CIMM Committee Report

Supplementary Report by the New Democratic Party (NDP)

Preamble:

Globally, we are witnessing a migration crisis the likes of which have not been seen since World War II. The United Nations High Commissioner for Refugees estimates that there now 68.5 million people who have been forced from their homes to escape conflict, persecution, and disaster. Of those, 25.4 million are refugees. The UNHCR notes that the increase of refugees from 2016 to 2017 was the highest single year increase they have ever seen, with 2.9 million more people fleeing their country of origin over the last 12 months[i].

Tragically, as displacement and forced migration increases, the willingness to share in the responsibility to provide vulnerable people a safe haven to rebuild their lives is decreasing, especially amongst the wealthiest nations in the world. Canada has thus far gone against that trend, remaining a welcome nation. The NDP believes that is not just because of Canada’s multiculturalism and humanitarian spirit, but also because by and large Canadians respect and are confident about the integrity of our immigration system. However, that trust and support is not guaranteed, but something that must be continually earned.

A recent influx of asylum seekers crossing into Canada irregularly from the United States has put strain on Canada’s refugee determination system (RDS) and could shake the trust Canadians have in the system if the situation is not managed properly. Chronic underfunding of the IRB and a failure of successive government to fill Board Member vacancies has resulted in a reduced capacity for the IRB to hear claims in a timely fashion. By end of 2017, the IRB’s case backlog had reached 43,000 cases and as of early April 2018, the IRB case backlog had grown to 53,000 and that backlog was increasing by over 2,000 cases per month.  

Given this situation and the advocacy efforts the NDP has undertaken in support of providing additional funding to the IRB since 2017, the NDP would have liked to this study include an examination of IRB funding. Unfortunately, this was not part of the mandate.

Aside from the intense pressure resulting from chronic underfunding, the IRB had come under intense scrutiny beginning in January 2018 due to investigative journalism that uncovered disturbing information and claims about specific Board Members failing to live up to the high standard the position demands. Two incidents that made national headlines included the troubling conduct of Ms. Natalka Cassano[ii], and Mr. Michael Sterlin[iii]. Credit must be given to the journalists involved for bringing these stories to light, as without them, this study likely would not have happened.

Introduction:

The Immigration and Refugee Board (IRB) is a foundational piece of Canada’s immigration system. Acting at arms-length from the government, the IRB conducts hearings regarding the claims of individuals and families to determine admissibility to Canada, detention review, and the granting of protected person status. Unless a decision is granted leave to be challenged at the federal court, the IRB is the decision maker on whether or not an individual or family can remain in Canada. The independence provided to IRB decision makers allows the Board to examine each case based on their merit. As such, Canada’s model, and the IRB specifically are respected globally for its approach. This is especially the case for Canada’s refugee determination system (RDS) given the key role the IRB plays in maintaining the system’s integrity. Any individual that makes an asylum claim in Canada, that is, anyone who is not selected for resettlement in Canada under the Government Sponsored Refugee (GAR) program, the Privately Sponsored Refugee (PSR) program, of the Blended Visa Office Referred (BVOR) program, appears before the IRB to have their claim determined. If successful, they will be provided protected person status in Canada. If unsuccessful, they can appeal within the IRB, and ultimately request leave to challenge the decision at federal court; but any unsuccessful claim will eventually lead to the individual or family being removed from Canada.

It is important that the IRB operates at arms-length from the federal government. As part of Budget 2017, the government mandated the IRB to undertake an independent review of its operations to determine how efficiency and productivity could be increased. That study is set to be completed and made public in early June 2018, and an interim report was provided to the IRB and the Minister in late 2017- early 2018.[iv] Through independent consultation with key stakeholders, the NDP had heard there was concern that significant restructuring, a reduction of independence, or the outright elimination of the IRB was possible. The NDP had requested the IRB table a copy of the interim report at committee during this study so that committee members could be better informed as we undertake this study and to reassure witnesses appearing before the committee that criticisms related the appointment or complaints processes of the IRB would not contribute to the potential reduction of independence or outright elimination of the IRB.  Unfortunately the IRB declined that undertaking.[v] It remains that the NDP is concerned that some stakeholders were not as forthcoming with their comments as they might have been otherwise as a result of this fear. 

