[Recorded by Electronic Apparatus]
Tuesday, June 18, 1996
The Chair: The Standing Committee on Citizenship and Immigration is continuing, pursuant to Standing Order 108(2), an information session regarding the Ministerial Advisory Committee on the Selection of Members of the Immigration and Refugee Board.
We have the pleasure and honour of having with us today, from the Ministerial Advisory Committee, the chair, Mr. Gordon Fairweather. Welcome on behalf of all members.
Mr. Gordon Fairweather (Chair, Ministerial Advisory Committee on the Selection of Members of the Immigration and Refugee Board): Thank you very much. I was glad to leave New Brunswick for a day, but I warned the clerk that I had to get a plane at 5 p.m. I didn't have enough sense to listen to Mr. Pearson when he told me that when I retired I had to have courage to say no. A lot of things happen, but remember that when you retire.
In September 1993 a new system began having to do with appointments. There was an advertisement in the Canada Gazette and then came a flood of CVs. In October, if memory serves me correctly, there was an election. The new minister, Mr. Marchi, I assume was faced with the need to have some kind of advice on qualified people for the Immigration and Refugee Board.
In February 1995 - and I'm sorry for this, but I think the background will help the committee understand - the minister called and invited me to chair a small committee. We had a discussion. The committee serves on a pro bono basis and has most meetings via conference calls, thus saving citizens a lot of money.
I was interested in the public policy implications of the minister's new plan, so I accepted. However, the minister then didn't, despite some urging, and I have to be candid...we didn't get the committee filled out until mid-summer of 1995. Meanwhile there had been noises made about my appointment, which meant that the bank of CVs was increasing exponentially. When we had our first meeting in the early autumn of 1995 we found over 1,100 applications.
The committee, as it was constituted then, consisted of Dorothy Davey, who since 1986 had been a member of the Immigration Appeal Board and was then a member of the refugee division in the newly constituted Immigration and Refugee Board; Susan Davis, who was the executive director of Jewish Immigrant Aid Services of Canada; Tomasso Nanci, an advocate from Saint-Léonard, Quebec; my successor, Nurjehan Mawani, the chair of the IRB; and two vice-chairs, John Frecker of the CRDD and Nancy Goodman of the immigration appeal division. The last two serve in an ex officio capacity but are very helpful.
We set the criteria in October 1995 in a long meeting and made plans to tackle the1,100 applications. By the end of this month we will have completed that list, plus names that have come in the last few months.
The second task of the committee is to give advice to the minister about reappointments. The reappointments are based on appraisals. When I chaired the board - and my successor will speak for herself, of course, but she supports this - appraisals were absolutely essential, not only for the management of the board but also for the members themselves, to help them with their goals, to have the vice-chairs and chair comment on their skills and perhaps on where some improvement is needed. We advise the minister at his, and now her, request on reappointments.
As a matter of interest, getting ready for this committee, I pulled from the file... One thinks there isn't any movement in the world. Well, there were 29 expired mandates for the board in the refugee division in 1995 and there were 46 in 1996.
Incidentally, we've sent recommendations to the minister for the entire calendar year of 1996. I have to give credit to this minister; this is a real breakthrough. I've been in this city since 1962 and I've watched with great interest Privy Council Offices and others advising the Governor in Council on appointments, and this is the first time in my experience that anybody has had any advance notice as to whether he or she is going to be appointed or not. It's basically only fair. Madame Robillard has asked for names until the end of 1996 and we've given her those recommendations. I'm thrilled about that.
Just to give you advance warning, in 1997 there'll be 80 mandates expiring on the CRDD. For heaven's sake, in the IAD it's not quite as large as that. It's about 10 to 15.
I suppose and I hope the minister will follow her practice and get early advice from the committee. That advice comes on the basis of the appraisals done on the member's performance.
I think that's enough of the history, Madam Chair, and of course I welcome questions.
The Chair: Thank you very much, Mr. Fairweather. On behalf of all the members, I truly appreciate your presence here today on such short notice. We'll try to make sure that you do catch your flight.
We'll begin with Ms Meredith. I'm going to do five-minute rounds because we have two large issues to deal with today.
Ms Meredith (Surrey - White Rock - South Langley): Thank you, Madam Chair.
Thank you for coming. You actually answered my first two questions, so I'll move on to the -
Mr. Fairweather: So you have two minutes.
Some hon. members: Oh, oh!
Ms Meredith: I'm afraid not. I'm curious, and I'll go into my third question, which deals with the appraisals, the reviews. What criteria do you use for new applicants to single them out as people who would be good IRB members?
Mr. Fairweather: Of course, this is a committee of the minister. It's not a committee of the IRB; it's advising the minister. I have to make this point because of access to information. We take the view that the information given to the minister is protected.
But I'm going to answer the question. The criteria came from a letter I had from Mr. Marchi. I'll just run through this quickly. They are: ``awareness of immigration and refugee matters, linguistic proficiency, and ability to conduct hearings and write decisions''.
One would think all this is pretty basic, but in our efforts in early years to recruit from the broad spectrum of Canadian life we did find that although people may have had a lot of refugee experience and in fact some were successful refugee claimants themselves, they had difficulty in writing decisions. Out of the 1,100 new ones, we will be advising the minister on the basis of about 150. By the way, we've winnowed that list down to about 300. The minister wants a bank of names.
Ability to write, ability to conduct hearings, linguistic proficiency in either of the official languages, and of course some knowledge of immigration and refugee matters are the criteria. We're not bound by credentialism. If somebody has a university education we feel that's helpful, but somebody with broad experience without a university background would not be denied a chance to be sent forward because of that lack.
Ms Meredith: Do you find you're pulling people out who have extensive experience in refugee advocacy groups or who were immigration lawyers?
Mr. Fairweather: That's an extraordinarily perceptive question. I think one has to be wide-eyed about that, alert to that, because some people carry their advocacy. These people are in a quasi-judicial capacity and are making decisions based on the facts of each case. They mustn't and can't be advocates.
I go back to the Human Rights Commission. We were all starry-eyed when we began that commission - I was just like the rest - and we were busy recruiting people who had the same goals and ideals. In a sense we would have been wiser to have recruited people who were very efficient at gathering and analysing facts, and then to have let other parts of the Human Rights Commission or other parts of the immigration board handle advocacy - or the United Nations High Commissioner.
That's a bit long-winded. We've had to be alert to the fact that some people who come from the advocacy groups have trouble shedding their other life.
Ms Meredith: So you would be looking for somebody who may bring a bias with them from their experience or life experiences, and you would deliberately try to avoid that?
Mr. Fairweather: Well, we have some wonderful people. For instance, my favourite - and I'll state my bias - is the Mennonite Central Committee. I think of all the groups that assist here in Canada and all over the world, they have to have the star. They're awfully good at it. We recruited many of their members who were in the field. This was when the board began, in 1988-89.
The Chairman: Ms Minna.
Ms Minna (Beaches - Woodbine): Thank you, Madam Chair.
When a name comes to you for renewal, presumably with it comes a package of the assessment or evaluation the chair has made, and she's obviously recommending them to your committee. If I'm wrong, you can correct that. What do you do then? Exactly what sorts of things do you look at before you recommend a name or not recommend a name?
Mr. Fairweather: The chair has the final imprimatur or the final sign-off on that file. The assistant deputy chair in the region would be responsible for the first appraisal, and the candidate himself or herself has a chance to discuss that appraisal with anybody in the chain. The next on the chain would be the vice-chair, and finally the chair.
In my experience, and I'm sure it's the same with my successor, some people are not comfortable with the appraisal and will say so. Our committee, advising the minister, would take that discontent, if that's the word, or lack of acceptance of the appraisal, when we make a recommendation to Madame Robillard.
Ms Minna: Before you make the recommendation to the minister, how often do you find yourself not sending a name forward to the minister that may have come forward from the -
Mr. Fairweather: The last list was just under 50%. That's higher than usual.
But other things are going on here, too. We want exceptional people to be reappointed. We also think it's important to keep transfusing the board with... Look, we have 1,100 people who for one reason or another think they're suitable. We haven't quite agreed with the 1,100, but we've agreed with a couple of hundred. Because we feel ``old boy'' or ``old girl'', how nice they've been...we don't want that criterion to overrule the fact that out of this couple of hundred names there may be an excellent new member. We want outstanding and excellent people, and those are the criteria we use in advising the minister on reappointments.
