Introduction

Canada’s immigration system approves about 300,000 permanent residency applicants each year, under three categories: economic immigration, family reunification and humanitarian considerations. Asylum claimants fall under the humanitarian considerations category of Canada’s refugee system. According to the Office of the Auditor General of Canada (OAG), due to “record levels of migration worldwide, Canada was the world’s ninth-largest recipient of asylum seekers in 2017, with 50,400 claims—more than double the number from the previous year.”[1] In 2018, “a further 55,000 claims were made.”[2] While the number of asylum claims varies year to year[3], refugee protection is granted “based on the merit of each individual claim.”[4]

As further noted by the OAG, in “2017 and 2018, almost 40,000 individuals were intercepted as they crossed the border from the United States between ports of entry to claim refugee protection. Most of these interceptions occurred in the province of Quebec. The Safe Third Country Agreement between Canada and the United States generally requires claimants to seek protection in the first safe country they enter. However, the agreement applies only at official land-border ports of entry, so asylum seekers who cross into Canada from the United States between ports of entry can still make a claim.”[5]

The Immigration and Refugee Protection Act establishes the administrative regime for the in-Canada asylum claim system and the roles and responsibilities of the three federal organizations involved in the process: the Canada Border Service Agency (CBSA); Immigration, Refugees and Citizenship Canada (IRCC); and the Immigration and Refugee Board of Canada (IRB). According to the OAG, together the departments spent “$216 million annually, from the 2013-14 to the 2016-17 fiscal year, to process asylum claims. Budget 2018 announced additional temporary funding of $174 million over two years to help process the rising number of claims.”[6]

Canada’s asylum system works as follows: If an individual is eligible for refugee protection, CBSA or IRCC refers the claim to the IRB for a protection decision. There are three main factors which determines one’s eligibility to make an asylum claim:

• whether the individual has committed a serious crime;
• made a previous claim in Canada; or
• received protection in another country.

The IRB is the independent tribunal responsible for deciding whether or not to grant refugee protection to a claimant.[7]

In addition to an increasing number of asylum claims in Canada, there is a persistent issue related to the backlog of asylum claims. For example, in “March 2010, the backlog [of refugee claims] stood at 59,000 cases, with an average processing time of 19 months.”[8] The Immigration and Refugee Protection Act came into force in 2012 and according to the OAG, a “central goal of the reforms was faster decisions for claimants.”[9]

In June 2018, an independent review was commissioned by the Government of Canada that made recommendations to “further system-wide efficiency improvements to the asylum system.”[10]

In May 2019, the OAG released a performance audit whose purpose was to determine “whether [CBSA], [IRCC], and the [IRB] consistently processed asylum claims in an efficient and timely manner.”[11]

A.  Claim Timelines

In 2010 and 2012, Parliament passed legislation “to reduce the backlog [of asylum claims] while continuing to respect procedural fairness.”[12] The changes, which came into effect in December 2012, “set new mandatory timelines for processing asylum claims.”[13] Most of the categories of refugee claimants are supposed to have a Refugee Protection Hearing within 60 days. According to the OAG, “the reforms also required earlier hearings for claimants from designated countries, within 30 or 45 days, depending on whether claims were made at official ports of entry or inland immigration offices. Once the reforms took effect, all new claims referred to the [IRB] were to be processed under these timelines.”[14] (See Figure 1.)

Figure 1—Asylum Claims, Percentage of Claims Heard Within the 60-Day Timeline (2015 2017)

Source:  Office of the Auditor General of Canada, Processing of Asylum Claims, Report 2 of the 2019 Spring Reports of the Auditor General of Canada, 2019, Exhibit 2.1.

On 28 May 2019, the House of Commons Standing Committee on Public Accounts (the Committee) held a hearing on this audit. In attendance, from the OAG were Sylvain Ricard, the Interim Auditor General of Canada, and Carol McCalla, Principal. From IRCC were Lori MacDonald, Acting Deputy Minister, and Bruce Scoffield, Director General, Immigration Program Guidance Branch. From CBSA were John Ossowski, President, and Jacques Cloutier, Vice-President, Intelligence and Enforcement Branch. From the IRB were Richard Wex, Chairperson, and Greg Kipling, Director General, Policy, Planning and Corporate Affairs.[15]

