STANDING COMMITTEE ON CITIZENSHIP AND IMMIGRATION

COMITÉ PERMANENT DE LA CITOYENNETÉ ET DE L'IMMIGRATION

EVIDENCE

[Recorded by Electronic Apparatus]

Thursday, May 27, 1999

• 0913

[English]

The Chair (Mr. Rey D. Pagtakhan (Winnipeg North—St. Paul, Lib.)): I call to order this meeting of our standing committee.

We are studying the main estimates for 1999-2000 on vote 15, the Immigration and Refugee Board under the Department of Citizenship and Immigration, and the Report on Plans and Priorities.

I shall now call vote 15.

The witnesses we have with us today are from the Immigration and Refugee Board. We have Ms. Mawani, the chairperson, Ms. Senécal, the executive director, and Mr. Palmer, the senior general counsel.

I have just been advised that this booklet, Facts About the Adjudication Division, is ready for distribution. If we have extra copies, I would request that they be distributed to the members of the committee.

On that note, I welcome you, Ms. Mawani, and certainly thank you for taking time from your hectic schedule. Please proceed. I understand you have an opening statement to make.

[Translation]

Ms. Nurjehan Mawani (Chairperson, Immigration and Refugee Board): Thank you, Mr. Chairman. Good morning.

Let me begin by introducing my colleagues at the table with me: Nicole Sénécal, who is the new Executive Director of the IRB, and Philip Palmer, the Board's General Counsel.

As always, the IRB is eager to contribute to the committee's work. I hope that the information that was provided to the committee following our last appearance in November was found to be useful.

Today, we are here to formally present the Report on Plans and Priorities for 1999-2000 for the IRB.

• 0915

However, since appearing before you last, there have been a number of developments that I would like to comment on by way of a brief introduction.

[English]

The first, of course, is on the international front, and is the subject that is on all our minds. We meet here today in the shadow of the human tragedy unfolding in the Balkans. None of us can be unaffected by what is happening there.

Mr. Chairman, these events have reinforced our resolve at the IRB to do our best in discharging the board's mission. The IRB is part of Canada's response to providing a safe haven for the displaced and the persecuted. We consider that our work at the IRB is in many ways at the heart of Canada's contribution to one of the most pressing humanitarian challenges of our time. That is why we at the IRB place so much importance on commitment and on performance.

I'm pleased to inform you that since last being here, the IRB has continued to demonstrate gains in its performance. In all, the IRB last fiscal year rendered 46,000 decisions between its three divisions.

You have the information regarding the IRB's performance in the Report on Plans and Priorities, but I also know how busy the committee has been. With your permission, then, I would like to briefly highlight some salient points.

With respect to the refugee division, in the last fiscal year, 1998-99, 25,000 refugee claims were referred to the IRB. In the same year, we finalized 30,000 claims, which is almost 20% more than in the previous fiscal year and nearly 30% more than in 1996-97. The 22,800 claims pending as at the end of March 1999 is down, therefore, by 5,000 from the previous year, and down by 6,500 from the year before that.

The proportion of claims pending for less than one year rose to approximately 80% by the end of March, compared with 65% a year ago. This is expected to increase to 90% by the end of this fiscal year. This means that by the end of this fiscal year, 90% of our caseload will be less than a year old.

I am also pleased to report to you that the average processing time during this last quarter was 11.2 months compared with over 13 months in the previous fiscal year. It is expected that this decrease will continue and that we are on target to meeting our commitment to Parliament of reaching an eight-month processing time by the end of this fiscal year.

The average cost per claim has also come down, to $2,379 from $2,489.

Let me turn briefly to the immigration appeal division. The division has achieved its highest-ever completion rate. The 4,600 appeals finalized in 1998 is almost double the number we finalized three years ago. The average processing time has now decreased to 9 months from nearly 12 months just a year ago. In this way, we have been able to meet the appeal division's commitment to Parliament one year ahead of schedule.

The average cost per appeal has gone down for the fourth straight year. It now stands at $1,848 per appeal.

I'll now turn to the adjudication division. The adjudication division continues to keep its workload current in all regions, with no pending inventory of cases, in spite of its caseload becoming more complex. The adjudication division rendered a total of over 12,200 decisions on immigration inquiries and detention reviews.

The cost per inquiry and per detention review has also come down. I would be pleased to provide you with any further information on this, although it is, of course, contained in our report.

• 0920

What I would like to draw your attention to is that during this last fiscal year, only 4 of the 13,870 total decisions made by our adjudication were set aside by the Federal Court. I want to point out, however, that while performance figures are important to us, each number represents a person and a family. We are always conscious of this fact, and I am confident that we have been able to achieve these increased levels of performance without sacrificing quality.

Let me turn to what are the IRB's priorities for this fiscal year—namely, to sustain productivity and at the same time strengthen quality and consistency.

[Translation]

We are doing so by continuing to develop innovative practices to strengthen our capacity as a leading-edge administrative tribunal. For example, since its inception, the Board has considered learning and professional development to be central to fulfilling its mission.

In recent months, the Board has enhanced its approach to learning by adopting a National Learning Framework that integrates all learning initiatives for both decision-makers and public service employees.

In 1990, the Board was the first federal tribunal to formally appraise the performance of its decision-makers. It is expanding its practices in this area with the development of a Performance Review Program, inclusive of a Performance Review Committee, to ensure that Board members meet the highest standards of professionalism.

[English]

As you know, the chairperson of the IRB has the authority under the Immigration Act to issue guidelines to assist decision-makers in carrying out their duties.

Mr. Chairman, I am pleased to report to you that the board will be issuing guidelines on removal orders in the fall to assist the appeal division in its work in this important and sensitive area. The objective of the guidelines is to promote quality, consistency, and transparency in decision-making in, as I've said, a highly sensitive mandate.

The board has recently upgraded its videoconferencing equipment across the country. All three divisions are actively utilizing this technology to increase the board's efficiency as well as its accessibility.

The board is also implementing a new case management system. Among other benefits, a modern case management system will address the Auditor General's concerns around the type of information available to Parliament concerning refugee determination.

