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25.9 Canadian immigration rules, including those that apply to refugees, are contained in the 1976 Immigration Act and its related rules and regulations. The Act reiterates Canada's international commitments with respect to the protection of refugees, repeats the definition of the term "refugee" as set out in the Convention and provides rules for the processing of claims for refugee status.
25.10 The Convention governs primarily the situation of persons who have fled their own country and are claiming refugee status in another country. As part of its humanitarian tradition, Canada also selects refugees abroad. However, our audit dealt only with those claimants seeking protection after arriving in Canada.
25.12 Many other persons are attempting to escape problems such as overpopulation or a fragile economic situation in their home country. Communication and transportation networks have increased their expectations and possibilities. One recent example is that of many Chileans who, in the false hope of improving their lot, came to Canada in 1995.
25.13 In addition, there are professional traffickers and agents whose aim is to have their clients arrive and remain in their chosen country. The increasing complexity of migrations creates challenges for the receiving countries, who must grant protection to the refugees while safeguarding the interests of their own nationals and the integrity of their immigration programs.
25.14 Exhibit 25.1 shows the number of claims filed in various industrialized nations, including Canada, since 1983. During that time, major backlogs have developed in several countries, such as the United Kingdom, the United States and Canada. A number of industrialized countries are concerned with efficiency and effectiveness issues in their processes for handling requests for asylum. Some, including the United States and the Netherlands, have substantially increased staff in the hope of reducing backlogs and abuses of the system. In 1996, close to 26,000 persons claimed refugee status in Canada. Exhibit 25.2 shows the 10 principal countries of origin of these claimants.
25.16 Under the Charter , additional rights are available to everyone who is present in Canada - the right not to be detained without just cause; the right, upon arrest or detention, to be informed promptly of the reasons; the right to retain and instruct counsel without delay; and the right to challenge detention by "habeas corpus". The refugee status determination process must ensure that refugee claimants are afforded all the rights provided to them by the Charter .
25.18 A quasi-judicial process. The Immigration Act stipulates that claims are to be heard by the Convention Refugee Determination Division of the Immigration and Refugee Board. This Division is an administrative tribunal with inquiry powers. The claimant can request leave of the Federal Court for a judicial review of the Division's ruling. Formal procedures must therefore be followed that take into account the legal requirements of the refugee status determination process in order to guarantee compliance with the provisions of the Immigration Act and Regulations and the Charter.
25.19 Exhibit 25.3 provides a summary of the principal steps in the refugee claims process. When a claim is received, a senior immigration officer of the Department determines whether the claimant is eligible under the Immigration Act for access to the refugee determination system . If so, the claim is referred to the Board, which considers the claim at a hearing and determines whether the claimant is a Convention refugee. If granted refugee status, claimants may apply for permanent residence. If their claims are denied, they may avoid removal if the Department considers that, under the Post-Determination Refugee Claimants in Canada Class (see paragraph 25.117), they would still be at serious risk if they returned to their home country. Claimants may also apply at any time for permanent residence on humanitarian and compassionate grounds. Failed refugee claimants will ultimately have to leave Canada although those awaiting removal for several years could, until 1997, be eligible for permanent residence. There is no mechanism to appeal the merit of the decisions rendered by the Convention Refugee Determination Division of the Board. However, the various decisions throughout the process may be subject to judicial review by the Federal Court.
25.20 Although the Department and the Board are the principal players in the decision-making process, other stakeholders are involved, such as the RCMP, the Canadian Security Intelligence Service (CSIS) and the Department of Justice.
25.21 Current practice dictates that from the time claimants arrive in Canada, and for as long as they remain and their claim is making its way through the process, they qualify for many of the benefits granted to landed immigrants, such as social assistance, legal aid, education and health care. The provinces, in administering these benefits, thus have some influence on refugee-related issues.
25.22 The complexity of the process that claims must follow, given the number of parties involved, means that the total processing costs cannot be measured easily. In fact, the Department was unable to provide us with a reasonable estimate of the overall cost of the process. However, the fragmentary data available indicate that the cost to the federal government is at least $100 million a year. In addition, data from Ontario and Quebec - the provinces receiving the majority of claimants - show that it costs each of them approximately $100 million a year just for social assistance to claimants.
25.24 Employment and Immigration Canada, the department responsible for the program at the time, believed that the process was not up to the task and that it did not include any mechanisms for quickly and decisively settling claims that clearly lacked merit. A radical change to the system was needed.
25.25 On 1 January 1989, Bill C-55 amending the Immigration Act came into effect, putting into place a new structure and a completely revised process for handling claims made after that date. The process would henceforth fall under the joint responsibility of Employment and Immigration Canada (the Department of Citizenship and Immigration was not established until 1994) and a new body - the Immigration and Refugee Board, which was given the power to rule on the merit of claims. A program implemented at the Department to clear up the backlog allowed for separate handling of the some 85,000 cases accumulated under the previous system.
25.26 The legislative changes were designed to streamline the processing of claims, provide protection for individuals who were genuinely threatened in their country of origin, and discourage those not requiring the protection of Canada or whose claims were unfounded. The expectations were clear - quick, equitable and efficient resolution of claims and the removal of failed claimants.
25.27 Shortly after the new process was implemented, the concerns it had been designed to resolve resurfaced. Our 1990 audit of the system noted that after just 15 months, the process was already seriously behind schedule. In fact, at 31 March 1990, there was a backlog of 23,500 claims or 71 percent of all claims received. It took an average of nine months to process a claim. We also noted that 95 percent of claimants whose claims had been denied were still in the country. Further, we expressed concern about some of the operating mechanisms used by the Board and the Department.
25.28 Subsequently, two major bills (C-86 in 1993 and C-44 in 1995) and a number of regulatory changes gave rise to a series of measures designed to improve the situation. Specific aspects of these changes are discussed in the related sections of this chapter.
