Evidence of meeting #103 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 video is available from Parliament.

On the agenda

MPs speaking

Also speaking

Sean Rehaag  Associate Professor, Osgoode Hall Law School, York University, As an Individual
Kimahli Powell  Executive Director, Rainbow Railroad
Maurice Tomlinson  Senior Policy Analyst, Canadian HIV/AIDS Legal Network
Sharalyn Jordan  Board Chair, Rainbow Refugee
Preevanda Sapru  Lawyer, As an Individual
Andrew Brouwer  Vice-President, Canadian Association of Refugee Lawyers
Michael Tutthill  Executive Director, Rainbow Resource Centre

12:30 p.m.

Senior Policy Analyst, Canadian HIV/AIDS Legal Network

Maurice Tomlinson

Yes, we do. We have follow-up training. We've done this in seven countries so far and, funding permitting, we're hoping to do it in more.

12:30 p.m.

Liberal

Leona Alleslev Liberal Aurora—Oak Ridges—Richmond Hill, ON

That's fantastic.

Does anyone else...? Mr. Powell, you briefly mentioned it as well. Can you give us some aspects of your training? Clearly this is something you have to deal with on a regular basis just to determine who would get funding.

12:30 p.m.

Executive Director, Rainbow Railroad

Kimahli Powell

Yes, but I'm going to suggest that my colleague Sharalyn go first, because they're live before many more cases and have seen some shifts recently. I'll ask Sharalyn to go first, then, and I can comment afterwards.

12:30 p.m.

Board Chair, Rainbow Refugee

Dr. Sharalyn Jordan

I was one of the people who designed and delivered the training. I requested a longer period of time than they were able to offer. Three hours is clearly not enough. What it does allow is to give people who are inclined to be sensitive the concrete tools to be competent about it. What it doesn't do is address the needed shift in attitude or values. Achieving that requires far more sustained training.

The elements I would add in future are far more participatory elements that would give board members an opportunity to practise formulating questions and conducting an analysis and getting immediate feedback.

12:30 p.m.

Liberal

Leona Alleslev Liberal Aurora—Oak Ridges—Richmond Hill, ON

You mean essentially, then, case study-type, live-practice training?

12:30 p.m.

Board Chair, Rainbow Refugee

12:30 p.m.

Liberal

Leona Alleslev Liberal Aurora—Oak Ridges—Richmond Hill, ON

That's outstanding. Thank you.

I'm sharing my time with my colleague because we don't have a lot of time with you all.

March 27th, 2018 / 12:30 p.m.

Liberal

Marwan Tabbara Liberal Kitchener South—Hespeler, ON

My question is along the same lines as Ms. Alleslev's. She talked about the training process, but do we have a checkup on claims?

My first question will be to Mr. Rehaag.

You wrote about certain approvals and denials and certain judges having a higher rate of usage of the term “non-credible basis”. Do we have a checkup in the system of the judges who are making these claims?

12:35 p.m.

Associate Professor, Osgoode Hall Law School, York University, As an Individual

Dr. Sean Rehaag

There's a challenge internally at the Immigration and Refugee Board in terms of responding to variations in recognition rates or in “no credible basis” declaration rates. That challenge is the one Mr. Brouwer raised, which is the importance of preserving the independence of decision-makers. One would not want to say that decision-makers have to hit a particular quota, such as being between 30% and 50%, right? You don't want to do that. You want cases to be decided on an individual basis.

I don't think it would be appropriate to have that kind of direct oversight. What you can do is the kind of training we're talking about in the SOGIE context, but you can do that in any number of contexts. I would suggest, for example, that the most urgent need is training and guidelines on credibility assessments, because that's where—in the SOGIE context, but also in all contexts—the decision-making is going wrong. That's the source of the really massive variations I talked about.

12:35 p.m.

Liberal

Marwan Tabbara Liberal Kitchener South—Hespeler, ON

You talked in your testimony about part of the appointment process being to ensure that there are no political ties, no partisanship. As governments change, there may be different appointments, and you may need a system that's more neutral. Can you elaborate on that part of your testimony?

12:35 p.m.

Associate Professor, Osgoode Hall Law School, York University, As an Individual

Dr. Sean Rehaag

Yes.

You don't want to have one government that has a particular view of refugee claimants appointing decision-makers who share that particular view, and then have a change in government that brings a whole different view on refugee issues and results in very different adjudicators being appointed. That creates unfairness, because outcomes in refugee applications should turn on the facts and on the law, not on who happens to be appointed as an adjudicator. You can look at models in which there is more deference accorded to experts and less of a role for political actors in appointment processes.

12:35 p.m.

Liberal

The Chair Liberal Rob Oliphant

Thank you.

Ms. Rempel is next, for seven minutes.

12:35 p.m.

Conservative

Michelle Rempel Conservative Calgary Nose Hill, AB

Thank you, Mr. Chair, and thank you all for your testimony today. I found it really informative.