The NDP share the view of stakeholders that have expressed support for the IRB and agree with those who feel that the IRB should be maintained, that it should remain independent, that it should be transparent and accountable, and that it should be adequately funded to ensure it can fulfill its mandate timely and efficiently. The NDP believes in good faith that this study aimed to improve and strengthen the integrity of the IRB, not undermine it.

This study sought to examine the appointment, training, and complaint adjudication processes of the IRB, and to provide the government with recommendations on how best to proceed. While the NDP agrees with the general direction of the majority of the report’s recommendation; however, the NDP feels that key recommendations brought forward by witnesses pertaining to the call for a truly independent complaint and disciplinary oversight mechanism were ignored as the committee adopted a ‘wait and see’ approach.  As well, it is the view of the NDP that additional valuable insights in a number of areas were overlooked by the committee.

With this in mind, the NDP puts forward additional recommendations which would strengthen the IRB, provide its members with better training, and increase the transparency and accountability of the IRB to the public.

Appointments:

As stated in the preamble, this study was undertaken largely because of the national headlines made regarding the unbecoming and unacceptable behavior of appointed Board Members. However, it must always be acknowledged that an ounce of prevention is worth a pound of cure; the higher quality candidates appointed, theoretically the less likely the IRB will have to deal with serious complaints regarding conduct and decisions. While the examination of IRB funding was not included in this study, it is important to note the issue of funding was brought to the attention of the committee by both the Acting Chairperson of the IRB, Mr. Paul Aterman and the National Executive Vice-President of the Canada Employment and Immigration Union (CEIU) Ms. Crystal Warner. First, without funding there can be no appointments made. More specifically to both their testimony, it is difficult to attract high quality candidates for short-term, insecure positions; especially in situations that require relocation to high cost of living areas of Canada.  

Mr. Aterman explained to the committee that he believed, “the bigger challenge with that money is to be able to find and hire competent decision-makers who are willing to come to the board for a short term”[vi]. When later asked why only short-term appointments were being made, Mr. Aterman stated, “it’s because the funding is limited for two years”[vii].

This was later reiterated from the Board Member perspective by Ms. Warner who explained:

“I’ve worked in Vancouver, arguably the most expensive city in Canada. You’re going out to try to appoint people who have families, who have mortgages to pay that are astronomical in cities like Vancouver, and you’re trying to find someone who is willing to take a chance on a one-, two-. Or three-year mandate. There’s stress involved – I would see that stress in them – with being renewed, and with constantly talking and being concerned about whether or not they will be reappointed. So we’re adding another incredible amount of undue stress on decision-makers who are already dealing with really sensitive and challenging work.”[viii]

Potentially as a result of these issues, there have been for quite some time a large number of vacancies at the IRB. NDP MP Jenny Kwan (Vancouver-East) noted to Mr. Aterman that:

“According to the information on appointments provided to us on the appointments, there are some 26 vacancies. Has the IRB made requests for the government to fill the outstanding Order in Council appointments? For example, in Calgary there has been a vacancy for 2,929 days, in Toronto for 534 days.”[ix]

Mr. Aterman noted that, “We certainly make our needs known to the government, yes.”[x] It is the opinion of the NDP that this highlights the inadequate funding provided to the IRB.

Additionally, the composition of the Board was also brought up by Ms. Warner, and by immigration lawyer Ms. Preevanda Sapru. Both agreed that the IRB should do more to appoint a diverse variety of individuals to the Board so that it’s a better reflection of Canadian society and of those individuals appearing before it.

