Evidence of meeting #102 for Citizenship and Immigration in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was board.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

Nastaran Roushan  Lawyer, As an Individual
Asiya Jennifer Hirji  Barrister and Solicitor, As an Individual
Chantal Desloges  Lawyer, Desloges Law Group, As an Individual
Bashir Khan  Lawyer, Refugee Law, As an Individual
Raoul Boulakia  Lawyer, As an Individual

12:05 p.m.

Liberal

The Chair Liberal Rob Oliphant

We're going to recommence. Thank you again, Ms. Desloges and Mr. Boulakia, for doing this.

You each have an opportunity for seven minutes. Who would like to go first?

It's Ms. Desloges. Thank you very much.

12:05 p.m.

Chantal Desloges Lawyer, Desloges Law Group, As an Individual

Good afternoon, Mr. Chair, and members of the committee.

12:05 p.m.

Liberal

The Chair Liberal Rob Oliphant

Oh, I'm sorry—just before you begin, I see Mr. Bashir Khan as well now in Winnipeg. It's good to see you again.

Actually, I think we're going to begin with Bashir, just because you're sitting right there in front of me. I'd like to begin with you just in case something goes wrong with the teleconference, and then we will be able to reconnect. If all witnesses are ready, we'll start with you. Thank you.

12:05 p.m.

Bashir Khan Lawyer, Refugee Law, As an Individual

Good afternoon.

12:05 p.m.

Liberal

The Chair Liberal Rob Oliphant

Take it away.

12:05 p.m.

Lawyer, Refugee Law, As an Individual

Bashir Khan

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.

12:15 p.m.

Liberal

The Chair Liberal Rob Oliphant

Thank you, Mr. Khan. I'll have to end you there.

Thank you very much. That's helpful.

Go ahead, Ms. Desloges.

12:15 p.m.

Lawyer, Desloges Law Group, As an Individual

Chantal Desloges

Good afternoon, Mr. Chair and members of the committee. Thank you for having me here today.

For the record, I'm an immigration and refugee lawyer with over 20 years of experience working with refugees, and for 19 of those years, I've been appearing before what's now known as the refugee protection division. I'm certified by the Law Society of Ontario as a specialist in both immigration and refugee law, and I'm the co-author of a legal textbook on this subject.

Imagine for a moment representing a refugee family with a teenage son who is gay. The hearing finally arrives after almost a year of waiting. You've prepared the family for questions about their credibility, and in particular you've prepared them for questions around the credibility or plausibility that their teenage son is really gay. You've assured them that questions around this subject will be respectful.

To your complete shock, the member embarks on a line of questioning of the teenage son that includes graphic questions about his sexual experiences, including sexual positions—all in front of his parents. You object several times, but you're worried about the increasing hostility in the room with the board member, who continues the line of questioning anyway.

This is something that happened to me a number of years ago, and it's a real experience. It's an extreme example, of course, but smaller kinds of this type of behaviour, unfortunately, still happen all too often. It's a topic of discussion that comes up frequently between refugee lawyers when we meet at conferences or have discussions on our email rings.

In listening to this morning's witnesses, I largely agree with what they've said. The issue not only is about the complaints system, but it's also about carefully selecting and training the right kinds of people to adjudicate refugee claims. Weeding out inappropriate personnel doesn't start at the complaints stage; it starts at the hiring and vetting stage.

The hiring process for board members has improved dramatically over the last few years since the selection process has moved from what was basically a patronage appointment system to a more merit-based system. I agree with my friend Asiya that the board should be commended for always trying to improve, and credit is certainly deserved for this move in the right direction. That said, it is still fraught with difficulties that allow people without the right knowledge and personality qualities to pass through that vetting system successfully.

With all due respect, I think my friend Bashir is confused about the appointments system. A civil service appointment doesn't mean that only civil servants can apply. Anybody can apply. It's the nature of the appointment system that is civil service, not Governor in Council.

Currently when people compete for board positions, they have to write a general civil service exam, which to my knowledge does not require any understanding of even the most basic refugee law or what it means to work with refugees. That, in my view, is unacceptable, especially when there are so many really well-qualified people out there who do have this knowledge and/or experience. Not only that, but it seems like a pretty routine thing for any job competition to ask for at least a passing knowledge of the subject matter the potential employee will be dealing with every day. Most people, in applying for any kind of job, even if they don't have that requisite knowledge, would prepare themselves by studying the basics before the interview.

Even more important than substantive knowledge, in my opinion, are the personal characteristics of the potential hire. I say this because I have met board members who at the end of the day were really excellent despite the fact that they didn't have prior exposure to the field, and what made them excellent was their personal qualities.

Keep in mind that this decision-maker is going to deal, day in and day out, with people who have been traumatized, often severely. They have trust issues, authority issues, memory issues, and flashbacks, just to name a few of the problems. They will have to be questioned thoroughly yet sensitively, and I cannot emphasize this enough: this is not a job for just anybody.

