CITI Committee Meeting

STANDING COMMITTEE ON CITIZENSHIP AND IMMIGRATION

COMITÉ PERMANENT DE LA CITOYENNETÉ ET DE L'IMMIGRATION

EVIDENCE

[Recorded by Electronic Apparatus]

Wednesday, November 25, 1998

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[English]

The Chairman (Mr. Rey D. Pagtakhan (Winnipeg North—St. Paul, Lib.)): I now convene the meeting of this committee on immigration and citizenship and welcome our witnesses, Ms. Mawani, Mr. Palmer, and Ms. Benimadhu.

We certainly thank you for agreeing to come here today, and on that note we will open the floor to the witnesses. Perhaps they may want to give opening remarks and thereafter allow themselves to be posed questions.

Ms. Mawani.

Ms. Nurjehan Mawani (Chairperson, Immigration and Refugee Board): Thank you very much, Mr. Chairman and members of the committee. I would like to begin by introducing my colleagues, Jennifer Benimadhu, who is the acting executive director of the IRB, and Philip Palmer, who is the general counsel. We are eager to contribute to the committee's work, Mr. Chairman, and I'm pleased to offer any support that may be required for the committee to fulfil its mandate.

I would like to begin my remarks today by commenting briefly on the story that appeared this morning in the Montreal Gazette, since I am sure some of you may have concerns about it.

[Translation]

I cannot comment on the specifics of the case while the RCMP investigation is ongoing, but I can tell you that we are conducting our own investigation—independent of the RCMP investigation—to find out if there has been any violation under Public Service laws and regulations.

I would like to stress two things. First, for the Board employee under investigation, as for any other citizen, the presumption of innocence prevails. Second, this is an isolated incident that should not in any way undermine confidence in the refugee determination process.

[English]

We need to keep things in perspective. The investigation involves a very limited number of claims over a two-year period. No organization can guarantee that this type of alleged breach of trust will never occur.

What I want to do today is assure you that we will take whatever action is necessary to ensure that Canadians continue to have full confidence in the integrity of the refugee system. We all know that immigration and refugee matters are not easy. As the Auditor General noted in his report last December, migration and protection issues are highly complex.

A great deal of confusion exists in the minds of many people over the respective roles and responsibilities of the IRB, an independent decision-making tribunal, and our portfolio partner, the Department of Citizenship and Immigration.

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We are primarily known for the work of our largest division, our refugee division, which is responsible for determining claims to convention refugee status made in Canada. As you know, our immigration appeal division hears appeals of removal orders and rejected sponsorships, while our adjudication division conducts immigration inquiries and detention reviews.

I understand that those of you who met with the Toronto area adjudicators last spring found the meeting to be very informative and that you appreciated the opportunity to observe adjudicators at work conducting detention reviews. In light of this, I would like to once again extend an invitation to you to visit one of our regional offices, which are located in Calgary, Vancouver, Montreal, Toronto, and Ottawa.

As part of these visits, my officials would be pleased to arrange for you to attend hearings as well as meet with employees. I can think of no better way to gain insight into the very important and consequential work that we are charged with doing on behalf of Canadians.

As you know, we make more than 40,000 decisions a year that affect life, liberty, and security of individuals and the public interest. This is very clear in our mission.

There is no doubt that some Canadians would prefer that the board function more as a protection agency. They believe that we are too tough, that we are insensitive to many heartbreaking cases that come before us. Others would like us to be more of an enforcement agency; they believe we are too generous. In fact, one's opinion of the IRB—whether we are too tough or too generous—is in many ways a reflection of one's basic values. I believe the debate over the IRB's role reflects a fundamental clash of values.

The fact is we are not a protection agency or an enforcement agency. We are a tribunal, and we are bound by our statutory mandate, which is very explicit. Understanding the limits of what the board can and indeed must do under the law is crucial to understanding the work of the board.

[Translation]

I would like at this time to move on and talk about some of the highlights of the past year. As stated in our most recent Performance Report to the Minister and to Parliament, I am very proud of the Board's recent accomplishments. It has been a challenging year for the IRB, but also a very good year.

As those of you who were on the committee last session are aware, I issued the Guidelines on Detention, the fourth set of Chairperson's Guidelines issued since the Board was created in 1989. The Guidelines will ensure that the decision-making process for detention reviews is more transparent, consistent and fair.

[English]

Further evidence of our innovation and leading-edge practices is our pilot project to test the usefulness of alternate dispute resolution techniques in resolving sponsorship appeals. We launched a pilot project this past spring that will allow us to better determine if this is a technique that will enable us to serve Canadians better.

Our challenge has always been to find ways to reach decisions more quickly without compromising the quality of our decisions. On this front, the past fiscal year marked an important turning point for the board, especially for the refugee division. It was a period when we made significant progress towards meeting our commitments to Parliament and to the Canadian people. Let me give you some quick highlights.

In the refugee division, productivity was higher than it has been in four years. We reduced the size of our pending inventory of cases and we decreased our average case processing times. Furthermore, the average cost per claim came down.

In our immigration appeal division, we finalized almost 60% more appeals than we did two years ago. The total number of appeals pending decreased and the cost for appeal dropped.

The adjudication division finished the year with its workload current in all regions and no pending inventory of cases.

