Citizenship and Immigration Committee on April 19th, 2007

[The Chair, Conservative, Norman Doyle]

Since we have a quorum, I think we should get started. I want to apologize for being a little bit late, but our other committee didn't vacate the room on time.

Welcome, as we continue our hearings on the Immigration and Refugee Board of Canada appointment process. I want to welcome our witnesses here today.

Mr. Joseph Allen, attorney and president of the Quebec Immigration Lawyers Association, welcome, sir. Janet Dench, Canadian Council for Refugees, executive director, welcome. From the Canadian Bar Association, Stephen Green, secretary, national citizenship and immigration law section, and Tamra Thomson, director of legislation and law reform.

Welcome to all of you, and again, our apologies for not starting on time. I think you know what the drill is; some of you have appeared before our committee before. I don't know if anyone is the spokesman for the group or if all of you will be making separate statements, but I will turn it over to you.

You are first on the list, Mr. Allen, to make opening statements if you have any.

[Joseph Allen, Attorney and President, Quebec Immigration Lawyers Association (AQAADI)]

Thank you for the honour, but I will turn the floor over to the representative for the CBA. We had a little conference outside the room, and in terms of organization we might be best to proceed in that manner.

[The Chair, Conservative, Norman Doyle]

Sure.

Ms. Thomson.

[Tamra Thomson, Director, Legislation and Law Reform, Canadian Bar Association]

Thank you, Mr. Chair.

We thought that changing the order of the witnesses slightly would give a better flow of information for the members of the committee.

The Canadian Bar Association is very pleased to appear before this committee today to speak about the appointment process for the Immigration and Refugee Board. The Canadian Bar Association is a national association representing over 37,000 lawyers across Canada with a mandate to work toward improvement in the law and improvement in the administration of justice. We have a long history of involvement in and commenting on the particulars of both judicial appointments and appointments to administrative tribunals generally about those processes and specifically about appointments to the IRB.

I am joined today by Mr. Stephen Green, who is on the executive of our national citizenship and immigration law section. He will be referring to the letter we sent to the committee, which I understand you have in front of you, and I will ask Mr. Green to make some brief opening remarks.

[Stephen Green, Secretary, National Citizenship and Immigration Law Section, Canadian Bar Association]

Good morning, and thank you for permitting me to appear.

I think it's important to go through a very brief history with respect to this board. It was created in 1989 for the purposes of hearing matters. It was an independent tribunal, and it reports to Parliament through the Minister of Citizenship and Immigration. In 1995 there was a minister's advisory committee that was struck to assist with respect to the selection of individuals who would be sitting on this board.

In 1997 the Auditor General examined part of the selection process with respect to individuals and expressed some concerns as to how people were selected to be placed on this board. In 2004 the minister was the Hon. Judy Sgro. She created a system in order to respond to the Auditor General, where an advisory panel was created and a selection board was created, and that's what we have been operating with as of today.

In 2006 the then minister asked for a review of the appointment system, and then there was this report we have before us today, from January 2007, by the Public Appointments Commission Secretariat, talking about these recommendations.

We think it's important to bring to your attention that we're talking about really four separate groups that hear matters.

We have the refugee protection people who sit on the board to hear refugee matters.

We then have public servants who hear admissibility matters: Are you allowed to come into Canada? Are you allowed to visit?

We have another group, again public servants, who deal with detention: Should this person be released within the Canadian community?

The last group, which is also very important, is the appeal section, and it's that section that Canadian citizens and permanent residents appear before to see if their spouses or partners can be admitted into Canada as a result of a refusal of a visa back home; whether or not an immigrant who has been removed from Canada perhaps because of criminality should be removed from Canada or permitted to stay; whether or not an immigrant loses their permanent resident status because they haven't lived here according to the Immigration and Refugee Protection Act residency requirements; and, finally, whether an appeal by the Minister of Citizenship and Immigration should be allowed against a permanent resident or even a person who is visiting here in Canada.