25.31 We are especially concerned by the size of the backlog, the lengthy processing times at the Board and at the Department, and the limitations on control and enforcement activities - primarily the difficulty of carrying out removals. These concerns are essentially the same as were meant to be addressed almost 10 years ago with the introduction of the current system.
25.32 The size of the backlog is particularly disturbing. Exhibit 25.6 shows that numbers of claims awaiting processing at the Board have almost doubled since June 1994, even though the number of claims referred has remained fairly constant. At 31 March 1997, the Board's inventory of cases not yet finalized had risen to close to 29,000. In addition, there were approximately 8,500 cases at the Department awaiting its review of the risk to the claimants should they be removed from Canada.
25.33 With respect to processing times, we noted that in 1996-97, the average interval between the filing of a claim and the Board's decision was 13 months. Although data on processing times at each stage in the process are not available at the Department, we estimate that the interval between the Board's decision and the Department's reassessment based on the risk of return was almost 7 months, with another 10 months before the removal. Judicial review by the Federal Court accounts for part of these delays. A person claiming refugee status can therefore count on staying in Canada for more than two and a half years.
25.34 The issue of removals also warrants particular attention. Of the approximately 31,200 claimants who were denied refugee status between 1993 and 1997 or were not otherwise accepted in Canada, 22 percent have confirmed their departure from Canada. We estimate that those who have not left have been in Canada for two and a half years, on average.
25.35 Several factors contribute to the problems of the current system. We noted problems of efficiency and operational effectiveness and a lack of rigour at various stages in the process, which have had a serious impact on the system's ability to meet expectations. However, we also noted weaknesses that pervade the entire process - a lack of co-ordination, integration, strategic direction and overall follow-up.
25.36 Departmental officials at ports of entry, immigration centres and various processing units all examine a claimant's case at some point. In the midst of this process, the Board assesses the merit of the claim. Further, some cases require the involvement of the Federal Court, the Department of Justice, the RCMP or CSIS. While all this is taking place, no one in the federal government monitors the overall progress of claims.
25.37 During the course of our audit, we had to consult many stakeholders and decision makers to be able to identify priorities and strategies in refugee-related issues. These consultations gave us a picture of specific activities in the process but not of the way they are linked. Nor did we perceive any collective effort to make the decision-making process quicker and more efficient. The lack of global knowledge and management of refugee-related issues limits the possibility of processing claims quickly and efficiently.
25.38 Given this situation, we had to delve into various information systems in the Department's and the Board's head offices and regional directorates and offices for the data we needed to piece together an overall picture of refugee-related activities, to measure processing times and pending cases and to attempt to quantify total costs. The Department's information systems could not compile the information needed to account for the resources used in processing refugee claims. We also noted that the availability and quality of information on claims gradually begin to deteriorate once failed claimants begin the long and complex series of activities related to additional reviews and to removals. We found that the Department's information systems contained a significant number of unresolved cases.
25.40 The Immigration Act sets out the circumstances that make a refugee claim ineligible, meaning that it cannot be referred to the Convention Refugee Determination Division of the Immigration and Refugee Board for a hearing. The aim of the Act is to quickly exclude from the process those persons who do not deserve or need Canada's protection. These include dangerous criminals, persons who have already been granted refugee status in another country, terrorists and war criminals, and those who have been denied refugee status in Canada within the previous 90 days. It is noteworthy that determination of eligibility is not designed to assess the merit of a refugee claim.
25.41 Of the nearly 26,000 refugee claims made in Canada in 1996, 60 percent were made at border points and the remainder at immigration offices inland. It should be noted that the Ontario and Quebec regions received 88 percent of all claims. Exhibit 25.7 provides a breakdown of claims received; we note that claims from the 10 major offices and border points in Canada account for 89 percent of all claims.
25.42 When an individual claims refugee status, senior immigration officers question the individual, often with the aid of an interpreter, and ask him or her to complete a personal identification document; they then examine all available relevant documentation, such as passports, identification or travel documents. The officers also take fingerprints and a photograph of the claimant. The fingerprints are forwarded by mail to the Royal Canadian Mounted Police (RCMP) to check whether there is another claim on file with the same fingerprints and whether the claimant has a criminal record in Canada. In the vast majority of cases - over 99 percent since 1993 - the claim is judged eligible. The immigration officers then complete the administrative procedures, provide the person with the necessary documentation for filing a claim with the Board, and allow the person to enter Canada.
25.43 We noted that in most cases, immigration officers rule on the eligibility of a claim without first obtaining the information required to make an informed decision. In fact, the evaluation of eligibility criteria is based essentially on the claimant's statement. Immigration officers render their decisions well before receiving the results of the RCMP checks for duplicate claims and a criminal record in Canada.
25.44 In order to determine the eligibility of a claim, the claimant's background in Canada and abroad need to be known. This requires at the outset a minimum of information on the claimant. Our audit revealed that over the past several years, close to 60 percent of claimants have presented themselves to Canadian officials without a passport, personal identification or travel documents.
25.45 It is understandable that someone fleeing persecution may arrive destitute, lacking even personal documents. However, it is reasonable to expect that they would have travel documents, because the Immigration Act requires airlines to ensure that their passengers are properly documented. We believe the Department needs to make additional efforts to determine claimants' origins.
25.46 In our view, then, the Department does not examine claims with sufficient rigour to establish whether eligibility criteria are met. This allows people access to the refugee determination process and to Canada without it being known whether their claims warrant an in-depth review.
25.47 Citizenship and Immigration Canada should review the mechanisms used in the application of the eligibility criteria set out in the Immigration Act .
Department's response: The eligibility criteria are intended to prevent exceptional cases from proceeding to the full process of refugee determination. In all cases, where there is information that a claimant does not meet the eligibility criteria, the person is found to be ineligible and the claim is not referred to the Immigration and Refugee Board. Once fingerprint results are received, the legislation allows for the eligibility decision to be revised where necessary.
Recently, the Department has increased efforts to determine the routing and identity of passengers arriving without documents by increasing the frequency of document inspections at the point of disembarkation from aircraft.
