Evidence of meeting #106 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 decision-makers.
A recording is available from Parliament.
Conservative
Larry Maguire Conservative Brandon—Souris, MB
You're talking about the vulnerable individuals, and as the members hear, a lot of these cases surround these vulnerable individuals. How does that change the consideration of the complaints process, or does it?
Acting Chairperson, Immigration and Refugee Board
The complaints process tries to accommodate vulnerable individuals. There are specific provisions in the revised procedure that address that, so we'll make accommodations if someone, for example, feels that they would be retraumatized by having to go through the whole thing again. We rely heavily on their representatives to advocate on their behalf, and we'll deal with the representative, for example, in terms of processing the complaint.
Conservative
Larry Maguire Conservative Brandon—Souris, MB
Thank you.
I guess it was back in February that we were looking at the end of the new complaints process. The Office of the Public Sector Integrity Commissioner will post the annual report on the IRB website, listing both the complaints and their outcomes. Keeping privacy in mind, what aspects of this complaints process should be published in order to promote transparency of the process? I know we referred to that before, but I'd just like to get a bit more clarity on it.
Acting Chairperson, Immigration and Refugee Board
What you will see—and I'm working on one instance, which will shortly be up on the board's website—is a set of reasons, which is anonymized, which basically describes the problem: the allegations against the member, the findings that I'll make in relation to that, and the determination as to whether the complaint is founded. The things it won't include are names and the location of the board where it took place so that people can triangulate and figure out who it might be. They will be anonymized. The purpose of doing that is to ensure that the public looking at that can say that it doesn't really matter who it was or where it took place, but this is the allegation and this is how the board responded to it, and they can judge for themselves whether it's satisfactory. It won't be a two-line thing; there will be fairly extensive reasons, which go into detail as to what was alleged and what was determined to be the case.
Conservative
Larry Maguire Conservative Brandon—Souris, MB
It's very clear that you have that responsibility under the new complaint process procedure. I'm just wondering if you, having that responsibility and being the acting chair of personnel providing the decisions on the complainants, can elaborate on the advantages and maybe some of the drawbacks you see to having the chairperson exercise that significant control over the complaints process.
Acting Chairperson, Immigration and Refugee Board
One of the advantages I've outlined is that I think the perception of a lack of accountability flowed from the fact that this was very diffuse, basically spread out over four divisions and three regions, which is basically 12 different decision-makers involved and inconsistencies in the way in which that was done, and it's now centralized. It's centralized in the person who is accountable ultimately to the public and Parliament. It's probably evident to you that I'm an advocate of that. I think it is an appropriate solution, so I don't actually see too many drawbacks with it.
Liberal
The Chair Liberal Rob Oliphant
Thank you very much.
Mr. Tabbara and Mr. Whalen, I believe, are in this next round.
Liberal
Marwan Tabbara Liberal Kitchener South—Hespeler, ON
Thank you, Mr. Chair.
I have two things. I understand that the training process can be ongoing and there has been training done in the past and it's still ongoing on the gender-based analysis, as you mentioned in your testimony. In terms of the complaints, I asked this before. Going on with what my colleague was saying, should there be another layer in terms of the complaint process, when some adjudicators have 54% of claims with a designation of no credible grounds and then other adjudicators have 28% to 30% with that designation? I understand the discretion of the adjudicator having the evidence at hand and making that decision, but once that is an ongoing process and that's been going on for years, shouldn't there be a flag saying that between these two adjudicators there's something wrong here?
Acting Chairperson, Immigration and Refugee Board
The issue, respectfully, is a question of what tools you use to address which problem. That's not a problem of conduct. That's a problem that relates to consistency or the perception of inconsistency.
I don't think I was clear enough in my past appearances with the committee on the ways in which that is addressed. There are, both in the refugee appeal division and in the refugee protection division, structures that are now set up that deal with the whole question of consistency. The RAD, the refugee appeal division, has what's called an “adjudication strategy committee”, which is a group of members. It's not management. It's members, who are meeting together and they're looking at issues of concern to the RAD from a consistency perspective.
They're doing statistical analysis as to whether or not there is a consistency problem, because oftentimes it appears that there's a consistency problem and there's not. If you look at a country of origin, you see that this is not necessarily the indicator. A divergence between members on claims from a particular country of origin is not necessarily an indication of inconsistency.
I give you a particular example of that. We have claims from China in which sometimes the claimant says, “I'm being persecuted because I'm a member of Falun Gong.” Another claimant says, “It's because I'm a Christian.” Another one says, “It's because of my political beliefs.” It's claim types within a country that give you a more granular and meaningful indicator of whether or not there is a consistency problem. It's not based upon which country of reference it is.
In the refugee protection division they've set up groups that do this, that talk. It's members talking to members about whether there is a consistency problem there or not.
In any adjudicative system, whether it's the IRB, the courts, the Federal Court, or any tribunal, there's an ambient level of inconsistency. It's because humans are deciding these cases.
I don't know what the optimal range of variance ought to be; I don't think anybody else does. With all due respect to Professor Rehaag, I don't know what he's measuring our inconsistency against. When you have extreme outliers, it's self-evident. It's just a matter of common sense that there's a problem there, but what's the range?
Liberal
Marwan Tabbara Liberal Kitchener South—Hespeler, ON
May I interrupt for a minute? I want to pass it over to my colleague. Maybe I could ask you to submit any further information on consistency.
Acting Chairperson, Immigration and Refugee Board
For sure, yes. We can do that.
Liberal
Nick Whalen Liberal St. John's East, NL
Thanks, Mr. Aterman.