As you know, in January of this year the minister announced the directions the government intends to pursue in modernizing immigration and protection legislation and policy. The proposals were the result of a process that began with the work of the Immigration Legislative Review Advisory Group in 1997, followed by ministerial consultations in 1998.

I understand the minister appeared before the committee yesterday.

From the outset, the IRB has been active in the legislative review process. We continue to provide the minister with information and practical advice as required.

I would remind the committee that the IRB entered into an administrative framework agreement with the Department of Citizenship and Immigration in December of 1996. This agreement was signed to facilitate increased collaboration between us and to reinforce the degree of coordination and integration that was necessary.

You will be pleased to know that under this framework agreement, the board recently signed a third subagreement with the department that will improve, we believe, the consistency of the information gathered from refugee claimants and then transmitted by the department to the IRB.

• 0925

[Translation]

The work we do for Canada, and our accomplishments would not be possible without the commitment, hard work and creativity of everyone associated with the Board, which is an organization committed to excellence on all fronts. That is our challenge. It is a challenge we are delivering on. The results speak for themselves. They are tangible and they are measurable.

[English]

In this tenth year of the board's existence, Mr. Chairman and members of the committee, I am pleased that the IRB is building demonstrably on its performance gains and is sustaining the quality and consistency of the work it is charged with doing on behalf of all Canadians.

We are heading into the millennium with the prospect of a renewed mandate and with a determination to meet the challenges placed before us.

Thank you, Mr. Chairman. I would be pleased to answer any questions.

The Chair: Thank you, Ms. Mawani.

I would like to open the floor for questions.

Mr. McNally will take the lead this morning.

Mr. Grant McNally (Dewdney—Alouette, Ref.): Thank you, Mr. Chair.

Thank you, Ms. Mawani, for your presentation.

I have just a few questions. Many of them are following up on some of the recommendations made by the Auditor General. Many of them you touched on in terms of improvement. I congratulate you for those areas where you've worked hard to improve timeframes and the administrative responsibilities. I know that's a huge challenge.

I'm referring back to some of the things in the Auditor General's report as they're reflected in this year's estimates. I'm wondering if you can give us an update on the move from two board members to one and how that has gone, and if that's happening in all areas.

Ms. Nurjehan Mawani: With respect to the single-member panel, which is I think what the honourable member is referring to with regard to the refugee division, you will recall that the legislation as it stands at the moment provides that we can have a single-member hearing provided the parties agree. So it does need the consent of the parties.

Approximately 25% of our cases right now, or in fact 27%—thank you, Philip—are dealt with in single-member hearings.

With respect to the appeal division, you may be interested to know that in over 95% of our cases, appeals are heard by a single member.

Mr. Grant McNally: So in the other close to 75% of hearings that are going on, I'm assuming there are still two board members, and it's still the case that if one board member approves the individual and one turns the individual down, then the individual is turned down.

Ms. Nurjehan Mawani: That's right. Wait; no, if one person approves, then the individual is accepted.

Mr. Grant McNally: Right. I'm sorry; it's the other way around.

Do you have statistics on how many cases would get to that point where you have a disagreement amongst board members and a person is approved?

Ms. Nurjehan Mawani: It's something that is possible for us to get. To the best of my knowledge—and this is not absolutely accurate or statistical—the dissents are not very great. There are not many cases where we actually have a dissent. However....

Ah! We are well served here, honourable members.

Mr. Grant McNally: Absolutely. Wow, that is incredible.

Ms. Nurjehan Mawani: Don, may I ask you to join us here?

Mr. Don Gerlitz (Director, Standards, Analysis and Monitoring Policy, Planning and Research Branch, Immigration and Refugee Board): They represent under 5%. The single-member hearings are for 1998-99, for the split decisions.

Ms. Nurjehan Mawani: That's right, but we're talking about split decisions. Is this the split decisions?

Mr. Don Gerlitz: Yes, they represent under 5%.

Mr. Grant McNally: Is there any review in terms of the consistency of those decisions? I know it's noted in the Auditor General's report from 1997 that one of the concerns was that there are major discrepancies among certain board offices in acceptance rates for claimants from the same country. But that's a different issue. Let's deal with the first one first.

I know it's a small number, but is there some type of administrative approach as to why the discrepancy, and to make sure the highest degree of consistency possible is made in those types of decisions?

Ms. Nurjehan Mawani: It is related to the consistency issue in I think many ways. The board approaches the whole issue of consistency with a great deal of professionalism, I believe, and concern.

• 0930

You're right that the Auditor General raised the issue with respect to consistency in terms of both practices and decisions. We have put into effect right from the beginning, and have reinforced, a number of procedures to review consistency and promote it. There are a number of ways. They are all tied in with your earlier question as well.

We certainly monitor consistency. It is important to us to ensure that decisions based on similar situations or similar-country conditions are similar, having taken into account the fact that in every case the evidence does ultimately turn on its own facts. There could be a credibility issue involved there.

Now, in terms of the monitoring, the deputy chair's office plays a very important role in this. We have the coordinating members who, as part of the evaluation process, review decisions as well as often observe hearings. Legal services, when it does a review of decisions, also gives advice on that particular aspect. We have geographic teams, networks that we have strengthened, to make sure that board members are approaching similar situations in the same way. We have national conferences.

As well, we single out countries where we find that there is a significant departure. I can give you the example of India, where we found that there was a significant departure, or Israel, where there was a significant departure, or the Czech Republic. We have national conferences on this. We bring in experts to present to the group an objective view of what is happening in those countries with respect to specific profiles of cases.

Mr. Grant McNally: You mentioned specific procedures that were in place to look at these consistency issues. Do you have something you could share with the committee in terms of a communication that would go to the different board members or the administration of the different offices to ensure that there is consistency?

I know it's difficult, when you have different geographical locations, to have that happen, but there must be some guidelines that those who administer each office have. I was wondering if we could get a hold of those.

Ms. Nurjehan Mawani: We could certainly provide you with something. For example, the deputy chair's office will issue memorandums to the various offices reminding everybody of the importance of, and urging, consistency but not, at the same time, as I'm sure the honourable member is aware, impeding or impinging upon the individual decision-maker's independence to make a decision based on the evidence in a particular case. That is always the case.