We submit to you that the present system of selection, we believe, is quite professional. It is functioning well, and we have quite competent people who sit and hear these matters. The selection process, as indicated to you, looks at these competencies in determining whether or not a person should be appointed to the board.

It is, in our submission, non-political. It's based not on ideology but on merits. It's a merit appointment system based on those competencies that have been put forward. But the final decision still remains with the minister. So there is the prerogative that is protected and respected within the system.

What exists today, quite candidly, in the present process is a crisis. When the government came to power there were approximately five vacancies; we now have over 50.

Canadians should be concerned, and are concerned, with this appointment system. The objectives of the Immigration and Refugee Protection Act are spelled out quite clearly in this act, and one of them is family reunification. The problem is that people who appear before this board who are trying to bring their family members to Canada who have been refused are waiting up to three years because there aren't board members who they can appear before. Canadians and permanent residents are being separated from their spouses, partners, and parents because there's no one to hear their case. There are presently eight Federal Court applications dealing with this exact issue: “I am a Canadian. I am a permanent resident. My spouse has been refused a visa. There's no one to hear my case. Help me.” That's what exists.

On security, people who should or should not be removed from Canada don't have anyone to hear their cases. There are not enough board members, so we have people who have perhaps been convicted, who have an absolute right in certain circumstances to go before this board and argue their cases to stay—or the minister argues that they shouldn't stay—but no one is hearing these cases because there's no one to hear them.

Finally, many of these officers who represent you and me to put these cases forward don't have much to do because there's no one to hear their cases. So we have CBSA officers who are willing and ready to put these cases before board members who just aren't there.

We need to come to a decision quickly about the selection of these board members. We believe we have a pretty good system. It's transparent and based on merit. We respectfully submit that permitting the minister to be involved in the appointment of people who will make that selection just doesn't provide Canadians with a transparent and meritorious process to support our board. The present system still provides the minister with that final prerogative of yes or no.

That is our submission. Thank you.

[The Chair, Conservative, Norman Doyle]

Thank you, Mr. Green.

Is that the extent of your submission? Will we go to questioning now, or do you have other people who want to make opening statements?

[Joseph Allen]

Thank you very much, Mr. Chairperson.

To all members of the committee, I wish to thank you for the opportunity you've extended to me to appear before this committee to comment on the IRB board member appointment process. I'm honoured to appear here.

Although my comments are personal reflections, I'm sure they represent the position of the majority of the members of AQAADI, the Quebec Immigration Lawyers Association.

The Quebec Immigration Lawyers Association is a group of immigration practitioners concentrated or centred in Quebec. We number some 100 to 120 individuals, depending upon the time of the month, the year, and the volume of work that has to be done—allowing people who wish to specialize in this area. Obviously we are involved in federal legislation as well as provincial legislation by virtue of the immigration work we do.

I've had the opportunity to review the letter that was submitted by the Canadian Bar Association--the excellent submissions that were set forth in the letter to the committee—

[The Chair, Conservative, Norman Doyle]

If I could interrupt for a moment here, our translators sometimes have difficulty keeping up, so slow down a little bit. You have plenty of time, believe me. We won't interrupt you in any way.

[Joseph Allen]

Thank you. I'm sorry, to the translator.

[The Chair, Conservative, Norman Doyle]

We all forget that from time to time.

[Joseph Allen]

It's almost an unforgiveable sin, considering the fact that I appear before the protection division on a regular basis and I should be used to it by now.

Thank you.

I've had the opportunity to review the Canadian Bar Association letter and the excellent submissions that are set forth. That letter reflects many, if not most, of the concerns and preoccupations of our members at AQAADI. I will therefore try not to repeat the contents or the factual summary of incidents that I think give rise to the concerns we express before you today.