25.49 In June 1995, the Department and the Board agreed that the information collected by immigration officers upon receipt of a claim would systematically be sent to the Board. This information is useful because it can help Board members later to verify the claimant's identity and credibility. Implementing this agreement yielded good results until the Department began changing its practices at ports of entry in the fall of 1996. Under these changes, claimants at some ports of entry are virtually never questioned about the circumstances of their claims and are asked only to fill out the information forms. The information thus gathered when the claim is received is not as useful as it could be.
25.50 Despite serious objections raised about the relevance and the probitive value of the information thus gathered, Board members and refugee claim officers clearly indicated to us that the notes taken at ports of entry enhance the quality of the Board's decision. In a situation where 60 percent of the claimants have no identification papers or travel documents, the Board member must be able to rely on the maximum information possible to help verify the claimant's identity and credibility.
25.51 Citizenship and Immigration Canada and the Immigration and Refugee Board should co-operate to establish a common strategy for ensuring that all information relevant to the processing of refugee status claims is collected in a timely fashion.
Department's response: Agree. The Immigration and Refugee Board and the Department have agreed to analyze the needs of the tribunal for information from the ports of entry and review the practices at ports of entry.
Board's response: Agreed. The Board views as essential the gathering of information relevant to the processing of refugee status claims and confirms its commitment to increased co-ordination with the Department to this end. The recent Administrative Framework Agreement concluded between the Board and the Department has already laid the groundwork for significant progress in this field. Co-ordination efforts are continuing in order to achieve greater efficiency in the process and improved quality in the decisions rendered.
25.53 When the process was completely restructured in 1989, Parliament included a particularly important provision designed to safeguard our system against an influx of claimants who did not require Canada's protection. Under the "safe third country" provision, the Department and the Board could deny access to the refugee status determination process by claimants arriving from countries known to respect human rights. The claimant had the right to appeal the decision, but would have to wait outside Canada. At the time, the Department projected that approximately 40 percent of claimants would be sent to a "safe third country" after an initial quick hearing. That provision has never been applied.
25.54 Changes made to the Immigration Act in 1993 allow Canada to also enter into agreements with certain countries who are signatories to the Convention to share responsibility for examining refugee claims. In principle, such agreements would mean that claimants would request the protection of the first country in which they found asylum, rather than simply entering that country on their way to their preferred country. The Department indicated that such agreements would foster better compliance with the rules governing the refugee determination process by discouraging "asylum shoppers".
25.55 In February 1995, Canada and the United States entered into negotiations to decide who would take responsibility for persons entering one country and claiming refugee status in the other. However, the agreement has not yet been finalized.
25.56 Citizenship and Immigration Canada should intensify its efforts to ensure an increased level of international co-operation with respect to responsibility for the review of refugee claims.
Department's response: Agree. The conclusion of broad framework agreements on responsibility sharing for refugee claims remains an important element of Canadian asylum policy. This is particularly important for Canada in a regional context given the significant numbers of claimants who arrive via the United States. This policy objective is reflected in the Border Accord between Canada and the United States announced in February 1995. Discussions with the United States continue in pursuit of active co-operation on this issue.
25.58 Refugee status is determined through a hearing into the claimant's circumstances to determine whether there is a serious likelihood that he will be persecuted if he returns to his home country. The role of a Board member differs procedurally from that of a judge in a court. The Board is a specialized tribunal invested with inquiry powers and using a non-adversarial procedure. The primary objective of such a procedure is to elicit all the relevant information needed to arrive at an informed decision. The hearing is generally held before a panel of two Board members, a refugee claim officer who is a Board employee, and the claimant, normally represented by counsel. Where necessary, the Board provides the services of an interpreter. The granting of refugee status requires the approval of one of the two Board members.
25.59 The heavy workload generates pressure to improve performance. At the same time, the non-adversarial hearing takes place in a context where the very nature of the claim poses major challenges of availability and quality of information on the circumstances of the claim. While in theory the burden of proof is on the claimant, Canada has decided to give claimants the benefit of the doubt, thereby following the recommendation of the United Nations High Commissioner for Refugees.
25.60 Over the past three years the Board has not been able to achieve its objectives for processing times. The average processing time went from seven months in 1993-94 to nearly 13 months in 1996-97. The same period also saw a sharp increase in the backlog of claims waiting to be processed, from approximately 17,500 at 31 March 1994 to nearly 29,000 at 31 March 1997. At that date, more than 10,000 claims had been awaiting processing for over a year. However, we have observed a slight decrease in the backlogs since January 1997.
25.62 The Immigration Act stipulates that members of the Convention Refugee Determination Division of the Board be appointed by the Governor in Council. After a number of concerns were expressed about the lack of qualitative criteria and transparent mechanisms governing the appointment of Board members and the renewal of their terms, in March 1995 the Minister of Citizenship and Immigration announced the establishment of an advisory committee to assist in the selection of Board members. The objective of this committee is to strengthen the independence of the Board and the transparency of the selection process while raising the level of Board members' qualifications.
25.63 The selection criteria are defined by the Minister, and calls for candidates are made through an announcement in the Canada Gazette. Exhibit 25.8 sets out the requirements for the position, as described in the two calls made since 1993.
25.64 The advisory committee was given a mandate to assess candidates for the position of Board member and to submit a list of qualified candidates to the Minister. It is expected that, based on that list, the Minister would then select candidates to recommend to the Governor in Council.
25.65 In our view, the establishment of this committee is a step in the right direction, allowing for the selection of qualified candidates. However, we noted weaknesses in the candidate selection process that make it difficult to ensure that the most highly qualified candidates for the position of Board member are identified.
25.66 First, we feel there is a need to improve the recruitment methods in order to attract the most highly qualified candidates. Most of the applications examined by the advisory committee between 1995 and 1997 resulted from an advertisement published in September 1993. Candidates were therefore assessed, in many cases, on the basis of information that was more than two years old. In our view, calls for applicants need to be made more regularly, using various vehicles.