But, yes, there are guidelines, of course, which are also there to promote consistency, and there are other legal commentaries as well. We have reasons on positive decisions. We have a policy on reasons on positive decisions where there is a significant departure or where the cases are from countries that are not known to be refugee-producing countries.

So there is a whole series of initiatives. I'm happy to provide you with a list of those as well as any supporting documents that will give you the full picture.

Mr. Grant McNally: You mentioned the case management system. It's noted as well, on page 21, that, “The IRB's operational software is outdated and needs to be replaced.”

I'm wondering how big an impediment that is for you in terms of being able to better manage the system and whether, if there were more resources available, this would be an area that would help you out.

Is that a priority one area?

Ms. Nurjehan Mawani: It is a priority. There is no question that we need to improve our system. That is precisely what we are doing. My understanding is that by 2001, the new case management system will be in effect.

It will enable us to be able to track the cases as they go through the system at any given point, which is one of the concerns we have had, and I know the committee has had, and the Auditor General has had. Our ability has been impeded in terms of being able to get that information at any single moment while the case is going through the system.

So I think this is good news.

Mr. Grant McNally: Okay.

I'm not sure if I have any time left here. How are we doing for time?

The Chair: You have two minutes to go.

• 0935

Mr. Grant McNally: Two minutes? It's usually the opposite. I'm trying to get so many questions in—

The Chair: One minute, sorry.

Mr. Grant McNally: Okay. I'll talk faster.

There was a concern from the Auditor General in 1997 about the possibility of department officials overturning board decisions. I'm wondering if that is a concern for you. Is that something that's been followed up on? What's happening in that area?

Ms. Nurjehan Mawani: If my recollection serves me well, I think the Auditor General was referring to the post-determination, post-IRB processes, such as the post-determination risk assessment, or the humanitarian and compassionate assessment that is open to a refugee claimant after rejection by the IRB.

Again, I don't have those figures right in front of me, but very, very few cases are in fact granted post-determination risk approval or a humanitarian....

Yes, it's 3%.

I think we should also remember that it would not concern the IRB strictly because the criteria the department uses are not the same criteria. We would use the convention refugee definition criteria, whereas, of course, what they are looking at is a generalized risk. Is this person, even though she is not a convention refugee, likely to be at risk for some other reason—that is, the generalized risk—or a humanitarian reason? So in many ways it would not really take away from us.

Having said that, it does duplicate the process. That's why in the legislative review one of the recommendations—and the minister made this announcement in her New Directions—is to consider consolidating all of the protection-related decisions before the IRB.

That would be helpful in terms of both efficiency and consistency, I would submit.

The Chair: Thank you, Mr. McNally.

I shall now yield the floor to Mr. Ménard.

[Translation]

Mr. Réal Ménard (Hochelaga—Maisonneuve, BQ): Good morning. Like our Chairman, I too would like to welcome you and thank you for sending us some background information on some of the decisions handed down. We appreciate it very much and we hope that you will continue to share this information with us. I was telling Mr. Palmer how invaluable it is for members to learn about some of the decisions handed down by the Federal Court, the Supreme Court and other tribunals.

I would also like to wish your organization a happy 10th anniversary. I don't know whether you think of yourselves as having reached adolescence or burgeoning adulthood. That is for you to say.

For starters, could you give us a list of current source countries for refugee claimants? If you don't have that information handy, perhaps you could forward it to us later.

Secondly, I'd like to discuss with you the number of claims pending. Judging from what you said, it seems that there are currently 23,000 claims pending. Is that a correct figure? By the end of the year 2001, this number is expected to drop to approximately 16,300. Is that also correct?

[English]

Ms. Nurjehan Mawani: To which page are you referring?

[Translation]

Mr. Réal Ménard: You stated in your opening remarks that there were 23,000 claims pending as of March 31, 1999. In the Estimates we received, the figure mentioned on page 16 is 13,550 claims pending by the year 2000-2001. Is that indeed the correct figure?

[English]

Ms. Nurjehan Mawani: Yes, we are.

• 0940

[Translation]

Mr. Réal Ménard: Projecting a drop in the number of claims pending from 23,000 to 13,500 seems rather optimistic, given that the number has declined by only 5,000 in two years.

[English]

Ms. Nurjehan Mawani: Perhaps we can just look at these figures.

Is there a confusion here?

[Translation]

Mr. Don Gerlitz: The number of claims pending was down 6,500 in 1996-1997 and that's been the case for the past two years. There were 22,800 claims pending at the end of March 1999, and we expect there to be 16,000 or 17,000 claims pending by the end of March 2000. We further expect this number to drop to approximately 13,500 by the end of March 2001, in two years' time, assuming that we receive 25,000 claims a year, something that we cannot control, and that we continue to process these claims at a pace similar to last year's.

Mr. Réal Ménard: These are very encouraging results and I congratulate you on them. According to the Auditor General, the cost to the provinces receiving the majority of claimants for processing the backlog is estimated at approximately $100 million a year. Do you have some idea of the number of claims pending in Quebec? Could we possibly get a more detailed breakdown for Quebec and Ontario? Finally, do you have the figures for the provinces that take in the majority of refugee claimants, namely Quebec, Ontario and British Columbia?

Mr. Don Gerlitz: As far as Quebec is concerned, as of March 31, 1999, there were slightly less than 8,000 claims pending, whereas a year earlier, there were 13,250.

Mr. Réal Ménard: Could committee members get a copy of these figures before we adjourn? We would appreciate that.

Currently, what are the principal countries of origin of refugee claimants?

[English]

Ms. Nurjehan Mawani: We can again provide you with a list of those, but you may be interested in the ten major source countries. Those we do have.

The major source countries are Sri Lanka, Pakistan, China, Mexico, India, Hungary, Iran, Algeria, Congo, and Russia. Those are the top ten.

If you are interested in the Montreal countries, we can also provide you with that information.

