CANADIAN COUNCIL FOR REFUGEES
Spring Consultation
Notes for a Workshop
presentation by
Jean-Guy Fleury
Chairperson
Immigration and Refugee Board
May 28, 2004
(Check against delivery)
Introduction
Thank you. I want to congratulate the Canadian Council for Refugees on
the success of its spring consultation, and to thank you for inviting
me to speak this morning.
I'm a firm believer in consultation and the value of open dialogue. As
most of you know, my own background is in labour relations, and 'consultation'
is certainly a key component of success in that field. I believe such
processes help build trust among partners so that they can accomplish
greater things together. We are all involved in a field of work so complex
and so multi-faceted that no single individual holds all the wisdom. For
that reason, I think it is important that we remain open to different
views.
In the end, I believe all of us here share many of the same goals and,
while our mandates may differ, we share a common interest of which we
must not lose sight: refugees.
In that context, the CCR
– thanks to the commitment of its members – is to be commended for its
remarkable contribution to improving the lives of thousands of people
who are vulnerable – both in Canada and abroad. You play a vital and honourable
role. Your actions reflect the humanitarian values and compassion of Canadians,
and their willingness to welcome refugees and immigrants into the Canadian
fold.
Historical Background and International Context
Canada’s attitude towards refugees was not always as compassionate and
welcoming as in recent years. Following Confederation, the government
sought the kind of settlers it believed would be 'suitable' to populate
the young country. Typically, these were American or European immigrants.
Other groups, like immigrants from China, were treated primarily as labourers
on the railroad. However, once it was built, the government passed the
Chinese Immigration Act in 1885, to restrict immigration by that
group.
Legislation and policies over the next 60 years closed the door
further to individuals trying to escape persecution of one kind or another
– from the Chinese and other Asians, to Armenians, Mennonites, Doukhobors,
Hutterites, and the Jews in the Second World War.
In fact, it was the Second World War that galvanized the forces of a
handful of states to form the United Nations in 1945. The 1951 Convention
Relating to the Status of Refugees was one of the UN's
most important achievements in the area of international human rights
law.
With Canada's ratification of this Convention, the tide finally began
to turn for refugees seeking protection in Canada. The Immigration
Act of 1978 was an evolution of refugee protection in Canada and
established the foundation for the system we have today. The Immigration
and Refugee Protection Act (IRPA) passed in 2002 reaffirmed Canada’s
leadership role in the protection of refugees. This evolution will no
doubt continue in light of the Minister’s recent announcement concerning
Canada’s approach to refugee protection.
I believe it is extremely important that Canada continue to play a leadership
role. Without effective and fair protection systems in place, refugees
and internally displaced peoples would have nowhere else to turn.
This country is a signatory to various international conventions and
human rights instruments that impose upon us certain commitments. But
we have gone beyond those commitments. We have ratified the Convention
Against Torture and the CR
Convention into domestic legislation (IRPA).
We have also incorporated major clauses of the International Covenant
on Civil and Political Rights into domestic legislation (s. 97(1)(b)
of IRPA).
Of course, the international context presents major challenges to any
immigration and refugee determination system. While on a business trip
to Europe last year, I was struck by the rethinking of inland determination
that was occurring there. The situation in Canada is no different. Despite
how we may be affected by forces beyond our control, however, we must
remain focused on our overarching policy objective, as stated in our Act:
“… to recognize that the refugee program is in the first instance
about saving lives and offering protection to the displaced and
persecuted.”
This is fundamental to Canadian values and will guide any evolution of
policy development.
Just this week, the US
Committee for Refugees released its 43rd World
Refugee Survey. The numbers it quotes are sobering indeed. More than half
of the world’s 12 million refugees are located in camps or segregated
settlements. Many of these refugees face years on end in these camps.
In fact, the committee estimates that more than seven million have lived
in camps longer than 10 years.
The United Nations High Commissioner for Refugees (UNHCR)
identifies some 20.6 million people as being ‘persons of concern’
that live in very precarious humanitarian conditions, both inside and
outside their own their countries.
The Minister of Citizenship and Immigration delivered a very strong message
on behalf of the government recently that I think resonates well here.