25.67 We noted that the screening tools developed by the committee are not entirely appropriate for evaluating the applicants according to the established criteria. We were told that the advisory committee has already begun to review its evaluation tools.
25.68 Further, there are no mechanisms in place to ensure consistency in the interpretation and application of criteria. Because of their heavy workload, the members of the committee decided to divide up the task of assessing the applications. Each member individually evaluated a certain number of applications and orally informed the entire committee which candidates he or she would suggest putting forward to the Minister. The evaluations of the candidates were not recorded and no documentation in support of them was provided to the other committee members. We do not think this type of evaluation provides for the same rigour and validity as an evaluation of candidates by the full committee.
25.69 The advisory committee is also responsible for recommending to the Minister which Board members' terms should be renewed. We noted that it had little information at its disposal to carry out this task. In effect, the committee's decision is based primarily on the overall results of performance appraisals. Our review of the performance appraisals of 68 Board members whose terms expired between January 1996 and May 1997 showed that they had all been evaluated as "meets expectations", whether or not their terms were subsequently renewed.
25.70 The government should ensure that the selection process for Board members provides greater certainty that appointments or reappointments to the Immigration and Refugee Board are based on the qualifications needed to respond to the complexity and the importance of the task.
25.72 Since its establishment in 1989, the Board has undergone periods of high instability. Approximately 420 persons have been appointed by order-in-council to the Convention Refugee Determination Division and 40 percent of them were given only one term, generally for a period of approximately two years. The average rate of reappointment between 1990 and 1993 was 79 percent. This figure fell to 25 percent between 1994 and 1996. Exhibit 25.9 shows the fluctuations in the rates of reappointment.
25.73 More than 170 members have left the Board since 1994, leaving it with a large number of inexperienced members. Such a high turnover rate is bound to affect the quality of decisions.
25.74 Although many factors can affect a Board member's productivity, we feel that the high rate of turnover has had a particularly negative impact. As shown in Exhibit 25.10 , the average number of cases finalized quarterly per Board member fell dramatically in 1994, when 126 terms expired and only 24 were renewed. The Board estimates that a Board member's rate of productivity in the first year is approximately 50 percent.
25.75 Besides affecting productivity, a high turnover rate represents additional expenses for training and relocation. The Board estimates that appointing someone new costs, on average, $91,700 more than renewing the term of an experienced Board member.
25.76 In our view, the length of the term needs to be related first and foremost to the requirements of the position. Provision is made in the Immigration Act for terms of up to seven years. Since 1994, however, most new Board members have been appointed for periods of two to three years (see Exhibit 25.11 ).
25.77 Members' terms are renewable; in fact, 12 percent of members currently at the Board are completing their fourth or fifth term. Contrary to our expectation, we noted that the average length of a renewed term has been shorter than the initial term. In the 50 reappointments made between 1994 and 1996, the average term length was 2.3 years. This has increased to 3.1 years in 1997. The length of a term impacts on the Board member's productivity: the vast majority of members consulted told us that the uncertainty characterizing the period before the renewal of their terms had had major negative implications for not only their morale but also their productivity.
25.78 A short term can produce other negative consequences. First, the names of individuals appointed to short terms must be submitted more frequently to the government for consideration of reappointment. This could threaten their independence or appear to do so. Also, the short length of terms could limit the government's ability to attract qualified candidates. Finally, many of the Board members consulted said that fully satisfactory or even above-average performance is no guarantee of reappointment. In such circumstances, it is very difficult to develop a sense of belonging or a climate of confidence in an organization, and to project a competent and independent image likely to foster public confidence.
25.80 We noted that the delays in filling positions have contributed to the problems encountered by the Board over the past several years. In April 1996, when the Board had 156 members, it agreed with the Minister's office that 182 members (including deputy chairperson, assistant deputy chairpersons and co-ordinators) were needed to meet the demand. At 1 September 1997, there were 154 members. We estimate that some 2,000 hearings could not be held during this period because of the delay in appointing members. Overall, the number of working members since 1994 has decreased, while the number of cases referred to the Board rose between 1994 and 1995 and has remained relatively stable since then.
25.81 We also found a number of anomalies in the distribution of members among the various regions in Canada. As shown in Exhibit 25.12 , the proportion of members assigned to the Montreal and Toronto regions in the past three years does not correspond to the proportion of cases referred to the Board in these same regions. In the third quarter of 1995, there was a sharp increase in the number of cases referred in the Montreal region, lasting until the third quarter of 1996. The region could not handle this workload despite measures taken to improve its productivity. Although a request was made to have 22 additional members appointed to the Montreal office (10 full-time and 12 part-time), only 8 were finally appointed, 5 of whom were part-time.
25.82 The government has planned since March 1995 to amend the Immigration Act to allow most hearings to be held by one Board member instead of two. Claim-processing projections for 1996-97 were in fact made on the assumption that this change would be made before January 1997. Given that it was not, productivity was below projections and delays continued to increase.
25.83 Overall, the turnover rate among members, the length of their terms and the delays in appointments clearly affect the Board's ability to manage its workload and to attain its operational objectives; this translates into increased backlogs and processing delays.
25.84 The government should improve its practices for appointing Board members, in order to ensure that the Immigration and Refugee Board has a sufficient number of experienced decision makers available when they are needed.
25.86 We noted that the Board places great importance on the training of its members and provides a complete training program. This program includes training for new members, ongoing professional development and information workshops. Most members indicated that they were satisfied with the training offered to them.
25.87 Performance management is also very important because it allows Board members to be monitored and to improve their performance without having the quality of their decisions questioned. In March 1995, a new performance appraisal system for members was implemented. We noted that performance appraisals are completed in the vast majority of cases. However, certain changes need to be made to this system in order to define and communicate performance expectations and objectives, and to make evaluation criteria more specific. In fact, the Board is currently reviewing its performance appraisal process.