[Translation]

Mr. Réal Ménard: There is some degree of concern among members of the legal community. As you know, Mr. Palmer, lawyers are sensitive individuals. One of their concerns is that the IRB seems to want to operate on the basis of test cases. I was told that this seemed to be the trend, namely trying to draw up a profile or test case for claimants from the various source countries. Tribunals could look to these test cases when making future decisions. Are the concerns of the legal community justified? How does this relate to your concerns, which are to apply the rules of natural justice and efficiency? Clearly, you are to be congratulated on the results you have achieved.

Mr. Philip Palmer (Senior General Counsel, Legal Services, Immigration and Refugee Board): Generally speaking, I don't think their concerns are justified. As far as we're concerned, consistent decision-making is obviously important, and we try to obtain fair and equitable results, ones that the general public can relate to. To do so, we employ different techniques. Test cases are one such technique.

• 0945

[English]

I would have to say that we haven't gone very far with this initiative, but I think it's recognized that all levels of judicial and quasi-judicial decision-making rely upon a certain amount of use of precedents, or a certain reliance upon the decisions of others who have looked at similar issues, and that an appreciation of how colleagues are deciding cases should have some influence—not be determinative but have some influence—on the results of one's own decision-making.

Of course, the important issue for us in, for instance, the refugee division is that it is very difficult to marshal, in one case, all the best evidence, to actually have viva voce testimony coming from experts on country conditions.

We actually attempted it in one case. We deliberately chose a case in which we invited the minister to intervene if the minister wished, and to call evidence. We assisted counsel for the claimants in obtaining a more generous legal aid subvention to enable them to both sustain a prolonged hearing and call witnesses themselves. We were able to give a test of country conditions and of the conditions that were allegedly giving rise to this flow of refugee claimants.

Unfortunately, that's something we're not able to do very often, given these kinds of proceedings.

So we think it could be quite a useful tool.

[Translation]

Mr. Réal Ménard: Nevertheless, this is a key part of your approach. However, the concerns of the legal community may be somewhat premature because in fact, no changes are planned to the representation process or to the way hearings are conducted.

I have two more questions for you. The number of refugees worldwide is increasing. Numbers are up considerably compared to five years ago. Moreover, on page 12, where the budget for the refugee determination process is presented, we see that your budget has decreased. Doesn't this seem to buck the global trend that we are observing?

Could you also give us an update on efforts being made to track down war criminals and on the three-year, $43 million joint initiative announced by the Justice and Immigration departments?

[English]

Ms. Nurjehan Mawani: With respect to the war crimes initiative of the minister, we are not directly involved in that, of course. Perhaps Mr. Palmer in a minute can talk about how some of these cases may eventually end up before the Immigration and Refugee Board.

With respect to your question regarding the reducing budget, yes, you're right; there are more and more refugees around the globe. However, the numbers that are coming to Canada have remained steady over the last many years, or certainly the ones who are spontaneously arriving and making refugee claims.

Last year there were around 25,000 referrals. The year before, it was around 23,500, or 24,000. So for the last three years the numbers have remained steady.

Frankly, our requirements have gone down because we have become much more efficient. That is, I think, the main reason for this.

The Chair: Mr. Ménard—

[Translation]

Mr. Réal Ménard: I have a brief question, Mr. Chairman, before we go to a second round to discuss war crimes. Could we possibly receive on a monthly basis a status report on the number of refugee claims approved for each main region? That kind of information would be useful to us and this was something our Reform Party colleague mentioned. As parliamentarians and committee members, it would be useful for us to have this information. We can come back to the subject of war criminals later.

[English]

The Chair: Thank you, Mr. Ménard.

I now would like to proceed to Mr. Mahoney.

Mr. Steve Mahoney (Mississauga West, Lib.): Thank you, Mr. Chair.

Thank you very much for your presentation.

Congratulations, by the way. If you were in the private sector and you presented this results-oriented presentation, I think you'd probably be getting a bonus of some kind. I'm sure you can watch for that in your paycheque.

The Chair: Mr. Mahoney, you can make a private motion to that effect.

An hon. member: Plus a contribution.

Voices: Oh, oh.

Mr. Steve Mahoney: Maybe we all should share in it.

• 0950

I'm interested in whether you can provide me with perhaps more specific reasons. I look at the performance update on the refugee division, the appeal division, and the adjudication division, and the charts show, with some consistency, that for referred claims, the finalization has gone up quite dramatically and the pending has gone down. The same pattern carries through in the appeal division as well, getting the time down to eight months.

I remember when you were here last, and there was a lot of concern about the length of time. In terms of the chart, the appeal process hasn't really changed—or maybe it has.

Other than saying you're just more efficient, is there something on the international scene that's causing this? I accept the fact that your efficiency has improved as an organization, but maybe you could give us more specifics.

Ms. Nurjehan Mawani: If we are talking about the immigration appeal division now—and I think that's what you are referring to—the number of appeals filed has increased. So even though we have become very much more efficient—and I appreciate all of the members' comments in this regard—we're still running a little bit behind. That is because the number of new appeals filed has gone up.

You ask whether there is anything happening somewhere else that is causing this. This is really a question for the Department of Citizenship and Immigration. What this appeal is, really, is an appeal from a refusal of an application for permanent residence made to the Department of Citizenship and Immigration. When an application is rejected, there is a right of appeal to the appeal division.

We don't really have control over the number of appeals filed. One possibility that comes to mind is that there are more applications being refused by the Department of Citizenship and Immigration. There's no question about that. They are scrutinizing those much more, and more are being refused. As a result, our caseload on the appeals from those decisions is going up.

Mr. Steve Mahoney: The question by Monsieur Ménard was that your resources are down but it appears your cost per claim is down. That's interesting. What is it that would drive down your actual cost on an individual application?

Ms. Nurjehan Mawani: Well, we have our expert here, our director of finance and administration. Perhaps I can ask him to share that with you.

Mr. Denis Kingsley (Director, Finance and Administration, Corporate Services Branch, Immigration and Refugee Board): For the cost per case, we have a complicated allocation method that takes all of the costs of the board and allocates them to each one of the separate divisions. Therefore, if we handle more cases, the more our fixed costs get spread, and the cost per case will go down.

