My name is Bashir Khan, and I'm a Winnipeg refugee law lawyer. I've been doing this since June 2011, since my call to the bar. I have had a chance to deal with a great number of asylum seekers who have entered Manitoba from the United States over the past year.
I'm very honoured to be called before this august committee of the Canadian Parliament dealing with immigration, though I believe there are others who know a lot more than I do. I'm not an intellectual or an academic, but I can speak from a practitioner's perspective.
As I look at the topic of study of this committee, I can say up front that I probably will have no comments to make about the discipline of the board members, but in my brief opening remarks I would like to make some comments on the appointment of board members and training.
I think there's an important question members of the committee should ask themselves. There are four divisions in the Immigration and Refugee Board of Canada: the refugee protection division, the refugee appeal division, the immigration division, and the immigration appeal division. Why are three of the divisions Governor in Council appointments, and why has one of the divisions become subject to civil servant decision-makers? Should we have civil servant judges, as in India, where the judiciary is appointed from a public service commission examination?
My point is obviously not, but the philosophy of the individual adjudicator, just as in the judicial system in Canada, is very important in interpreting the facts that come before him. Unfortunately, I think the amount of talent that the public service offers is limited, compared to the talent offered by a broad range of Canadians in the private and the non-profit sector. We should be going back to the system we had, which the previous government changed, to Governor in Council appointments for the refugee protection division members. The benefit would be that a broad range of Canadians from various backgrounds, and not just career civil servants, would be adjudicating claims.
In honesty and great candour, I have to say that I have great respect for the Immigration and Refugee Board of Canada and specifically the refugee protection division, because I go before them on a weekly basis and I know they are the unsung heroes in the system. I think the Canada Border Services Agency officials who deal with asylum seekers are also the unsung heroes in the system, but the board member is the guardian of the integrity of our justice system when it comes to refugee adjudication. I have a lot of respect for them because I know how they are. I also know some board members who are not so liberal in the interpretation of facts. Those members are going to be there until they retire.
When I look at the system as a whole, we need to have Governor in Council appointments for the refugee protection division members. I think at the end of the day the Government of Canada should be able to decide the judicial philosophy, the personality of the adjudicator, just as the Government of Canada decides who should be a judge. The philosophy of the person listening to the cases is so important. We have a common law legal system and we need adjudicators who are very receptive and subject to reappointment.
Finally, I studied a maxim in law school that equity varies with the length of the chancellor's foot. In early England, common law was very rigid and had very harsh consequences. The Lord Chancellor of England was a Church of England priest; he thought whatever was fair from his sense of Christian justice should be given to someone, not just what the law says, so the sense of what was equitable varied with the length of the chancellor's foot.
It's the same thing. The board members will interpret the facts as they wish to interpret them. I think we need board members from a broad spectrum and not just civil servant decision-makers. Therefore, we should go back to the Governor in Council appointments.
With respect to training, when I appear before an adjudicated tribunal of the court, I always have to remember professionalism and the wrath of the law society. I'm a regulated professional, and if I act out of turn or if I act improperly or say something improperly, I am accountable for it.
We have the chairperson's guidelines for the Immigration and Refugee Board. They are on the Internet, and members are supposed to know them. Often, especially in the LGBTQ refugee claims and other types of claims where credibility is being assessed, the board members simply ignore them. They're there, but there are no consequences for the board member for simply overlooking those guidelines. We need a greater sense of accountability as well as corrective and, if I may use the word, punitive measures that require a board member to really subscribe to the law and to the guidance that's given to them.
The problem arises from the fact that board members are not.... Just because I'm a lawyer doesn't mean lawyers are right. I'm just trying to say that most of the board members are former CBSA officials right now. Most of them do not have a law background. Therefore, the idea of what is natural justice and procedural fairness can't really be ingrained in someone with a mere few months of training. This is someone who hasn't gone through law school, law society examinations, and practice under a lawyer experience.
I'm not saying we should only employ lawyers and people with legal backgrounds on the board. What I'm saying is we need to go back to Governor in Council appointments so the government of the day appoints Canadians who reflect the philosophy of the government, because a government is elected by the people and the people want that.
I think what the Conservatives did...and I'll be honest: the last government hollowed out the system. How did they hollow it out? In my humble opinion, and I have seen it on the ground, they appointed members to the refugee protection division and then they said, “We want the RPD to be free of political influence, so we're going to make these people permanent. That's it. That's all.”
In other words, while the Conservatives were in power, they trusted themselves to appoint board members and then they made them permanent. They're not subject to reappointments because they're civil servant decision-makers and a future Government of Canada may not easily be able to undo that. Really, what they were saying was that any other government but the Conservative government would appoint people who would be politically influenced in the refugee hearing, but we Conservatives can appoint someone to the board and make them permanent so they are not subject to reappointment and they'll be free of bias or political opinions.