She was speaking to the Immigration and Refugee Board's (IRB)
Consultative Committee on Practices and Procedures (CCPP) at the time,
and a copy of her remarks may be found on Citizenship and Immigration
Canada's (CIC)
Web site. “Canadians”, she said, “must do everything we can to help our
fellow man or woman … and we must ensure that any reforms we undertake
result in more and not less protection for those who
need it.” Clearly, many need it.
Government of Canada’s Security Agenda
Clearly, the Board has not remained unaffected by events occurring within
the government's security agenda. As you know, some time in late 2001,
CIC
announced and implemented mandatory security screening for all refugee
claimants at the front end of the refugee process.
Prior to that time, security background checks were conducted only on
successful claimants during the application for permanent residency stage.
Although background checks are the responsibility of the newly created
Canada Border Services Agency (CBSA),
delays in this area have resulted in processing and scheduling complications
for the IRB.
Other affected areas of our operations include increased security-related
interventions by the Minister of the new Department of Public Safety and
Emergency Preparedness (PSEP),
as well as the use of non-disclosure inadmissibility hearings taking place
before the Immigration Division of the IRB.
The announcements
made by the government on December 12th of last year created PSEP,
which directs the work of the CBSA.
Since
the CBSA comprises
most of the former components of CIC's inland enforcement program,
we now have an additional agency to work with respecting the delivery
of the immigration and refugee portfolio.
The Board has had long-standing information-sharing agreements with CIC
that facilitate the delivery of our own programs, while allowing us to
maintain our unique institutional independence. Over the coming months,
we will seek to modify these agreements in order to reflect the new arrangements
between CIC,
CBSA
and the Board.
Administrative Reforms Within the IRB
– A Transformation Initiative
To these major factors, of course, one must also add resource constraints:
there is no more new money.
We must work within our means, and adapt our efforts to the environment.
But, as I just indicated, that environment has changed, and will continue
to do so. So it is clear to the Board that, if we are going to meet these
dual challenges effectively, a new approach is needed. How do we reconcile
resource limitations with the need for efficiency? And how do we ensure
fairness at the same time? These are debates we have every day at the
Board.
Let me first say that this is not simply a numbers game. Our decision-makers
have a responsibility to make well-reasoned and fair decisions – and those
decisions have a profound impact on the lives of refugee claimants.
We know that fairness and quality decisions are of central importance
to Canadians and to our stakeholders. To them, and to you, we offer our
commitment that we will always balance administrative efficiency with
fairness.
This commitment has allowed us to establish strong consultative ties
with our CCPP
stakeholders; open dialogue allows us to identify our values
and work together to achieve shared goals, and to exchange information
and concerns.
In fact, we recently took our consultative relationship a step further
by initiating a sub-committee on communications, comprised of IRB
as well as stakeholder representatives. This sub-committee will help us
to engage in more consultation and undertake joint activities to further
our shared agenda in raising awareness and understanding among Canadians
of immigration and refugee issues.
Stakeholders have raised a number of concerns lately. They’re concerned
about regional variances in refugee acceptance rates. Here again, the
interests of the Board and its stakeholders converge: if two claimants
were to present the same facts and circumstances – one before a member
in Vancouver and the other before a member in Montreal – they should expect reasonably similar
outcomes.
Let me tell you what we’ve done about it, and what we continue to do.
The Board has standardized its country conditions material across all
the regions for the 16 primary countries that the Refugee Protection Division
(RPD)
processes, thus addressing potential variations in documentary evidence.
However, beyond the documentation itself, we brought members together
from across the regions in March as part of regular professional development
days to discuss two specific countries.
We looked at the variance in decisions involving claimants from China,
where regional disparities were noted. We later discussed differences
in cases from Colombia. These quality issues sessions proved to be excellent
opportunities for members to share their own perspectives and interpretations
and to learn from one another. Needless to say, we have not resolved variance
issues entirely, but we have made progress. And we are committed to monitoring
these types of issues as they arise.
I know that our stakeholders also have concerns about the use of videoconferencing
as a means of holding refugee hearings. I should say that the law gives
the Chair discretion to use the Board’s resources to best effect, as long
as certain criteria are met. And this, really, is the key: making the
best use of our resources. Videoconferencing is used by other tribunals,
no doubt for the same reasons.