25.89 Understanding the prevailing conditions in a country is vital to assessing a claim. The Board's Documentation, Information and Research Branch makes available to Board members a variety of reports and publications on conditions in the countries of origin of claimants, as well as on issues related to human rights in those countries. The sources used in preparing these documents include organizations for the defence of human rights. However, the different sources do not always agree on what conditions actually prevail in the countries. Board members are then required to judge those opinions in the light of their experience and the specific circumstances surrounding the claim. The establishment of teams that specialize in certain geographical areas makes it easier for Board members and refugee claim officers to master the massive amounts of information they must absorb to process claims effectively and fairly. Most Board members and officers feel that this step contributes greatly to the quality of their decisions.
25.90 The quality of information on the identity and particular circumstances of claimants is one more essential element of informed decision making. As mentioned in paragraph 25.49, the Department gathers little information on the circumstances surrounding claims, and a large number of claimants do not have the required identification documents. In these circumstances, it is very difficult for Board members to assess a claimant's identity and credibility. However, the Board recently implemented measures to address the problem of claimants who are not properly documented. For example, in March 1997 it published a document entitled Commentary on Undocumented and Improperly Documented Claimants, the purpose of which is to simplify the task of Board members as they examine issues of evidence and procedure that arise in these types of claims.
25.91 The Board also developed measures to allow for specific research on claimants. A new policy was established to clarify the type of research that may be done and the measures to take to avoid jeopardizing the lives of claimants or their families. Board members and refugee claim officers also feel that these steps have improved the quality of decisions. Because of the delays such research can entail, however, it cannot be used as often as is desirable.
25.92 The Immigration Act allows the Department to intervene at Board hearings. This intervention can be important in certain situations because the Act allows the Department's representative to submit evidence, question claimants or witnesses and offer observations. We noted that the Department rarely intervenes in hearings - in less than 2 percent of the cases finalized in 1996.
25.93 The Immigration Act gives the Board's Chairperson the authority to issue guidelines. Decision makers are not bound by these guidelines, but they constitute a recommended approach to reviewing difficult issues. For example, there are the Guidelines Concerning Women Refugee Claimants Fearing Gender-Related Persecution. Legal Services also provides Board members with an array of information and tools to assist in their decisions. There is, for example, all the case law that stems from Federal Court rulings, as well as a monthly publication of a sample of Board decisions. However, the members indicated that they would appreciate being better informed of the reasons behind the favourable decisions as well as the unfavourable decisions of their colleagues; the Immigration Act requires only that unfavourable decisions be justified.
25.94 Despite all these efforts, there are major discrepancies among certain Board offices in acceptance rates for claimants from the same country. For example, in 1996 the acceptance rate for claimants from a certain country was 4 percent in one regional office and 49 percent and 82 percent in two others. For another country the acceptance rate at these same offices was 39 percent, 70 percent and 85 percent respectively.
25.95 The Board examined the discrepancies in the acceptance rates and concluded that a major contributing factor was that decision makers did not always use the same sources of information and interpreted the available information differently.
25.96 The Board issued a policy in March 1996 asking members to document their favourable decisions where the claimants' countries of origin accounted for significant differences in acceptance rates. To date, there has been very little follow-up on this policy; nor have members received feedback on the information thus gathered. In our opinion, a better knowledge of the case law related to the favourable decisions would contribute to more equitable decision making. The members agree that they should document their favourable decisions, but they are somewhat reluctant to do so given the deadlines imposed on them.
25.97 The Board is in the process of implementing a national strategy designed to ensure greater consistency in decision making. Given the recentness of these measures, it is too early to expect significant corrections in the discrepancies. In fact, we noted that after the first quarter of 1997 there were still serious discrepancies in the acceptance rates, even extending to additional countries.
25.98 The Immigration and Refugee Board and Citizenship and Immigration Canada should ensure that Board members are supplied with the information needed to make well-reasoned and fair decisions.
Board's response: Agreed. In the case of a few countries, there are significant discrepancies between offices in the way claims from one and the same country are handled. Each decision is rendered individually, however, by independent decision makers, based on the evidence submitted and the specific facts of the case. The members in each office have therefore been grouped into teams specializing in a geographic area to enable them to increase their expertise through greater sharing of knowledge and experience, both locally and nationally.
Numerous initiatives have been taken. The Board is currently reviewing its information-gathering system to ensure that information is more effectively managed, more focussed on the facts of each case and more consistent overall from one office to another. The Board also has a national training program that helps to shape a consensus among decision makers, notably in the form of pan-regional information sessions on conditions in certain countries (China, Israel, Somalia, India, Sri Lanka and the Czech Republic).
Department's response: In November 1995, a Memorandum of Understanding was signed by the two organizations for sharing information on refugee claimants and on country conditions from missions abroad. Under the terms of the MOU, client/claim-specific inquiries became possible for the first time. In 1996, missions abroad provided client-specific information for over 600 cases and country of origin information on over 75 cases.
25.100 During our audit we noted a lack of rigour in a number of practices that has resulted in delays throughout the system, frustration among employees and opportunities for abuse of the system.
25.101 In the past, the Board used an expedited process to quickly handle, without a hearing, the claims that had a very good chance of being accepted. This process is being used less and less. For example, 43 percent of favourable decisions in 1993-94 were reached through this procedure, compared with 30 percent in 1996-97. We also noted that the practices used in the expedited process varied from one region to another. Most Board members and refugee claim officers told us that the results of the expedited process are not as reliable as those obtained through the normal process. In our view, the expedited process as it is currently designed no longer meets requirements, but we feel that such a mechanism is sufficiently important to efficiency to warrant an evaluation of its use.
25.102 To the extent that the Board has difficulty handling its workload, we expected that the priorities in processing would be set out clearly and would take risks into account. We noted that there are no clear directives governing the order of priority for processing cases, except the policy that claimants who are detained are to be heard first. Each region sets its own processing priorities based on its own strategy for clearing backlogs.