Ms. Sapru explained:

“The IRB deals with people fleeing hundreds of countries of different cultures, of different norms and ways of being and behaving. There needs to be an equal representation of different cultures – at the organizational level, not just among board members – so that there is an understanding and empathy to deal with the people they are dealing with on an ongoing basis.”[xi]

Ms. Warner supported this notion, adding:

“We do agree with many of the comments we have heard coming out of this committee. Decision-makers of the board should be reflective of the communities of the people who come before, so equity staffing of LGBTQ persons, persons with disabilities, and racially visible persons should be not only encourage but mandated.”[xii]

Finally, while efforts have been undertaken in recent years to make IRB appointments less partisan, Professor Ronald Ellis, in a written submission, informed the committee of a potentially better and even less partisan appointment mechanism. Prof. Ellis outlines in his submission the United Kingdom’s Judicial Appointments Commission, which can be composed of current members, outside experts, and representatives from the public. The Commission would then inform the government on who was selected and the government would either appoint, or have mechanisms to review or decline to appoint. Prof. Ellis noted that in the U.K since 2007, “there has been virtually no refusal or deferment of any recommendation”, made by their commissions.[xiii]

With the following testimony in mind, the NDP recommends the government take the following actions regarding the appointment of Board Members to the IRB:

Recommendation 1:

That the government of Canada provide stable, adequate, long-term funding to the IRB to ensure that highly competent Board Members can be attracted and retained.

Recommendation 2:

That all Board Member vacancies be filled expeditiously.

Recommendation 3:

That the government of Canada work with the IRB to institute an equity hiring program to increase Board Member diversity so as to ensure the IRB is more reflective of the people appearing before it.

Recommendation 4:

That the government of Canada further de-politicize the IRB appointment process by replacing the current GIC appointment model with that of the U.K.’s Judicial Appointments Commission.

Training:

The world around us is rapidly evolving. Integration and human migration has seen ideas, values, and technology to just name a few things, shared and moved around the globe at a rate never seen in our history. As a result, social norms throughout the world are changing and changing quickly. In some cases, societies are embracing progressive change, becoming more, open, tolerant, and diverse. In other cases, societies are pushing back and becoming more socially conservative, less tolerant, and more divided. Countries that were once open and accepting of newcomers and refugees are in some instances becoming more closed off and unwilling to provide asylum. The nature of conflict is ever changing.

It is against this backdrop that the IRB decides whether or not to grant a person or family protected status in Canada, and it is for that reason that it is vital that Board Members receive high-quality, up-to-date ongoing training. Even the best appointee can make poor decisions if they are not adequately trained, are not up to date on issues that impact claims, or have not learned the best practices for methods for determining claimant credibility etc.

The NDP supports recommendation 4 and recommendation 5 in the main report.

Further to those recommendations, the NDP would like to note the testimony of Mr. Maurice Tomlinson of the Canadian HIV/AIDS Legal Network who made the following recommendations on LGBTQ training and cultural competency:

“The first is multi-day LGBT sensitivity training for IRB members that engages individuals from refugee-sourced countries who have lived experiences. The second is meaningful dialogues between the IRB and agencies and lawyers serving LGBT refugees to establish clearer guidelines and expectations. The third is an opportunity for claimants and/or counsel to provide post-hearing feedback that can improve IRB members’ questioning and not adversely affect claims.”[xiv]

Mr. Tomlinson stressed the importance of prolonged training and feedback loops because in his experience working abroad on these issues, “we’re asking them to make a cultural shift, and that can’t happen in three hours.”[xv]

Immigration lawyer Ms. barbara findlay expressed the need for follow-up and evaluation to ensure training was effective. She stated:

“I think there needs to be some structured follow-up and evaluation. I certainly think there needs to be some sort of exam or evaluation at the end of the training so that the board can be satisfied that its member has actually absorbed the information; and the member subsequently should be evaluated against the training. It’s a problem in all areas of judicial education.”[xvi]

With this information in mind, the NDP recommends that the government go further than as recommended by the main in report in recommendation 5; as this recommendation only calls for members’ comprehension and application of learning be examined as part of the review. Therefore, the NDP recommends:

Recommendation 5:

That the government of Canada work with the IRB to institute periodic training reviews as part of the ongoing professional development of members to ensure that the training is being absorbed, and if not, follow-up training can be provided in a timely manner.  