Findings and Recommendations

A.  Providing Timely Decisions for Refugees

The OAG found that the “refugee determination system could not respond quickly to increases in claim volumes.”[16] The OAG noted that claims backlogs were worse in 2018 than before the system was reformed and that by “December 2018, there were 71,380 claims waiting for protection decisions.”[17] Whereas, in 2010 “the backlog stood at 59,000 cases.”[18] According to the OAG “the number of asylum claims varies each year, yet the system receives a fixed amount of funding to process them. When claim volumes are significantly higher, as they were in 2017 and 2018, the number of unresolved claims grows and wait times increase.”[19] In fact, the funding for the asylum system is sufficient to process about 32,000 claims a year,[20] and the OAG noted that “there were 55,000 asylum claims in 2018 alone.”[21]

The OAG found the “system-wide performance monitoring identified inefficiencies in the processing of asylum claims. However, the information did not enable the three organizations to effectively allocate resources as needed to better respond to shifting claim volumes.”[22] The OAG also noted that in “early 2018, a deputy-level committee of the three organizations was established to improve oversight and coordination of asylum claims processing, including the development of performance and productivity expectations for key steps of the refugee determination process.”[23]

Consequently, the OAG recommended that CBSA, IRCC and IRB “should work with central government agencies to design and implement a flexible model that allows them to access additional funding quickly to better match shifting volumes of claims.”[24] Additionally, the OAG recommended that CBSA, IRCC and IRB should “update their performance and productivity expectations for key steps in the refugee determination system.”[25]

In their joint Detailed Action Plan, in response to these two recommendations, the audited organizations committed to undertake the following measures:

• Work with central agencies to explore potential flexible funding approaches to meet current and projected intake;
• The new Asylum System Management Board [ASMB] comprised of deputies from CBSA, IRCC and IRB will oversee the adoption of updated performance targets that will be used to report on intake, capacity, and productivity across the system; and
• (through Budget 2019 investments of $1.18 billion over five years) Enable the processing of 40,700 asylum claims in the 2019–20 fiscal year and up to 50,000 claims in the 2020–21 fiscal year, as well as to strengthen processes at the border and accelerate the processing of claims and removals.[26]

When questioned about this matter, Richard Wex, Chairperson, IRB, explained that the Board has “experienced the largest intake of refugee claims in its 30-year history. As the intake of claims at the IRB significantly outstripped our funded processing capacity, backlogs and wait times naturally grew.”[27] Lori MacDonald, Acting Deputy Minister, IRCC, further explained that recent budget investments will enable the asylum system to “increase the system’s capacity to process 50,000 claims a year.”[28] She also noted that the ASMB will, over the coming two years, work with Treasury Board Secretariat to finalize an appropriate funding model to respond to claims based on recent trends in migration.[29] However, on this matter, Sylvain Ricard, Interim Auditor General of Canada, observed that the “funding will not quite deal with the backlog [in claims]. The backlog will, in fact, increase.”[30]

Lastly, with respect to the recommendation of improved performance measures and productivity expectations for the different steps of the refugee determination system, Lori MacDonald explained that the ASMB will serve as a forum to oversee the adoption of updated performance measures to report on the volume of claims and the system’s capacity and productivity in the processing of asylum claims.[31]

Notwithstanding that the recent budget investments may lead to improvements in the processing of asylum claims and that the CBSA, IRCC and IRB do not have direct control over budgets, the Committee nevertheless recommends:

Recommendation 1—on a flexible funding model

That, by 30 December 2019, the Canada Border Services Agency, Immigration, Refugees and Citizenship Canada, and the Immigration and Refugee Board of Canada provide the House of Commons Standing Committee on Public Accounts with a report outlining the progress of developing a business case with the Government of Canada’s central agencies to design and implement a flexible model that allows access to additional funding quickly to better match shifting volumes of claims.

Recommendation 2—on performance measurement

That, by 30 September 2019, the Canada Border Services Agency, Immigration, Refugees and Citizenship Canada, and the Immigration and Refugee Board of Canada provide the House of Commons Standing Committee on Public Accounts with a report on its new Asylum System Performance Measurement Framework.