The challenges of the IRB are numerous right now. It's a system that's under a lot of strain and pressure for the reasons that we discussed today, but also because of the demand on the system. For us as legislators, right now the goal is to ensure that the question of humanitarian immigration writ large in Canada is one of how, not if, and getting the questions and the issues that you've raised today right is part of that.

Because of the vote, we don't have a lot of time today, so I'm going to just ask a series of questions. What I would hope is that you would provide written responses to the committee, just to save time.

When I review the testimony at this committee, the percentage approval rate comes up often as one of the key metrics we look at when deciding whether a judge is fair. It's “Well, they've approved so many from here or from there.” I find that a bit of a false metric that could be spun one way or the other. It seems to me that the metric we need to be looking at is whether we have a clear and transparent framework that can adequately address the situation of persecution of a person in the context of their national situation at any given time, and then how we ensure that the framework is kept relevant and fresh, given that a national situation might change over time. From there, we need an audit process to see whether the system is consistently looking at that process in the right way.

I agree with the problem of political appointments, but it's not confined just to this particular committee. You could argue that it's the Supreme Court or any judicial body. What I would like to go forward from, hopefully from a non-partisan perspective, is knowing if we have that framework right. Do we have the criteria by which people are making decisions set out in such a way that we can audit it, and then are we feeding in the information that we might get from Global Affairs or other stakeholder groups, or even who those stakeholder groups should be, in constantly looking at the national context?

We have members of the LGBTQI community here who have looked at that particular issue, and I couldn't agree more. In the previous study we did, we asked the question, “How gay is gay enough in these hearings?” Frankly, that's just completely inappropriate. I loved the comment about how we need to be looking at situations in terms of personal persecution in the national context. My question to you is this: how do we do that? It's oversimplified to say that if we don't make political appointments, maybe that is a solution. I don't know, but I still think what we're missing is a broader, more structured framework that we can audit and evaluate.

In the process of that audit, is it parliamentarians who should look at that? Is that something that happens internally? What's the role for civil society groups? How does sensitivity training, be it SOGIE, gender, or whatever, feed into that process?

In terms of the appointments and the training processes, if you were writing the job description of some of the appointments in this process, what does that job description look like? If you want to even submit a job description for us to look at, I think that would be important too. If you were writing a performance evaluation framework, if you were assessing that person's job, what would those criteria be, and why?

I really don't have a position on this issue right now. I don't know the answer to a lot of these questions. For me, this isn't a political activity. How can we put together a process that fundamentally respects human rights and the rights of refugees but also instills public confidence that we're getting it right?

I have two competing news articles on my desk. I have many that talk about the instances that you have brought up with regard to members of the LGBTQI community being completely inappropriately treated in some of these hearings, and then I have an article that says, “Similarities in Nigerian asylum claims based on sexual orientation have Legal Aid Ontario asking questions”.

It shouldn't be a political wedge issue. We shouldn't be making politics out of this; we should be asking whether the system is working. Right now I don't have confidence as a legislator that we have an appropriate framework to make those decisions.

Typically, I don't make speeches at committee meetings. I like to ask questions.

I would really hope that in addition to the comments you've made here today, you would submit a written brief to our committee that has those functional elements attached to it. That's really what we're missing here. Much of the testimony thus far has raised the issue, but we don't have much of where the rubber hits the road” by way of recommendations.

To colleagues who have been working with members of the LGBTQI community, that's really what we need at this point, I think: the way in which the best practice that you have translates into some of this.

I would also like, if you can cite it in your feedback, any international best practice in determination processes for LGBTQI refugees, as well as international best practice on how national governments are feeding country-of-origin political assessments into the refugee determination process.

An example we heard in the last study was of a woman who would consider herself straight but who had engaged in sex acts that would suggest her sexuality was otherwise. This was why she was claiming status, but she was found to not be gay. How, to address Mr. Tutthill's comments, do we get these individual experiences contextualized more in a situation of evaluating level of persecution than of making it about someone's sexual orientation or gender or where they live?

12:40 p.m.

Liberal

The Chair Liberal Rob Oliphant

Thank you, Ms. Rempel.

I saw you all furiously writing. The clerk will make the transcript from this meeting available to you so that you can get the essence of the points.

Let me just add that you should put them in the context, which I think we're also struggling with, of a quasi-judicial body that is based on individual determination rather than group or class determination. I think that is our issue. It's not a judicial body with the degree of rigour that goes with that, nor is it a regulatory body; it's a quasi-judicial body. I think that adds an element of mystery to our body concerning the way to do this. If you could, put it in that context.

Ms. Kwan is next.

12:45 p.m.

NDP

Jenny Kwan NDP Vancouver East, BC

Thank you very much, Mr. Chair. Thank you to all of the witnesses for your presentations.

First off, it is important to know that we're all in agreement at this committee, I think, that the IRB is doing a good job on the whole and that it is a valuable and effective system.