25.103 We noted that additional efforts are needed to encourage the various stakeholders in the refugee determination process to comply with the Board's rules and procedures. For example, several Board members and refugee claim officers consider that lawyers rarely disclose their information in a timely manner. Further, we noted that in 1996, 57 percent of the personal information forms received at the Board were late. Timely receipt of these forms is important because they initiate the determination process, and any lateness results in further delays.
25.104 Finally, Board members and refugee claim officers clearly indicated to us that postponements and adjournments caused by internal administration, claimants and their representatives are a major cause of Board delays. We noted that 49 percent of scheduled hearings in 1996 had to be either postponed or adjourned.
25.105 In the fall of 1996, the Board began to implement a wide range of measures designed to improve performance monitoring. For example, new mechanisms were put in place to ensure better follow-up on delays caused by writing reasons for decisions. Responsibility for achieving targeted results now lies jointly with the regional directors and the assistant deputy chairpersons in the Convention Refugee Determination Division. In April 1997, each region was asked to present its commitments and its projections for the two upcoming quarters.
25.106 Since the changes to the performance monitoring mechanisms were made only recently, we are unable to comment on their effectiveness.
25.107 The Immigration and Refugee Board should:
The Board has commissioned various independent studies to improve its operational practices and monitoring mechanisms. Studies have been carried out on its information-gathering system and on its internal accountability structure. Reviews are currently under way concerning the management of its information system and, specifically, concerning its caseload tracking system. The Board will implement many of the conclusions and recommendations stemming from these reviews in the near future.
25.109 Throughout our audit, we met people who are willing to contribute fully to carrying out the Board's mandate. However, we were struck by the lack of a common vision on the part of those who work at the Board. In our view, there are major tensions between Board members and the public servants at the Board, and between staff and management.
25.110 We tried to identify the impact of the changes made by Board management over the past two years. We found that both Board members and refugee claim officers have a good understanding of the changes and are willing to continue their efforts to adapt to them. However, the two groups have very different perceptions of the effects of these changes. While the members' assessments were consistently more positive, the refugee claim officers feel that the changes to the system have not had the anticipated effects. With these important two groups polarized on such fundamental issues, change management is probably going to become very difficult and the play of internal forces will favour the status quo by default.
25.111 In our opinion, the Board's effectiveness depends greatly on the ability of members and refugee claim officers to work together. Our audit identified serious problems in the organizational climate. Indeed, most Board members and refugee claim officers describe the current organizational climate as negative or variable. Most members said that the organizational climate has improved or remained stable in the past 12 months. The refugee claim officers, however, were much more critical. In fact, the majority said the situation is deteriorating; one third said it has remained stable.
25.112 It is particularly worrisome to note that only half of the members and a minority of refugee claim officers feel that the current practices instil public confidence in the fairness and integrity of the system for dealing with refugee claims. Similarly, only a minority feel that the Immigration Act can protect Canadian society from abuse of the system. They cited several reasons to justify this rather troubling position. Among the factors most frequently cited were the non-adversarial nature of the refugee determination system, the lack of close co-ordination among the various stakeholders, the generousness of the legislative provisions concerning refugees, and the absence of sanctions against abuses. It should be noted, however, that members and refugee claim officers feel that the Board's current practices allow Canada to comply with its international commitments.
25.113 The Immigration and Refugee Board should take urgent action to improve its organizational climate and develop a common vision among its employees.
Board's response: Agreed. The Board has launched an organizational renewal program that has enabled it to identify its values and adopt an organizational mission. Finally, senior management has developed and disseminated an organizational vision for the future. Furthermore, the Board encourages teamwork and constant dialogue among all levels of the organization, not only to improve the climate of work but also to promote best practices and innovation. Thus, the Board recognizes the need to continue these efforts.
25.115 We reviewed the handling of failed refugee claims. Exhibit 25.13 shows the status of some 31,200 persons who claimed refugee status between February 1993 and March 1997 and whose claims were denied by the Board or were abandoned. Overall, our review found that the Department is having difficulty resolving these cases quickly and efficiently. The files go through a slow, complex process, and many cases remain unresolved.
25.116 As discussed in the following paragraphs, the review of risk of return currently contains ambiguities that raise questions about its merit. In its present form, this step is akin to a reassessment of the Board's decision. Further, it entails a duplication of effort that affects the efficiency of the entire claim process. We also found a lack of rigour in the assessment of humanitarian grounds cited by failed refugee claimants. Finally, the Department is having serious difficulties carrying out removals.
25.118 Since May 1997, claimants wishing this review have had to request it. Previously, with a few exceptions, all refugee claimants whose claims were denied by the Board automatically had their risk of return reviewed. The review is carried out at the Department by post-claim determination officers who work in units independent of enforcement operations. From February 1993 until March 1997, the Department had approximately 37,500 cases to assess, aside from close to 4,000 additional cases that became entitled to reassessment after the 1994 announcement retroactively broadening the interpretation of the criteria.
25.119 The criteria used by the Department in the risk review are very similar to those used by the Board in determining refugee status. Although the criteria used by the Board are based on the risk of persecution, as described in paragraph 25.8, the risk-of-return review criteria are based on risk of death, extreme sanctions and inhumane treatment. In our view, the distinction between these concepts is a very fine one.
25.120 Given this similarity and the stated objective, we would have expected the mechanisms used in the Department's risk review to clearly identify the types of danger it was aimed at avoiding and to complement the assessment carried out by the Board. However, this is not the case.
25.121 In assessing the risk of return, the Department's officers use information that is similar, and even identical, to that used by the Board - the personal information form completed by the claimant for the Board and the reasons for the Board's decision - along with any comments the claimant may have submitted to the post-claim determination officers. Further, the Department's guidelines are based on those developed by the Board.
25.122 The officers' decisions are also based on conditions in the country of return. From documentation centres they gather information on country conditions that is similar to the information produced and used by the Board. Officers in some departmental offices are specialized by geographical region, just as in the Board.