B.  Opportunities to Reduce Wait Times for Claimants

CBSA, IRCC, and the IRB use different information management systems for the collection and transmission of information pertaining to refugee claims. As each organization has separate roles and responsibilities within the refugee system, they share information with one another at different stages of the claims process. According to the OAG, the collection and transmission of this information is important to ensure claims are processed efficiently, that hearings occur on a timely basis, claims are fast tracked where warranted and review efforts are not duplicated.[32]

1.   Information Technology Systems Were Inadequate

CBSA and IRCC did not have formal mechanisms to ensure that the information they collected from people was accurate and complete. Some of the documentation reviewed by the OAG included “illegible scans”[33] of original documents, data entry errors and about 400 claims (or 0.5% of all claimants for whom this was required) did not have the required biometric information to verify criminal records and identity, as “fingerprints were not taken or system errors occurred when information was transmitted.”[34] The OAG found that none of the three audited organizations “tracked whether a criminal records check was always completed because of poor data quality.”[35]

Additionally, the OAG found that “none of the organizations had an upfront quality assurance program to ensure the accuracy and completeness of information collection about asylum claimants. This caused a duplication of effort and delays in claim processing, and a reliance on paper files.”[36] Moreover, all three organizations used paper files while processing asylum claims. When files were available electronically, information was shared between organizations by fax or courier; however, the IRB “continued to rely exclusively on paper files for its work.”[37] There were also gaps when critical information was not shared, such as changes to hearing dates, which may affect the “proper processing of asylum claims, especially when claim volumes are high.”[38]

Consequently, the OAG recommended that CBSA, IRCC, and the IRB “work together to identify what information needs to be collected and shared for an asylum claim; and find a way to share the information securely, accurately and efficiently, moving from paper to digital processing of claims.”[39]

In their joint action plan, the organizations committed to the “[implementation] of a formalized quality assurance process at both CBSA and IRCC to ensure overall compliance with established protocols for refugee intake. This will include a specific quality assurance process to address the proper collection and enrollment in [Global Case Management System] of biometrics for all eligible claimants.”[40] In addition, the departments noted the “small-scale Integrated Claim Analysis Centre pilot project, recently hosted in Montréal … will permit refugee claims to be systematically examined and for case-specific information to be shared with [IRB] before a hearing is scheduled.”[41]

When questioned about this matter, the audited organizations reported that the Integrated Claim Analysis Centre (ICAC), “co-locates IRCC and CBSA employees so that they can work together to provide hearing-ready files to decision-makers at the IRB.”[42] Furthermore, the ICAC model will be expanded to Toronto [Ontario] in September 2019 where the organizations have already moved to a digital process, “which will process the majority of new asylum claims in the national caseload.”[43]

Additionally, Lori MacDonald stated that the most recent budget investments will enable the organizations to enhance their information technology systems so that it will be “easier for people to submit the information [to make an asylum claim] electronically and to use digital tools.”[44]

Therefore, the Committee recommends:

Recommendation 3—on the proper collection and use of data

That, by 31 October 2019, the Canada Border Services Agency, Immigration, Refugees and Citizenship Canada, and the Immigration and Refugee Board of Canada provide the House of Commons Standing Committee on Public Accounts with a report outlining its progress with regard to A) the quality assurance process designed and implemented by Canada Border Services Agency and Immigration, Refugees and Citizenship Canada for refugee intake and the collection of required information such as biometric data into the Global Case Management System; B) the results of the information gap assessment and plans to share information between Canada Border Services Agency and Immigration, Refugees and Citizenship Canada and the Immigration and Refugee Board of Canada; and C) the timeline established to complete the shift from paper to digital processing of claims and real time information sharing through integrated information technology systems.

2.   Postponed Hearings

The OAG found that over the audit period, “65% of hearings were postponed at least once before a decision was made. We found that postponements caused significant delays. Claims postponed once were delayed by an average of five months compared with cases with no postponement.”[45] About 25% of claims were postponed several times, causing delays of about eight months.[46] Claims were postponed for several reasons:

• 49% of postponements were due to the unavailability of IRB members;
• 14% due to the claimant or claimant’s counsel being unavailable;
• 10% due to pending security screening results;
• 6% due to a lack of time to complete a hearing;
• 5% due to the need to hear family members’ claims together or separately;
• 4% due to waiting for documents or late disclosure of documents; and
• 3% due to an interpreter being unavailable.[47]

Over the audit period the OAG found “the [IRB] postponed hearings for 8,389 claims because the required security screening was still pending.”[48] However, the OAG observed that “at least one in five of these hearings was postponed in error, because the security screening had in fact already been completed or was not yet due. Postponements in these cases unnecessarily delayed hearings by an additional 10 months on average.”[49] The OAG also noted that the CBSA reallocated resources during the audit period to improve the timeframe to complete security screening.[50]

According to the OAG, the IRB was not flexible in its scheduling practices to reschedule postponed hearings in a timely manner. Only 10% of hearings were rescheduled within the Board established timeframe of 10 days.[51] New claims were scheduled for hearings prior to postponed hearings, resulting in delays of several months.