To be to the point, briefly stated, and for most of the reasons set forth in that letter, we do not support the Public Appointments Commission Harrison report recommendation that the Minister of Citizenship and Immigration should name members to the advisory committee of the IRB, let alone 50% of those members. It is a position we do not accept.

Following years of grave concern by, among many others, the stakeholders of the IRB CCPP, the consultative committee on policy and procedures, which I have sat on as a member for over four years, about what was widely viewed, all too often, as a flawed patronage-oriented system, in 2004, under the leadership of the past chairperson, Mr. Jean-Guy Fleury, the IRB external advisory committee was created. That was done in the context of the board's much appreciated attempts to improve the quality of its decision-makers and to implement a merit-based selection process meant to identify candidates whose names would be submitted to the minister for GIC appointments.

I know from having sat around the table with Mr. Fleury that his objective was not only to provide competent and merit-based appointments, but was also to provide at least three recommendations for every available position for a decision-maker. Unfortunately, that objective was set, as Mr. Green stated, when the board had a shortage of only five board members. I think that objective has fallen apart, now that we are faced with some 50 vacancies that are now required to be filled. Notwithstanding that, the goal was laudable, and I believe the process that was established was a good one.

Although many of the CCPP stakeholders continue to express concerns today with regard to the reappointment processes for existing IRB board members, the creation of the external advisory committee, whose duty it was to screen and recommend quality, merit-based new appointments, was highly appreciated.

From its creation until their recent, unfortunate, although I believe understandable decision to resign, for reasons directly related to the issues now being addressed, that committee of what I would consider highly qualified, independent, capable individuals set out to fulfil their mandate to identify the necessary personnel.

At the time of their resignations, my understanding, as I earlier stated, was that they had left some 50 approved and recommended individual candidates' names for consideration for approval for the GIC appointments, who for the most part, I understand, have been overlooked or ignored. And this is, in Mr. Green's own words, which I agree with, notwithstanding the grave crisis that the IRB is facing due to the serious shortage of board members and the consequent inability to meet caseload demands and the duty to provide fair and well-reasoned decisions in an expeditious manner.

Mr. Green pointed to the difficulty with regard to the Immigration Appeal Division. I might say that the same problem exists before the Refugee Protection Division. We have individuals now who are waiting some 12 months, on average, to pass to a full hearing and a decision. Many are exceeding that delay.

These delays have a tremendous cost in terms of the stress and uncertainty that the claimants have to experience over the course of this period of time, and it's obviously a great burden on Canadians with regard to the expenses and costs to assist these people who, when they enter the country, are for the most part financially unable to maintain their own needs. It is a crisis and it should be addressed quickly.

Although the IRB external advisory committee likely could not, and certainly would not, pretend that all their choices would be infallible, what is paramount in our opinion is that the committee gave absolutely no appearance of political bias or patronage, or of any motive other than to select people on a merit basis. Their actions within the context of the recent crisis are, I believe, an indication of their concern that their independence was being compromised.

My understanding behind part of the rationale for the report's recommendations to allow the minister to name persons to the external advisory committee is partly couched in the belief that it is legitimate and appropriate for selected candidates be in tune with, and sympathetic to, government policy.

Respectfully, I disagree. The sole mandate and duty of an IRB decision-maker is to hear the parties and the facts adduced in evidence, and to rule in accordance with the law, the principles of natural justice, the Canadian Charter of Rights and Freedoms, and the Immigration and Refugee Protection Act. Government policy cannot be, and should never be, the concern of a decision-maker.

I have no quarrel with the argument that the administrative heads of the IRB should be in tune with government policy. I believe it is important that the chairperson and the executive director be in the confidence of the minister and that they be attuned to government needs, policies, and priorities in order to implement administrative decisions to meet those policy concerns. The IRB has important administrative challenges to meet and will, undoubtedly, always have them. Those challenges demand direction from the government. I believe the minister is entitled to receive advice from persons he trusts.