Ms Minna: I see. Thank you, Madam Chair.
The Chair: Mr. Ianno.
Mr. Ianno (Trinity - Spadina): In terms of the Montreal office, I understand there are part-time members. Why is that the case?
Mr. Fairweather: The case-pending load began to build. It's an extraordinary thing to watch this country. Three years ago one would have thought that perhaps - I hope I'm right, I'm looking at the staff - 35% of all claims would have originated in the Montreal regional office. As I understand it, that's gone up to 45%.
Mr. Ianno: Is that because of the perception that it somehow might be easier to get better status in Montreal compared to somewhere else?
Mr. Fairweather: I don't know. I'm advising the minister on names. You will have a chance in a few minutes, I guess, to ask my successor. I'm not ducking it. I think sadly there are professionals... I'm a member of the bar. I hope I didn't forum-shop, but I've heard that it does go on.
The Chair: Mr. Ianno, just for verification, because you're not a regular member of the committee, Mr. Fairweather is not here for the estimates. He's here to -
Mr. Ianno: I understand that.
The Chair: Okay, that's fine.
Mr. Ianno: Thank you.
The Chair: Would you like to continue?
Mr. Ianno: No, thank you.
The Chair: Ms Meredith.
Ms Meredith: Mr. Fairweather, I'd like to go back to the criteria. You had 1,100 people indicate through the Canada Gazette that they were interested in this -
Mr. Fairweather: Or writing to the minister or writing to the chair -
Ms Meredith: Okay.
Mr. Fairweather: - or writing to members of Parliament, I assume. By this time, you know where to send those applications.
Ms Meredith: So then you ended up receiving any indication from individuals who expressed an interest in sitting on the IRB.
Mr. Fairweather: Yes.
Ms Meredith: You have shortlisted it to 300. How did you manage to shortlist it?
Mr. Fairweather: We were brutal. We wanted the best. Both ministers did. It was really the high point in my public life here, both elected and appointed. Mr. Marchi said to me, I will not send any name to the Governor in Council that doesn't have the - I don't think he used the word ``imprimatur'' but I'm so proud that I know what it means that I use it - the stamp of approval of your committee.
Some hon. members: Oh, oh!
Mr. Fairweather: When a minister says that to you... I said, if that is the rule, I am aboard. I was then asked to meet the new minister, who said, I want the best names and no other name will go to the Governor in Council if it hasn't passed your committee.
Ms Meredith: Okay. But you started off with 1,100 names -
Mr. Fairweather: Yes.
Ms Meredith: - and since then they've been added to. You couldn't possibly have interviewed all 1,100.
Mr. Fairweather: Oh, no.
Ms Meredith: Somehow you eliminated the bulk of the applicants.
Mr. Fairweather: Yes.
Ms Meredith: How did you manage to do that?
Mr. Fairweather: We did it I guess -
Ms Meredith: What was the primary -
Mr. Fairweather: First of all, we got some advice from the pros in this town, from the hiring branch of the Public Service Commission. As other people do, we looked at resumés.
For instance, if we saw that somebody had been part of Amnesty International or the office of the United Nations High Commissioner for Refugees or the Mennonites or the Canadian Polish Congress, that kind of thing... We could have had a list of 500 lawyers, but had we done that, we would have spoiled the scheme of the act - the legislation - and would also have defied the informality that should prevail.
If lawyers are going to run all these boards, then we might as well not have a board and have the courts do it.
Ms Meredith: I couldn't agree with you more. Did you eliminate all the lawyers?
Mr. Fairweather: Oh, heavens! No. That would have eliminated me.
Some hon. members: Oh, oh!
Mr. Fairweather: I couldn't do that - any more than we didn't eliminate former public people, former politicians.
Ms Meredith: So in looking at the 1,100 resumés, you tried to get a balance? Of the 300 that you -
Mr. Fairweather. Yes.
For instance, many of the lawyers have extraordinarily interesting immigration or refugee practices. That would alert us immediately. Some, sadly, are practically just out of law school. I think we would have said... I certainly would have, because we each had 200 or 300 names and then would cross-check with one another about ones that were in kind of a -
Ms Meredith: So when you got into the names that were with Amnesty International or the UN High Commission or in very vocal advocacy groups, was it a big question mark as to whether they could be neutral?
Mr. Fairweather: I don't want to overplay the neutrality thing. I think it's something we had to be alert to, but what I meant by that was that would be a signal that they may make first-class members.
First we check two references. One was professional references, which we found were almost always better than the personal references. I've never met a personal referee who wouldn't say, oh, what a marvellous... It just goes with the territory. But the professionals...
Then we had them in, and each member of the committee... I must have interviewed 15 or20 myself. Other members had heavier loads, because I have a geography problem.
Then we set up rather straightforward writing, about half an hour. It involved writing skills and analysis of a fact situation.
Ms Meredith: So did you interview the 300 who were shortlisted?
Mr. Fairweather: Some of the 300 fell by the wayside because references weren't up, but otherwise we interviewed them all.
Ms Meredith: So even those 300 have been reduced?
Mr. Fairweather: Oh yes. I think we'll be lucky to get 160 to the minister.
The minister wants a bank of names, and we're doing our best to get them for him.
The Chair: Mr. Nunez, are you ready or do you want me to come back to you later?
Mr. Nunez (Bourassa): I will ask questions now. I'm sorry I was late. I wanted to be here for Mr. Fairweather's testimony, but I had to make a speech in the House.
The Chair: Mr. Fairweather, are you ready?
Mr. Fairweather: Yes.
The Chair: Is it okay?
Mr. Fairweather: I understand that my friend has been in the House doing his duty.
The Chair: Yes.
Mr. Nunez: You are well-known in Canada, but we don't know much about your committee. Sometimes it has been called the ghost committee. We did not really know what role your committee was playing and I'd like to thank you for coming today to tell us more about it.
Personally, I don't think that there have been major improvements in the selection process of members of the Board. We have reviewed some appointments or reappointments and we have noticed that political patronage is alive and well.
I will ask you a few questions and I hope you will forgive me if you have already answered similar queries. Have you rejected the application of some people who appeared before your selection committee?
Mr. Fairweather: Oh, of course. There's no point in having a committee if we're going to accept everybody. I might as well have stayed home in New Brunswick. We reject a great number.
Mr. Nunez: For which reason?
Mr. Fairweather: Because they didn't measure up on their appraisal of their performance. Those were for reappointments. The others didn't suit the criteria of this ghost committee I'm happy to chair. I must tell them at home I'm a ghost. It would be very interesting.
Perhaps the member would be helped by the criteria. One is experience: community-based experience in immigration and refugee affairs, cross-cultural education - this is very important - and experience in social service programs. Preference may be given to candidates who are members of the bar of any province or the chamber of notaries. This would particularly be the case in the immigration appeal division.
Also required is a good knowledge of current political, socio-economic, demographic and historic situations, knowledge of the Immigration Act, general knowledge of administrative law, ability to conduct quasi-judicial hearings to weigh evidence and assess credibility. And it goes on.
Mr. Nunez: Can you tell us the percentage of your claims acceptance rate?
Mr. Fairweather: I think we'll be lucky to take 10% of the 1,100. You can press my colleagues from the board. I'm just doing quick mathematics. It's about right.
Mr. Nunez: Are your decisions made by way of consensus, or do you just go with the majority of the members?
Mr. Fairweather: There is no vote. It is a consensus. I'm unhappy with a small committee that has to keep voting on whether people should be recommended to the minister. If members have problems, we like to hear them discuss the problems as to why a name wouldn't be suitable. But we don't vote.
Mr. Nunez: And how long does it take you to study a claim?
Mr. Fairweather: For each application, the interview itself is half an hour and the written test is about half an hour. But I have found it very time-consuming to get answers. Members of Parliament know this just as well as I do. Now we have all sorts of fancy things for our telephones and nobody is ever at home. You buzz 2 or 3 or 4. It is hard to get references to respond. So I would have thought four or five hours per name.
Then the committee itself would take time to go through the recommendation.
Mr. Nunez: Are you...
The Chair: I must interrupt you to point out that you only have five minutes and thatMr. Fairweather has a plane to catch at 5:00 p.m.
You are leaving at 5 p.m.
Mr. Fairweather: I wouldn't mind taking the committee with me.
The Chair: We wouldn't mind coming to New Brunswick.