Consequently, the OAG recommended that the IRB “should explore ways to reduce the number of postponed hearings, particularly for reasons within its control, and should reschedule hearings in a timely manner.”[52]

In its action plan, the IRB stated that it will “develop and implement a new postponement monitoring framework, including targets for postponements within IRB’s control,” by September 2019.[53] Additionally, since the audit period, it has been collaborating with both CBSA and IRCC to significantly reduce postponements within the government’s control. Furthermore, increases in capacity and other investments from Budgets 2018 and 2019 will help reduce postponements due to IRB member unavailability.[54]

When questioned about this matter, Richard Wex explained the challenges with the previous system and how the Board did not have control over its schedule for such hearings; however, since the audit, two key changes have occurred:

One, the IRB, in collaboration with IRCC and CBSA, took control over its own schedule. Rather than a notional date being established, IRCC or CBSA provided a notice to appear to the claimant, but we set our own schedule in terms of the date on which that individual would appear, and it is aligned with when a member is available.

Two, as a result of Budget 2018 investments, we were able to hire more members. Therefore, there were more members available to hear the cases.

As a result of those two variables and our ability to schedule cases that were considered to be more hearing-ready because they were older cases, we were able to, since the audit, reduce the postponement rate from, as I mentioned, 65% to 36%. Whereas member unavailability was a contributing factor during the audit at 49%, that has now come down to 30%. During the audit period, member unavailability was 50% of a 65% problem. Since the audit, it's 30% of a 36% problem, which in real terms means that one out of every 10 or 11 hearings is being postponed now as a result of member unavailability. That number is going down in the right direction.[55]

Therefore, the Committee recommends:

Recommendation 4—on reducing the incidents of postponed hearings

That, by 30 November 2019, the Immigration and Refugee Board of Canada provide the House of Commons Standing Committee on Public Accounts with a report outlining what progress has been made with regard to A) reducing the number of postponed hearings for reasons within its control; and B) its progress with regard to rescheduling hearings in a timely manner.

3.   Few Fast-Tracked Claims

The IRB did not use measures to fast-track asylum claims, such as making claim decisions based on file reviews, rather than hearings. The OAG “found that it rarely used this expedited process.”[56] The Board expedited about one-quarter of eligible claims, whereas others were processed after a hearing, with 87% of these received a positive decision. Decisions on expedited claims and regular claims were also processed in the same amount of time.[57]

The legislation “requires that claimants from Designated Countries of Origin (countries that do not normally produce refugees) have their claims processed more quickly while still receiving a merit-based assessment.”[58] The OAG noted the IRB did not fast track such cases and did not find a significant difference in the timeframe for claims from designated countries compared with non-designated countries.[59]

Consequently, the OAG recommended that the IRB “make better and more frequent use of the processes at its disposal to expedite protection decisions for eligible asylum claimants.”[60]

In its action plan, the IRB explained that in February 2019, it “issued strengthened policy guidance [and] established a task force to support the more efficient processing of less complex claims, which has already achieved meaningful results and lessons learned.”[61] Moreover, the Board committed to implementing “a triage and scheduling framework that optimizes the use of available adjudicative resources” and undertaking “a review of its Instructions Governing the Streaming of Less Complex Claims to assess its effectiveness and establish whether refugee claims from additional countries and/or claim types could be streamed into the file review or short-hearing process.”[62]

Additionally, Richard Wex explained the effects of investments made through Budgets 2018 and 2019:

This will allow the IRB, over the next 24 months, to staff an additional 450 people, in addition to the 250 from Budget 2018. Those monies are being allocated to hire additional decision-makers. Refugee protection decision-makers will grow from 120 to 300. Refugee appeal division Governor in Council appointees will grow from 70 to 103 this year, and close to 120 next year.

There are also, as [Lori] MacDonald pointed out, investments associated with IT to allow us to achieve the objectives we've been discussing.[63]

Therefore, the Committee recommends:

Recommendation 5—on expediting protection decisions

That, by 30 April 2020, the Immigration and Refugee Board of Canada provide the House of Commons Standing Committee on Public Accounts with a report outlining what objectives have been met with regard to expediting protection decisions for eligible asylum claimants.