Examples of policy issues that require direction through consultation and cooperation between the minister and his management direction are those such as how the board will deal with caseloads in the context of available resources while keeping budgetary constraints in mind. I'm not sure if all the members sitting on this committee are aware that in 1993 and 1994 the rising caseload of persons seeking asylum in Canada strained the board's capacity almost to the breaking point, and currently the appeal division is facing new appeals that exceed the board's ability to hear those appeals. Backlogs and delays are steadily increasing, both in the appeal division and the protection division. Administrative solutions must be found. The chairperson must be in tune with, and have the confidence of, his minister in order to deal with such issues in accordance with government policy.

However, these issues are not and must not be the concern of the independent, impartial decision-maker. No matter how many claimants or appellants are knocking at the door, no matter what budgetary considerations face the board, no matter how the minister chooses to deal with these issues, the decision-maker's only duty is to render decisions that are in conformity with the law, decisions that he is duty bound to make one at a time, case by case, regardless of government policy.

In the case of the protection division, the member's sole duty and preoccupation is to apply the evidence that is put before him at hearings that respect the charter, jurisprudence, and rules of natural justice, and then to apply that evidence to the relevant sections of the IRPA in order to determine if the claimant has a well-founded fear of persecution. For the decision to be fair and impartial, he or she must not be concerned with, or involved in, issues of backlogs and budgets.

Therefore, I respectfully submit that the selection of policy-sensitive decision-makers is not desirable, and that this committee should make recommendations in that sense. To allow for such appointments is to take a step backwards in the effort to provide the board with competent and qualified decision-makers, persons who render decisions in matters of potential life and death consequences.

As a closing word, at its inception in 1989, the IRB was recognized internationally as being in the forefront as a model for refugee determination. I suggest that it still is, that it still has that potential to be a leading example. This tribunal deserves to be nurtured and supported. It is a tribunal that Canada and Canadians should be proud of. However, one of the persistent flaws, one of the nagging concerns that has plagued this institution since its inception, has been the issue of patronage appointments in the context of flawed decisions and improper conduct of some board members. I suggest, respectfully, that to allow even the slightest hint of political patronage and bias in the member appointment process is to render an enormous disservice to this tribunal.

Thank you.

[The Chair, Conservative, Norman Doyle]

Thank you.

Ms. Dench, do you have a statement that you wish to make as well?

[Janet Dench, Executive Director, Canadian Council for Refugees]

I do.

[The Chair, Conservative, Norman Doyle]

Okay, it's over to you.

[Janet Dench]

I am here to represent the Canadian Council for Refugees, which is a confederation organization. We have nearly 170 member organizations across Canada. Our mandate is to promote the protection of refugees in Canada and in the world, and the settlement of refugees and immigrants in Canada.

I'm going to start with a little history. Since the creation of the Immigration and Refugee Board, the Canadian Council for Refugees has consistently identified two principal concerns relating to the Board: the issue of appointments and the lack of an appeal on the merits for refugees.

The main issue of concern in relation to appointments has been the quality of appointments and reappointments, i.e. whether those appointed have the required competencies for the job. A secondary but nevertheless important issue has been the timeliness of appointments; that is, whether members are appointed when vacancies arise.

The current crisis facing the IRB because of the failure to appoint is not without precedent in its history. The underlying problem has been that various governments have sacrificed the needs of good and timely decision-making at the IRB to partisan political concerns. It's worth emphasizing that we are concerned about both appointments and reappointments. For the latter, concerns include the maintenance of excellent and experienced members, the damage to the credibility of the IRB when bad members are reappointed, and the lack of motivation and morale problems for sitting members when it is evident that reappointment is not tied to performance.

Now you've heard a bit, particularly from Mr. Green, about attempts at reform. In response to the persistent criticisms of patronage appointments and the appointment of incompetent members, there have been some attempts at reform. In 1995, then Minister of Citizenship and Immigration, Sergio Marchi, created a ministerial advisory committee. This committee did not succeed in establishing any credibility. There were rumours that it was made up of people such as the minister's golfing partners. Perhaps this is why, after the initial announcement, little information was disclosed about the committee, and in subsequent years ministers even refused to give the names of the members.