Mr. Cullen (Etobicoke North): In the selection process, I'm wondering if you've considered some traditional interview or selection techniques such as psychological testing. When you're going through the process for each candidate, do you have a process where the different criteria are weighted and some kind of a matrix approach developed?
This may be a slightly naive question. I was also wondering if you've ever thought about advertising in newspapers in addition to Canada Gazette, although I know you're not looking for additional candidates.
Mr. Fairweather: I begged the minister almost on my knees, bowing several times. They wanted another Canada Gazette. I said the Canada Gazette will get a thousand lawyers. Who reads the Canada Gazette?
They agreed in her office not to advertise. This has taken a monumental amount of time, honestly. For the four or five pro bono people, this is one thing. I've nothing else to do most of the time. But others are very busy, particularly senior staff.
So they said all right. Get through this 1,100. Give us names. I want them by the end of June, and then we'll have a discussion at the end of the summer.
The department people are here. They know the ethnic newspapers and others. But whoever is in this job has to be prepared for the next wave.
Mr. Cullen: Right.
Mr. Fairweather: But you asked about matrix.
Mr. Cullen: Yes. With regard to weighting, are you looking at certain criteria? What criterion takes precedence over another? Do you use techniques like this?
Mr. Fairweather: I don't think we do formally, but certainly the key things - experience; knowledge; the language requirement; abilities, including the ability to analyse - would be very high.
Mr. Cullen: I have one last question, Madam Chair.
Do you have any constraints, Mr. Fairweather, in looking at the kind of balance you get on the boards. Is it representative of society as a whole? Could you discuss this?
Mr. Fairweather: My public life has involved chairing the Canadian Human Rights Commission. If I may boast, we got the public service award for the most representative office in the Government of Canada. The UN High Commissioner's agent came to our Toronto facilities and couldn't believe the representativeness when it came to gender and the streams of Canadian society.
I'll just warn you. Occasionally people will say, for example, that if somebody from Ghana who came here in 1968 heard a certain case, there might be apprehensions about bias. Let's be a little more neutral. A Polish-Canadian, whose grandfather had come to Canada, was once told she shouldn't sit - she was not told this by us, of course - on any board having to do with a claimant from Poland.
I resist this with every fibre in my being. These are board members who have the authority of the Governor in Council. Rarely would you have on a professional basis members coming and saying for a number of reasons they are unable to give an unbiased opinion. I respect this greatly, but as a rule it doesn't happen.
Mr. Cullen: Thank you.
The Chair: Mr. Bélanger.
Mr. Bélanger (Ottawa - Vanier): Mr. Fairweather, I take it from what you said that there might have been instances where members of the board, who are coming up for renewal, were not recommended for appointment or the appointment was recommended against.
Mr. Fairweather: Yes.
Mr. Bélanger: Is there any instance where the government may not have followed your advice?
Mr. Fairweather: No. The government - and, I understand this - wants cogent reasons. They are then subject to all the pressures you, ladies and gentlemen, know all too well. If we say no, then the person who doesn't receive an appointment is going to... So we have tried to be very frank.
Mr. Bélanger: What is your timeframe to complete this exercise you are currently embarked on of weaning the 1,100 down to 150 or 160 for a bank, if I may ask?
Mr. Fairweather: We will have finished this bank by the end of this month.
Mr. Bélanger: Will this then be given to the minister?
Mr. Fairweather: The minister has almost all of it.
Mr. Bélanger: Okay.
Mr. Fairweather: I'm sorry. They are in dribs and drabs. Perhaps suddenly there is someone who needs to be interviewed in Yellowknife. We'll need to know when somebody is going to be in Edmonton. I'm using an exaggerated example.
Mr. Bélanger: That's okay. How long will that exercise last the government in terms of a bank?
Mr. Fairweather: They'll have the bank for two years.
Mr. Bélanger: So you don't foresee going through this again for a little while?
Mr. Fairweather: Well, as I answered your colleague, by the fall I think the government will be pretty anxious to have a slightly more broadly based advertisement than the Canada Gazette. We have to be ready for that and we'll need advice from the department as to what kind of ad it should be and where and so on.
Mr. Bélanger: Thank you.
The Chair: Mr. Nunez.
Mr. Nunez: Do you sometimes check into the political allegiance of applicants?
Mr. Fairweather: I don't think I know the political allegiance. Perhaps I know two or three, because political allegiance and political service is also community and service to the state. That is the last thing that interests our committee.
Having said that, I wouldn't deny that if a person of any party has the criteria to commend themselves to the Governor in Council, God bless them and we'll push it on.
Mr. Nunez: If you become aware of an applicant's political leanings, is that taken into consideration?
Mr. Fairweather: Well, I know it because I live in this country and can see that if... Well, I'll tell you.
A wonderful woman who was a member of Parliament, Aideen Nicholson, was defeated by Barbara McDougall, who was Minister of Immigration. Aideen Nicholson had every criteria to commend herself to the new government. As chair of the Immigration and Refugee Board, I sent the name to Ms McDougall, the minister of the day, and the Governor in Council was happy.
To deny Aideen Nicholson, a distinguished member of Parliament, a place on this board because she was once a Liberal MP would be outrageous. I was happy to have her as a colleague. I served with her and that's why I knew. I don't go around calling up references and seeing whether they're on the Bloc committee in Lac Saint-Jean or anything like that. That's of no interest to me.
Mr. Nunez: Do you consult with the IRB? Do you ask the Board, for example, for appraisal forms of Board members when you are considering reappointments?
Mr. Fairweather: Yes. The appraisal forms a very important part of our advice to the minister. I don't say that in each case I see the whole appraisal form; it's rather an extensive form. I see what the division leader and the vice-chair and chair had said and what the member has to say about those comments.
Mr. Nunez: Do you get the appraisal form of every single Board member who is reappointed?
Mr. Fairweather: I don't have a copy. A copy could be made available. I have the important parts of the appraisal upon which the committee can base a decision.
Mr. Nunez: Your committee was set up over a year ago. What is your assessment? Do you think that Board members are more qualified today than they were in the past?
Mr. Fairweather: Frankly, I thought the board received an unfair rap. I think the appointments made in 1989 were basically rather good. But it became a partisan thing and I understand that; I've been a partisan.
With this system, though, as I've told both ministers, I think we can save them a tremendous amount of grief, in the sense that people will have been interviewed, we will have seen their writing ability. Earlier on some members came to us with all sorts of credentials but had difficulty putting paragraphs together. When a written decision could be subject to analysis by the Federal Court, that's a danger.
The Chair: Thank you.
We must, unfortunately, take into account Mr. Fairweather's schedule today.
Mr. Wappel (Scarborough West): Thank you, Madam Chair.
Mr. Fairweather, hello.
I just want to be clear on something. There are two kinds of appointments. One is an initial appointment and one is a reappointment. Did I understand your evidence to be that the previous minister, since your committee came into being, never appointed anyone initially -
Mr. Fairweather: Sergio Marchi and Lucienne Robillard have never recommended to cabinet any member who has not been through...and received the recommendation -
Mr. Wappel: The imprimatur.
Mr. Fairweather: Yes. I tried not to do it twice -
Mr. Wappel: I did it for you.
Mr. Fairweather: Yes...of our committee, and that is what hooked me, got me. I thought I'd retired, but I thought if a minister can say that...
Now the problem becomes how quickly do they respond. There's no reason now, to my knowledge, why appointments can't flow very rapidly.
Mr. Wappel: I wasn't on the immigration beat when this happened, but I seem to recall somebody was appointed in the Montreal area and it was subsequently discovered they had either misinformed...a refugee applicant from the Punjab who then subsequently became a Canadian citizen or something like that. Do you remember this case at all?
Mr. Fairweather: I have no doubt we've appointed - ``we'', the Governor in Council - 200 or 300, or perhaps even more. We don't keep a running count. But somebody may have -
Mr. Wappel: No, but do you remember what I was referring to?
Mr. Fairweather: I don't remember the person from the Punjab. I remember people from closer to home than the Punjab we had to deal with.
Mr. Wappel: Yes, it was a Sikh gentleman. Apparently, if I remember the facts correctly, he had misstated the facts or something of that nature. Would he have received your imprimatur?
Mr. Fairweather: No. I don't remember him, so I -
The Chair: Mr. Wappel, I fail to see where you're going with the questioning.
Mr. Wappel: With all due respect, what difference does it make whether or not you see where I'm going with the question?
The Chair: I think he answered your question.