Complaints:

It is on this aspect of the study that the position of the NDP contrasts significantly with that of the government members of the committee and the IRB itself. During his first appearance before the committee Mr. Aterman explained that they engaged in consultations with key stakeholders on how to move forward with a new complaints mechanism. In his second appearance he informed the committee the standing stakeholder table consisted of: the Canadian Bar Association (CBA), the Canadian Association of Refugee Lawyers (CARL), the Refugee Lawyers Association, the Quebec Immigration lawyers association (AQAADI), Canadian Association of Professional Immigration Consultants (CAPIC), and the Canadian Council for Refugees (CCR).[xvii] It is significant to note that Mr. Aterman explained in his first appearance that one key recommendation that the IRB did not act on was for the complaint process to be handled independently even though he acknowledged that, “They took the position that all the complaints needed to be dealt with by someone outside of the organization, an independent third party.”[xviii]

During his second appearance, NDP MP Jenny Kwan pressed Mr. Aterman on why this recommendation was not acted on. He stated, “the board is responsible for managing its own people, and fundamentally it’s the chair’s obligation to do that. The Chair is paid and is expected to act in the interest of the institution.”[xix]

The NDP is of the view that the new complaint process, while a step in the right direction, if the Chair can oversee whether or not to proceed with a complaint, it remains that it is still not an independent process. Under this system, the real or perception of conflict pertaining to the complaint process will continue to cast a shadow over the integrity of the IRB. While the NDP notes that the Director of Integrity, who is now in charge of handling complaints, leads a “somewhat lonely life”[xx] because they aren’t included in management meetings, the NDP feels that the IRB should have adopted a completely independent process as recommended by stakeholders through the government’s own consultation process. An independent, unbiased examination of complaints is essential to the openness and accountability. This opinion was also shared by the following witnesses:

• - Professor Ms. Laverne Jacobs[xxi]
• -  Immigration Lawyer Ms. Cheryl Robinson[xxii]
• - Immigration Lawyer Ms. barbara findlay[xxiii]
• - Immigration Lawyer Ms. Preevanda Sapru[xxiv]
• - Immigration Lawyer Ms. Nastaran Roushan[xxv]
• - Immigration Lawyer Ms. Asiya Jennifer Hirji[xxvi]

Ms. Roushan put it bluntly when she stated:

“You cannot dress up an office within the IRB as independent, regardless of where it is located or regardless of how ‘isolated’ it is. You cannot dress up a complaint system as independent when the chair has ultimate discretion over whether or not to even look at a complaint.”[xxvii]

During the study an issue was raised by witnesses that in some cases, outstanding complaints were closed prior to be finalized because the Member had left the IRB and there was no ability to pursue the complaint further. While during his early appearances Mr. Aterman suggested there was no way the IRB could change this situation, while making his final appearance at the committee, he later informed committee members that the IRB had heard the concerns about this and was moving forward with examining avenues to finalize cases in situations where IRB members had left the IRB with outstanding complaints against them.[xxviii] This is a welcomed development and one that should be recognized.

After a complaint was lodged, some witnesses appearing before the committee noted the difficulties that could arise from appearing before an IRB member that they have lodged an active complaint against. In some cases, this would be with the same client, in other cases, new client but same IRB member, or in some cases additional delays or perhaps restarting the whole hearing process is examined. Part of this was a result of the undue amount of time it took to resolve complaints. Ms. Roushan explained:

“For example, in what happened with Cassano, it took about 10 months for there to be a final decision. Hearings ongoing with her on which she hadn’t made a determination, hearing that had been adjourned for another date, were just left standing. There were claimants who, for about 10 months, didn’t know when their next hearing date would be, and then they had a letter about a year afterward saying, ‘well, you can have a de novo with a new member.’ We can just imagine the ramifications, when they had been so traumatized already, to have to wait during that time.”[xxix]

