:
Since we have a quorum, I think we should get started. I want to apologize for being a little bit late, but our other committee didn't vacate the room on time.
Welcome, as we continue our hearings on the Immigration and Refugee Board of Canada appointment process. I want to welcome our witnesses here today.
Mr. Joseph Allen, attorney and president of the Quebec Immigration Lawyers Association, welcome, sir. Janet Dench, Canadian Council for Refugees, executive director, welcome. From the Canadian Bar Association, Stephen Green, secretary, national citizenship and immigration law section, and Tamra Thomson, director of legislation and law reform.
Welcome to all of you, and again, our apologies for not starting on time. I think you know what the drill is; some of you have appeared before our committee before. I don't know if anyone is the spokesman for the group or if all of you will be making separate statements, but I will turn it over to you.
You are first on the list, Mr. Allen, to make opening statements if you have any.
:
Good morning, and thank you for permitting me to appear.
I think it's important to go through a very brief history with respect to this board. It was created in 1989 for the purposes of hearing matters. It was an independent tribunal, and it reports to Parliament through the Minister of Citizenship and Immigration. In 1995 there was a minister's advisory committee that was struck to assist with respect to the selection of individuals who would be sitting on this board.
In 1997 the Auditor General examined part of the selection process with respect to individuals and expressed some concerns as to how people were selected to be placed on this board. In 2004 the minister was the . She created a system in order to respond to the Auditor General, where an advisory panel was created and a selection board was created, and that's what we have been operating with as of today.
In 2006 the then minister asked for a review of the appointment system, and then there was this report we have before us today, from January 2007, by the Public Appointments Commission Secretariat, talking about these recommendations.
We think it's important to bring to your attention that we're talking about really four separate groups that hear matters.
We have the refugee protection people who sit on the board to hear refugee matters.
We then have public servants who hear admissibility matters: Are you allowed to come into Canada? Are you allowed to visit?
We have another group, again public servants, who deal with detention: Should this person be released within the Canadian community?
The last group, which is also very important, is the appeal section, and it's that section that Canadian citizens and permanent residents appear before to see if their spouses or partners can be admitted into Canada as a result of a refusal of a visa back home; whether or not an immigrant who has been removed from Canada perhaps because of criminality should be removed from Canada or permitted to stay; whether or not an immigrant loses their permanent resident status because they haven't lived here according to the Immigration and Refugee Protection Act residency requirements; and, finally, whether an appeal by the Minister of Citizenship and Immigration should be allowed against a permanent resident or even a person who is visiting here in Canada.
We submit to you that the present system of selection, we believe, is quite professional. It is functioning well, and we have quite competent people who sit and hear these matters. The selection process, as indicated to you, looks at these competencies in determining whether or not a person should be appointed to the board.
It is, in our submission, non-political. It's based not on ideology but on merits. It's a merit appointment system based on those competencies that have been put forward. But the final decision still remains with the minister. So there is the prerogative that is protected and respected within the system.
What exists today, quite candidly, in the present process is a crisis. When the government came to power there were approximately five vacancies; we now have over 50.
Canadians should be concerned, and are concerned, with this appointment system. The objectives of the Immigration and Refugee Protection Act are spelled out quite clearly in this act, and one of them is family reunification. The problem is that people who appear before this board who are trying to bring their family members to Canada who have been refused are waiting up to three years because there aren't board members who they can appear before. Canadians and permanent residents are being separated from their spouses, partners, and parents because there's no one to hear their case. There are presently eight Federal Court applications dealing with this exact issue: “I am a Canadian. I am a permanent resident. My spouse has been refused a visa. There's no one to hear my case. Help me.” That's what exists.
On security, people who should or should not be removed from Canada don't have anyone to hear their cases. There are not enough board members, so we have people who have perhaps been convicted, who have an absolute right in certain circumstances to go before this board and argue their cases to stay—or the minister argues that they shouldn't stay—but no one is hearing these cases because there's no one to hear them.
Finally, many of these officers who represent you and me to put these cases forward don't have much to do because there's no one to hear their cases. So we have CBSA officers who are willing and ready to put these cases before board members who just aren't there.