Mr. Wappel: I'm entitled to ask the question.
Mr. Fairweather: I don't know.
The Chair: The witness answered your question.
Mr. Fairweather: I don't know who -
Mr. Wappel: That's fine. If he doesn't know, he doesn't know.
The Chair: Mr. Ianno, you wanted a last question.
Mr. Ianno: Yes. I'm just curious as to whether we could have a copy of the criteria you were using. You were listing about six or seven items -
Mr. Fairweather: By all means, you may have the criteria. Staff can hear me, and they'll do that.
Mr. Ianno: Thank you.
You stated that some criteria are more important than others-for example, cross-cultural experiences, the ability to write. How do you determine if one is possibly lacking in the knowledge of the Immigration Act per se because they haven't really studied it but they're very good in all other aspects?
Mr. Fairweather: In the CRDD, the refugee determination division, there's really one question to be answered. So we wouldn't expect somebody to have a paragraph and subparagraph knowledge of the Immigration Act. If they had, because of practice, so much the better. But it wouldn't be even in the first five. They can learn the essentials.
Mr. Ianno: As long as they have the ability -
Mr. Fairweather: If they have the ability to fit the facts to the test the immigration -
Mr. Ianno: As long as they can think and apply themselves and be somewhat unbiased and come up with a common-sense approach, then possibly they would be worthy of recommendation.
Mr. Fairweather: Yes. When Rabbi Plaut did a report for Mr. Axworthy years ago, his report said informality on the CRDD side should be the prevailing kind of ambience. That having been said, you need somebody who isn't so informal that they lose control of the hearings.
The Chair: I understand you have to catch a flight.
Mr. Fairweather: Well, yes.
The Chair: One last question, Mr. Nunez.
Mr. Fairweather: He's going to transmogrify me out of a goat. I can't go on an airplane as a goat. I feel very upset.
A voice: Actually, you could.
Mr. Nunez: Mr. Fairweather, I never quite understood the logic behind the decision to reappoint some commissioners for two years and others for five years, three years or even four years. Are you going to keep staggering these renewals?
Mr. Fairweather: That is the Governor in Council's prerogative. We would have preferred longer renewals rather than shorter ones. On the other hand, sometimes members suggest that if they are to be reappointed, they would like two years, and then they would go.
Mr. Nunez: So this has nothing to do with your report?
Mr. Fairweather: No, that's the Governor in Council and the Privy Council.
Mr. Nunez: Thank you.
The Chair: Mr. Fairweather, thank you for coming from New Brunswick to meet with our committee.
Mr. Fairweather: Thank you.
The Chair: We'll now invite Mrs. Mawani, chairperson of the Immigration and Refugee Board, and we will continue with the main estimates for fiscal year 1996-97 of the Immigration and Refugee Board.
Shall we begin? We have a vote at 5:30 p.m.
Mrs. Mawani, do you have any opening remarks for the committee?
Ms Nurjehan Mawani (Chairperson, Immigration and Refugee Board): Yes, I do. Thank you, Madam Chairperson.
The Chair: Would you like to introduce the members of the board who are with you?
Ms Mawani: Yes, I will. I have with me Jean-Guy Fleury, who is the executive director of the board, and Philip Palmer, who is the board's general counsel.
I see some familiar faces here, Madam Chair, as well as some new faces. I know that most of even those who are new to the committee are very familiar with the work of the board.
The IRB of course is an independent, quasi-judicial tribunal. We began our operations in January 1989 as a result of amendments to the Immigration Act.
The board's mandate is threefold. The refugee division conducts hearings of claims to refugee status; the adjudication division adjudicates immigration inquiries and detention reviews; and the appeal division hears and determines appeals from immigration and adjudication decisions.
While we are independent, we also operate in conjunction with the parties who appear before us: officials from the Department of Citizenship and Immigration, counsel for those who appear before the board, and individual claimants and appellants. Each one has important responsibilities, and effective coordination of the efforts of each player is critical to the efficient functioning of the board.
The board is very conscious of the restraint program, including the need to get government right. Over the last five years our budget has gone down from over $90 million a year to under$77 million in fiscal year 1996-97. That is a budget decrease of 15%. In order to get it right, we have embarked on a process of self-examination and renewal.
Since last I appeared before this Committee in March of 1995, the Board has undergone many transitions. It has responded to changes in legislation. It has embarked on significant enhancements to the refugee determination process and has also undertaken a comprehensive organizational renewal.
Our objective is to bring the organization together around identified core values - creating a cohesiveness that had sometimes been lacking between branches of our organization. At the same time we are keeping in mind our mission, which is, on behalf of Canadians, to make well-reasoned decisions on immigration and refugee matters, efficiently, fairly, and in accordance with the law. We are ensuring that all our energies serve our mission effectively.
Organizational renewal is an ongoing process that has led to changes in structure and to a review and redesign of some of the Board's practices and processes. More important, it has led to a renewed emphasis on the people who make up the Board.
The ongoing organizational renewal involves all levels of the Board and, in recent consultations, involved a large cross section of our employees. We are emphasizing the development of our human resources. We have redefined the mandate and functions of our Operations Branch and are amalgamating our Toronto regional offices. In the past year, we have also closed our Halifax office and co-located all our Vancouver employees.
While undertaking organizational renewal in 1995, the three divisions of the board collectively processed some 42,000 cases, including approximately 17,200 refugee claims, 2,400 immigration appeals, 11,600 inquiries and 10,800 detention reviews.
To guide these changes we have committed ourselves to excellence in delivery in every aspect of our work that leads to quality decision-making. Building on our reputation as one of the most innovative administrative tribunals in Canada, in 1996 we will see the board consolidate the gains realized by our commitment to getting it right.
To meet the enormous challenge of determining claims to refugee status made by people from every corner of the world, the board's refugee division must respond quickly to a constantly evolving national and international situation.
The enhancements to the refugee determination process have been implemented in all regions. The board has also developed a team-based approach to case and file management that supports the process changes we announced in March 1995.
Several major accomplishments include a task force of experienced people within the board elaborating a new series of operational policies and procedures to accompany the enhancements. Training took place in all regions. The documentation, information and research branch established a new mechanism for the ongoing acquisition of claim- and claimant-specific information. Arrangements within the Department of Citizenship and Immigration regarding the transmittal of port of entry notes to the refugee division were also finalized.
Over the six years of the Board's existence, some major sources of refugee claims have been replaced by others, while the number of new claims referred per year has fluctuated. This year the Department predicts we will have approximately 30,000 referrals. The Montreal office of the Refugee Division now accounts for approximately half of the refugee claims referred to the Division, which is up considerably since 1993 when the Montreal office accounted for only 28% of all claims. A large influx of cases from Chile prompted the Montreal office to treat these cases on a priority basis in order to reduce the high number of pending cases. This response to a significant challenge was innovative and timely. Additionally, five new part-time members and three new full-time members were recently appointed to the Montreal region.
The board also adapted to the evolving Immigration Act. Bill C-44 has changed the jurisdiction for both the appeal and adjudication divisions and has rendered certain categories of persons ineligible to have their claims deferred to the refugee division.
In the immigration appeal division, Bill C-44 has resulted in roughly 15% fewer appeals against removal orders in 1995-96, as forecast. These appeals represent only a small portion of the workload of the appeal division, which has been growing steadily since 1993-94 owing to the increase of appeals on refused sponsorship appeals. However, after a record year in 1995, some reduction in the number of appeals is expected in the fiscal year 1996-97 because of a decrease in immigration levels for sponsored immigrants and because the implementation of Bill C-44 will likely result in fewer appeals against removal orders.
The appeal division has increased productivity and is responding to the steady increase in immigration appeals filed. In the last year the division instituted new measures to streamline the sponsorship appeal process by building on alternate dispute resolution principles.
In 1995-96 the adjudication division experienced an 18% decrease in the number of adjudication inquiries, largely attributable to Bill C-44. It is expected that we will continue to feel the impact of the legislation in 1996-97 with the further decrease of 10% in the inquiry activity forecast, particularly in the Ontario region. As projected, there has been an upsurge in more complex inquiries such as those involving alleged war criminals, and this trend is expected to continue.
As we stated in our outlook document, the board is committed to promoting quality and consistency in decision-making. The chairperson's guidelines are a very important statutory tool available to the chair to promote this objective. I am pleased to be able to report to you that since my last appearance before this committee in March 1995, a number of developments have reinforced the board's leadership in this area.