25.123 Given the similarities between the criteria applied to this class of claimant and the Convention definition, and given the methodology used, we question the objective being pursued and are concerned about the possibility that, in practice, the Board's decisions may be overturned by departmental officers. We have in fact noted certain cases where the considerations evaluated by departmental officers had already been evaluated by the Board under its mandate. We also noted that the officers cited factors to support the existence of risk to the claimant that had already been evaluated by the Board, or that would be if changes of circumstances were to be invoked in a subsequent claim.
25.124 Efforts have been made to improve the transparency and consistency of practices and to increase productivity. At 31 December 1994, there were approximately 16,500 cases pending compared with 8,500 at 31 March 1997. With respect to processing times, we estimate that in 1993 approximately 14 months would elapse between a Board decision and the risk review, including time at the Federal Court. In 1996, this figure was down to 7 months.
25.125 Citizenship and Immigration Canada should ensure that the risk-of-return review is:
The aim of regulatory amendments to the Post-Determination Refugee Claimants Class in Canada, introduced on May 1, was to ensure that the procedures themselves do not act as impediments to the expeditious removal of persons found not to be at risk upon return.
25.127 Since granting permanent residence on humanitarian and compassionate grounds constitutes an exception to the general immigration rules, we expected that this avenue would be used with prudence and care. We expected also that the delegation of this power to immigration officers would be accompanied by an appropriate degree of monitoring. In fact, we found a lack of rigour in the use of this mechanism.
25.128 In our view, the use of the discretionary power in connection with applications for permanent residence on humanitarian and compassionate grounds lacks sufficient monitoring to ensure consistent decision making. Although there are several officers authorized to make such decisions, their supervision and training are very limited. Decisions are not systematically documented and are not subject to review unless they are contested. These types of monitoring deficiencies have also been pointed out by internal studies.
25.129 Further, the Department has insufficient information at its disposal to oversee the use of this provision effectively. It has no overall statistics, such as the number of failed refugee claimants who made such applications or the number of repeat applications. The information on claims and officers' decisions is limited and scattered, so that the Department has no easy way of knowing the circumstances that led officers to grant or deny permanent residence on humanitarian and compassionate grounds. Despite the lack of departmental statistics on the number of such claimants, from our analyses we were able to determine that of the 31,200 individuals who applied for refugee status between 1993 and 1997 and had their claims denied, approximately 2,300 were granted permanent residence on humanitarian and compassionate grounds. Most of these individuals were given favourable decisions because they were married to permanent residents or Canadian citizens.
25.130 Citizenship and Immigration Canada should introduce a greater degree of rigour into the mechanisms surrounding decisions based on humanitarian and compassionate grounds.
Department's response: Agree. The Department has already taken steps to improve humanitarian and compassionate processing. New guidelines, in the form of a new chapter to the Immigration Manual, will be completed in the coming weeks. This will be followed by training of departmental employees who apply these guidelines in Canada. In addition, case identifier codes have been developed on the types of cases being approved on humanitarian and compassionate grounds to provide statistical information and facilitate monitoring. These measures should improve the consistency of humanitarian and compassionate decisions without compromising the discretion legally delegated to the decision maker.
25.132 As seen in Exhibit 25.13 , of approximately 19,900 claimants awaiting removal, just 22 percent had confirmed their departure by the conclusion of our audit. As for the rest, we estimate that those individuals who have not left may have been in Canada, on average, for two and a half years.
25.133 There are a number of factors that make it difficult to carry out removals quickly. Adding to the difficulty is the fact that a great deal of time elapses between the Board's decision and the completion of both the risk-of-return review and the assessment of humanitarian and compassionate grounds.
25.134 Another factor is that some countries refuse to issue travel documents to their nationals, and others take a long time to do so - up to four to six months. To address this problem, the Department recognizes that there is a need earlier in the process to initiate arrangements for obtaining travel documents. Extremely severe crises in some countries may also result in a temporary suspension of removals until the situation there stabilizes. Finally, a variety of legal considerations, notably the carrying out of a decision by another tribunal, will affect the timing of the removal.
25.135 Apart from these factors, a number of individuals delay leaving or, in fact, elude the Department. In the Quebec region, for example, it is estimated that in 1996-97, 38 percent of persons considered ready for removal failed to report when required.
25.136 Finally, the extent and complexity of removal orders within the overall immigration program, along with the various degrees of risk associated with the non-removal of certain persons other than failed refugee claimants, are putting pressure on the Department's priorities for removal and investigation. Removals of failed refugee claimants dropped from 4,672 in 1992 to 2,465 in 1996, or from 65 percent to 42 percent of all removals carried out by the Department in that period.
25.137 The creation in 1994 of the Deferred Removal Orders Class is an indication of the impact of the difficulties in carrying out removals. This class was created to regularize the status of certain failed refugee claimants who had been awaiting removal for several years but whom the Department was unable to remove. Among those whom this provision was intended to cover were persons who could not be removed because they lacked travel documents or because there had been a breakdown of order in the country of origin, and others whose cases had been pending for too long at various stages in the process, including the risk-of-return review. More than 5,000 failed refugee claimants were accepted as members of this class. However, the class was abolished in May 1997.
25.138 We also noted that the Department has insufficient information to manage removals adequately. The available information does not allow for efficient tracking of the removal status of all failed refugee claimants. The Department does not know exactly how many persons are ready for removal. It compiles the number of removals of failed refugee claimants actually carried out but it does not know what success rate this represents in relation to all removals ordered. The Department recognizes that its computerized Field Operations Support System does not provide the management information needed to meet the enforcement function requirements. Over the years, the regions have had to develop their own systems to manage their workload. In 1996, the Department introduced a project to develop a new automated system - the Enforcement Case Management System - but the project was cancelled in August 1997 due to budgetary constraints.
25.139 The Department has limited room to manoeuvre because of certain external constraints. The lack of co-ordination and management information nevertheless impact on the effectiveness of the removal process. Effectiveness needs to be improved because decisions made during the process have real value only if they are carried out promptly. We made similar observations in our 1990 Report.