I'm getting a stronger sense today that the measures that have been put in place over the last year to address the issues regarding the SOGIE guidelines and member appointments and the complaints process are there. It would be great now to give it some time to see them work their way through.
Another issue that arose newly today with Ms. Warner's testimony earlier is the role of a clerk versus the role of a member at the lower levels of the immigration and the refugee division, and how that work is managed, from the perspective of your role as the chair, to make sure the organization functions properly from a labour relations perspective, but also with regard to the independence of members to make decisions. At a fundamental level what also arose is whether or not we have some inconsistencies in approach here and how your organization is attempting to address those inconsistencies.
It does not seem like the traditional employer-employee relationship vis-à-vis the members. You were in the room, so perhaps you'll remember her testimony a bit. Perhaps you could speak a little to some of the challenges and how you address appropriate staffing, and also to the mixed relationship you have with the members as both their supervisor and their chair.
Acting Chairperson, Immigration and Refugee Board
There are certain aspects inherent in the board's business which change the traditional employer-employee relationship. I'll give you an example. I'm appointed first as a member, and my substantive position is as a deputy chair, but I'm first a member and then a deputy chair.
When it comes to discussing cases with other members, my voice is no louder and doesn't carry anymore weight than any other member's does. When I talk to my colleagues about decision-making, I'm doing that as a peer.
We have to manage that relationship along with the traditional employer-employee relationship. The big issue for us, on a practical level, is being able to differentiate between when it is a matter of member independence and when it is a matter of the employer-employee relationship.
It's actually the complaints process that has highlighted much of that, because a lot of the time we didn't deal adequately with complaints against members because we characterized those things as adjudicative matters as opposed to conduct issues when they were in fact conduct issues.
It's not easy. There's no bright line there.
Liberal
The Chair Liberal Rob Oliphant
I need you to end there. I'm sorry. You will get one more minute.
Mr. Maguire gets five minutes, and then we may have time for one or two more minutes.
Conservative
Larry Maguire Conservative Brandon—Souris, MB
Thank you, Mr. Chair.
I'm sure there will be a moment or two for my colleague when I'm finished.
We have a great case backlog right now in the IRB. I'm just wondering what you think of the long times of hearings. Some are several years, of course involving people waiting to get into Canada. What impact does drawing the process out over such a long time have on asylum seekers' ability to recall the details at a future hearing? Are you concerned about that? How do we deal with that?
Acting Chairperson, Immigration and Refugee Board
It is a concern. Sometimes the nature of a particular case is such that it can be dealt with very quickly. Other times the substance of the claim means it's going to take place over several sittings. Those cases then get scheduled over months and sometimes even over years.
As I indicated to you, it has an impact on people's recall. It's never good for us to be stretching these cases out over a protracted period of time.
Perhaps Mr. Kipling can speak to you about the average processing times and where we are in relation to that.
Greg Kipling Director General, Policy, Planning and Corporate Affairs Branch, Immigration and Refugee Board
As this committee may know, we are close to 19 months for average wait time for claims that are referred today. It is a reflection of the intake we're facing and our ability to process the cases. However, the influx of the temporary funding will assist, obviously, by increasing our capacity to hear and decide more cases.
Conservative
Larry Maguire Conservative Brandon—Souris, MB
The new complaints system is still dealt with internally in the IRB, as I understand it. However, as we've been studying the quasi-judicial boards, it appears that, for example, the justices of the peace are largely regulated under the various justice of the peace acts. Do you think the federal government should make amendments to the IRPA to institute a proper complaints process there, as well?
Acting Chairperson, Immigration and Refugee Board
My understanding is that there's a distinction between judicial officers, judges, justices of the peace, and administrative tribunal members. I don't know of any tribunal complaints process. Sorry—that's not true. In Quebec they have an external body. Other than that, I'm not aware of any that review complaints externally.
I don't have any expertise in that area, but my understanding is that because judges don't have limited terms and their tenure from a constitutional perspective is such that it has to be protected, you have those extraordinary measures like the Canadian Judicial Council. That really deals only with instances in which it looks as though they're going to remove a judge from office, as opposed to a question of whether or not a particular judge in a given instance was rude to someone in their courtroom.
Conservative
Larry Maguire Conservative Brandon—Souris, MB
Thank you.
My last question will be with regard to the complaint process as well. There is no clear list of the possible outcomes of complaints. By contrast, it was said earlier that the justice of the peace has a very clear list of the outcomes of complaints.
I'm just wondering if you could, or would, commit to making that possible reprimand list public, as well.
Acting Chairperson, Immigration and Refugee Board
As I indicated to Ms. Rempel, we could indicate the range of possible sanctions that are within the board's authority to impose, whether for public servants or GICs.
One thing I would like to underline is that on the GIC side, it's a Governor in Council who appoints, so the board actually has no power to remove a GIC appointee. It's only the Governor in Council who can do that, and that's through a process that is spelled out in the act at section 176 and onwards.
Liberal
Nick Whalen Liberal St. John's East, NL
Thank you very much, Mr. Chair. I guess I'll follow up on the previous line of questioning.
When we had Professor Flaherty here last week, she mentioned the characteristics we'd be looking for and the qualities of an administrator and adjudicator. Things that were raised were consistency in decision-making, obviously, competence ultimately in the law, the right temperament or conduct, and then of course the ability to efficiently do the work.
It seems to me the complaints process addresses only the conduct aspect. It doesn't address the other three areas in which somebody might have questions about the decision-making: consistency, legal competence, or efficiency in operating. How are those other three areas addressed in your management of the IRB?