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.
12:50 p.m.
Liberal
The Chair Liberal Rob Oliphant
Thank you.
I need to end that there. I'm sorry.
We're going to Mr. Anandasangaree.
12:50 p.m.
Liberal
Gary Anandasangaree Liberal Scarborough—Rouge Park, ON
Thank you, Mr. Chair, and thank you, panel, for being here.
I'm going to be asking a very pointed question, and I'm looking for “yes” and “no” answers only, because I'm sharing time with Mr. Sarai.
The first question is with respect to the new complaints process that has been introduced. Is it important that we try it out for a period of time before a new system comes in, or do we start fresh?
Ms. Sapru can go first, and then we'll go around.
12:50 p.m.
Lawyer, As an Individual
It should not be. There should be a new process.
12:50 p.m.
Vice-President, Canadian Association of Refugee Lawyers
CARL's position is that it should be tried out. I really hate to disagree with my colleague.
12:50 p.m.
Executive Director, Rainbow Resource Centre
I have no knowledge of the complaints process to date.
12:50 p.m.
Associate Professor, Osgoode Hall Law School, York University, As an Individual
We should give it some time.
12:50 p.m.
Senior Policy Analyst, Canadian HIV/AIDS Legal Network
Give it some time.
12:50 p.m.
Board Chair, Rainbow Refugee
Having something workable now is important.
12:50 p.m.
Liberal
Gary Anandasangaree Liberal Scarborough—Rouge Park, ON
Thank you for that.
Second, with respect to background of adjudicators, again if you're not able to answer it, don't feel the compulsion to do so. From what Mr. Brouwer said, they need to have legal knowledge and subject matter expertise. Are we talking about refugee lawyers exclusively, or are we talking about different backgrounds of education?
12:50 p.m.
Vice-President, Canadian Association of Refugee Lawyers
Certainly from our perspective we're not saying they need to be refugee lawyers, but having a significant complement of refugee lawyers on the board is important, people with the legal training. They might not have practised in refugee law, but they have the training in order to understand the concepts and to understand how to run a hearing. That would also be adequate in the circumstance.
12:50 p.m.
Liberal
Gary Anandasangaree Liberal Scarborough—Rouge Park, ON
How do you balance the order in council appointments, which are usually two to three years, with the fact that a practising lawyer would have to give up their practice in order to take on that role and then potentially go back to the bar?
12:50 p.m.
Vice-President, Canadian Association of Refugee Lawyers
It's a tough one, but I know many refugee lawyers who have done that, who've decided that it's worth making that commitment for a few years. It's very difficult, but I do think term limits on GIC appointments are important.
12:55 p.m.
Liberal
March 27th, 2018 / 12:55 p.m.
Liberal
Randeep Sarai Liberal Surrey Centre, BC
Thank you all for coming. There are a lot of you, so I'll try to see where I can point my questions.
It seems apparent that there are several kinds of issues that have come up. One is assessing credibility of witnesses. The judges or IRB members don't seem to have a consistent level of how they address credibility.
The second is sensitivity on how they deal with victims of violence or victims of discrimination, especially if they're from the LGBTQ community, and then lack of training. Training seems to be an issue. Most are saying it's one day of training. Some say the previous course was really hard and there's a high failure rate, and then we have new training that was designed to help you get qualified as an IRB judge more easily. Is that the appropriate mechanism?
A third problem we're noticing is the complaints process. Although there is a new system, some people are not comfortable with that, as it is the same body doing the same complaint mechanism. Others are saying that we need to test it out before we throw it out.
None of you is stating that the IRB should be dismantled. That's pretty consistent.
Ms. Sapru, perhaps I'll start with you. My question is on consistency. If you know you have a judge who, as we heard earlier from Mr. Rehaag who has studied this, has zero per cent of approval of any refugee claimant, what do you say to your client when you get allotted that person?
12:55 p.m.
Lawyer, As an Individual
I wouldn't want to traumatize her by telling her about his zero acceptance rate. That just wouldn't be fair. It would put her in a more anxious state. I wouldn't want that.
12:55 p.m.
Liberal
Randeep Sarai Liberal Surrey Centre, BC
I'm a lawyer. I've never practised immigration law, but in a defence law situation or in any other, you'll have biases from a judge who is heavier on punitive damages or heavier on penalties. However, you never have a 100% refusal rate versus a zero per cent approval rate.
I'm just trying to imagine how your clients actually perceive that. Maybe I can ask Rainbow Refugee what their reaction is when they have a case that they're bringing before a judge who has a zero per cent acceptance rate—what they tell their clients, or what they themselves feel.
12:55 p.m.
Board Chair, Rainbow Refugee
[Inaudible—Editor] testimony as accurately as possible, and obviously that is harmed by insensitive questions. I would never tell someone ahead of time that they're going into a hearing with somebody who always says no. That doesn't help them. However, what we have to do then is advocate for them to have access to due process, and this includes the RAD and judicial review. It becomes a long, difficult, and expensive process.