What qualities are the most important when hiring a board member? First is patience—and lots of it—to deal with people who are having a hard time telling their story. They might be uneducated and unable to express themselves in the way we like to hear, and they might not trust you initially.

Second is empathy, and by this I don't mean sympathy in terms of feeling pity for everyone. What I mean is the ability to really put yourself in someone else's shoes, to forget about your cultural bias, to feel what they must have felt, and to judge someone else not according to what you would have done in that situation, but according to what they did in that situation, taking into account their background and experiences.

Third is balanced personality—in other words, an even temperament. This one is hard to put your finger on, but when someone does or doesn't have it in a hearing room, it becomes pretty obvious pretty fast. We need someone who can keep an even keel in a hearing room when a claimant is having a meltdown or when there's a heated dispute with counsel.

Finally, we need someone who has the ability to learn and adapt quickly. Not every potentially good board member will be an expert in refugee law right away, but if they have excellent personal characteristics and at least a basic understanding of the law, do they have the kind of personality that will allow them to pick up the rest as they go?

By the way, everything that I've just told you about in the last few minutes are things that I as an employer demand in my own hiring process, even if I'm just hiring a receptionist, even if I'm just hiring an assistant. It's not a tall order; it's basic screening that any HR manager learns how to do on day one.

Many big companies nowadays screen for these qualities using personality or aptitude tests that are non-intrusive, fairly reliable, and widely available. To become a police officer in this country, every new recruit has to pass a psychological aptitude test. It's standard. Other employers do this. There's no reason why the board couldn't do it too.

The process for federal judicial appointments, I would say, is something that you should look to if you're looking for a model for an appointment process. It's not perfect, but it is pretty good, and it's better than what we have at the RPD. It's a rigorous process. It involves review by a diverse, independent panel. It changes occasionally, and one of the most important things that they do is, when they call people's references, they always ask that reference, “Who else should I be talking to about this person?” That's very key, because when you self-select your own references, you're only going to choose people who are going to say positive things about you, but you need to cast the net wider. If you really want to understand what this person is genuinely like, they need to be judged by their peers.

Again, none of this is rocket science. Other agencies are already employing these techniques for jobs that are much less sensitive with way lower stakes than life and death, which are the stakes at the refugee protection division.

Thank you.

12:20 p.m.

Liberal

The Chair Liberal Rob Oliphant

Thank you very much.

Go ahead, Mr. Boulakia.

12:20 p.m.

Raoul Boulakia Lawyer, As an Individual

Thank you for inviting me to speak with you.

The first thing I'd say, and which I think all stakeholders would say, is about the importance of the board as an institution. The importance of it having expertise, independence, and quality of judiciousness is not only fundamental for people who rely on the board, but I think it's something that everyone should be concerned with, because really no one benefits from a system if decisions are made poorly or injudiciously.

It's important that stakeholders be able to come forward with constructive suggestions. They need to be able to come forward and speak to how to improve the system with an assurance that we have a political and legal maturity to accept that we need to have an independent and expert tribunal to comply both with our obligations under the charter and under international human rights law, and that there not be a sense that if people advocate there will always be someone advocating to make the system worse or to replace it with something worse, which is the rumour that we get when we say we need to improve things.

We get that kind of push-back and we're told that people should be timid about speaking, but we're always speaking constructively. We commend the board as an institution and we want it to be reinforced.

There definitely was an improvement in the professionalism in general of the appointment process and of board members once we switched from GIC to the public service process, which, as Chantal says, is not a process of just hiring people who are already civil servants, as you know.

What the appointment process really requires is a combination of expertise and judiciousness. I think a deficiency in the current process is that it omits substantive expertise. The qualifications can be expertise in any type of law. A problem with this is that once you appoint that person, they will have to be trained. They will have to be trained in refugee law or immigration law, whatever division they go to. That really slows down the efficiency of the board. When can people come up to speed to be hearing a full caseload?

We need a combination of substantive requirements. One is that people know the law, that people are able to pass a test for dealing with the law. Right now the testing process has been made neutral so that it doesn't reference substantive law. Also, there's screening for judiciousness. Chantal spoke—quite eloquently, I thought—to the importance of that. Even if a person is very well qualified on paper, it doesn't mean they're going to work out as a decision-maker. One of the people who was the subject of discussion earlier I think would have been qualified on paper, but if in background screening people had done interviews with people who had worked in their profession with them, they would have been told of tendencies that would be more obstructive and problematic if that person were in charge of hearings.

When screening is being done for people who get appointed to the federal judiciary, cold calls are made to people in their profession to ask them about that person's tendencies. I think if that were added to the process, it would help, but judiciousness is the hardest quality to screen for. It is something that requires the capacity for empathy. It requires the ability to step back from your preconceptions, step back from positions that you're militating for. If you act as an advocate when you're a decision-maker, it's very hard to step back. In the hearings now, board members even will sometimes do their own research, so then it's very hard for them to step back from that and take a fair approach.