We have just recently approved the terms of reference for evaluating
this method of conducting hearings, and we will also be following up with
focus groups. We’ll be inviting claimants and counsel who appear before
the Board, as well as an appropriate specialist to participate in the
evaluation of this approach to hearings.
The guidelines concerning the order of questioning at refugee hearings
has also caused concern. As you know, I announced several months ago that
we would gradually phase in the new guideline by June 1st.
Members across the regions implement the new order of questioning about
60 to 70 percent of the time, as they deem appropriate, and I understand
they have been able to address counsels’ concerns where these have been
raised. This too has been and will be an evolving process – one where
flexibility and good judgment will play the kind of role that defines
a tribunal.
All of these concerns are clearly valid, and it’s not difficult to recognize
the common theme they represent: that we are dealing with people,
not numbers. That fairness is of paramount importance
to claimants appearing before us, their representatives, stakeholders
and the IRB.
Lastly, I know that the Board’s development of Guidelines on Survivors
of Torture and or Vulnerable Claimants has been outstanding for several
years. Frankly, due to other commitments, we have been unable to commence
work on them before now. However, I have instructed the Deputy Chairperson
of the Refugee Protection Division and General Counsel that I would like
to issue these by the end of this fiscal year – that is, March 31,
2005.
The issue is an important one for the IRB
and I need to ensure that all claimants appearing before us – including
the most vulnerable – receive a fair hearing that takes into account their
own particular circumstances. We are in the process of considering the
scope of the guidelines and will be turning to the CCR
as well as other groups to provide us with assistance as we proceed with
this file.
We have turned the corner on the backlog. We have reduced the number
of refugee claims waiting for a decision from a record high of 52,300
in April 2003 to 34,200 this week (a reduction of more than 18,000 in
13 months). Our objective is to reach a working caseload of between 22,000
and 25,000 cases, which would mean a healthy processing time of
six months.
Yes, we have our critics with respect to the impact of the Action Plan.
Yes, concerns have been raised about the Board’s efforts to actively manage
its caseload, and the significance of placing the future of an individual
in the hands of a single decision-maker, or of placing that person in
front of a camera, facing a decision-maker.
Refugee claimants should expect fairness from a tribunal. They should
expect independence from its decision-makers, and they should also expect
consistency, and a decision within a reasonable time frame. A tall order.
Yet to all those concerns and to that tall order, I have one response:
the Board is committed to rendering fair decisions. And I can assure everyone
concerned that our initiatives will not jeopardize fairness against
the benefits of efficiencies. This is not a new mantra; these have been
our values since the beginning.
It is the many remarkable characteristics that define an administrative
tribunal that make those commitments and values possible.
As an instrument for implementing government policy, an administrative
tribunal is recognized as different from a court because it is not called
upon to follow usual judicial practices and formalities. Having said that,
it is called upon to make quasi-judicial and independent decisions.
All of this makes an administrative tribunal a unique entity with the
potential risk for variance in terms of its decisions. Other tribunals
struggle with these challenges, too.
To address the potential for unpredictability, the IRPA
empowers the Chair to use tools that bring consistency and predictability
to the Board’s work. I’ve used those tools a number of times since the
legislation was passed. The first was to issue guidelines that address
predominantly procedural issues, to help members establish the level of
discretion they exercise on questions of procedure.
They are not legally binding on members, but are to be considered
or taken into account when appropriate. If a member – in his
independence – determines that the guideline does not apply to the current
circumstances, he or she simply needs to explain the rationale. The guidelines
contribute to efficiency, to fairness, and to consistency, where the member
agrees the guideline applies. Independence is not – to my mind – compromised.
I believe the same can be said for the jurisprudential guides I have
also introduced – again with the objective of assisting members to deliver
efficient, fair, and consistent decisions. These guides are effectively
previous decisions of the Board – as close to a ‘precedent-setting case’
as one can cite without, in fact, being a precedent in law. Again, members
are expected to follow the guides where they apply, unless there are
circumstances for not doing so, and to provide reasons.
I believe the policies, procedures, and guidelines that the legislation
enables me to introduce establish a balance where efficiency, fairness,
and consistent – yet independent – decision-making can coexist.