We need to come to a decision quickly about the selection of these board members. We believe we have a pretty good system. It's transparent and based on merit. We respectfully submit that permitting the minister to be involved in the appointment of people who will make that selection just doesn't provide Canadians with a transparent and meritorious process to support our board. The present system still provides the minister with that final prerogative of yes or no.
That is our submission. Thank you.
:
It's almost an unforgiveable sin, considering the fact that I appear before the protection division on a regular basis and I should be used to it by now.
Thank you.
I've had the opportunity to review the Canadian Bar Association letter and the excellent submissions that are set forth. That letter reflects many, if not most, of the concerns and preoccupations of our members at AQAADI. I will therefore try not to repeat the contents or the factual summary of incidents that I think give rise to the concerns we express before you today.
To be to the point, briefly stated, and for most of the reasons set forth in that letter, we do not support the Public Appointments Commission Harrison report recommendation that the Minister of Citizenship and Immigration should name members to the advisory committee of the IRB, let alone 50% of those members. It is a position we do not accept.
Following years of grave concern by, among many others, the stakeholders of the IRB CCPP, the consultative committee on policy and procedures, which I have sat on as a member for over four years, about what was widely viewed, all too often, as a flawed patronage-oriented system, in 2004, under the leadership of the past chairperson, Mr. Jean-Guy Fleury, the IRB external advisory committee was created. That was done in the context of the board's much appreciated attempts to improve the quality of its decision-makers and to implement a merit-based selection process meant to identify candidates whose names would be submitted to the minister for GIC appointments.
I know from having sat around the table with Mr. Fleury that his objective was not only to provide competent and merit-based appointments, but was also to provide at least three recommendations for every available position for a decision-maker. Unfortunately, that objective was set, as Mr. Green stated, when the board had a shortage of only five board members. I think that objective has fallen apart, now that we are faced with some 50 vacancies that are now required to be filled. Notwithstanding that, the goal was laudable, and I believe the process that was established was a good one.
Although many of the CCPP stakeholders continue to express concerns today with regard to the reappointment processes for existing IRB board members, the creation of the external advisory committee, whose duty it was to screen and recommend quality, merit-based new appointments, was highly appreciated.
From its creation until their recent, unfortunate, although I believe understandable decision to resign, for reasons directly related to the issues now being addressed, that committee of what I would consider highly qualified, independent, capable individuals set out to fulfil their mandate to identify the necessary personnel.
At the time of their resignations, my understanding, as I earlier stated, was that they had left some 50 approved and recommended individual candidates' names for consideration for approval for the GIC appointments, who for the most part, I understand, have been overlooked or ignored. And this is, in Mr. Green's own words, which I agree with, notwithstanding the grave crisis that the IRB is facing due to the serious shortage of board members and the consequent inability to meet caseload demands and the duty to provide fair and well-reasoned decisions in an expeditious manner.
Mr. Green pointed to the difficulty with regard to the Immigration Appeal Division. I might say that the same problem exists before the Refugee Protection Division. We have individuals now who are waiting some 12 months, on average, to pass to a full hearing and a decision. Many are exceeding that delay.
These delays have a tremendous cost in terms of the stress and uncertainty that the claimants have to experience over the course of this period of time, and it's obviously a great burden on Canadians with regard to the expenses and costs to assist these people who, when they enter the country, are for the most part financially unable to maintain their own needs. It is a crisis and it should be addressed quickly.
Although the IRB external advisory committee likely could not, and certainly would not, pretend that all their choices would be infallible, what is paramount in our opinion is that the committee gave absolutely no appearance of political bias or patronage, or of any motive other than to select people on a merit basis. Their actions within the context of the recent crisis are, I believe, an indication of their concern that their independence was being compromised.
My understanding behind part of the rationale for the report's recommendations to allow the minister to name persons to the external advisory committee is partly couched in the belief that it is legitimate and appropriate for selected candidates be in tune with, and sympathetic to, government policy.