The screening before hiring is so important. I completely agree that we should have a panel of experts who are involved in the screening process and who ultimately create a list of who is highly recommended, and the chairperson would then select from that list.

I also agree with the complaints process. It should go to an outside committee that would make a decision. It's a conflict of interest for the board to both deal with the complaint and be administering the tribunal. I think even Mr. Aterman expressed that ambiguity and that difficulty. It's inherently problematic to be receiving the complaint when you're supposed to be respecting the independence of the board members.

The process should be transparent. We should have timelines with it so that we would know when a board member was being given this, the process by which they get to respond, and whether they get to respond to what has been said.

Ultimately, any process is only as good as the goodwill, the sincerity behind a commitment to ensure that the best people are appointed to it and that issues are resolved fairly. I think it's important that we all agree to this basic commitment that the board must not only exist as a tribunal but must be supported in ensuring that it can achieve excellence and be as judicious as it can be.

If you combine improving the appointments process with a complaints process that doesn't put the board's administration in a conflict, I think we can avoid a lot of these situations.

12:30 p.m.

Liberal

The Chair Liberal Rob Oliphant

Thank you very much.

We're going to begin our questions with Mr. Whalen.

12:30 p.m.

Liberal

Nick Whalen Liberal St. John's East, NL

Thank you very much, Mr. Chair.

Mr. Boulakia and Ms. Desloges, we've heard previous testimony that the testing that's provided at least to the GIC appointments—and I also thought to the lower-level board members—was a comprehensive five-hour competency-based test with a very low pass rate. It was meant to ensure that people had adequate competencies within immigration law. That was the impression I was left with.

Are you saying that's not the case?

12:30 p.m.

Lawyer, As an Individual

Raoul Boulakia

It's kind of true and kind of not true.

12:30 p.m.

Liberal

Nick Whalen Liberal St. John's East, NL

Does it contain competencies or not?

12:30 p.m.

Lawyer, As an Individual

Raoul Boulakia

What is true is that they do a rigorous test. I'm told by people who have gone through it recently that it's rigorous. What they did, though, was they removed any substantive refugee or human rights law from it. You're doing a rigorous test, but it's more neutral or abstract in terms of the content. That's the problem.

We've never been given the test, so we don't know what it is. I understand that when they first switched to the public service process, they tried doing testing that included substantive refugee law, and a lot of the GIC appointments failed. Then they dropped that.

12:30 p.m.

Liberal

Nick Whalen Liberal St. John's East, NL

Thank you very much, Mr. Boulakia.

I think it's an issue similar to what we heard before and I think we're going to ask the PCO for additional information. I think we need to see what the test looks like. Maybe we can add that to the list of asks.

Mr. Khan mentioned that in practice the people getting these appointments, at least in the area where he's practising, are largely civil servants from a related area of practice, but from an enforcement perspective rather than from an adjudicator perspective, and they may be coming with some inherent bias from their previous profession. You're saying it's an open process and anyone can apply. Do you have any data in practice that discounts what Mr. Khan is saying, which is, in effect, that it might be open to everyone, but it's only the civil servants who get the jobs?

12:30 p.m.

Lawyer, As an Individual

Raoul Boulakia

I wonder whether he might be thinking of the immigration division, because that would definitely be true in the immigration division.

12:30 p.m.

Liberal

Nick Whalen Liberal St. John's East, NL

But also the refugee division....

12:30 p.m.

Lawyer, As an Individual

Raoul Boulakia

It's definitely not in the RPD.

12:30 p.m.

Liberal

Nick Whalen Liberal St. John's East, NL

Do you have statistics on that?

12:30 p.m.

Lawyer, As an Individual

Raoul Boulakia

I didn't come with statistics, but, no, I'm confident with the RPD. There are some people who have been appointed from an enforcement background, and sometimes that does carry over into taking an enforcement mentality and decision-making that can lead to unfairness, but there are plenty of people who are from outside—plenty. It's the majority, I think.

12:30 p.m.

Liberal

Nick Whalen Liberal St. John's East, NL

I'd like to get a sense of the accuracy of that. Maybe we can ask the IRB to provide backgrounds, grouped by previous profession of employment, just to see whether or not.... Clearly our policy goal is to make sure that Canadians are represented on tribunals and that it's not merely pulling from one restricted class of people.

12:30 p.m.

Liberal

The Chair Liberal Rob Oliphant

I think there are going to be several requests for IRB, the Privy Council, and IRCC. We'll hold those, so you don't take your time on that, because we may need a motion and there may be some confidentiality issues around exams and those things, but we'll figure out how we get a request versus an order.

I'll give you extra time now, because we....

12:30 p.m.

Liberal

Nick Whalen Liberal St. John's East, NL

Okay. I'm sorry about that.

12:30 p.m.

Lawyer, Desloges Law Group, As an Individual

Chantal Desloges

A regional difference is also possible. In the western region there are perhaps more of them, but certainly in the central region there's no big weight of former CBSA people who are sitting as board members. There are some, but definitely not the majority.