First, the United States adopted guidelines for its asylum officers in May 1995 modelled on our guidelines on women refugee claimants fearing gender-related persecution.
Second, the United Nations High Commissioner for Refugees convened a conference in Geneva in September 1995 of 19 member countries, specifically to encourage those member states to adopt an approach to gender-related persecution that is similar to ours. A number of countries have responded and are adopting similar approaches.
Third, in March of this year we issued guidelines on civil war. This was in response to the growing number of claims, nationally and internationally, from men, women and children fleeing civil war situations. The situation of civilian non-combatants, those who are not directly involved in any conflict, was one that needed attention. Once again the IRB took the international lead in this area, and now our guidelines are being studied by several countries facing the same issue.
Fourth, in response to the growing number of refugee children who are claiming refugee status both in Canada and internationally, we will be issuing Guidelines on Unaccompanied Refugee Children this summer. Again, this will be an international first for a status determination system and will assist our members in determining claims of refugee children. We have, as with all our guidelines, worked very closely with the UNHCR and welcome their advice and collaboration.
It is important to note that the issuance of guidelines has not had a significant impact on the number of claims referred to the board. Over the last three years gender-related claims have consistently represented less than 2% of the claims referred to the board annually. Nor do I believe that the guidelines exempt individuals from the need to present convincing proof of their refugee claims.
To conclude, the past year has been one of change and renewal at the board. Through the various initiatives I've described, we at the board have reaffirmed our commitment to the continuous improvement of our processes and have demonstrated our ability to be able to adapt and develop.
Canada's Immigration and Refugee Board will continue to collaborate with other countries to share knowledge and expertise. In August we are organizing a forum at the 11th Annual Commonwealth Law Conference in Vancouver, where Australia, New Zealand, the United Kingdom, the United States and Canada will work together to promote the best practices in international refugee determination.
We have been recently involved in training of the U.K. immigration adjudicators at their request. We will also be participating in the United States immigration judges national conference in July, again, also at their invitation.
Additionally, our documentation, information and research program continues to be a leader in the provision and exchange of country of origin issues and human rights issues, internationally with both governmental and non-governmental organizations.
The people of this board, Madam Chair, are very proud of the fact that Canada remains at the forefront of refugee determination, and the commitment and the dedication of the people of the board is manifest in the quality of our work and our reputation for leadership.
In the weeks and months ahead, the board will respond to the inevitable changes generated by events at home and abroad. Change at the board is not only being managed on the basis of affordability, but it is also being undertaken in an atmosphere of caring for the people affected by declining budgets.
While operating in an environment of fiscal restraint, we will continue to consolidate our progress and we will continue to look for opportunities to achieve excellence in the delivery of our mission. I believe this is the best way to ensure public confidence in the important work we do.
Thank you very much. I welcome your questions.
The Chair: Thank you, Mrs. Mawani. We will begin
with Mr. Nunez.
Mr. Nunez: Thank you, Ms. Mawani, for your presentation. As always, you are very optimistic, even though we are aware of several problems in the IRB. However, you have not mentioned any of the enhancements brought about by the organizational renewal.
The fact is, Ms. Mawani, that there are unacceptable delays. There are 24,000 cases in the refugee determination sector, 10,000 investigations are under way in the adjudication section and 6,400 appeals are still pending. That is much too much, Ms. Mawani.
How will you solve these problems? There are critics of the IRB in Montreal. I've listened to three programs on Radio Canada that were not very complimentary regarding the IRB, and a member of the Board had to appear in criminal court because he had uttered death threats against a colleague.
I asked the question of the Minister who told me that it was your jurisdiction. I would like to get some explanations today. Moreover, according to the Estimates, in spite of this tremendous backlog, the expedited hearing process is used less often.
How can you explain such backlog, Ms. Mawani?
Ms Mawani: Thank you, Mr. Nunez. You've raised a number of issues. Let me deal with the issues that you've just raised with respect to Montreal.
With respect to the member you were referring to who was the subject of some criminal charges, we are awaiting the outcome of those charges.
Mr. Nunez: Did you suspend him?
Ms Mawani: We have not suspended him. The reason is that there are pending charges, and we have in this country, of course, resort to the justice system. A person is presumed innocent until proven guilty. However, I took the position that while these charges were pending, it would be better for the member concerned and for the board if he remained at home.
Mr. Nunez: With salary?
Ms Mawani: Yes. He is there with salary. There is no provision in the immigration legislation for me to be able to suspend a member in these circumstances, and frankly even if there were, until the person's guilt or innocence is established, the person is innocent, and we are not -
Mr. Nunez: For how long will he stay at home?
Ms Mawani: He will stay at home until the charges against him are determined. I understand that the hearing is imminent. So I expect to be able to deal with that very shortly.
Mr. Nunez: He has a right to appeal?
Ms Mawani: That would depend on the outcome of the... We must also remember that there has been no internal complaint against the member concerned.
Mr. Nunez: There are two judicial processes, if I understand correctly. But that has nothing to with you or with me.
Ms. Mawani: That's correct.
Mr. Nunez: There is a division of powers in Canada, but administratively, it is your responsibility as chairperson of the IRB.
Ms. Mawani: That is correct.
I accept that, which is why I have exercised that responsibility in the way I have, which is to ask the member to remain at home until such time as the charges have been determined. If there was an internal complaint against him, that would have operated on another track, but there hasn't been one.
Mr. Nunez: Is that not enough to take some measures for what he did?
Ms Mawani: I'm sorry, do you mean to suspend him?
Mr. Nunez: Yes.
Ms Mawani: No. It is simply not possible to suspend him. In my view, it is not right to prejudge the course outcome of the criminal charges.
With respect to the other issues you've raised, I would particularly like to respond to the issue of the caseload. If I may, I'll focus a little bit on the caseload in Montreal.
We found that the caseload in the Quebec region went up very substantially over the last few years. In 1993, the referrals were at 28%. In 1994, they were 37%. In 1995, they were 48%. In the first quarter of 1996, we have been at almost 51%.
There are referrals from a particular country, Chile in this case, that represent 37% of Montreal's caseload in the first four months of 1996. So what we have seen, in fact, is a sudden influx from one country that has increased the level of the overall caseload for the board in a very substantial way in a very short time.
We are geared to be able to respond and deal with a certain number of refugee claims every year. We are resourced in that way. Our members are geared to that way. When we get a sudden influx of that type, we have to be able to respond to that, which we have done. In fact, we have certain teams that specialize in the countries that are generating a number of referrals. I'm not saying they're generating more refugees, but they are suddenly generating a lot of referrals to us.
I'm very pleased to be able to report to the committee that the Montreal processing time right now is at 11 months, which is less than the national average. I have to tell you that I'm not proud right now of our national average, which is 12.5 months, but there are good reasons for that. If anybody would like to know that, I'm happy to answer.
However, as a result of the various initiatives that we put into place in the Montreal region to deal with this very large influx of cases, we are at 11 months. Our objective nationally is to be at six to eight months, which is something we have achieved in the past, and I know we will be able to achieve it in the future.
Ms Meredith: I would like to ask you many questions, but I'll start off with the ones on the members themselves. Do they have a code of conduct?
Ms Mawani: Yes, they do. In fact, it is available. If you would like, I can make a copy available to you.
Ms Meredith: Would you please do that through the committee clerk?
Ms Mawani: I will. We will make a note and do that.
Ms Meredith: I understand that some immigration lawyers request that a specific member hear their case. What are you doing to address this?
Ms Mawani: No, we do not permit forum shopping in that sense. To the best of my knowledge, no counsel who would have made such a request would have had that request acceded to. It's not the practice of this board to accede to a counsel's request for particular members.
Ms Meredith: Will the new changes proposed by the Treasury Board, which are making one-member boards, alleviate what I perceive to be a difficulty, or would someone be able to circumvent a hearing if they didn't like the member who was going to be hearing their case?
Ms Mawani: It is always open to a lawyer to put in a request for an adjournment or postponement. I would presume they would not do it just because they don't like the member in front of them. However, if they did, I can assure you that if that's the only reason why they want their case to be postponed or adjourned, they won't get that request. The member won't grant it just for that reason. The only way a counsel could try to get the member changed would be to make a motion on the basis of an allegation of bias.
Ms Meredith: My understanding is the board members are not to show any bias. That is their role.