Respectfully, I disagree. The sole mandate and duty of an IRB decision-maker is to hear the parties and the facts adduced in evidence, and to rule in accordance with the law, the principles of natural justice, the Canadian Charter of Rights and Freedoms, and the Immigration and Refugee Protection Act. Government policy cannot be, and should never be, the concern of a decision-maker.
I have no quarrel with the argument that the administrative heads of the IRB should be in tune with government policy. I believe it is important that the chairperson and the executive director be in the confidence of the minister and that they be attuned to government needs, policies, and priorities in order to implement administrative decisions to meet those policy concerns. The IRB has important administrative challenges to meet and will, undoubtedly, always have them. Those challenges demand direction from the government. I believe the minister is entitled to receive advice from persons he trusts.
Examples of policy issues that require direction through consultation and cooperation between the minister and his management direction are those such as how the board will deal with caseloads in the context of available resources while keeping budgetary constraints in mind. I'm not sure if all the members sitting on this committee are aware that in 1993 and 1994 the rising caseload of persons seeking asylum in Canada strained the board's capacity almost to the breaking point, and currently the appeal division is facing new appeals that exceed the board's ability to hear those appeals. Backlogs and delays are steadily increasing, both in the appeal division and the protection division. Administrative solutions must be found. The chairperson must be in tune with, and have the confidence of, his minister in order to deal with such issues in accordance with government policy.
However, these issues are not and must not be the concern of the independent, impartial decision-maker. No matter how many claimants or appellants are knocking at the door, no matter what budgetary considerations face the board, no matter how the minister chooses to deal with these issues, the decision-maker's only duty is to render decisions that are in conformity with the law, decisions that he is duty bound to make one at a time, case by case, regardless of government policy.
In the case of the protection division, the member's sole duty and preoccupation is to apply the evidence that is put before him at hearings that respect the charter, jurisprudence, and rules of natural justice, and then to apply that evidence to the relevant sections of the IRPA in order to determine if the claimant has a well-founded fear of persecution. For the decision to be fair and impartial, he or she must not be concerned with, or involved in, issues of backlogs and budgets.
Therefore, I respectfully submit that the selection of policy-sensitive decision-makers is not desirable, and that this committee should make recommendations in that sense. To allow for such appointments is to take a step backwards in the effort to provide the board with competent and qualified decision-makers, persons who render decisions in matters of potential life and death consequences.
As a closing word, at its inception in 1989, the IRB was recognized internationally as being in the forefront as a model for refugee determination. I suggest that it still is, that it still has that potential to be a leading example. This tribunal deserves to be nurtured and supported. It is a tribunal that Canada and Canadians should be proud of. However, one of the persistent flaws, one of the nagging concerns that has plagued this institution since its inception, has been the issue of patronage appointments in the context of flawed decisions and improper conduct of some board members. I suggest, respectfully, that to allow even the slightest hint of political patronage and bias in the member appointment process is to render an enormous disservice to this tribunal.
Thank you.
:
I am here to represent the Canadian Council for Refugees, which is a confederation organization. We have nearly 170 member organizations across Canada. Our mandate is to promote the protection of refugees in Canada and in the world, and the settlement of refugees and immigrants in Canada.
I'm going to start with a little history. Since the creation of the Immigration and Refugee Board, the Canadian Council for Refugees has consistently identified two principal concerns relating to the Board: the issue of appointments and the lack of an appeal on the merits for refugees.
[English]
The main issue of concern in relation to appointments has been the quality of appointments and reappointments, i.e. whether those appointed have the required competencies for the job. A secondary but nevertheless important issue has been the timeliness of appointments; that is, whether members are appointed when vacancies arise.
The current crisis facing the IRB because of the failure to appoint is not without precedent in its history. The underlying problem has been that various governments have sacrificed the needs of good and timely decision-making at the IRB to partisan political concerns. It's worth emphasizing that we are concerned about both appointments and reappointments. For the latter, concerns include the maintenance of excellent and experienced members, the damage to the credibility of the IRB when bad members are reappointed, and the lack of motivation and morale problems for sitting members when it is evident that reappointment is not tied to performance.