In March 2004, then minister Judy Sgro implemented a more significant reform. This was welcomed by the CCR as a step in the right direction, although we continued to have concerns. In a letter to the minister in April 2004 we drew attention to, and I quote, “the potential for political patronage considerations to re-enter through the backdoor, particularly should your successors not share your commitment”. We particularly drew attention to the fact that the new process did not establish a ratio of candidates to vacancies, leading to the danger that ministers could hold off making appointments asking for more and more names to be forwarded until they found names that met their political criteria and diluting the effect of a screening panel as a mechanism to identify the most qualified candidates. We also highlighted our concern that the process did not address the question of reappointments, which also need to be protected from real or perceived partisan political influence. We believe that subsequent events have shown that the concerns we raised in 2004 were well founded.

To look at the current situation, as we've all said, the IRB is facing a crisis because of the lack of members in place. There is a serious shortfall of approximately one-third of the members. This problem has been gradually growing in intensity over the last couple of years. The shortfall in appointments began to occur in the last months of the previous government.

We want to highlight the devastating impact of the government's failure to appoint members on refugees and people waiting for an appeal on family sponsorship. Claimants are waiting longer and longer for a hearing because there simply aren't enough board members to sit on hearings. This is very difficult for refugees who live in a constant state of anxiety while waiting to know whether Canada will protect them. For refugees separated from their immediate family members the wait is particularly excruciating.

Let me give you an example. An Iraqi fled persecution in his home country and arrived in Canada 10 months ago. He is still waiting for a date for his refugee hearing. His wife and baby daughter remain in central Baghdad, where every day your life is at risk. If the IRB had its full member complement, this man would probably have had his hearing by now. As it is, who knows when he will have a hearing and, if accepted, begin the procedures to bring his wife and daughter to Canada.

There is a particular problem as a result of the refusal—

[The Chair, Conservative, Norman Doyle]

I have to interrupt again. I think the translators want you to slow down a little bit.

[Janet Dench]

Sure.

[The Chair, Conservative, Norman Doyle]

Thank you very much. I hate interrupting you when you're in full flight like that, but I have no choice when the translators ask me to do something like that.

[Janet Dench]

It's quite correct to do that.

There is a particular problem as a result of the refusal of the current government to make any but a very few reappointments. This has a devastating impact on the IRB in terms of the loss of skilled members and morale within the board, because it is clear that competence is not being recognized. There is also a significant impact on the credibility of the appointments process because the decision to not reappoint reinforces the old concerns that appointments are made based not on merit but on links to the party in power.

The CCR continues to have grave concerns about the quality of board members, appointed and reappointed. We have always recognized that there are many excellent board members. Unfortunately, there continue to be some members who do not have the skills and qualities necessary to make the extremely difficult life and death decisions that refugee determination requires.

Since June 2002, when decision-making panels were reduced from two to one, the impact of incompetent board members has been dramatically increased. A refugee claimant is heard by just one decision-maker. Given that the quality of board members varies widely, the system resembles a lottery, where the fate of a refugee can depend on which board member hears the case. Of course, because of the failure of the government to implement the refugee appeal provided in the law, bad decisions by bad board members go uncorrected.

In this context, the CCR could only be deeply dismayed at recommendation 5 of the Harrison report and the news that the government was accepting this recommendation. This pushes an appointments process with some problems in exactly the wrong direction, toward a more politicized and potentially ideologically driven process. Involving the minister in the appointment of members of the selection panel undermines all the efforts made so far to achieve merit-based non-partisan appointments to the IRB.