Most importantly, Mr. Chairman, we met the challenge of achieving these efficiencies while maintaining the quality of our decisions.

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I am also very pleased to report that productivity figures for the first six months of 1998-99 show that we have sustained and in some cases increased the momentum established in 1997-98.

How did we do this? To explain, I need to go back a little in time.

In his report, the Auditor General, you will recall, identified two main concerns relating to the efficiency of refugee claims processing: the size of the backlog and the lengthy processing times. He noted that problems with member appointments, including a high turnover rate, short terms, and vacancies, had a demonstrable negative impact on both the board's productivity and the quality of decisions. We were well aware of the problems the report focused on before the Auditor General issued his report.

About three years ago, we decided to fundamentally re-examine where we were and where we needed to go. We recognized that over the years our processes had become too formal, too legalistic, too court-like. There were a number of reasons for this: lawyers who appeared before us played a part; the courts played a part; and we ourselves played a part. Our challenge was to get back to a process that was more in keeping with the role of an administrative tribunal, a process that was simpler, quicker, and more flexible while at the same time fair and rational. We decided to take charge of our procedures and processes.

What did this mean? It means, for example, no automatic adjournments; no routine extensions for filing documents; early disclosure of documentary evidence; enforcing our own rules; vigorous case management; and making oral decisions the norm.

Our decision to take charge of our operations coincided with significant improvements to member appointments. Vacancies are now being filled without delay from a pre-qualified list of candidates. In addition, new members have longer initial terms—usually three years. Reappointments are also for longer terms—usually for five years.

So, Mr. Chairman, it's the combination of our take-charge approach in the various case-management initiatives and the changes to the appointment process that have resulted, in my view, in very significant improvements to our performance and service.

[Translation]

I would like to close my remarks by talking briefly about the IRB in a somewhat broader context.

Since being here in March, there have been some very positive developments for the Board in terms of its international reputation. Last month, the Board co-chaired with the Federal Court of Canada the third annual conference of the International Association of Refugee Law Judges. A total of 156 delegates from 51 countries attended the conference and everyone felt that the meeting was a great success.

The general focus of the conference, and the Association, has been to strengthen an international approach to refugee issues, which are by definition global issues.

[English]

It was evident from the deliberations of members of the association that the IRB is considered to be at the forefront of advances in refugee determination. Let me take the liberty of sharing a few comments that were provided to us.

The Deputy Secretary General of the United Nations, Madame Louise Fréchette, who was a keynote speaker at the conference observed that “the Canadian refugee determination system is seen as a model of fairness and thoroughness.”

Another conference speaker, Mr. Dennis McNamara, who is the director of international protection for the UN High Commissioner for Refugees, said in an interview with CBC, and I quote:

Your IRB and the process here in Canada, which I know has had some domestic criticism, is frankly looked at internationally as one of the most effective ones that we deal with. Your system has established some very important jurisprudence and in fact is looked to by many countries as one of the better systems to be followed.

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Indeed, this theme of international recognition was reinforced further during the visit three weeks ago of Mrs. Sadako Ogata, the United Nations High Commissioner for Refugees, who was equally complimentary about Canada's refugee determination system. She said in one of her lectures:

We look to Canada for leadership and constancy in these troubling times. Canada's steadfast commitment to a Convention-based refugee status determination system is heartening.

We have just received news that the U.S. Immigration and Naturalization Service is adopting guidelines on child refugee claimants and they have asked the IRB to help train its decision-makers on the guidelines. I am sure members of the committee are aware that the IRB was the first refugee determination system anywhere in the world to have issued guidelines on how to deal with this very vulnerable group of child refugees. I believe Canada can take pride in the fact that the work of the IRB is highly regarded by other nations and by international bodies such as the UN.

So to conclude, Mr. Chairman, as we approach our tenth anniversary, it is gratifying to know that we are on our way to reaching our vision of being a leading-edge administrative tribunal that makes decisions on immigration and refugee matters simply, quickly, and fairly. We will continue to work with our partners to improve our processes and build on the progress we have made.

Thank you very much. Merci beaucoup de l'attention que vous avez manifestée.

The Chairman: Thank you, Ms. Mawani, and thank you for your assertion of confidence.

On that note, I shall open the floor, firstly with the Reform, followed by the Bloc and then by the Liberals, with 10 minutes each for the first half-hour round.

Mr. Benoit.

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

Good afternoon, ladies and gentlemen. I'm very pleased that you could come here today.

I'd like to just start by noting your comment that you've made significant progress in terms of meeting your commitments to Parliament and to the Canadian people. When you look at statistics on the IRB, though, one of the things you notice right away is that the backlog is almost as large as it was in 1989, when the major overhaul of the system was made. That indicates to me that some of the same problems that were there before 1989 are still there under the new system. I'd just like you to comment on the size of the backlog and what's going to be done with that backlog.

Ms. Nurjehan Mawani: When the board was established in 1989, the backlog was between 80,000 and 100,000. It was very significantly larger than the backlog we are talking about today.

Mr. Leon Benoit: Which is what?

Ms. Nurjehan Mawani: On March 21 it was 27,700.

Mr. Leon Benoit: The Auditor General's numbers on that are much different. They're quite a bit higher than that.

Ms. Nurjehan Mawani: But they're a year old.

Mr. Leon Benoit: Are you saying you've done a lot to cut down that backlog in the past year?