Now you've heard a bit, particularly from Mr. Green, about attempts at reform. In response to the persistent criticisms of patronage appointments and the appointment of incompetent members, there have been some attempts at reform. In 1995, then Minister of Citizenship and Immigration, Sergio Marchi, created a ministerial advisory committee. This committee did not succeed in establishing any credibility. There were rumours that it was made up of people such as the minister's golfing partners. Perhaps this is why, after the initial announcement, little information was disclosed about the committee, and in subsequent years ministers even refused to give the names of the members.
In March 2004, then minister implemented a more significant reform. This was welcomed by the CCR as a step in the right direction, although we continued to have concerns. In a letter to the minister in April 2004 we drew attention to, and I quote, “the potential for political patronage considerations to re-enter through the backdoor, particularly should your successors not share your commitment”. We particularly drew attention to the fact that the new process did not establish a ratio of candidates to vacancies, leading to the danger that ministers could hold off making appointments asking for more and more names to be forwarded until they found names that met their political criteria and diluting the effect of a screening panel as a mechanism to identify the most qualified candidates. We also highlighted our concern that the process did not address the question of reappointments, which also need to be protected from real or perceived partisan political influence. We believe that subsequent events have shown that the concerns we raised in 2004 were well founded.
To look at the current situation, as we've all said, the IRB is facing a crisis because of the lack of members in place. There is a serious shortfall of approximately one-third of the members. This problem has been gradually growing in intensity over the last couple of years. The shortfall in appointments began to occur in the last months of the previous government.
We want to highlight the devastating impact of the government's failure to appoint members on refugees and people waiting for an appeal on family sponsorship. Claimants are waiting longer and longer for a hearing because there simply aren't enough board members to sit on hearings. This is very difficult for refugees who live in a constant state of anxiety while waiting to know whether Canada will protect them. For refugees separated from their immediate family members the wait is particularly excruciating.
Let me give you an example. An Iraqi fled persecution in his home country and arrived in Canada 10 months ago. He is still waiting for a date for his refugee hearing. His wife and baby daughter remain in central Baghdad, where every day your life is at risk. If the IRB had its full member complement, this man would probably have had his hearing by now. As it is, who knows when he will have a hearing and, if accepted, begin the procedures to bring his wife and daughter to Canada.
There is a particular problem as a result of the refusal—
:
It's quite correct to do that.
There is a particular problem as a result of the refusal of the current government to make any but a very few reappointments. This has a devastating impact on the IRB in terms of the loss of skilled members and morale within the board, because it is clear that competence is not being recognized. There is also a significant impact on the credibility of the appointments process because the decision to not reappoint reinforces the old concerns that appointments are made based not on merit but on links to the party in power.
The CCR continues to have grave concerns about the quality of board members, appointed and reappointed. We have always recognized that there are many excellent board members. Unfortunately, there continue to be some members who do not have the skills and qualities necessary to make the extremely difficult life and death decisions that refugee determination requires.
Since June 2002, when decision-making panels were reduced from two to one, the impact of incompetent board members has been dramatically increased. A refugee claimant is heard by just one decision-maker. Given that the quality of board members varies widely, the system resembles a lottery, where the fate of a refugee can depend on which board member hears the case. Of course, because of the failure of the government to implement the refugee appeal provided in the law, bad decisions by bad board members go uncorrected.
In this context, the CCR could only be deeply dismayed at recommendation 5 of the Harrison report and the news that the government was accepting this recommendation. This pushes an appointments process with some problems in exactly the wrong direction, toward a more politicized and potentially ideologically driven process. Involving the minister in the appointment of members of the selection panel undermines all the efforts made so far to achieve merit-based non-partisan appointments to the IRB.
We see the resignation of the IRB chairperson, Jean-Guy Fleury, as linked to the issue of appointments. Obviously we cannot speak for him or his reasons for resigning, but we were well aware that he was struggling to achieve adequate numbers of appointments to the board based on the merit principle. It is clear that he failed.