Ms Mawani: Exactly. Nevertheless, you can always have somebody make a claim of an apprehension of bias. It would be up to the member to decide whether that is an appropriate intervention.
Ms Meredith: So if a member tended to give more negative decisions than positive decisions, could a lawyer then argue there is an element of bias against positive claimants?
Ms Mawani: They could try, I suppose, but it's not in my experience. I'll ask my general counsel what our experience has been in this, but I don't recall anything.
Mr. Philip Palmer (General Counsel, Immigration and Refugee Board): A finding of bias would not be based upon a negative rate in relation to claimants in general. It would have to be based upon some behaviour, conduct, or pattern of conduct that showed that certain groups or people from certain countries or origins were being systemically treated in a manner that suggested they weren't getting a full hearing.
If it does happen, it's very rare. That normally arises in the course of a hearing when a member shows by his questions, attitude, and the way he treats the claimant or the claimant's counsel that they've already made up their mind before they've heard all the evidence. As I say, that's something we're alert to, and it happens very rarely. There have been a few cases that have been successful, but they are among the several hundred thousand cases that have now been heard by the board. It's pretty rare.
Ms Meredith: If the decisions are to be unbiased and impartial, how is it possible then for a senior member of the IRB to issue a warning to some board members that there needs to be an increase in their acceptance rate because their region was below the national average?
Ms Mawani: Are you referring to a particular memo that was sent out?
Ms Meredith: Let's just say I've learned that a senior member of the IRB issued a warning to some board members about a need to increase their acceptance rate because their region was below the national average. If all the decisions are to be made impartially, then that kind of comment would influence the way they would be awarding their decisions.
Mr. Palmer: Could you be a bit more specific? Is this any person who is presently on the board?
Ms Meredith: My understanding is that it's somebody who is presently on the board.
Mr. Palmer: I'd be very surprised. Frankly, I've never heard of any such memo or any such attempt to influence members.
Ms Meredith: So there would be no attempt to influence the decisions made by by the IRB's management, other senior members, or the board?
Mr. Palmer: I'll let the chairman answer that.
Ms Mawani: Absolutely not. It would be inappropriate for anyone in management to give any direction to a member as to how to decide a particular case.
Ms Meredith: But in general, as for the percentage of acceptance rates as opposed to negative decisions, there would be no pressure put upon members to decide one way or another?
Ms Mawani: Absolutely not. It would be inappropriate to do that. I am surprised that there is some question of somebody doing that. It would be inappropriate.
Ms Meredith: With positive decisions, only some of them need to be written decisions, but I understand that with negative decisions they need to be written decisions.
Ms Mawani: Yes.
Ms Meredith: Why is there this discrepancy? Why would not all decisions need to be written decisions?
Ms Mawani: That was a requirement of the Immigration Act. When the board was constituted, Parliament decided at the time that only negative decisions should have written reasons to accompany them. However, since then, we have established and issued a policy that we expect members to provide reasons in certain situations or circumstances, even in positive cases. We are in the course of developing those. This is to promote consistency and to ensure that we are aware of the jurisprudence that's developing in this area.
Ms Meredith: What circumstances would you be looking at or considering?
Ms Mawani: For example, if we have cases from what are regarded as non-refugee-producing countries and we see there is a wide divergence in acceptance rates on claims involving claimants from a number of countries, that would give us some cause for concern. Why is this happening? How would we know that? We would want to look at the profile of the claims.
One thing that could assist us is to make sure we get some reasons written up, even for the positive decision. It's a very important tool for us to be able to promote consistency and to ensure that there is equality in our decision-making.
When we issue guidelines, for example, we also require that when members are applying guidelines in any case, they provide written reasons for those decisions. Again, this helps us to get a sense and to monitor whether the guidelines are being applied and, if so, how they are being applied. If members only provided reasons for negative cases and not for positive ones, we wouldn't know, so it would not be very helpful.
The Chair: We'll come back to you, Ms Meredith. Thank you.
Mr. Cullen: Thank you, Ms Mawani, Mr. Fleury, and Mr. Palmer. I had a couple of questions but I don't know if we'll get to them all today.
I wanted to follow up, Ms Mawani, and bite on your invitation to ask about the national average of twelve and a half months and the reasons behind that. Could you start with that?
Ms Mawani: Yes, I will. Mr. Fleury can add to this as well.
We have fluctuations first of all in the claim load. That is a major reason. I can tell you about that in the context of the refugee division as well as the immigration appeal division. Let me start with the immigration appeal division for a moment, because that division isn't talked about very often.
We saw a substantial increase in the number of sponsorship appeals filed over the last two years. The reason for that is twofold. One reason was that the Department of Citizenship and Immigration decided to accelerate processing of some of the applications that were being handled abroad. For example, the department decided to deal with all the applications in the New Delhi office. As soon as they were dealt with, of course that created a large number of people who wanted to appeal those decisions. As a result, the numbers went up.
On the deportation appeals the numbers went up because the former minister in the department at the time, Sergio Marchi, set up a task force to deal with enforcement. The moment you do that, of course that increases the number of inquiries, the number of deportation orders, and hence the numbers of appeals. We have seen that substantial increase in the appeal division. However, as I said in my opening remarks, we are beginning to see, and we will see, a decline again because of the impact of Bill C-44, which I think is partly what that was designed to do.
In the refugee division we have seen major fluctuations. We started with 38,000 refugee claims, which then went to 35,000. It went down at one point to 20,000 and went up again to 26,000. The prediction for this year is that there will be 30,000 referrals to the board. So you can see that in these circumstances, when there are large fluctuations, we have to be in a position to be able to respond. For a period of time we may go through a phase when our ability to process those claims may be affected.
Furthermore, two other factors are very important and should be taken into account. One is that in 1994 we had a major changeover within the board in terms of members. We had almost 100 new members coming to the IRB. This is a very substantial number, almost half, to be coming to an administrative tribunal. They needed to be trained. They needed to be ready. We saw their productivity decline reflected in that.
The third element was the fact that in March 1995 we introduced changes to the refugee determination process. We put in enhancements. Whenever you put in changes it requires training, new operational procedures and new guidelines, and all of those changes mean that you cannot be doing business as you were. Therefore, you have to allow some down time.
The good news is that we have done a turnaround on that, and in the first quarter of 1996 we have been at our highest productivity since the middle of 1994, the year when we had the massive changeover. So we are on the right track, and I'm very happy to be able to report to you that while I'm not proud of 12.5 months, we're going to get there.
Mr. Cullen: Good. Thank you.
Ms Mawani, on the issue of identification, when people come to the board seeking refugee status, obviously they don't all come with a whole pile of documentation. They've just come from countries where they've been in serious difficulty. I'm wondering what role the board has played and could play in the area of identification. For example, how do you try to establish that the person before you is in fact the person he's representing himself to be, and what role does the IRB play there, or what role could it play?
Ms Mawani: This is a great challenge in any refugee determination process, for the very reason you've just mentioned. Very often, people who are fleeing their countries in times of conflict are not going to have time to go to their governments and get documents. However, many countries have imposed visas. As a result, people have to produce some documents to get the visa. We know there is a widespread industry in documents.
People very often arrive with documents they subsequently decide to destroy or with documents that may not be authentic. What can we at the IRB do? What can the department do? As I said earlier, every player has a very important role. At the front end, when a claimant arrives at a port of entry, assuming it's an external port-of-entry claim, he or she goes through what is known as the ``interview'' with a senior immigration officer. At that time there is an opportunity for departmental officials to be able to ask some questions and to review those documents.
In the past, the senior immigration officer's notes were not made available to us. However, under the enhancements I talked about that we announced last year, port of entry notes, under an agreement with the Department of Citizenship and Immigration, now come to the board, so we have the benefit of those notes.
Then as we go into the hearing, what are the elements that help us to assess a claim of that nature? First of all, we know that a number of these types of cases come from certain countries, countries where often there isn't even a tradition of written language. It's an oral tradition.
We have team and country specialization. This has been of tremendous importance to this board. We have members and refugee claims officers who have become specialists, and their knowledge of the details of that country - and not just of the country, but of the area where the particular claimant comes from, including the languages and absolutely everything in there - is very useful in the hearing room.
Then we engage in what I referred to as part of our enhancement, more claim-specific and claimant-specific information ahead of time. We have strengthened our pre-hearing process. That also assists us.
We have strengthened the member's ability to be able to question claimants, and the refugee hearing claims officer's ability to do the same. We have developed a module and a training program on credibility assessment that is constantly being imparted to the members.
