead time to establish and staff the RAD prior to the right of appeal taking effect, then the RAD will start life with a backlog. This will potentially increase the processing time from the five months I've just mentioned, and raises questions about the workability of the appeal process.

[The Chair, Conservative, Norman Doyle]

Can I cut in here? You're now at about 12 minutes, Mr. Aterman.

[Paul Aterman]

I beg your pardon.

[The Chair, Conservative, Norman Doyle]

This is not your fault. I would generally let you go on for a while longer, but we're trying to stick to our schedule, and our next group will be coming along pretty soon. You were to finish at 12:40.

We're going to try to get back on schedule here, so I'll give you 30 seconds. Then I'll have to go to a round of about four minutes each.

Go ahead, sir.

[Paul Aterman]

I'll take less than 30 seconds, because that was essentially the substance of what I wanted to say.

The only other thing I would add is that the board has confidence in the quality of the decisions that are currently being issued by the RPD. As you know, Canada's approach right now is to get the decision right the first time, and there are other avenues of recourse.

The question of whether to pass the bill is a matter for Parliament, of course. I just hope what I've said to you today gives you a better understanding of what the practical implications might be for the board.

Thank you.

[The Chair, Conservative, Norman Doyle]

Thank you, Mr. Aterman.

Mr. Wilson, I'm going to give you about four minutes.

[Blair Wilson, Liberal, West Vancouver—Sunshine Coast—Sea to Sky Country, BC]

Thank you, Mr. Chair.

Thank you, witnesses.

I have a couple of quick questions here.

I looked through the costs and the implementation time. What is your budget right now, and how much has it changed since the last fiscal year?

[Paul Aterman]

Do you mean the overall budget of the board?

[Blair Wilson, Liberal, West Vancouver—Sunshine Coast—Sea to Sky Country, BC]

Yes.

[Paul Aterman]

The overall base budget is $150 million. In the last few years the board has had one-time funding. There is currently no one-time funding, so we're working with the $150 million.

[Blair Wilson, Liberal, West Vancouver—Sunshine Coast—Sea to Sky Country, BC]

So the cost of implementation is roughly 2% of your total budget?

[Paul Aterman]

I haven't done the math, but I'll take your word for it.

[Blair Wilson, Liberal, West Vancouver—Sunshine Coast—Sea to Sky Country, BC]

In your presentation you said that the backlog of refugees has increased from 20,000 claims to 26,000 claims. That's a 30% increase in less than a year. Why has the number of refugees increased by 6,000?

[Paul Aterman]

We have a shortage of members at the moment.

[Blair Wilson, Liberal, West Vancouver—Sunshine Coast—Sea to Sky Country, BC]

What is your shortage?

[Paul Aterman]

I think we have 52 vacancies right now.

[Blair Wilson, Liberal, West Vancouver—Sunshine Coast—Sea to Sky Country, BC]

You have 52 vacancies out of a total of how many judges?

[Paul Aterman]

An ordinary full complement would be 156, and as of March 26 we had 104.

[Blair Wilson, Liberal, West Vancouver—Sunshine Coast—Sea to Sky Country, BC]

So roughly one-third are vacant. How can you operate a department when you have one-third vacancies? Why aren't these being filled?

[Paul Aterman]

We're hearing cases with the available members. There are certain limitations on our capacity, given the number of cases that need to be heard, and I think I've touched on that in relation to the RPD. That's essentially why we're seeing the number go up.

[Blair Wilson, Liberal, West Vancouver—Sunshine Coast—Sea to Sky Country, BC]

From a parliamentarian's point of view, from a Canadian's point of view, it seems like it's complete mismanagement of the department to not appoint enough judges and cause a backlog increase of 6,000 people. These aren't just 6,000 files, these are 6,000 human beings' lives, 6,000 families that are waiting in the queue because of what obviously looks like mismanagement of the process.

I'll move on quickly.

We have the cost of $2 million. Has the department done any work on what the savings will be? Right now, an appeal is taken to a judicial level, and there has to be a cost associated with that. So if we won't be going through that channel and we're going to substitute the RAD, what are the savings by not going through the other channel?

[Paul Aterman]

Number one, the board can make estimates of what it's going to cost the board to function. I think what you're alluding to are processes that are outside the board's jurisdiction, namely the impact that it might or might not have on the Federal Court. So I can't comment on that. It's not a matter, as I understand it, of one venue being completely replaced by the other, because as I indicated in my presentation, if somebody wants to access the Federal Court, my understanding of the legislation is that they still can do that; it's simply that they have to pass through the RAD first in order to do so.

[Blair Wilson, Liberal, West Vancouver—Sunshine Coast—Sea to Sky Country, BC]

I think if somebody took a look at the numbers, and if the minister was doing her job properly, she'd do an evaluation and see that it is going to cost us less than 1% of our budget to add a new level of justice into our system, and on an ongoing basis it's going to cost us $6 million to $8 million dollars versus the alternative, which may be costing $20 million to $30 million. So the implementation of this RAD could very well save the taxpayers money and could provide another level of justice to its system.

Thank you, Mr. Chair.