I would like to end with a recommendation on this topic that the CCR made in 1998. It remains equally valid today. A depoliticized appointments system should be created with a transparent, effective mechanism for ensuring that candidates are selected and mandates renewed on the basis of their competence for the job.
Thank you.
This is really a sad time in the history of the Immigration and Refugee Board. You all used the word “crisis”, and I used that word on Tuesday.
The board makes life and death decisions; families are kept apart; because of incompetence, people are dying. And this is a crisis that is essentially created by the government by trying to reverse a slow evolution of a process that took a while to get there.
I really commend the former chair of the board, Mr. Fleury, for standing up on principle because I think it's critical that the whole process be depoliticized.
I'm also concerned with the security of Canadians, which is the case when those people who should not be in Canada remain in Canada until they get their hearings.
One of the issues that I have always been concerned about—You know, when we appoint people to the bench, they don't have to be reappointed. They serve during a period of good behaviour. I always felt uncomfortable with the reappointment unless you were going to do a probationary period, but after that, if you were appointed for 10 or 15 years or whatever, I think it would be a much better way to go, to keep the political aspects out of it.
When you look at the history, from the inception of the refugee board, I think it's quite well documented by Stevie Cameron as to the kinds of appointments that were made on the board. Stevie Cameron wrote the book On the Take - Crime, Corruption and Greed in the Mulroney Years , and it showed how blatantly politicized the appointments were, where you had ex-wives appointed so that one wouldn't have to pay alimony down the road, and girlfriends were appointed.
I must say that it took a while for the Liberals, once they got in, to clean it up. But the fact of the matter is, it got cleaned up.
Having made those statements, I want you to comment even on the reappointment process. If you are a government—and what this government seems to be doing is trying to put a political stamp on this. If they see a member who is approving a greater percentage than they should be approving, they could very easily refuse to reappoint that member.
It seems to me, if we're going to appoint people, then we should minimize the reappointment process if we're going to make merit-based appointments. And we have to protect them, that they serve during a period of good tenure.
Can each of you comment on that?
:
Thank you, Mr. Chair, and thank you, members, for presenting.
Certainly I noted the comments Ms. Dench made regarding the testing. I want to go to that. There are three issues that the Harrison report, as you call it, refer to. There was the objective written testing, the merging of the selection board and the advisory board, and the appointment of three of six members to the ultimate committee.
Firstly, with the testing, the report says, “The new test, per se, seems to us to represent a reasonable yardstick for screening candidates against the declared Member competencies.” So he came to the conclusion that the test is good.
He went on to say, “Candidate performance, against each of the four competencies assessed at the test phase, is graded from an 'A' (this is the low rating, 3 points), to an 'E' (the high rating, 15 points). Applicants scoring only A’s against the four competencies (12 points) are screened at the test phase.” That's how it should be.
Then he looked at what was actually happening, and he said, “It's important to note that under present practice a large number of candidates (28% of the current batch of referrals to the minister)”, who went through the advisory board and also through the selection board, “have failed to meet the agreed minimum competencies (i.e. at least 4 'Cs' and no grade less than C)”. They were screened in after this process.
I'm asking Mr. Allen, specifically, would you agree with the Harrison report in the sense that an objective written test is a good thing? His recommendation was to actually set a passing mark and screen out anyone who doesn't pass, as opposed to having the 28% failing.
Thank you, witnesses, and thank you for your testimony today. I have just a few questions.
The thing that strikes me is what are we here to try to solve? What's the problem that's before us? Well, there's a glaring problem before us, a glaring crisis that wasn't before us 15 months ago, when we first took our seats here. When we first sat down here 15 months ago, there were five vacancies—five vacancies—on the IRB. Now there are 54 vacancies, soon to go to 57 vacancies.
That tells me that—and we've had two ministers, first Minister Solberg and now Minister Finley, in the last 15 months. Both of them have been unable or unwilling to do their job. Clearly they're not doing their job if they can't reappoint judges, can't reappoint people to the board, to deal with this major backlog.
For my first question, then, why is the minister not doing her job right now?