Ms. Nurjehan Mawani: Yes.

Mr. Leon Benoit: Now, one of the methods you used to do that no doubt would be the process where you expedite claims. It may be exactly what has you in some trouble in Montreal in the case you referred to. I'd just like you to comment on that.

Ms. Nurjehan Mawani: First of all, we have made a reduction in our backlog. In fact, I'm pleased to report to you that in the first six months of this year we have made a further reduction in the backlog. So from the last time we appeared since the Auditor General's report, it's down by 5,000, or will be very shortly.

One of the ways in which we have always dealt with our case processing is the expedited process. We don't regard it as a way of bringing the backlog down; we believe it is a very important part of the law we are applying. As you know, the expedited process is part of the law.

Mr. Leon Benoit: I think that certainly makes good sense in some cases.

Are the criteria used to judge which cases should be expedited the same across the country? Is this treated the same way across the country?

Mr. Philip Palmer (General Counsel, Adjudication Branch, Immigration and Refugee Board): The basic fundamental criteria are the same. The processes still vary somewhat, depending upon the regional centre, and our procedures vary, more specifically with the development of team-centred approaches, so you have specialized members who specialize in regional claims. They set criteria they feel should apply to readily acceptable claims.

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Mr. Leon Benoit: Can you give us an example of how the process would differ from Montreal to Toronto?

Mr. Philip Palmer: The large difference historically between Montreal and Toronto is that the Toronto process has been very diffuse and the Montreal process was rather centralized and centrally managed. It's changing in both of those areas, so the system will be much more similar in six months or a year's time.

Mr. Leon Benoit: I understand that in the Montreal centre a lot more cases are expedited. Why is that? You're saying it's a centralized system. Why were two systems developed so differently?

Mr. Philip Palmer: As you know, we're a very large country and there are inherent tensions between regions and management styles. I think the best we can say is that there are historical reasons for it rather than strictly logical ones. Part of those reflected the philosophies of the members and management structures in the two organizations.

We're working very hard to change the process so that there's more similarity and greater coherence in the way they're managed and run in all of the offices. That's a present preoccupation of the board.

Mr. Leon Benoit: You mentioned that we have a large, diverse country, which is certainly true, and I suppose that could lead to some problems. Have you a mechanism in place that will ensure a claimant in Vancouver, for example, will not claim again in Montreal? If so, could you explain exactly what that system of protection is, and is it right across the country between all centres?

Mr. Philip Palmer: First of all, people are not allowed to bring more than one claim at a time. Each person who comes into the country and identifies himself as a refugee claimant is given a unique identifier and they are fingerprinted. There is a permanent file at CIC, and those portions of it that are necessary are shared with the Immigration and Refugee Board. A person cannot make a new claim, say move from Vancouver to Montreal and make a new claim, without that being detected in a routine check. So we're quite confident we're not getting multiple claims in that sense.

Mr. Leon Benoit: So you're confident the system is working well to ensure that one individual won't claim in two or more centres across the country.

Mr. Philip Palmer: Yes.

Mr. Leon Benoit: You still have a substantial backlog. What was the number you said it was?

Mr. Philip Palmer: The current backlog, at the end of September, was 23,750.

Mr. Leon Benoit: Have you got a target date for completely eliminating the backlog?

Mr. Philip Palmer: Completely eliminating is one of those terms that—

Mr. Leon Benoit: Reducing it to a small percentage of what it is now.

Ms. Nurjehan Mawani: Yes. We need an inventory of about 18,000 cases so that the system can continue to work. We need to have enough cases in the inventory to be able to schedule those cases.

Last year, for example, we finalized 25,100 claims. So if we have 18,000 cases in the inventory, that will enable us to keep the system moving efficiently. Our target is that we will be down to our 18,000 by— well, 23,700 by March 1999, and by 2000, according to our commitments, we will be down to the— It's a decrease of 4,000 a year that we are working on.

Mr. Leon Benoit: To do that you must then believe you have enough resources at the board now and that it's not a problem. To do that, will there be a higher percentage of cases that are pushed through the system quickly in terms of cases being expedited?

Ms. Nurjehan Mawani: Expediting is only one of the ways in which case management works. As I mentioned in my opening comments, we have introduced very many other initiatives. As we find, for example, that when adjournments start to come down, postponements start to come down, and there's early disclosure of documents, all of these things, the more rigorous case management strategies, including oral decisions, for example, lead to a reduction. It has helped to reduce processing time. No longer do people have to wait from three to six months for their decisions. So that helps to shrink the processing time overall. It means we can free up resources and use them elsewhere in the system. So the whole system is geared to ensuring that we are moving as quickly as possible, but at the same time ensuring the system is fair.

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Mr. Leon Benoit: But my question was will that percentage of cases that are expedited be increased in fact, and has it been increased over the past three years?

Ms. Nurjehan Mawani: There will not be a specific push to expedite cases just for the sake of managing the backlog. We are equally concerned about the integrity of the system. We believe that expediting is an appropriate way of managing the caseload, but more importantly, it's to make sure claimants get the decisions, that those who need to know get their decisions as quickly as possible.

Mr. Leon Benoit: So specifically in this process, how are you going to ensure that a case like the one you commented on earlier in Montreal, a Mr. Fox, I believe, doesn't happen again?