Mr. Steve Mahoney: Then you're not really reflecting a reduced cost, necessarily. It's just greater volume in the processing.

Mr. Denis Kingsley: That's right. The reference levels have not gone down, per se, but the number of cases we have processed has increased. Therefore, the cost per case is down.

Mr. Steve Mahoney: Okay.

When we use words like “refugee” and “sponsor”, they can get thrown around in different ways. With regard to the 5,000 people who have arrived from Kosovo, do we really classify them as refugees? It's my understanding that they're not making a claim, or at least not at this stage, to be a refugee in the country. It's really a humanitarian airlift, is it not?

Ms. Nurjehan Mawani: Yes, it is, but some of them may be characterized as refugees by the UN High Commissioner for Refugees. They haven't gone through our system as such. There is a particular classification under which they would fall.

Perhaps I could ask Mr. Palmer to comment on the two classifications.

• 0955

Mr. Philip Palmer: The department has used ministerial permits to bring them into Canada. Those permits have conditions attached to them that are virtually identical to those accorded to people who are recognized as convention refugees. It alleviates the necessity for them to seek refugee status, if you like, in Canada. There are no incentives to seek refugee status, because they will have the right to travel in and out of Canada, to seek employment, etc., while here, and at the end of it, if they choose, to seek permanent residence in Canada, even though the hope is that they will of course return to Kosovo once there is peace there.

Apart from that, most of these Kosovar Albanians will not have refugee status as such.

Mr. Steve Mahoney: As a result, you would really not be involved in the process.

Mr. Philip Palmer: We expect to see very few, if any, of these particular people.

Mr. Steve Mahoney: I see.

I'm sure you're aware of what's going on, obviously, as we all are, but is there a timeframe you're aware of, or is it just an open-ended scenario in which they can claim refugee status? I guess they can claim it at any time they wish.

Mr. Philip Palmer: Technically speaking, they could claim it at any time. Again, as I say, amongst the 5,000 who have been airlifted to Canada, we don't expect to see a lot of those.

There is before the board at the moment another class of Kosovars, or largely Kosovars, who may have fled a year and a half to two years ago from Yugoslavia. There is a very limited number of those cases. We are giving particular priority to those when we have any indication that the claimant before us has relatives in the refugee camps in Macedonia or Albania, relatives therefore who could be reunited if this person was found to be a refugee in Canada.

So we're processing those claims, where they're identified, as expeditiously as possible.

Mr. Steve Mahoney: I assume the paper trail is somewhat easier with both the individuals who fled a year and a half ago and the latest arrivals. When I say paper trail, I'm talking in terms of identification.

We've had some questions about security checks, even though the vast majority, from what we can see, are women and children, and would not appear—to me, at least—to be posing any kind of security risk.

With regard to the issue of identification—the issue of, say, papers—have you had any involvement, and have there been any problems in that regard? Is it premature for you to even be involved?

Mr. Philip Palmer: It's premature. We understand that at different stages the Yugoslav forces relieved identity documents of the people who were being expelled from the country. That of course will create problems at various stages. I don't know at all what the department's plans are for addressing that.

Before us, in the limited number of claims—and they are pre-war claims, shall we say—there are limited problems with documentation. We've so far not had any major concerns in that regard.

Mr. Steve Mahoney: Are you anticipating a bit of a surge at some point, and if so, are you doing anything? I mean, if you came to us a year from now, would you see that these charts would have reversed themselves with the potential of 2,000, say, or 5,000 refugee claims?

Ms. Nurjehan Mawani: As of now, as Philip Palmer said, we are not expecting a large number to come to the IRB from this group.

Mr. Steve Mahoney: Why is that, though?

Ms. Nurjehan Mawani: For the reasons I think he mentioned. Under the ministerial permit they are getting right now, they are getting the rights that are attached to that permit, which are very similar to the rights they would have as a convention refugee.

• 1000

Other than the fact that they would not actually have convention refugee status in the direct sense as we, the IRB, would grant that status....

Mr. Steve Mahoney: So if they're to take a next step, what you're saying is that it would likely be to apply for landed status and totally bypass the refugee—

Ms. Nurjehan Mawani: That's right.

Now, we are in the process of talking to the department, under our priorities coordination agreement, about how a few from this group could be referred to the IRB by the department. We never have direct access to refugee claimants in any case. It's the department that does the screening and then refers them to us.

So it is possible that we'd get a handful of cases from this group, or that's what we would anticipate at this stage.

Let me assure you, it's something we are keeping a close watch on.

Mr. Steve Mahoney: Those referrals, I presume, would be basically if there were some complications that needed your expertise.

Ms. Nurjehan Mawani: Absolutely.

Mr. Steve Mahoney: Do I still have time? No?

It occurred to me that if we really wanted them to go back after the war was over, we should have brought them here in the winter.

Voices: Oh, oh.

Mr. Philip Palmer: They have quite an impressive winter themselves.

Mr. Steve Mahoney: Yes, I know they do.

The Chair: Thank you, Mr. Mahoney.

Mr. Telegdi.

Mr. Andrew Telegdi (Kitchener—Waterloo, Lib.): Thank you very much, Mr. Chair.

Madam Mawani, from your perspective, having been there I think almost seven years, I guess the real challenge is when you look at the system overall. It's pretty hard to get leave to appeal at Federal Court. I mean, that's a given. Otherwise, we'd have everybody appealing to the Federal Court, and it would become a virtual rehearing.

When I look at the report you had on the discrepancies between decisions in different centres across the country, I think the challenge is to get the decision-making to be sensitive enough on the one hand but also fairly uniform on the other. If we had that divergence in sentencing in the criminal courts in terms of decision-making, there would be a hue and cry heard across the country.

How do you see us getting a better balance?

Ms. Nurjehan Mawani: With respect to your comment about the sentencing, I'd say there is a very significant discrepancy around the country. It's something the judges are working on as well, in the same way we are.

I think you've hit the nail on the head, if I may say so, by talking about this in the context of being sensitive on the one hand, and on the other, trying to generate as much consistency or uniformity as possible.

