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.