We see the resignation of the IRB chairperson, Jean-Guy Fleury, as linked to the issue of appointments. Obviously we cannot speak for him or his reasons for resigning, but we were well aware that he was struggling to achieve adequate numbers of appointments to the board based on the merit principle. It is clear that he failed.

I would like to end with a recommendation on this topic that the CCR made in 1998. It remains equally valid today. A depoliticized appointments system should be created with a transparent, effective mechanism for ensuring that candidates are selected and mandates renewed on the basis of their competence for the job.

Thank you.

[The Chair, Conservative, Norman Doyle]

Thank you, Ms. Dench.

Ms. Thomson, you have a statement as well.

[Tamra Thomson]

I think that concludes our opening statements. We welcome questions.

[The Chair, Conservative, Norman Doyle]

Okay. Thank you very much.

We'll go to our first round of questioning of seven minutes, and we'll begin with Mr. Telegdi.

[Andrew Telegdi, Liberal, Kitchener—Waterloo, ON]

Thank you very much.

This is really a sad time in the history of the Immigration and Refugee Board. You all used the word “crisis”, and I used that word on Tuesday.

The board makes life and death decisions; families are kept apart; because of incompetence, people are dying. And this is a crisis that is essentially created by the government by trying to reverse a slow evolution of a process that took a while to get there.

I really commend the former chair of the board, Mr. Fleury, for standing up on principle because I think it's critical that the whole process be depoliticized.

I'm also concerned with the security of Canadians, which is the case when those people who should not be in Canada remain in Canada until they get their hearings.

One of the issues that I have always been concerned about—You know, when we appoint people to the bench, they don't have to be reappointed. They serve during a period of good behaviour. I always felt uncomfortable with the reappointment unless you were going to do a probationary period, but after that, if you were appointed for 10 or 15 years or whatever, I think it would be a much better way to go, to keep the political aspects out of it.

When you look at the history, from the inception of the refugee board, I think it's quite well documented by Stevie Cameron as to the kinds of appointments that were made on the board. Stevie Cameron wrote the book On the Take - Crime, Corruption and Greed in the Mulroney Years , and it showed how blatantly politicized the appointments were, where you had ex-wives appointed so that one wouldn't have to pay alimony down the road, and girlfriends were appointed.

I must say that it took a while for the Liberals, once they got in, to clean it up. But the fact of the matter is, it got cleaned up.

Having made those statements, I want you to comment even on the reappointment process. If you are a government—and what this government seems to be doing is trying to put a political stamp on this. If they see a member who is approving a greater percentage than they should be approving, they could very easily refuse to reappoint that member.

It seems to me, if we're going to appoint people, then we should minimize the reappointment process if we're going to make merit-based appointments. And we have to protect them, that they serve during a period of good tenure.

Can each of you comment on that?

[Stephen Green]

I'll just comment briefly.

I think there has to be a balance between merit and the ability to examine a person's ability to sit as a board member and the length of time they stay. People are trained. Some of them become experts in this area. They're needed to assist new or junior members, if we can use that word. So I think we have to examine that very closely and decide what is the proper balance between merit and the length of time someone stays.

Those would be my comments.

[Janet Dench]

The CCR shares the concerns around reappointments. It has to do with competent members not being reappointed. It is often said, when talking to people who seem to know what is going on, that under this government and under the previous government it can be whether persons have political connections that facilitate their reappointment.

There's also the concern around reappointment of members who have been extremely problematic. I have heard of occasions when it appears that people have really not been given approval in the board member evaluation process, but because individuals have strong political connections, they are reappointed despite misgivings of the leadership of the IRB that conducted the evaluation of their competence.

Certainly there is an argument to be made for not keeping board members for too long. It's a very difficult job and not something that people necessarily could or should do for many, many years. But having a large turnover is also very destructive, because of the acquired expertise. It takes quite a long time for someone to become knowledgeable, and new members also need competent and experienced members to mentor them as they begin. The current situation, where there are virtually no reappointments, is very damaging to the board.