Second, why is the minister, and why is this Conservative government, trying to change the system and re-politicize—I'll agree with my colleague, it is re-politicizing—the entire system of appointments? To take us from a merit-based system that we've gradually moved into—I'll grant them that, but in 2004 we had a merit-based system that was working, and was working well. Now it's trying to roll back the clock to the prior era of Mulroney, to re-politicize the process.
:
I don't agree with the decision of the committee that because of unusual circumstances we didn't get a chance to hear the witnesses we wanted to hear on this bill. I think we should hear them, and I've said this in the past, that this is a very unusual situation with the RAD, that it's a piece of legislation that was passed, and for some reason the government of the day chose not to proclaim the one part of the bill. That is unusual.
Secondly, when Bill went before the House of Commons a few weeks ago, I have said there is one current minister for this portfolio and four former ministers for the portfolio in the House. None of them voted to support it, and in fact, in terms of the three former Liberal ministers, one voted against it and two abstained, which is in some ways maybe even a stronger statement than voting against it.
I have said this in the past, and I accept the fact that some of my colleagues believe the RAD should be proclaimed and implemented and this is the right part of the process, but with all due respect to that point of view, I also find it interesting that people who are more familiar with the department and are familiar with processes and ought to have a good sense of what it will mean obviously have some problem with it. That's why, quite frankly, I found it irresponsible that we decided not to call some of the former ministers before us and just ask them: “You're familiar with this. It was your government that passed it. Why do you even today still not support implementing it?”
Secondly, if there are actually people from outside government, who are outside witnesses, who also have reservations about the RAD...this morning we heard so many compelling stories about how long it takes to get stuff done. There seems an incongruency to me between us wanting to make the system better and fairer, which is the argument for the RAD, but at the same time we want to make it faster, and the way we're going to do that is by introducing another layer and that somehow that's supposed to solve either of those problems.
It's 1:05 p.m. now. To try to jam this through in the next few minutes is irresponsible on the part of this committee.
:
Thank you very much, Mr. Chair.
Just for the record, we have already dealt with the motion to bring in the former ministers and it was defeated.
I do take exception with you saying that the previous ministers were more familiar with the issue than members of the committee—if I quoted right, more familiar with the department. I can tell you that you have greater minds around this table to consult on the issue, if you want to consult on this particular issue.
The other issue is that Parliament passed an act, and we have been after this and after this to get it implemented. The time for implementation is now, and we have heard all sorts of evidence that this would indeed expedite the system.
I might also refer members of the committee to the letter we received from the Canadian Bar Association, where it points out that the quality of decision, just by the very nature of not having the RAD, has really been devalued.
Surely to God, all members want to make sure there's an integrity to the decision-making process, but be that as it may, we dealt with the issue about inviting the former ministers in and that was defeated.
:
I just want to make a couple of remarks.
One, we're talking about a few days, and in fairness, this committee did authorize a witness to be called. It's now saying we don't need to call the witness, even though we thought it was the right thing to do at one point.
The second point, which Mr. Devolin has indicated, is that as recently as within the last two or three weeks, we had three former ministers who either didn't vote to support the bill or opposed it. We do have their comments from the past on the record, which state that when the RAD was envisioned there was a backlog. The backlog went down. They were concerned about the fact that adding another layer—ust as was indicated today—would add additional time to a system that's not functioning as well as it should. The reason they didn't implement, they said in the past, was because of the very issue that had concerned them: passing it without regard to the rest of the system.
There may be other reasons, but certainly people who were in the department saw how it worked and went through the history of it. It is not inappropriate to have one of them, at least, who opposed the bill indicate why they would oppose RAD when some of your members are supporting it. They may have some valid reasons that are recent. I appreciate the history of it, but the history of it would indicate an opposition. Presently they are opposing it, as we speak. It would not be out of order to have them appear at this committee and ask them why they oppose it at this late date, given their past positions.
I would certainly amend the motion to allow for any one or three of those previous ministers to appear before this committee to deal specifically with why they voted as they did on this particular bill in either abstention or opposition.