Ms. Nurjehan Mawani: If we look at that particular situation, first of all, it's important that we don't make prejudgments about the case itself, because as we know, charges haven't even been laid, let alone the person having to be found guilty.

Mr. Leon Benoit: That's true.

Ms. Nurjehan Mawani: So we cannot jump to any conclusions. However, while the RCMP investigation is going on, our manager in Montreal immediately commenced an investigation internally. That investigation will tell us what happened, whether anything went wrong in fact. If it did go wrong, steps will be taken to immediately ameliorate that situation so that such a matter does not occur again.

It's important to keep a perspective that we are dealing with around 25 to 50 cases, and that's why it will not be too difficult to be able to review all those files, which is what is happening at this present time.

The Chairman: I'll now yield the floor to Mr. Ménard, please.

[Translation]

Mr. Réal Ménard (Hochelaga—Maisonneuve, BQ): Thank you. I would like to join our Chairman in welcoming you here.

Ms. Nurjehan Mawani: Thank you very much.

Mr. Réal Ménard: I also want to apologize for the fact that I may not be able to stay until the end. I'm sorry.

I would like to ask you four questions.

First of all, I think that everyone acknowledges that significant effort has been made to reduce the backlog. However, we cannot be satisfied until an even greater effort has been made. It is estimated that this backlog is costing Quebec and Ontario $100 million. Every time there is a backlog in the system, the provinces, primarily Quebec and Ontario, have to shell out $100 million in order to deal with these administrative shortcomings.

What is it about the organizational culture that causes this to occur? The Auditor General suggested two explanations and I would to hear your opinion on the matter. The Auditor General said that there was a clash between two cultures at the IRB: there was, on the one hand, the culture of the commissioners, and, on the other hand, that of the officials. What do you think about that?

Secondly, the Auditor General said that the Board required 186 commissioners in order to make decisions quickly. According to your brief, you now have 210 commissioners, which means that you have more than enough commissioners. How do you assess the factors suggested by the Auditor General to explain the backlog?

[English]

Ms. Nurjehan Mawani: I would like to respond to both of your questions. With respect to the number of commissioners, yes, we have 210 members right now; however, it's between two divisions. We have the refugee division and the appeal division, and between them the total is 210. That may explain the Auditor General's comment.

With respect to the culture within the organization that the Auditor General commented on, I would submit it is not unusual in a tribunal to find a situation where there is tension between those who are nominated, the decision-makers, the members, and those who are appointed under the public service act. It is a situation that exists in many organizations, and as part of the heads of agencies, it is a matter we discussed.

• 1600

Having said that, we recognized it. We recognized that it is something we must try to break down, because it does not serve the organization well.

What did we do about it? We embarked on a renewal program for the board. That was a very important initiative. Part of that renewal was the articulation of a mission and vision statement in which the whole organization was involved. We also articulated the values that were going to inspire our vision; what is it that we all believe in.

[Translation]

Mr. Réal Ménard: I fully understand what you're telling the committee. If we were to ask you what qualities were necessary in order to be a good commissioner, how would you answer? What do you think about the Auditor General's analysis, which states that, right now, a year elapses between the time when a person is appointed—this is a political appointment and I hope that we will have a chance to change that—and the time he or she makes the first decision. We have to wait a full year before the person is operational. Do you agree with that?

To summarize my two questions, what does it take to be a good commissioner and how much time does it take until this person is operational, effective and able to make decisions?

[English]

Ms. Nurjehan Mawani: All of the commissioners who have been appointed to our board since March 1995 have been appointed through the recommendation of an independent advisory committee on appointments. What we also have is an excellent training program, one of the best training programs for any decision-makers in this country. We have qualified candidates who are screened rigorously by the committee. The Auditor General, you will recall, recommended that some of those practices of the committee should be made more rigorous. This has happened. As a result, I think we are finding that the committee's work has been significantly enhanced.

Mr. Réal Ménard: Okay.

Ms. Nurjehan Mawani: With regard to the training, the combination of qualified candidates and an excellent training program has enabled us to get new members functioning very much faster than we have in the past. I would say that within six months most of them are functioning very well.

[Translation]

Mr. Réal Ménard: You get a lot of people who do not know anything about international law and have never been interested in immigration. Pretend that you're going to give a lecture to students at McGill University and you're asked what it takes to be a good commissioner. I'm not saying that people can't learn, but when the former president of Alliance Quebec is appointed to your Board, even if we set aside partisan considerations and the merit of the individual, it cannot be claimed that he demonstrated, throughout his life, a great deal of interest in immigration and in the refugee-producing countries. Although you had nothing to do with this appointment, what, in your opinion, are the qualifications that must be met in order to be appointed commissioner, aside from the fact that you have to be a friend of the government?

[English]

Ms. Nurjehan Mawani: The committee uses a competency-based approach to assess candidates. Candidates have to demonstrate that they possess certain competencies. Let me give you a few examples. They have to demonstrate that they have analytical reasoning and thinking skills, decision-making and judgment, action management, communication skills, interpersonal relations, and professional ethics. Now, these are—

[Translation]

Mr. Réal Ménard: That means that I could be appointed commissioner. I have all of the qualifications to do this job.

[English]

Ms. Nurjehan Mawani: You can make an application.