I have sat in on a number of refugee claims, including cases where we have undocumented claimants, and let me assure you that we have a group of extremely competent members and refugee claims officers. Having had the experience myself, I can tell you there are techniques, through questioning, through information, and through specialization, available to us to be able to identify the individual appropriately. It is not foolproof. No system is.
Mr. Cullen: Good. Thank you.
The Chair: Mr. Nunez.
Mr. Nunez: Ms. Mawani, some employees have been to see me regarding the privatization of the documentation, information and research branch. Some 50 people work there and they are quite concerned about the situation.
An employee by the name of Rossi has presented a privatization plan. There was a vote, that plan was rejected and there were quite a few articles in the newspapers. Carleton University has been mentioned as the university that could get that contract. What is the situation to date on that proposal, Ms. Mawani?
Ms Mawani: Thank you. I'm going to ask my colleague Jean-Guy Fleury to respond to your question.
Mr. Jean-Guy Fleury (Executive Director, Immigration and Refugee Board): The project you have mentioned was studied before the last federal budget. The study was conducted according to the employer's policy at the time. It was just a draft proposal concerning the transfer of control and decision-making process to employees.
We studied the project as presented. According to the policy at the time, we had to determine if the research role was essential to our decision-making role.
After a rather detailed study, we concluded that the way the proposal had been formulated, we could not privatize at that point this activity.
I must however point out that all privatization proposals are reviewed. In our work plan, this year, we plan on studying not only research, but every single area of activity to determine if it would be better for the Board to have this work done internally or externally.
As for the future, it is obvious that if there were other proposals, it would be our responsibility to study them on their own merit and according to current policies.
Mr. Nunez: So no final decision has been made so far?
Mr. Fleury: Yes, a decision has been made regarding the proposal received in the past.
Mr. Nunez: But there is no final decision?
Mr. Fleury: That decision was final.
Mr. Nunez: I wrote the Minister and she told me once more that this came under the IRB's responsibility. The file was sent to you and I'm still waiting for an answer.
Mr. Fleury: Mr. Rossi received a written decision signed by the chairperson regarding the proposal he had put forward. There have been no appeals regarding the decision.
Mr. Nunez: I would like to know what role the IRB plays in the appointment of the Board.
I must admit that it is difficult for us to do our job properly when members of the Board appear before the committee with a very incomplete C.V. It is often nothing more than a job description, and there isn't much information we can use to ask questions. Moreover, we never received from the IRB the appraisal forms. We sometimes receive a paper giving the approval rate with which, in most cases, Board members take issue.
I would like you to give us some explanation because I am quite concerned. All these studies and reviews we conduct are completely useless because we do not know the background of the Board members.
The Chair: Before the Chairperson of the IRB answers, I would like to point out thatMs. Mawani has written me a letter, which I distributed to the members of the committee, regarding statistics. I think that you should read this letter first.
If you wish to tell us more about the contents of that letter, Ms. Mawani, you can do so.
Mr. Nunez: But this letter is only in English.
The Chair: We'll get it translated.
Ms. Mawani: I'm sorry,
but I will certainly attempt to answer your questions.
First of all, I'm sorry you find that you are not equipped with adequate information. We are sending you members' CVs that we feel are appropriate to forward on to you.
Mr. Nunez: Excuse me, but sometimes the CVs are four years old.
Ms. Mawani: Ah, that's true.
Mr. Nunez: They go back to the first time these people were appointed. They haven't even been updated.
Ms Mawani: I accept that, but part of the issue, of course, is that while they are on the Immigration and Refugee Board, they do not take part in any other activities. They are full-time - those who are full time - members of the Immigration and Refugee Board. So their CVs stop, in a way, when they join the IRB. After that, they're with the IRB.
With respect to their appraisals, a matter you have raised, we do not deem it appropriate, for privacy reasons, for us to be able to share a person's evaluation or appraisals with any third party. That is between the person being appraised and the organization. If the individual member wishes to release that, it is up to him or her. It is not appropriate for us to do that.
With respect to the statistics, as the chair has kindly pointed out, I have responded to that. The issue has been, I understand, that when two or three members appeared before you on their credentials the last time, they expressed some concern about the statistics. This was with respect to acceptance rates, from what I understand.
We have as a result of this gone back and checked our STAR system, which essentially gathers this data. I am assured that the information we provided to you is in accordance with our own internal records. We have advised the member. It is also possible that the way in which the STAR system compiles data is not necessarily the same one I as a member may manually compile for myself. For example, a couple of members may not have calculated their statistics - and I'm not saying they didn't - when they were involved in the expedited process or in the backlog determination process. So there are certain reasons why those statistics may not be exactly the same.
The other important point I would like to make is that we do not judge members on the basis of acceptance rates. It is not a preoccupation of this board. It would be inappropriate for us to make recommendations on renewals based on acceptance rates. The decisions have to be made fairly and in accordance with the law. That is their requirement. We don't second-guess their decisions. The review is by the courts.
Mr. Nunez: Do you have a system for those who wish to file a complaint against a board member?
Ms. Mawani: Yes, we have set up such a system.
Mr. Nunez: How many complaints have you received recently?
Ms Mawani: Formal complaints under that process? I would have to check for you. I would be happy to present you with that information. I don't know if our general counsel has the information.
Mr. Palmer: I don't have a global figure.
Mr. Nunez: Have there been complaints, yes or no?
Ms. Mawani: Yes.
Mr. Palmer: Yes, it works.
Mr. Nunez: Who files those complaints?
Mr. Palmer: Mostly lawyers. It's mostly lawyers who file those complaints.
Mr. Nunez: And what do you do about them? How do you process those complaints?
Mr. Palmer: There is an internal investigation that is launched as soon as the complaint is received. Then we try to gather the relevant information, and we talk to the coordinating member, with the Board member or even with the lawyer. We take note of testimonies, but it's quite informal. We can also talk to other people who were in the room at the time. Then, we determine whether the complaint is justified.
I must say that quite often, these are complaints of a legal nature. They do not pertain to the behaviour of a Board member, but rather to his rulings or the procedures used during the hearing.
That is why we seldom have to intervene.
The Chair: Thank you, Mr. Palmer.
The Chair: Ms Meredith.
Ms Meredith: Thank you, Madam Chair.
I want to follow up on Mr. Nunez's question about what he calls ``privatization'' and what I would call ``contracting out'' of the documentation, information and research branch. Do you favour saving taxpayers money by contracting that element out if it is to be an efficient means of research that would provide you with the information?
Ms Mawani: As I said in my opening remarks, we are very conscious of the program of fiscal restraint and of getting it right. We are reviewing every single activity on our board - we call it a ``resource redefinition'' exercise - to be able to establish the cost-efficiency of all our programs. As such, we would be willing to look at any proposal with respect to the issue of the documentation, information and research branch.
It is very important to remember that any proposal we would look at would have to address a certain number of areas. The first and very important assessment we have to do is on whether that function being talked about is a core function. In the proposal we received in the past, my determination was that the function sought to be privatized or taken over by an employee was of fundamental importance to the board. It went to the absolute heart of its refugee determination process because of the importance of information - reliable, objective, timely and credible information - that had to be responsive to the needs of the decision-maker in the hearing room and the staff.
Ms Meredith: I'd just like to follow up on that. You mentioned at one other point in your testimony that you make guidelines, that you make rules of operation. Now you're talking about this information as being extremely important to the core fundamental element of decision-making. How is it you can be making all these guidelines and gathering the information? How can you be a quasi-judicial board if you're providing all the information on which you're basing those decisions?
Would it not be better if the information you were using came from outside sources so that there would be no question that the information was biased, that the gathering of that information was biased, that it pertained to any kind of agenda, or that, to use a word being used to criticize the IRB, the culture, the culture of being positive to claimants...? If you were to remove that aspect, don't you feel if all of the information coming in to you came from bodies unrelated to you it would eliminate that concern?
Ms Mawani: First of all, it's very important for all of us to realize that the information housed in our documentation, information and research branch does not come from the IRB. It is information that comes from an enormous number of sources. We have professionals within the branch linked in to various organizations all over the world. We get information from governments and non-governmental organizations from all parts of the world. Often we'll get a request from a government of a country that they have some information about the situation in their country. We don't screen that. We ask them to put it in the documentation centre. It is then available for the members, for the refugee hearing officers and for the counsel to be able to deal with that.