I would go back to my earlier comments and say that we are doing whatever we can and as much as we can, and will continue to do so to foster and promote consistency and the quality of decisions while respecting the right of the decision-maker to make a decision based on the evidence before the panel. Having been a decision-maker, I can certainly say to you that issues of credibility are very critical in almost all cases these days.

Over and above that, there is also the issue of interpretation. Federal Court sometimes is not entirely clear on its guidance to tribunals. You can have a situation where one member may feel that a particular interpretation is the right interpretation and another may not. That is, in a way, also the strength of our system.

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This goes back, then, to having a balance. One of the ways we deal with that is through legal opinions, through commentaries, through guidelines, which are there to tell members what are the different views on this, including the particular view promoted by the board. We tell them it's not an arbitrary view but one that's based on our appreciation of the law and our appreciation of the jurisprudence, and therefore, this is a preferred position. However, you as an independent decision-maker are free to depart from it, but if you do, we expect you in your reasons to explain why you have departed.

That, I would submit, is going quite far. We have probably gone further than most tribunals, certainly quasi-judicial tribunals, in giving guidance to decision-makers without impinging on their independence.

Mr. Andrew Telegdi: The other thing is that the members of Federal Court tend to get together for conventions on a fairly regular basis. To what extent do the members of the IRB interact at similar conventions?

Ms. Nurjehan Mawani: In a way, the Federal Court is fortunate, because it's very, very small, and therefore it's much easier and very much less expensive for them to have a meeting all together.

Having said that, yes, it's true that we as a board have not had a meeting of all of our people for a number of years, but the way in which we've dealt with the consistency issue and the quality issue in this regard is to make sure that within a region....

Now, we have very large regions, as you know. Toronto and Montreal are particularly large. Our first challenge is to ensure that within each region we are working together as a team, and we are aware of the issues and the inconsistencies as they exist.

Then we do that interregionally. So it's intraregionally and interregionally. As I said earlier, I think the geographic networks have been critical, very critical, in this. The geographic teams meet every month by way of conference call, and they discuss the issues that they are seeing in the hearing room. They get a much better sense of how these issues are being approached in different regions.

Again, they are not binding, but they are sharing, and we are encouraging them to be much more open in their discussions amongst themselves. It does not take away from independence if you listen to each other.

The positive reasons policy, the guidelines, the commentaries, the lead case initiative Philip Palmer spoke about—all of these are there to promote consistency and to remind everyone that in every single message we give out, every swearing-in speech, we are an administrative tribunal, and, yes, we are a very high-volume administrative tribunal. The people who appear before us are entitled to have a similar outcome in similar situations, having taken into account the particularities of their own case.

The Chair: Thank you, Mr. Telegdi.

Before I go to the second round, with the permission of the committee let me pose a couple of questions in follow-up.

You mentioned the value of consistency. You equally mentioned the value of creativity. The two, of course, could conflict. You kept emphasizing, of course, that the particularities of the case may determine the given decision, which, of course, would be likely the creativity.

My question is, how much do you emphasize consistency with respect to the point of view of creativity, to the point where the fear of creativity may be so much that the latter is lost?

Ms. Nurjehan Mawani: When I'm talking about creativity, I'm not talking about creativity in the context of a particular hearing but more in the way in which we develop initiatives within the IRB to promote consistency.

The Chair: I see.

Ms. Nurjehan Mawani: The real challenge is between maintaining or ensuring independence of decision-makers making a case-by-case determination based on the facts in that case and a similar outcome—namely, consistency—in a similar case.

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I can give you many examples where, on the face of it, if you were to get the information about that case, you would say, okay, this is strange; we've just seen one case where there was this outcome and now we've seen another case with a different outcome. But if you further analysed it and examined why that happened, you would find very often—not always, but very often—that credibility may have been the issue in that case.

The Chair: I see.

On the basis of model cases, using the criminal justice system as a model, where courts of today have insisted on the full disclosure of evidence on the part of the prosecutor, and at the same time now prosecutors are claiming full disclosure of evidence on the part of the defence, how does the board look at this emerging precedent in the justice system?

Ms. Nurjehan Mawani: I would submit, Mr. Chairman, that we are far ahead of the criminal justice system, because the refugee determination system in Canada is a very open one. It's a system where nothing is presented in the hearing that is not already, if it's general information about a country, in the public domain.

The Chair: What about when there's a concern about security, for example? Is that evidence presented to the claimant so that there is a possibility of preparation to counteract the possibility of argumentation on the part of the claim officer?

Mr. Philip Palmer: Yes. There is an expectation—indeed, a requirement—under our rules of practice that both the board and the claimant will have fully disclosed the documentary evidence they intend to use and disclose who their witnesses are prior to the hearing in sufficient time that the case can be adequately prepared and directions given with regard to the questioning that will take place at the hearing.

I'd say that we do not model ourselves on the criminal courts. We basically regard ourselves as a civil procedure and are inspired by the rules of civil procedure before the federal and provincial courts, where disclosure by both parties is the norm. We expect that both the counsel to appear before us as well as the board officers will disclose fully any matters that are in their possession and that are relevant to the hearing. We do not believe in trial by ambush.

The Chair: Yes.

In your report, there is something about the best way of preparing and presenting cases so as to achieve the goal of making the oral decisions as best as could possibly be. Members and refugee claims officers meet together. In the meeting together of the claims officers who facilitate the process and the members who will make the decision, how does that meeting ensure that there is no potential conflict of interest on the part of the decision-making board members?

Mr. Philip Palmer: I'm not quite sure the process is fully explained. There are several steps in our procedures, and they vary a bit by regions.

First of all, it is rare in fact for there to be a meeting between members and RCOs with reference to a specific case. Most of the communication that takes place with reference to a particular case is normally by way of a memo or an e-mail. Any time that touches on matters related to the evidence in the hearing or the issues in the hearing, those e-mails are to be disclosed to claimant and counsel.

There are processes for meetings. One is an interview that examines the case from the point of view of a number of questions. First, what are the issues? Is it ready for hearing? Is the documentation ready? Does the person have further documentation they're trying to obtain from their country of origin, say? That would have implications for when you schedule the hearing or for its rightness for hearing, or for identifying the issues in the hearing.