[Translation]

Mr. Réal Ménard: I have two other questions to conclude. You answered my question very well. Thank you.

On page 16 of the Auditor General's report— You appear to have the Board's performance report. Do you have a copy?

Ms. Nurjehan Mawani: Yes.

Mr. Réal Ménard: It would appear that you have a few complaints about Bill C-44 which you explain on page 16. It seems that the process is more expeditious, but also more complex. Could you talk to us about this?

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In discussing C-44, you say, on page 16, first paragraph:

But while the number of inquiries handled by this Division is approximately 25% lower than in 1996-97 and approximately 50% lower than in 1995-96, the overall complexity of the work has increased.

What does that mean?

[English]

Ms. Jennifer Benimadhu (Acting Executive Director, Immigration and Refugee Board): I can answer that question. This is related to the adjudication division, which determines whether people are to be admitted to or removed from Canada. Bill C-44 changed the jurisdiction of the senior immigration officers so that a larger number of cases were dealt with in Immigration and fewer but more complex cases came to the adjudicators. So the work the adjudicators were left with were for the most part the more complex, longer inquiries—for example, war criminals or people who committed crimes against humanity. So the—

[Translation]

Mr. Réal Ménard: Okay, I understand. I have one final question. My colleague from the Reform Party touched on the fact that you have to know what's going on internationally. You have to be able to asses whether or not a country is in fact producing claimants, if there are people who are outside the country and if their integrity, among other things, is threatened. Why is there so much variation between the decisions made in Montreal, Toronto or Vancouver?

I understand, because I visited Montreal myself and I really appreciated the opportunity. Moreover, I would like to thank Mr. Ayotte and I would ask that you say hello to him for me, because he was a wonderful host. I know that the commissioners have a guide, a notebook, a blue binder and various reports from Amnesty International and other organizations that enable them to form an idea of the country. The same type of information should be available to all commissioners, regardless of whether they live in Toronto, Vancouver or Montreal, because the Amnesty International report is the same. How do you explain these variations, which, moreover, did not escape the shrewd scrutiny of the Auditor General?

[English]

Ms. Nurjehan Mawani: For a high-volume tribunal like ours, consistency is a challenge, but it's also something we strive very hard for. Last year, for example, we completed, as we said, 25,100 refugee claims, spread across different parts of the country. You're right that the decision-makers would have the same basic documentary material. It is possible, though, that in some situations they would be getting additional material in a particular case. That's one thing to bear in mind.

Secondly, one should bear in mind that just because somebody comes from a particular country doesn't necessarily mean that person will have exactly the same profile as somebody else going to another region. I'll give you an example. For certain countries we found that claimants who were coming to Vancouver had a certain profile. They tended to be more rural people who came from agricultural communities in their country, as opposed to people from the same country who came to Toronto, who tended to be urban people, perhaps more involved in political activities, etc. So that can happen as well, and it's important to bear that in mind.

[Translation]

Mr. Réal Ménard: I understand. May I ask one final question?

[English]

The Chairman: No, Mr. Ménard.

I'll now yield the floor to Mr. McKay.

Mr. John McKay (Scarborough East, Lib.): I just want the record to show that I'd support Mr. Ménard's application.

Mr. Réal Ménard: Merci.

The Chairman: First, he has to resign.

Some hon. members: Oh, oh!

Mr. John McKay: I have a series of short questions, Mr. Chairman.

Thank you for your presentation. After you hear these things, they start to have a pattern, so I appreciate the improvements that seem to be ongoing here.

The first question is with regard to the referral time between when a person lands at Pearson tonight and when you actually received the application for refugee status. What's the timeline on that? I know you have no control over it, but you would at least know what the time would be.

Ms. Nurjehan Mawani: As you say, we don't have control over that, but to the best of my knowledge it's between a month and three months.

Mr. John McKay: So one to three months, from the public standpoint, would be added on to any 12-month period you would claim as a processing time, then.

Ms. Nurjehan Mawani: Yes.

Mr. John McKay: Has that changed? Is that consistent or going up or down?

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Ms. Nurjehan Mawani: As of now, it's about the same. However, we are working closely with the Department of Citizenship and Immigration through the administrative framework agreement that we have entered into with them. One of the subagreements is on case processing priorities. It is certainly a challenge for them, but we are all committed to ensuring that cases are referred to us as quickly as possible.

Mr. John McKay: What would cause someone to not file a claim within 90 days?

Ms. Nurjehan Mawani: More often than not, it is an issue of getting counsel to assist in completing the personal information form. Even though there is a time limit on filling that in, the reality is that many refugee claimants want some assistance from someone to help them complete their papers. As I mentioned, one of the things we are trying to do is to make sure we are not giving automatic extensions of time to complete those forms. What we are saying to them is that if they have difficulty, they should come in and tell us they are having difficulty. We will then find a way to enable things to happen.

Mr. John McKay: Even a preliminary filing would be better than none at all.

Ms. Nurjehan Mawani: Yes.

Mr. John McKay: Of your 23,700, which you anticipate to be your grouping as of March 31, 1999, how long would those people— I'm a little confused here about what the group in the backlog is and what group is pending. What's the average timeframe in the backlog?