That said, I don't mean to say that there isn't room for improvement. Many of the problems the IRB is faced with have to do with resources, or more specifically the lack thereof. For example, even in this budget the IRB was allocated an additional $74 million. This is for two years. With this, they only process 18,000 cases per year, at a time when we have more than 40,000 cases in the backlog, with an accumulation of an additional 2,100 cases per month. It thus doesn't even deal with half of the backlog that is there. That is the reality.

That said, I'd like to get on to the issue at hand. First I'd like to get into the complaints process issue.

Mr. Rehaag, if you don't have this at this moment but can present it to the committee, I think it would be valuable and give us a glimpse into the situation: from year to year, in the data available to you, how many of the cases are found to be not credible and are denied on that basis? How many of those cases are of groups from the LGBTQI2 community, and what is the country of origin breakdown? I think that will give us a glimpse into the reality of some of the issues that my other colleagues mentioned.

I would love to see in that data as well how many of the cases that were rejected ultimately went to Federal Court and were overturned. That will also give us a sense of the lay of the land, in terms of the competence and the level of work being done. If we can have year-to-year comparisons, that knowledge would be tremendous.

I know it's a lot of work. It's as though you're a research team for us; I deeply appreciate that.

I wonder whether I can get a quick comment on the record with respect to this request.

12:45 p.m.

Associate Professor, Osgoode Hall Law School, York University, As an Individual

Dr. Sean Rehaag

I would be pleased to try to provide some of that information. Thank you for the homework.

12:45 p.m.

NDP

Jenny Kwan NDP Vancouver East, BC

Thank you very much.

I'd like to turn to the training aspect of the issue. A number of you—Mr. Tomlinson, Mr. Powell, and Sharalyn—have made the suggestion that there should be, for example, multi-day training. Could those of you who have commented on this expand on it more specifically? When we're talking about multi-day training, are we talking about two days, three days, four days? What are we talking about?

Also, the suggestion was that it should be expanded to the minister's representative as well. Does everybody agree? I'd just like to get that on the record.

We'll start with you, Mr. Tomlinson.

12:45 p.m.

Senior Policy Analyst, Canadian HIV/AIDS Legal Network

Maurice Tomlinson

I certainly think “multi-day” at a minimum should be two days, with the first day discussing theory—with, as was suggested by Sharalyn, case studies. We have found this to be very effective in the work we do in the Caribbean, for example.

On the second day we must have, in addition to case studies, persons from the affected communities there to interact with the IRB members who are being trained. It won't be a comprehensive exposure, but it at least gives them some better sensitivity.

That's what I recommend. There must be case studies and there must be interaction with the persons who are affected.

I don't know whether Sharalyn wants to add.

12:45 p.m.

Board Chair, Rainbow Refugee

Dr. Sharalyn Jordan

To expand on that, absolutely people need an initial opportunity to use the concepts and understand them. Then I would recommend actual video-recorded practice sessions so that people have an opportunity to observe themselves working and get immediate feedback on how they're asking questions or conducting an analysis. These are methods regularly used in counselling and clinical psychology training, and I think in judicial training as well. People need in vivo feedback based on their actual performance, not just didactic exposure to concepts.

I would also agree with involving people who are directly impacted in the early sensitivity training.

12:50 p.m.

NDP

Jenny Kwan NDP Vancouver East, BC

Do the other witnesses have anything else to add to what has been offered?

12:50 p.m.

Executive Director, Rainbow Resource Centre

Michael Tutthill

I think the only other piece I brought up in my presentation, which I think is important, is to also be trauma-informed at some level to understand how this process can re-traumatize victims—not only SOGIE claimants, but anyone who is appearing before the IRB.

12:50 p.m.

NDP

Jenny Kwan NDP Vancouver East, BC

Thank you.

I have less than a minute and a half and I want to get to the complaints process.

Mr. Powell, do you have anything quickly to add to this?

12:50 p.m.

Executive Director, Rainbow Railroad

Kimahli Powell

Yes. Section 3, “Understanding the challenges faced by individuals”, needs to be given space to be reviewed in depth. I think part of the problem with short training is that it doesn't give enough time for members to really dive into that section of the guidelines.

12:50 p.m.

NDP

Jenny Kwan NDP Vancouver East, BC

Thank you.

I'm going to get into the complaints process. I understand that there's a new process in place, but when the IRB engaged in the consultation, one of the key issues recommended by, I think, pretty well all the stakeholders was that it ought to be a completely independent process, yet it isn't. It's partway there, but should it not be a completely independent process? Also, should the chair of the IRB not be in the situation of making determinations with respect to complaints?

My second question is related to that. For those complaints that are outstanding at the moment just because a board member has left—and those complaints are effectively abandoned—should the IRB not find a way to move forward to complete those complaints and not just let them be abandoned?

I'm going to go to Ms. Sapru and then Mr. Brouwer.

12:50 p.m.

Lawyer, As an Individual

Preevanda Sapru

I believe the complaints process should be independent and should not be left to the IRB, because the chairperson is in conflict deciding the cases of his or her own board members. It's absolutely—