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Another phase is an interview, sometimes merged with that first, that looks at it from the point of view of whether this is a case that can be expedited—that is, expedited without a hearing. Because the country is notoriously refugee-producing, there are no issues of identification, and there are no issues with respect to security/criminality attachment to groups that have committed human rights violations.

Lastly, there is the possibility of a pre-conference hearing where the members, RCO, and claimant and counsel would be present, the purpose of which would be, if it's a complicated hearing, to reduce the issues, make sure all the disclosure has been done, and make sure, when they go into the hearing, everything is ready so that the least possible hearing-room time can be taken with the case.

The Chair: Thank you so much.

Mr. Benoit.

Mr. Leon E. Benoit (Lakeland, Ref.): Thank you, Mr. Chair.

Good morning, ladies and gentlemen.

I have a quick question to start, following up on Mr. Mahoney's questioning on Kosovar refugees. You've said they're not handled through the IRB, and they're here on ministerial permits. I did have a question that came to mind resulting from Mr. Mahoney's questions.

You said that those who want to stay will apply for landed status and go through that process. First of all, under ministerial permits is there any time limit at all for these people to stay? If they choose not to apply for landed status and yet choose to stay in the country, can they do so indefinitely, or for how long?

Ms. Nurjehan Mawani: To the best of my knowledge, ministerial permits are renewable. It's a matter that would have to be dealt with by the minister and the department.

Again, I don't think there is a time limit on ministerial permits.

Mr. Philip Palmer: We really don't know.

Mr. Leon Benoit: All right.

Looking at part III of the estimates, and even at part II, where we have some more detail, the numbers don't tell you an awful lot. I think if you look at particular cases or circumstances, you're even more likely to really find what is efficient, what isn't efficient, and what may cause problems in the system.

That's what I'm going to do. I'm going to use two particular cases, not with names but just by way of example for you to respond to.

The first is an IRB hearing that I have been attending. It's involving a deportation order.

First of all, I must say, I've been really impressed with the adjudicator and the way he's handled the case. I think he's handled it extremely well, and seems to be very reasonable. There has been no decision rendered, of course, so we'll see on that.

I'm impressed with the accused person's representation. I think it's been very professional.

I'm shocked, however, absolutely shocked, by the department's representation. They've just thrown somebody into this position, so I wouldn't say it's necessarily her fault. I think maybe there was just not enough time to be prepared.

More than that, it's the case itself. Every claim made on the arrest warrant and so on is completely inaccurate. It's unbelievable. Of course, that's been clearly demonstrated through the process.

I know it's difficult for you to answer this, but I want you to answer it. I think we need some openness here.

I'm wondering how often you hear from adjudicators or from others in the process that the department comes ill-prepared and that they bring cases that maybe shouldn't be there in the first place because the information is so bad. How often does that happen? Do you hear a lot of concern expressed from adjudicators on this type of circumstance? Because in this case, clearly, this should never have come before the IRB.

Ms. Nurjehan Mawani: As you said, it is really difficult for me to answer with respect to a specific case.

On the general point you're making, I would have to say it's not often that adjudicators have brought to my attention the fact that the quality of representation is poor.

Mr. Leon Benoit: It's the quality of the case even more than the quality of the representation, I would say.

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Ms. Nurjehan Mawani: On the quality of the case, it's unlikely, really, that they would bring this to my attention. In their own meetings, amongst adjudicators, they may well discuss this matter to say, well, this was probably not a case that should ever have been brought before us.

It's always open to them, in their reasons for decision, to say so.

Mr. Leon Benoit: Do they often do that in the decisions?

Ms. Nurjehan Mawani: I haven't seen that very often, but from time to time there are comments. That isn't just for the adjudication division; it's for the other two divisions as well. You may see a case crying out for some other remedy or some other process but not your process. That's when you would say that it's unfortunate it was brought before you in this way.

Mr. Leon Benoit: The amount of cost all around, including to the taxpayer and to the person who has had these charges laid against him, is absolutely astounding. It's incredible. I've expressed a concern many times that the department is losing its most experienced and best-qualified people in many areas, and that's I think causing an awful lot of problems.

If you don't have the expertise, the highest level of expertise, then you're going to have cases that aren't well prepared. You're going to have very difficult situations put in place for refugee claimants but also for immigration claimants or others who have had action taken against them, because claimants are not in the country legally and so on.

It has to be a huge concern, and you must see the result of some of that through cases that come through your adjudication process, through the inquiries and detention reviews business line, or that are covered under that line, I guess.

The Chair: Ms. Mawani.

Ms. Nurjehan Mawani: I'm sure you will raise with the department the matter with respect to the department's role, but I am certainly pleased to hear that you were impressed with the adjudicator's work, which you witnessed. I would say the level of professionalism is very high.

It is frustrating sometimes for everyone in the system to have to deal with certain cases, but by and large, overall, they have a job to do, and they have a legal mandate. I expect them to discharge that mandate, and I know they do.

Mr. Leon Benoit: Again, just to get at costs and inefficiencies in the system, I am going to refer to a particular case. You don't need to comment on the particular case to answer my concerns.

This is a case that has been in the media a fair bit. Mahmoud Mohammad Issa Mohammad is a former member of the Popular Front for the Liberation of Palestine, a terrorist group. In 1970 a Greek court sentenced him to seven years for a machine gun and grenade attack on an Israeli man, who was killed. In 1987, he came into Canada, and has fought deportation since 1988. For 11 years he's been fighting deportation.

A few weeks ago, an immigration adjudicator ruled that he should be removed because of his criminal past, his membership in a terror group, and his terror activities. He can appeal. The comment was that his chances of remaining are now much reduced.

The point is, it's taken 11 years, just in the appeal process, to work to this point. In the meantime, we have this person in Canada who has a history that, frankly, I don't think we want to see in our country. From the comments of the people involved, clearly this person shouldn't be in the country.

The cost to taxpayers for this process has to be just unbelievable, phenomenal, when you consider the department costs, the IRB costs, costs through the courts, including legal aid, that type of thing, and possibly costs to social programs.