Ms. Nurjehan Mawani: It would be difficult to give a very precise answer. However, I think we are in a situation that works in two ways. First of all, we've introduced a process called last in, first out. That was brought in essentially to get to grips with this whole problem about delays in processing time. In that sense, we are going to be able to complete a lot more of those cases that are part of that last in, first out project.

Mr. John McKay: That gives you a skewing of the numbers, though, doesn't it?

Ms. Nurjehan Mawani: That's right. In fact, quite frankly, we're more efficient in dealing with those cases. We've committed to doing these cases in eight months. There are cases that are old in the inventory, but unfortunately the processing time for those may make it look like it takes even longer.

Mr. John McKay: But then you'll get into affinity problems after that.

Ms. Nurjehan Mawani: We're not actually, but we recognize that it's possible. What we've done is put in place some resources specifically to deal with cases that are more than a year old and more than two years old. In so doing, we've determined a few things. First of all, we've determined that some of them are actually not current any more. Some of those people have already decided not to pursue their claims. They've gone. So in a way, it has helped us to tidy up the inventory, if I may put it in that way.

I have some figures here from colleagues, and I think they are good figures: 71% of our cases are less than a year old; 16% are between one and two years old; and 13% are more than two years old. This is a very significant improvement, if I may say so.

Mr. John McKay: I assume that's a national figure.

Ms. Nurjehan Mawani: Yes.

Mr. John McKay: And what would be the regional variation in Toronto in regard to those figures?

Ms. Nurjehan Mawani: I would have to get those for you— unless we have them available here.

Mr. John McKay: Is there a generalization that you can make with respect to Toronto in terms of whether it's a slower or a faster process?

Ms. Nurjehan Mawani: We'll have a look at the figures for you, but as far as I know, we're doing better. Looking at these figures here, 84% are less than a year old in Toronto, 13% are one to two years old, and only 3% are over two years old.

Mr. John McKay: Okay.

Right now, the justice committee has actually reported on Bill C-40, the extradition bill. One of the concepts in the bill is that the refugee determination process is essentially hijacked by justice in a consideration on an extradition matter. Once the extradition issues are dealt with, the minister then essentially substitutes herself or himself for the refugee determination process. Have you given any thought as to whether that is in fact an appropriate process for extradition proceedings?

• 1615

Mr. Philip Palmer: I don't think we're in a position to criticize government policy, nor do we wish to. I think the primary issue for us is to in fact sort out which process is going to take primacy, that of extradition or that of refugee determination, and how the two relate. I think the bill is helpful when it comes to doing that.

In the overall interest of the system, it is probably useful to have that question answered. The government has obviously taken a particular approach to it. Given that as the policy of the government, our primary interest is to ask how, technically, the two systems can work in parallel and how they interrelate. We have given comments to help on the technical side of things, but we don't have any position on policy.

Mr. John McKay: My final question, Mr. Chairman, is with respect to war criminals.

I notice that Bosnia-Herzegovina is the top country for refugee sources. Have you established any views with respect to our war criminals emanating from that particular country, and also Sri Lanka? Are you satisfied that you are catching, if you will, war criminals in the determination process?

Ms. Nurjehan Mawani: Bosnia-Herzegovina is not one of our top refugee source countries at all.

Mr. John McKay: Really?

Ms. Nurjehan Mawani: In fact, no.

Mr. John McKay: I've been told something exactly the opposite.

Ms. Nurjehan Mawani: It was a very major refugee-producing country, of course, but most of them went to Europe. Very few got to Canada. Now, as you probably know, they're being repatriated from Europe to their original homes, so it has not been a major source country for us.

Having said that, we are certainly always conscientious to establish that if there are any individual claimants who may have been involved in war crimes or crimes against humanity, or who, for that matter, may have participated in any action that's contrary to the principles of the UN, such information is elicited and brought forward to us.

We are a tribunal; therefore, we obviously don't do the type of police investigation that is open to departments and other government agencies. So we do rely a great deal on them. From time to time, that information is brought to us. It's brought before the IRB, and occasionally it also happens that as a person is testifying, certain information comes to light that makes us want to probe that case a little further. We'll adjourn it to obtain more information or, as we can and often do in those cases, to ask the minister to intervene. I don't have the absolute current figures, but I believe that happens in about 400 cases a year. I'm not by any means saying they're war criminals, but there are approximately 400 cases a year in which the minister's representatives actually come in to intervene.

The Chairman: Thank you, Mr. McKay.

I'll now yield the floor to Mr. Doyle for a five-minute round, and then Miss Augustine will be next.

Mr. Norman Doyle (St. John's East, PC): I just have a couple of brief questions I want to ask.

I want to get your views on and the rationale behind the $2,000 rehabilitation fee that's being charged for some refugees who are fleeing their country. First of all, I'm curious as to why it would be called a rehabilitation fee. If we accept people as genuine refugees, we realize that they sometimes legitimately have to use false papers when they're fleeing a country. Why do we look upon them as, say, criminals or as having committed an illegal act? Why would that be the case? Why would we call it a rehabilitation fee?

• 1620

Ms. Nurjehan Mawani: You've got me there. First of all, the IRB is not involved in imposing any fee. A claimant can make a claim to the Immigration and Refugee Board and not have to pay a fee for that. If there is a fee, it's subsequently that it may be imposed. Perhaps you are thinking of the landing fee.

Mr. Norman Doyle: No.