25.140 Citizenship and Immigration Canada should ensure that it has the information needed to manage removal-related activities and it should take steps to increase its effectiveness at removals.
Department's response: Agree. We acknowledge that upgraded information systems would improve the capability to manage removal-related activities. The Department is managing several information technology issues and some initiatives that are proceeding will support the removals function. These include centralizing enforcement information through the establishment for the greater Toronto area of a centralized enforcement office supported by an integrated enforcement case management system to help track cases for removal activities.
The Department has also developed a removals strategy comprising complementary measures designed to support the removals function. These include the negotiation of bilateral removal arrangements with other countries (six signed to date); measures to encourage voluntary compliance with removal orders (e.g. use of cash bonds); increased exchange of information on best practices among removal offices; and the pursuit of various diplomatic channels to obtain the co-operation of countries that refuse, or take too long, to issue travel documents to their citizens.
25.142 The government's Program Review confirmed that the protection of refugees was one of the primary functions of the Citizenship and Immigration Program. One would therefore expect that the Department would account for the government's performance in this regard, based on a set of overall expectations. However, we noted from the Department's Expenditure Plan for 1997-98 that the planning data and performance-related information did not contain any substantial comments on the processing of refugee claims. No information was provided on the performance of activities carried out by other federal agencies such as the RCMP, the Federal Court and CSIS. In addition, the information presented by the Department on refugee claimants was combined with information on other activities or sub-activities and was therefore difficult to extract. However, the Department recognizes that given the changes resulting from the re-engineering of administrative processes that began in 1995, it will have to change its accountability framework. Also, the Department has indicated that it intends to develop performance measurements based more on results than on process.
25.143 The Board was part of a group of 16 entities that participated in the Improved Reporting to Parliament Project, set up by the Treasury Board Secretariat to improve the quality of expenditure management information sent to Parliament and to modernize its preparation. As part of this project, the Board presented its Performance Report in 1996 and, in 1997, its Report on Plans and Priorities. We reviewed the information contained in these documents, particularly the information related to the Refugee Division. We observed that the reports place considerable emphasis on the improvements needed in the areas of service delivery and workload management. A number of indicators are presented, such as the number of decisions made, the average cost per decision and average processing times. The information describing activities and the related outputs had improved but, like a number of other entities within the federal government, the Board needs to place more emphasis on the outcomes of its activities related to refugee status determination. It needs to broaden the scope of its indicators to account more specifically for its achievements in the area of informed and equitable decisions.
25.144 Citizenship and Immigration Canada and the Immigration and Refugee Board should ensure that parliamentarians receive the information needed to hold the government to account for the performance of all activities related to the processing of refugee status claims.
Department's response: Agree.
Board's response: Agree.
25.146 Although we offer suggestions for improving results at each stage in the process, we caution the government against making patchwork changes. We believe that the problem is complex and that there is a need to conduct a thorough review of the refugee claim process. For example, it may be necessary to review the division of responsibilities among the various stakeholders as well as their respective roles. The infrastructure for co-ordination and control urgently needs to be improved.
25.147 Finally, it is important to realize that there are inherent limits to the improvements that can be made in the performance of the existing system. Both the Department and the Board operate within a framework that reflects the choices made by Canadian society over the years on refugee-related issues. For example, the application of the Charter, the nature of our social programs, the various benefits allowed to claimants, our level of tolerance for people who attempt to abuse the system, the non-adversarial nature of the process, and the various remedies available to failed claimants all significantly influence the performance that can be expected from the system.
25.148 Therefore, in the event that the system is revised, it is essential that realistic expectations for the speed and efficiency of claims processing be set out in keeping with the choices we as a society have made. It is also important that the responsible federal agencies respond to these expectations within well-defined parameters.
25.149 During the course of our audit, the Minister of Citizenship and Immigration established an Immigration Legislative Review Advisory Group tasked with formulating recommendations to guide and update future immigration and refugee legislation. Among other things, the review will include ensuring the integrity and efficiency of the refugee determination process. The Advisory Group has held numerous consultations in 1997 with various immigration and refugee stakeholders. We have been informed that it is expected to submit its report to the Minister by 31 December 1997.
Department's general comments:
The Department appreciates the challenge the Auditor General faced in analyzing refugee claims processing in Canada. Fairness and efficiency are legitimate and important objectives, but sometimes tensions can exist between them that complicate the process of refugee status determination. Since the revision of the refugee status determination processes in 1989, the Department has introduced measures to improve both the quality and efficiency of the process. The Department recognizes that greater efforts need to be made in the co-ordination of the various processes and in improving information systems to allow for better management and accountability.
As mentioned in the chapter, last November the Minister created a Legislative Review Advisory Group to review the current system and make a series of recommendations to guide and update future immigration and refugee legislation. The Auditor General's comments and recommendations will be of timely benefit in the deliberations that will follow the release of the report of the Legislative Review Advisory Group.
Refugee-accepting countries are struggling with their refugee determination systems to ensure high-quality, timely decisions in the face of pressures created both by the influx of asylum-seekers and by domestic fiscal realities. While dealing constantly with new challenges, the Department also seeks "best practice" solutions through multilateral and bilateral discussions with like-minded countries and the United Nations High Commission for Refugees.
Our audit was carried out primarily at Citizenship and Immigration Canada and the Board. We also met with representatives from the Royal Canadian Mounted Police and the Canadian Security Intelligence Service.We gathered audit evidence from discussions with staff, examining claimants' files, consulting management documents and databases, and observing a number of hearings. We also surveyed all Board members and all refugee claim officers. As of 2 September 1997, a total of 173 persons had responded to our questionnaire, for an overall response rate of 62 percent, which gives us a reliability rate of 95 percent and a margin of error of approximately 5 percent. Also, the characteristics of the respondents correspond closely to those of the general population surveyed.
For information, please contact Serge Gaudet, the responsible auditor.