If a complaint is found to valid, there are a range of sanctions that can occur. Throughout the study, having a member undergo additional, complaint specific training was discussed. Mr. Aterman continually expressed that examination of the effectiveness of this additional training was done during the annual review. However, immigration lawyer Ms. Cheryl Robinson expressed concern with the current lack of training follow-up or examination of effectiveness. She explained that:

“Basically, you’re making refugee claimants who come after the complaint and training into guinea pigs to see if the training took effect. I also think that if we looked to other bodies, for example the law society, we’d see that when people are reinstated they’re not just put in without any supervision. There are terms for supervision and follow-up. I think that would be more appropriate after a compliant.”[xxx]

While termination from the Board is currently a possible sanction for both public service Board Members and GIC Board Members, in her appearance before the Committee, Ms. Donnalyn McClymont, Assistant Secretary to the Cabinet, Senior Personnel Secretariat, Privy Council Office, explained the difficult, long process, and high bar required for a GIC appointment to the IRB to be terminated[xxxi]. When asked if this was appropriate, while noting that the process should be fair, it was agreed upon that there should be a reasonable process for terminating a GIC appointee to the Board for misconduct. Mr. Brouwer stated that, “there also needs to be a range of clear consequences for bad behavior, from training through to removal from any hearing or decision-making role to outright termination”[xxxii].

Lastly, concerns were brought to the committee about the public reporting of founded complaints against IRB members. In her dealing with the complaints process, Ms. Roushan noted that:

“One of the things I actually asked the IRB to tell me was how many complaints had been made about her [Cassano] in the past, the nature of the complaints, and why they hadn’t done anything about it. Because she is no longer there, they claim that they don’t have to give this information over.”[xxxiii]

It is the opinion of the NDP that to ensure accountability and transparency for the IRB, and to maintain public trust in the institution, founded complaints and the corresponding sanctions should be public reported on annually. This would be similar to other professional bodies in Canada such as the Canadian Bar Association.

Given this, the NDP recommends the following:

Recommendation 6:

That the government of Canada work with the IRB to implement a fully-independent complaints investigation mechanism. 

Recommendation 7:

That the independent complaint body to report its findings within 90 days of a complaint being lodged. Should the body require additional time for an investigation, the individuals involved should be notified of this, and made aware of the status of the investigation.

Recommendation 8:

That government of Canada work with the IRB to put in place a mechanism to examine the effectiveness any given sanction has had on the sanctioned IRB member prior to fully reinstating them to ensure the issue has been adequately addressed.

Recommendation 9:

That the government of Canada work with the IRB to review and implement an updated list of sanctions and the guidelines describing when each sanction is appropriate; and that possible sanctions escalate up to and including termination, including for GIC appointees.

Recommendation 10:

That the government of Canada work with the IRB to produce an annual public reporting of any and all founded complaints and their corresponding sanctions against IRB members.

Conclusion:

The NDP will continue to welcome any and all opportunity to examine and produce recommendations to improve the effectiveness of the IRB. The NDP share the view of witnesses that have expressed support for the IRB and feel that the IRB should be maintained and remain an arms length independent entity of government. As well, the NDP feels strongly that the IRB should be adequately funded to ensure it can fulfill its mandate in a timely, efficient and effective manner. While complaints against a small number of IRB members made national headlines and required swift and strong action, the NDP believes that the majority of IRB members do their important job with a commendable degree of professionalism and a great deal of care and sensitivity given the vulnerable people that they are making such life-impacting decisions for. The IRB holds a vital role in Canada’s immigration system and the system itself as a whole provides a model that many nations in the world can look to. It is for these reasons that the NDP supports ongoing examination of the IRB. The government of Canada and the IRB must work hard to maintain the high expectations placed on the Board.