Ms. Nurjehan Mawani: A rehabilitation fee? I'm not familiar with that.

Mr. Norman Doyle: There is a rehabilitation fee that is—

Mr. Réal Ménard: Settlement.

Ms. Nurjehan Mawani: For settlement. That's a different matter. That comes after our process has been engaged. If it is determined that a person is a refugee and that person then makes an application for landing in order to be a permanent resident in Canada, that's the time when a fee is invoked, but that really is a question you should put to the department.

Mr. Norman Doyle: I see. So what would the fee be imposed for when you call it a settlement fee? How would you expect a refugee to be able to pay that kind of fee?

Ms. Nurjehan Mawani: I think that question really does have to be put to the department, because it's a fee imposed by the Department of Citizenship and Immigration. I believe they will be appearing before you, so perhaps you might want to ask them.

Mr. Norman Doyle: Okay.

Right now, are immigration appeals heard by the IRB?

Ms. Nurjehan Mawani: Yes.

Mr. Norman Doyle: The legislative advisory group report recommended a separate appeals process, a separate branch for dealing with appeals, in order to ensure some level of independence. Do you see any merit in a separate appeal process?

Ms. Nurjehan Mawani: The legislative advisory committee recommended that the appeal portion of the IRB's responsibility should in fact be part of the Department of Citizenship and Immigration. That was to respond to criticisms or concerns that this might in fact make them lose the independence that the division has with us right now as part of a tribunal. Imagine moving it from a tribunal and into a department that is responsible for policy and the executive function. That would in fact go the other way. In order to counter that, they suggested that it could be set up within the department, but as a separate agency.

Mr. Norman Doyle: The legislative advisory group made over 120 recommendations. I believe we have dealt with only one recommendation of that report—detention and removal. What about the rest of that report? Has any direction been given as to what will happen with the rest of it?

Ms. Nurjehan Mawani: I would respectfully submit that it's a question you might want to pose to the minister and to the department, because it's her review.

The Chairman: Any more questions, Mr. Doyle?

Mr. Norman Doyle: None.

The Chairman: Ms. Augustine.

Ms. Jean Augustine (Etobicoke—Lakeshore, Lib.): Thank you, Mr. Chairman.

I appreciate your being here. With the work you do around here, you lose your voice. That's one of the hazards.

I wanted to go to the “Not Just Numbers” report. I know it is in the domain of the minister at this point in time, but I think the recommendations there would make some changes to not only your agency, but also the way in which you work. You must have some idea or some discussion must have taken place in terms of what would happen if that specific recommendation were followed. Is there anything you would like to say to this committee, any aspect of rebuttal or critique, in regard to that?

Ms. Nurjehan Mawani: We have watched with a lot of interest the public consultations that took place after the issuance of that report. We have had opportunities to talk with departmental officials and the minister in terms of looking at some of those recommendations and seeing what sort of impact they might have. We are satisfied with the process of consultation that has gone on between us and the department and the minister. Therefore, I'm content to leave it at that at this stage, and to really very much leave it to the minister. She has received so much advice around this, and I think I would certainly be very satisfied to leave this in her hands now. As a tribunal, our job at the end of the day will be to implement whatever Parliament decides.

• 1625

Ms. Jean Augustine: I recognize that. The recommendation in Immigration Detention and Removal, which is the response that was done by this committee, suggested that hearings or detention reviews be conducted at the place where it happened. I was one of those individuals who went to Celebrity Inn, and the concern we had was about individuals being taken from one place to the next in handcuffs, etc. I know from my recent inquiry that you're doing some video conferencing. I'd like to know what the IRB response is to this specific recommendation.

Ms. Nurjehan Mawani: Jennifer, do you want to respond to that?

Ms. Jennifer Benimadhu: In terms of using video conferencing or the transport?

Ms. Jean Augustine: The transporting of individuals using handcuffs.

Ms. Jennifer Benimadhu: The IRB is working closely with Immigration to look at this issue now, particularly in Toronto, because that's the area where the issue is of most concern. We're working closely with Immigration to come to a solution to that. Some cases lend themselves well to video conferencing, and we're talking about that and where video conferencing should take place. We're also looking at instances where video conferencing does not lend itself to the particular case at hand. If it's more complex, there's a greater exchange of documents.

They're looking at principles for the transportation of detainees at this time.

Ms. Nurjehan Mawani: If I may just add, it's really not the IRB that makes decisions in terms of the shackling, etc., of individuals. We are not responsible for safety and security. Those agencies that are responsible for the safety and security, both of the inmate as well as of the people of the institution they are bringing the person to, ultimately make that decision. As my colleague Jennifer said, we are working with them, so at least the principles are established so we can work more closely on that.

Ms. Jean Augustine: Well, I would expect you would have to work with them, because if you establish principles of fairness, respect, and whatever else, you can't have one end of the system treating people disrespectfully and then have them come before you in a manner that makes it very difficult for you to do whatever you do within your own domain.

Ms. Nurjehan Mawani: This is the situation you have when you are one part of a bigger system. That's the constant challenge: to work together with partners in the system.

Ms. Jean Augustine: I'd like also to ask about something you said a couple of times about promoting consistent decision-making. I'd like to ask what that process is. How do you go about ensuring that consistency in decision-making?