So the process taking this long has to be a real concern. The IRB did play a role in that as well. If the IRB can handle cases—

The Chair: Mr. Benoit, can you pose your question? You are about three minutes over now.

Mr. Leon Benoit: If the IRB can handle its part in a way that would allow for fewer appeals, which is something the minister is talking about in her general statements, that certainly would help.

Do you have any idea what a case like this would cost the whole system? You must—

The Chair: Ms. Mawani, can you please answer that question?

Ms. Nurjehan Mawani: I would not be able to tell you how much a case like this would cost, but I can simply say to you that we are very conscious of processing cases as quickly as possible when they are within the IRB.

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The rest of the process is something we are not responsible for, but as Canadians, of course, we're all concerned about making sure the system as a whole works better.

The Chair: Thank you, Mr. Benoit.

Mr. Leon Benoit: I would like just one follow-up.

The Chair: No, Ms. Leung has been waiting for so long now, I can't.

Ms. Leung.

Ms. Sophia Leung (Vancouver Kingsway, Lib.): Thank you, Mr. Chair.

I want to welcome you, Ms. Mawani, from Vancouver. It's good to see you again. I want to congratulate you and your colleagues. You are doing a very good job.

I have a few questions for you, but first I'll comment on the figures you gave us.

You said in 1998-99 there were about 25,000 refugee claims, and about 4,600 finalized claims. If I calculate correctly, that means about 75% are turned down. Correct me if I'm wrong.

With regard to those 75%, do they right away enter the removal orders?

Ms. Nurjehan Mawani: We're thinking here of those refugee claimants who were rejected in our system. As you know, we accept approximately 43% each year.

Ms. Sophia Leung: But the figure is not quite saying that.

Ms. Nurjehan Mawani: Just for clarification, can you refer me to the page, please, and the figure you are talking about?

Ms. Sophia Leung: In the first one, you say 25,000 refugee claims were referred.

Ms. Nurjehan Mawani: Yes, that's right.

Ms. Sophia Leung: Later, you say 4,600 appeals were finalized in 1998.

Ms. Nurjehan Mawani: Ah! That's where the confusion is.

The first number you're referring to comes from the refugee division, and then the second number comes from the immigration appeal division, which really has nothing to do with the refugee claims.

Ms. Sophia Leung: I see.

Ms. Nurjehan Mawani: These are the appeals of sponsorship applications and deportations.

Ms. Sophia Leung: Okay. So you say it's 43%.

Ms. Nurjehan Mawani: That we accept, yes.

Ms. Sophia Leung: Okay. That's much better than 75%.

Going back to my question on removal orders, do you have a figure? I know we have a lot of concerns, as does my colleague over there. Some of them may be not desirable if they have been refused.

What is the usual procedure? How successfully are the removal orders carried out?

Ms. Nurjehan Mawani: The responsibility for removals lies with the Department of Citizenship and Immigration. As you know, our role as a tribunal is to make sure that we render our decisions as quickly as possible, and fairly, and in accordance with the law. The enforcement of those decisions—if it's a yes, then it is to grant permanent residence, and then, ultimately, Canadian citizenship—rests with the department. Similarly, if it's a no, then, of course, there's a further review possible by the department, and then the judicial review to the Federal Court. If it's still rejected at the end of it, then it's for the department to deal with the removal.

Ms. Sophia Leung: I see.

Last year I visited some of the detention centres, especially in Toronto, and I noticed a few minors who independently came into the country. I won't go into the reasons.

How do you handle the minors, the children, who come to your attention as refugee claimants?

Ms. Nurjehan Mawani: I'm going to ask our general counsel to deal with that.

Mr. Philip Palmer: There are two things we've said. One is that the general law applies. If they're detained, they're detained at the instance of the Department of Citizenship and Immigration.

Part of that relates to the nature of the individuals, and their need for protection. It's sometimes that—because they're minors and without accompaniment, they need protection, and detention sometimes is probably the only alternative for them.

That's an unfortunate alternative, but that's one of the inadequacies in the the need for a holistic system.

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In terms of how we process them, our prime considerations are to ensure that, with reference to our process, whether it's detention reviews, whether it's immigration inquiry, or whether it's our refugee hearing process, they are properly represented by persons who have their best interests at heart; any accommodations within the hearing and evidentiary process that need to be made in order to help them get their case out are properly addressed; and they may not be required to give testimony in open court, say, where it would be inappropriate, where they are traumatized, or where other factors may prevail.

Generally speaking, we have issued guidelines applicable to all three divisions with respect to the issue of refugee children, but they're broadly adapted for any other processes. Really, though, it's the refugee division and the adjudication division that see unaccompanied minors with any regularity.

Ms. Sophia Leung: The case I noticed actually involves three minors. It was very unusual. Actually, I did call it to the attention of the IRB, and they did proceed to give more special attention to the case.

I don't know whether you've developed a really streamlined policy—

Ms. Nurjehan Mawani: We have.

Ms. Sophia Leung: But that was not looked after when I saw it.

Mr. Philip Palmer: There will be individual cases that will fall between the cracks, but our general criteria give all detained cases priority, and give all cases dealing with the claims of minors priority.

Ms. Sophia Leung: It was very unusual. It was literally unbelievable; they came from nowhere. They were put on the airplane. I think the case involved a lot of other illegals, but it ended up that they didn't have a clue—no language.

So that was my concern.

The Chair: Ms. Leung—

Ms. Sophia Leung: I have one more little question.

The Chair: A very short one, please

Ms. Sophia Leung: There's an increase of political persecution in Indonesia. I know there are a lot of refugee inquiries. When you quoted those ten countries on your list, I noticed that Indonesia was not among them. I just wanted to know the reason, and whether there is a bottleneck in Indonesia.

Ms. Nurjehan Mawani: It would be difficult to say if there is a bottleneck in Indonesia, because we can only deal with the cases of the people who actually get to Canada and make a refugee claim.

We'll look through our all-source countries to see if Indonesia is there at all, and how many claims we have....

The Chair: Excuse me, but due to the fire alarm, we will adjourn to the call of the chair.