4.   Duplicated Review Efforts

The IRB members must communicate with the Minister when there are concerns with a claim. Officials from CBSA and IRCC can also intervene in a claim when there are “credibility or security concerns.”[64] The audit found that communication between the three organizations was ineffective, which resulted in duplicated review efforts. According to the OAG, current practices “do not require officials from [CBSA or IRCC] to inform the Board about claims that they have reviewed and in which they will not intervene—they inform the Board only about claims that they have concerns about and in which they will intervene.”[65]

Consequently, the OAG recommended that “[CBSA] and [IRCC] should notify the [IRB] as soon as their review of an asylum claim for intervention is complete, whether or not they plan to intervene. The [IRB] should consider this notification in its scheduling strategy to reduce wait times for protection decisions.”[66]

In their joint action plan, the three organizations stated that building on the work of the Refugee Protection Decision Inventory Reduction Task Force, “CBSA and IRCC will ensure that the IRB has the information on Front End Security Screening and the triage, reviews and interventions results so cases can be scheduled effectively and efficiently.”[67] Moreover, all three organizations “will continue to pilot an [Integrated Claim Analysis Centre] model to ensure that the [Refugee Protection Decision] members have hearing ready files in order to reduce delays in scheduling cases.”[68]

Richard Wex further confirmed that “the IRB agrees with the OAG's recommendation concerning ministerial interventions and is committed to working with IRCC and CBSA on this issue.”[69]

Therefore, the Committee recommends:

Recommendation 6—on intervening on asylum claims

That, by 30 June 2020, the Canada Border Services Agency and Immigration, Refugees, and Citizenship Canada and the Immigration and Refugee Board of Canada provide the House of Commons Standing Committee on Public Accounts with a report outlining what progress has been made with regard to A) notifying the Immigration and Refugee Board of Canada as soon as the review of an asylum claim for intervention is complete, whether or not there is a plan to intervene; and B) developing a scheduling strategy to reduce wait times for protection decisions.

Conclusion

The Committee concludes that CBSA, IRCC, and the IRB did not process asylum claims in an efficient and timely manner. Furthermore, the government’s refugee determination system experienced a substantial backlog of unresolved claims due to its inability to increase its processing capacity when claim volume grew.

In this report, the Committee has made six recommendations to help ensure these federal organizations continue their efforts to improve Canada’s refugee determination system.

Summary of Recommended Actions and Associated Deadlines

Table 1—Summary of Recommended Actions and Associated Deadlines

Recommendation	Recommended Action	Deadline
Recommendation 1	Canada Border Services Agency, Immigration, Refugees and Citizenship Canada, and the Immigration and Refugee Board of Canada should provide the House of Commons Standing Committee on Public Accounts with a report outlining the progress of developing a business case with the Government of Canada’s central agencies to design and implement a flexible model that allows access to additional funding quickly to better match shifting volumes of claims.	30 December 2019
Recommendation 2	CBSA, IRCC and IRB should provide the Committee with a report on its new Asylum System Performance Measurement Framework.	30 September 2019
Recommendation 3	CBSA, IRCC and IRB should provide the Committee with a report outlining its progress with regard to A) the quality assurance process designed and implemented by CBSA and IRCC for refugee intake and the collection of required information such as biometric data into the Global Case Management System; B) the results of the information gap assessment and plans to share information between CBSA, IRCC and IRB; and C) the timeline established to complete the shift from paper to digital processing of claims and real time information sharing through integrated information technology systems.	31 October 2019
Recommendation 4	IRB should provide the Committee with a report outlining what progress has been made with regard to A) reducing the number of postponed hearings for reasons within its control; and B) its progress with regard to rescheduling hearings in a timely manner.	30 November 2019
Recommendation 5	IRB should provide the Committee with a report outlining what objectives have been met with regard to expediting protection decisions for eligible asylum claimants.	30 April 2020
Recommendation 6	CBSA, IRCC and IRB should provide the Committee with a report outlining what progress has been made with regard to A) notifying the IRB as soon as the review of an asylum claim for intervention is complete, whether or not there is a plan to intervene; and B) developing a scheduling strategy to reduce wait times for protection decisions.	30 June 2020