Citizenship and Immigration Committee on April 28th, 2009

[Jim Karygiannis, Liberal, Scarborough—Agincourt, ON]

Let me understand what you're recommending, Ms. Fraser. If I'm getting this right, the way we're going, if the number of people applying to the IRB continues to increase--be it because of bad decisions abroad or more people applying to come to Canada or more people seeking refuge in Canada--it could balloon completely out of hand. So we either hire more IRB members, spending a long time processing them, or this committee, you're suggesting, can recommend to the government to consider an amnesty.

[Sheila Fraser]

No. I'm not recommending that in any way. I'm just trying to point out how serious this situation can become very quickly.

Government needs to have a plan to deal with the backlog and with the number of cases coming in. It could be changing policy. It could be putting more people on the board. It could be changing process. There's probably a number of solutions.

What I'm trying to point out to the committee is that this is serious. And it's going to get a lot worse, I'm afraid.

[Jim Karygiannis, Liberal, Scarborough—Agincourt, ON]

Mr. Coakeley, do you have the inventory of people should this government decide to move quickly to deal with the backlog of applications, should this minister wish he could do that?

[Simon Coakeley]

I can't answer that at this point. As I indicated earlier, my staff and I are working on looking at the numbers, looking at some scenarios. We haven't progressed far enough down the road to be able to answer that question in detail.

[Jim Karygiannis, Liberal, Scarborough—Agincourt, ON]

When would you be in a position to give us a sense—

[Simon Coakeley]

I would think we would need probably another couple of months, but again these are dynamic processes.

One of our constraints—and Ms. Fraser did allude to it earlier—is that we are looking at what work could be done by public servants, rather than by GICs. However, particularly in the refugee protection division zone, where final decisions have to be made by Governor in Council appointees, there is a limit to what can be put on a public servant's desk. One of the things we're looking at, though, is the preparatory work that could be done by public servants rather than GICs.

[Jim Karygiannis, Liberal, Scarborough—Agincourt, ON]

A final question, Chair, if I may.

Ms. Fraser, would you say that the board right now is dysfunctional?

[Sheila Fraser]

No, we can't say the board is dysfunctional.

[Jim Karygiannis, Liberal, Scarborough—Agincourt, ON]

As far as managing the numbers?

[Sheila Fraser]

But I do say the board has a serious challenge in dealing with the number of cases it has to deal with, to manage.

[The Vice-Chair, Liberal, Maurizio Bevilacqua]

Thank you.

Mr. St-Cyr.

[Thierry St-Cyr, Bloc, Jeanne-Le Ber, QC]

Thank you, Mr. Chair.

I would like to follow up on the comments that Mr. Coakeley made at the end of my previous turn.

Mr. Coakeley, you quoted the acceptance rate for appeals to a higher court as evidence that appointed members are very good. Your evidence is that very few appeals are upheld. But you know perfectly well that it is completely impossible to appeal on the substance of a member's decision. Let us be serious. You can only appeal on the form.

What I see as the reason for the low acceptance rates for judicial reviews is that it is impossible to appeal on substance. Perhaps I can ask you to comment instead on the figures that leave a lot of lawyers and a lot of the public puzzled: the acceptance or denial rate of some members is close to 100%. Some members deny almost all the claims they deal with. Other members allow almost all of them.

In your view, is that a sign that the appointments are good and that everything is going well at the board? Or is it in fact an indication that there is a problem?

[Simon Coakeley]

Mr. Chair, that is a question for our chair since he is the person who deals with the members.

I am responsible for the officials who support the process. I agree that there is a difference between a judicial review and an appeal. I know that each member must make decisions based on the facts that are presented during the hearing. What happens in the hearing room varies a lot from one case to another. That is all I can say.

[Thierry St-Cyr, Bloc, Jeanne-Le Ber, QC]

You will concede that, after a number of years, the chances are very slim that any given member will have only refugees or non-refugees before him. Mr. Coakeley, if you had to go to court for any reason, and you found out that the judge convicted 90% of the people appearing before him, would you feel that your case was going to be heard with complete impartiality?

[Simon Coakeley]

Once again, I cannot comment on specific cases. If a person feels that the hearing has not been fair, that person has several options. He can ask the Federal Court for a judicial review. If he feels that the member at his hearing is showing bias towards him, he can ask the judge to withdraw. If that request is denied, he can go to Federal Court.

[Thierry St-Cyr, Bloc, Jeanne-Le Ber, QC]

When you described the performance review for members, you said that the number of cases heard is a factor. If a member accepts 100% of the cases before him, or none at all, is that also a factor?

[Simon Coakeley]

Once again, I do not make those kinds of decisions. We must also realize that governor in council appointees are independent decision-makers. That must be approached very carefully. Even if our chair is responsible for managing governor in council appointees, each appointee has the right to make decisions based on the facts presented at the hearing.

[Thierry St-Cyr, Bloc, Jeanne-Le Ber, QC]

On the matter of independence, we heard earlier that the mandates of a number of members are renewed at the last minute or not at all. They are not informed of the decision until the end of their mandate or even later. Are you afraid that these short timelines put undue pressure on members and compromise their independence? Could members feel that their decisions are being watched as the governor in council waits to make a decision?

[Simon Coakeley]

We were much more concerned with the organization's productivity and its ability to make decisions. As I said, you have to allow from 10 to 12 months for a new appointee to become as productive as the one he is replacing. We send recommendations for reappointment to the minister mainly with that in mind.

[Thierry St-Cyr, Bloc, Jeanne-Le Ber, QC]

Ms. Fraser, are you worried by the effect of these timelines on independence?

[Sheila Fraser]

It is not a question of independence, but of respect for those people and for the smooth operation of the board. In other countries and provinces, a person's mandate is automatically renewed for a year if they have not been notified at least six months in advance. That can facilitate the board's work during the appointment process. And it would allow the people to feel more certain about their future.

[The Vice-Chair, Liberal, Maurizio Bevilacqua]

Thank you very much, Mr. St-Cyr.

Ms. Grewal, you're next.

[Nina Grewal, Conservative, Fleetwood—Port Kells, BC]

Thank you very much, Mr. Chair.

Thanks to everyone for your time and your presentations.

My question goes to Mr. Coakeley. Could you please explain the selection of the advisory board, and how the process for filling the IRB vacancies differs from the process that was in place in the past?

[Simon Coakeley]

I have only been on the board since September, so I'm afraid I can't compare the current process to the previous one.

I can remind members that the selection advisory board is a group of nine people, chaired by the chair of the IRB. Four of the members are jointly appointed by the chair and the Minister of Citizenship, Immigration and Multiculturalism. The IRB chair himself selects the remaining four people. Of those remaining four, three are currently senior GIC appointees in the IRB, and one is a senior public servant. They're the ones who manage the whole selection process.

Then one of those people sits on each interview board, in addition to an HR consultant. There is usually a senior public servant as well. I've sat on interview boards, and my colleague here has sat on interview boards. Then we interview candidates on the basis of those six competencies; they have already been assessed on four competencies through a written process.

I can't compare it to the previous process, but I can say it is a very rigorous process that candidates go through.

[Nina Grewal, Conservative, Fleetwood—Port Kells, BC]

Mr. Coakeley, if the IRB were at its full capacity, would the backlog of asylum seekers be growing, shrinking, or remaining the same? Could you please explain?