Our International Reputation
As I have said previously, there is a larger context at play. The IRB
is lauded internationally for its work. We are leaders in the area of
decision-maker training, which is a major preoccupation of the Board.
This applies to new members as well as ongoing member training. Indeed,
seven percent of a member's time is spent in training. Now, you may think
that seven percent is not significant, but compare that to 2.6 percent
of a public servant's time similarly invested and you view it differently.
Some of the members' recent training has included modules on matters relating
to sexual orientation and claimants suffering from victimization from
torture.
Other countries model much of their own immigration and refugee processes
after those of the Immigration and Refugee Board. The Board's leadership
in the Regional Chapter of the Americas of the International Association
of Refugee Law Judges reflects a high regard for our system. We play a
very influential role in the Council of Canadian Administrative Tribunals,
and contribute actively to their annual conferences. Our research directorate
is second to none, and the IRB
receives delegates from around the world on a regular basis to learn from
our practices.
The former representative of the UNHCR
for Canada articulated the organization’s views of the Board last year.
Judith Kumin said the current system in Canada contains many elements
the UNHCR
considers examples of good practice and that – and I quote, “they
have encouraged other countries to emulate, precisely because of the quality
of the decision-making.” end quote. The elements stated were:
- independent decision-makers (backed by good documentation and training)
- oral hearings for all claimants
- an expedited process for manifestly well-founded claims
- consolidated protection grounds, single status for all in need of
protection
- guidelines to promote consistency, and
- reasoned, written decisions.
These are not insignificant or meaningless accolades. I know Canadians
are unaccustomed to acknowledging their accomplishments, but we do have
much to be proud of.
Refugee Reform Announcement
Many of you here have probably read the speech delivered by Minister
Sgro to the members of the CCPP
a couple of weeks ago. In effect, it addressed the second of a two-stage
approach to reform of the immigration and refugee process. The first stage
was of course her announcement in March to change the way members are
identified and appointed to the IRB.
At that time, she announced that an independent, transparent and merit-based
selection process would ensure that only highly qualified candidates would
be considered for appointment.
The selection process will include five elements: an initial screening,
a written test, advisory panel pre-screening, selection board interview
and reference checks, based on redefined competency standards. They are
communication, conceptual thinking, decision making, information seeking,
judgment/analytical thinking, organizational skills, results orientation,
and self-control.
Well, I’m happy to announce that we identified that advisory committee
last week.
In the coming year, all current members will undergo an evaluation consistent
with the new merit-based criteria and, similarly, any members seeking
a renewal of their mandate will also undergo the performance evaluation.
These reforms demonstrate the government’s commitment to the integrity
of the work of the Immigration and Refugee Board and a respect for the
trust placed in it by Canadians. They illustrate the government's recognition
that much of the current immigration and refugee protection system is
fundamentally sound and should not be changed.
I’m very pleased with the members of this advisory panel, and I look
forward to our first meeting as a group, which will be held in June. I’m
very excited about the work we’re going to do together.
The Minister’s recent speech spoke to the more fundamental issues needing
to be addressed. To sum it up, she spoke of her concerns about managing
access to the refugee protection system that Canada has to offer, of the
need for speed to reach determinations, and to bring closure to both failed
claimants and protected persons.
She expressed a commitment to addressing abuse of the system, particularly
as it relates to weaknesses in the security of our border systems.
And finally, she offered that Canada must consider doing more to assist
refugees that languish in camps abroad.
The IRB
is – and will be – contributing to the refugee reform process,
and we will bring our experience and expertise to the discussions that
will ultimately determine any reform that affects Canada’s immigration
and refugee determination process, and ultimately our work and yours.
In addition, there is an examination of administrative tribunals happening.
There is talk of amalgamating common services; there has been a reduction
in federal agency spending.
To which I say: all the more reason for us to press ahead with ensuring
our house is in order.
This organization is accustomed to adapting to changes in the environment
caused by forces we can’t control. At the end of the day, I believe that
whatever changes result from a review, the IRB
and its stakeholders will continue to protect those most in need through
a fair and responsive system, while respecting Canadian values and the
society in which we live.
Thank you.
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