Ms Meredith: My concern is that I understand there are substantial savings to be made on a yearly basis by allowing a university to fulfil that function. We know the minister has announced four centres of excellence that will be doing precisely that: gathering information from a world network to provide information for the Department of Citizenship and Immigration.
Why is there reluctance to share in that kind of vision of using our universities and these other centres for gathering information that we can all use?
Ms Mawani: Let me say that there is no reluctance on our part to be engaged in this sort of initiative. What is important - and I'm going to ask the executive director to follow me on this - is that any proposal that is presented to us has, in our view, to meet certain criteria. We will examine any proposal that is presented to us in accordance with those criteria and at the end of the day, on that basis, determine if we are in a position to be able to accede to that question.
Ms Meredith: But those criteria can be given -
The Chair: Ms Meredith, your time is up, but Mr. Fleury wanted to add something.
Mr. Fleury: If I may add to this, there's more than one criterion with respect to alternatives. You're looking at fulfilling federal obligations and interests; providing capacity for flexible, innovative service, which is fine; considering client and stakeholder interest; optimizing service; providing best value for money; managing risk, which is very important - if the decision-makers don't have the information in time, that is very important in terms of throughput time and processing time - and, of course, managing the human resource, which is, if that activity was to leave, how the human resource would be managed, how it would be looked at, and what we would do with workforce adjustment and all of its implications.
So we're not looking at just one criterion. We're looking at the business we're in and what we do and how that relates to that and if we can meet and discharge our responsibilities.
I guess what I was saying when I was answering the first question was that I can't prejudge what a future proposal will look like, but the one we did look at did not meet what we wanted in terms of satisfying that we could discharge our responsibilities. Now, if another one came, we'd have to look at it objectively on its own merits.
Ms Meredith: But if there's money to be saved, can't -
The Chair: I'm sorry.
Mr. Bélanger, we've got five minutes before the bell will ring.
Mr. Bélanger: For any future proposals, whether jointly between employees and an outside organization such as Carleton University or just by employees, how will such an expression of interest be assessed? What process will you use?
Mr. Fleury: If the proposal is one of straight privatization, then we're going to use the criteria vis-à-vis privatization. If the proposal is a pure employee takeover, then we're going to have to deal with the policy on employee takeover.
Mr. Bélanger: So you will set up a panel of three people?
Mr. Fleury: In the one on alternative delivery, to my knowledge there's no requirement for that; but on the one on employee takeover, my understanding of the new policy is that the chair or the person or deputy head making a determination is highly recommended to look at panels.
Mr. Bélanger: My question is to the chair, or the deputy head in this case. Would you set up a three-person panel to look at any future proposals?
Ms Mawani: While it's not mandatory, it's certainly something I would be prepared to consider.
Mr. Bélanger: May I go back to the notion of core function, which, if I understood what you said, is essentially the reason why the proposal that was put to the IRB was not accepted. It was because the function that was suggested that would be run independently of the IRB by Carleton University and some employees was a core function - ``vitale'', as Mr. Fleury said. Is that the reason why it was rejected?
Ms Mawani: First of all, we did make the determination that it was a core function fundamentally.
Mr. Bélanger: You made that determination -
Ms Mawani: Yes.
Mr. Bélanger: - but then you didn't go further.
Ms Mawani: No, no. Once one had made that determination, one would have to be extremely satisfied that any proposal being presented was in conformity with the highest standard that it would be our responsibility to ensure.
Mr. Bélanger: I'm aware of the danger of assuming things, but would I be correct in assuming that there are essentially two types of research functions done by that branch? One is compilation of reports and information pertaining to actual claims, certain claimants, individual matters - and I actually share your view in that case, that it is somewhat vital and somewhat core to what you're doing - and the other kind is a compilation of documentation or situations of certain countries and what it looks like.
Are those the two broad categories of research?
Ms Mawani: Generally speaking, yes.
Mr. Bélanger: Are you aware that in most countries the second type of research is already privatized and done outside organizations similar to the IRB?
Ms Mawani: I haven't examined other systems, but I would -
Mr. Bélanger: Would you acknowledge that quite a lot of that particular second kind of research is done on a contractual basis by people who are not staff members of the IRB? Do you acknowledge that?
Ms Mawani: It may well be. Do you mean right now, within our process?
Mr. Bélanger: Right now.
Ms Mawani: I'm not sure I'm following that.
Mr. Fleury: I stand corrected. We do have people on contract.
Mr. Bélanger: My question to you, then, is this. For that second kind of research, which is what I gathered the proposal was, how do you really justify calling it a core function when it's already being done by the outside currently in Canada and in most instances elsewhere in the world? I don't understand your justification here. Would you care to explain it to me?
Ms Mawani: To me those two elements in the responsibilities of the documentation and information branch are very linked. Even though part of it may be contracted out, ultimately the responsibility for being assured of the quality of that still rests within it.
What we have also found is that as we have made the enhancements - the changes we made recently to our process - we have had to be able to respond in a very timely and very flexible manner to the needs of the decision-maker, very often at very short notice. It's therefore quite crucial to us -
Mr. Bélanger: Ironically, my information is that is when the IRB goes to contractual arrangements: when you need it momentarily.
With all due respect, the rationale for rejecting it in the first case doesn't jibe.
Mr. Palmer: I could add to that, Madam Chair. There are situations where of course we contract out. But I don't think when we contract out we are in any different a position than the one Carleton would be in, as an instance - a university or an independent research institute - in having to go further afield for special expertise; for instance, a hypothetical situation where a government changes in a particular country and there is a need for basically crisis development of a package on country conditions in that country. The question is partly who's in the better position to manage quickly and obtain targeted results, targeted streams of information, that would serve our decision-makers in the hearing room: a person who is operating, by and large, at arm's length from the board, or people within the board who are responsive and more closely in contact with members and member managers on a daily basis.
I'm not saying these are problems that are insuperable, but any proposal to hive off that activity would have to take into account a number of these factors, and thus far the case hasn't been made that the efficiencies lie there. It's not impossible that one could be engineered that would meet all those concerns.
Mr. Bélanger: The case hasn't been made, because essentially the proponents of this case haven't really had the opportunity to make it because they have not had access to the numbers within the IRB that would reflect quality of product, timeliness of product, and savings to the taxpayers - with all due respect.
The Chair: Ms Minna.
Ms Minna: Thank you. I have a comment and then a question about evaluation.
The comment is really a clarification for our colleague Ms Meredith. The centres of excellence, as they are set up, do not have to do with collecting information for the purpose of the IRB. They are strictly integration research, long-term integration.
I'm sorry, that's what I thought you were linking it to. I misunderstood.
I'll be very brief. I'm interested in how you proceed with the evaluation of an IRB member. What criteria do you use? What do you look at? What do you examine? Do you do spot checks on cases to see if fairness was applied? Do you look at the level of cases that are overturned by the Federal Court as a result of appeal? Is that an indicator? Do you look at all of those things? Obviously there is the written stuff. How do you examine and evaluate? What are the criteria you use?
Ms Mawani: I am more than happy to answer this, but if it would be helpful because of the time, I have brought with me some blank performance appraisal forms, which set out the criteria and the activities surveyed.
Ms Minna: Good. I'd be very interested to see them.
Ms Mawani: For example, there is case preparation, hearing participation, reasons writing, participation in professional development and other duties. In the evaluation criteria we look at the knowledge of country conditions; law and procedure; presiding skills; listening and observation skills; analytical skills; reasons-writing ability, which includes both analysis and timeliness; adherence to the code of conduct; and general level of professionalism.
How do we do this? Reasons, sometimes transcripts, tapes, observations, reports of hearings... We often have assistant deputy chairs sitting in on hearings, sitting with members. The deputy chair does that, the coordinating member does that, I do that. We'll have some written observations from other people who are present in the hearing room on occasion.
We also look at statistical indicators of productivity. For example, if a member may be very good but has a chronic problem with lateness of decision writing, that will be a very major factor, let me assure you.
The Chair: Mrs. Mawani, I thank you very much. I'm sorry the time did not allow for more questions. We will have you back, but not on the estimates.
I want to make sure everybody understands that the estimates have to be approved. They're deemed approved unless we have other comments.
On behalf of the members, I will be happy to invite you back in the next session. Mr. Fleury, merci. Mr. Palmer, thank you.
Have a nice summer, members. We are adjourned.
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