Effective first decisions, sensitive decision-making and questioning, saves everyone. It protects everyone. It protects refugees, protects the system, and protects Canadians.
12:55 p.m.
Liberal
Randeep Sarai Liberal Surrey Centre, BC
Mr. Brouwer, as the head of an organization that deals with this, perhaps you can tell me what you think the appropriate measures to deal with such a judge should be when you see a pattern that is very highly skewed in one direction. Should there be an internal review? Should there be an external one? Should there be training? What's the appropriate measure?
12:55 p.m.
Vice-President, Canadian Association of Refugee Lawyers
I'm going to defer this question to Professor Rehaag. He's done a fair bit of research on this area. We talked about this issue, and I really liked his answers.
12:55 p.m.
Associate Professor, Osgoode Hall Law School, York University, As an Individual
There are a couple of things. One is that you need to prevent the problem by having a good appointments process—by de-politicizing the appointments process—and then by having good training and good guidelines. I think that's one set of answers.
Another set of answers, though, to which you've alluded, is that there's a certain level of subjectivity inherent in all legal processes. What's really important in the refugee law process is that the stakes involved are incredibly high. Lives are literally at stake. When you combine those two things, subjectivity and really high stakes, the answer is adequate oversight, making sure that everyone gets access to the appeal and that the appeals and judicial review process is functional.
The second thing the committee should think about is this. In other areas of law with really high stakes, we create asymmetric processes. Think of criminal law, for example, in which we decide that we're more concerned about false convictions than about false acquittals. I think it's time to have a conversation in Canada about a similar kind of preference in the area of refugee law, and specifically about presumptions that would favour refugee claimants, just because of the level of subjective—
1 p.m.
Liberal
The Chair Liberal Rob Oliphant
I need to cut you off, sir. Thank you very much.
We rarely get two people from Brandon—Souris at the table at the same time. Mr. Maguire, you have two minutes.
1 p.m.
Conservative
Larry Maguire Conservative Brandon—Souris, MB
Thank you, Mr. Chair.
I appreciate Mr. Tutthill's being here today and bringing his views. I know that one thing you've been dealing with is the chairperson's guidelines. You made comments on that. It was put together, as you know, to promote greater understanding in cases involving sexual orientation, gender identity, and a number of areas.
Can you expand on your thoughts on this? In your experience, do the IRB members follow the guidelines? Are they being applied consistently? Also, are there any appeal processes?
1 p.m.
Executive Director, Rainbow Resource Centre
In our experience, they have not been applied consistently, and this is something that as an organization we need to start tracking and reporting on more consistently.
I still think that the guidelines themselves are quite good. The problem comes in when they are delivered or trained on as simply a policy that must be followed rather than a matter to be understood, as to how they're written, why they're written down the way they are, and what's included in them.
We would say that the guidelines are useful for us for training not just for immigration and refugee matters, but across the work we're doing, because they are so comprehensive. It's a question of getting beyond what's written down in the paper as policy and looking into what's written there and into why those things are included. As I mentioned in my presentation, it's also a question of looking at the interrelationship between what's there and the realities for Canadians, as well as for people who are persecuted overseas.
1 p.m.
Liberal
The Chair Liberal Rob Oliphant
I don't want the members to move for a minute. There are a couple of things I want to let you know.
I'll let you know that we have requested a summary of evidence for the committee members on everything we've heard thus far on the IRB study. The analysts hope to have it available on April 12. That will be available on April 12, as well as the comparative study looking at other similar bodies.
That said, what I would like to have from the committee by the end of the day on Monday, April 16, is an indication to me and the clerk as to whether you're going to want some more witnesses, based on any gaps you might see when you look at the summary.
At the end of the day on the 16th, then, indicate whether you want more witnesses. You don't need to tell us who they are; just give an indication of whether you're satisfied with the testimony we've had or whether you want more.
I'm leaving the 17th and the 19th available for the study. The 17th is for witnesses we've already booked whom we're not having this week. There's no meeting on Thursday.
We'll have witnesses scheduled on the 17th, then, and on the 19th we will give instructions to the analysts, but if you want more witnesses, we may need to bring someone in on the 19th as well.
That's the goal. This will all be in the minutes, so you can double-check my math there.
The other thing is that this would mean we would start with our study of settlement services on April 24, meaning that I need witness lists from the three parties. I'm going to suggest that we have them by Monday, April 9, at the end of the day. You've had some time to think about this and hopefully you've been doing some work. This will give the clerk time to get that going for the 24th.
Make it a prioritized list. Your numbers for it would be 22 Liberal witnesses, 11 Conservative witnesses, and four NDP witnesses.
Go ahead, Ms. Rempel.