Mr. Philip Palmer: We have a number of initiatives underway. The consistency is on a number of levels. We're looking both at consistency in terms of treating the same facts the same way and consistency in terms of the application of the law and the international instruments to specific situations.

I think the first thing we've done that's very important is we've given a lot of training to members. We've done a lot of training both in terms of the basic legal principles, so they understand how the definition of convention refugee applies in Canadian law, and in terms of how to weigh evidence and how to use hearing time effectively to get the kind of evidence that is needed.

We have also spent a lot of effort to ensure members are provided with the best source material with respect to country conditions, so all members in all parts of the country have access to comprehensive information about conditions in the country of origin. Furthermore, we have a service that's responsive to the information needs of individual cases. When this research is done, it becomes part of the basic database that's available to members, so the information is disseminated as quickly and widely as possible.

• 1630

Beyond that, we have a system of regional teams. In a region like Toronto we have six teams of members that are geographically specialized. We'll have, say, a Middle Eastern team, an eastern European team, and an African team, who specialize in cases coming from those regions. That has the consequence that members develop a great deal of expertise and share that expertise, so within the region they are thinking along the same lines. They're developing an approach and a knowledge of the profiles of the cases. They're sharing information about what they've heard, current documents and so on. They're trained with respect to the specific evidentiary and legal issues that come up within those teams. That's done a lot to even out some of the inconsistencies within the regions.

The last very challenging area is the consistency between regions. There we have developed a system of national geographic networks, so there's a linkage, for instance, between the Middle Eastern teams in Montreal, Calgary, Vancouver, and Ottawa. People are sharing current information on the nature of the cases, recent documents that have been used that have influenced decision-making in the regions, and knowledge about current trends and country conditions. We're sharing at a national level and this is getting back into the regional teams. So Toronto decision-making is influenced by what is known in Montreal or Toronto, and there is a greater sort of coherence nationally. It remains a challenge, but we are taking a number of initiatives along those lines to ensure that to the greatest extent possible we can even out the differences between the regions.

Ms. Jean Augustine: I have a final question, Mr. Chairman.

You mention that in international protection you are really on the leading edge and you're being commended for that. Could you give us an example or two of some jurisprudence or something you've done that is leading edge or is not done in any other country that protects refugees?

Ms. Nurjehan Mawani: I'd be pleased to do that. Perhaps the single most significant initiative would be our guidelines. We have issued a series of guidelines. The first one was on women refugee claimants and gender-related persecution. This was a very major breakthrough. You are probably aware that the United States followed Canada two years after we issued our guidelines and modelled their guidelines on ours. Subsequently, Australia followed, and the U.K. is looking at them right now. They have been translated into German, and a number of other countries in the UN system are looking at them very closely.

The breakthrough in terms of leading edge was the utilization of international human rights norms, using an international human rights framework to inspire the way in which we interpret, say, persecution. That was very important.

Similarly, we issued guidelines on child refugee claimants. Again, that was an international first, and as I said in my opening comments, the United States is now issuing its guidelines on child refugee claimants. We're honoured that we'll be helping them with their training in this regard.

We have also issued guidelines on civil war. Again, we were the first country that issued guidelines. When you reflect that civil war today is the greatest generator of refugees and people in refugee-producing situations, it is a leading-edge initiative.

We have updated our guidelines on gender.

If I could move on, there's a couple—

The Chairman: If I may interrupt you, in fairness, I would like to yield the floor to Mr. Benoit. We can discuss this a little later.

Ms. Nurjehan Mawani: I'd be happy to.

The Chairman: Mr. Benoit.

Mr. Leon Benoit: Ms. Mawani, I would just like you to answer a couple of questions I didn't get answered before.

• 1635

The first is on the percentage of cases over the past three years that have been expedited and the change in the percentage, if any.

Ms. Nurjehan Mawani: I'm just going to check if I have that. We're just going to get that information.

We expect to have close to 25% of our cases done through the expedited process. On the expedited, if we look at 1997-98, I don't have figures on the last three years, but we have the last three quarters for you.

Mr. Leon Benoit: I'm looking at a trend. You must know in general terms.

Ms. Nurjehan Mawani: I have it here. I apologize. In 1995-96 it was 30% expedited; in 1996-97 it was 31%; and in 1997-98 it was 24%.

Mr. Leon Benoit: So it has actually dropped in the last year.

Ms. Nurjehan Mawani: Yes.

Mr. Leon Benoit: Why would that be?

Ms. Nurjehan Mawani: Our overall acceptance rate has dropped over the last few years. We are at an acceptance rate of around 40%, which is probably the lowest acceptance rate we have ever had since the board was established. Apart from one year in 1994, it has been coming down since the beginning.

Mr. Leon Benoit: It is 40% of what exactly?

Ms. Nurjehan Mawani: It's 40% of the total number of our claims.

Mr. Leon Benoit: In your presentation you have a short list. You said you decided to take charge of your procedures and processes. You said, just for an example, you had no automatic adjournments, no routine extensions for filing documents, early disclosure of documentary evidence, and enforcing of your rules.

The one on enforcing your rules interests me because at the bottom of that article you referred to today, a Mr. Ayotte said “It was always intended to be that way”—I don't know if this is a male or female, but this person was saying things haven't been done exactly according to rules; it was always intended that no one at IRB—I forget the exact term here—would be allowed to be involved in more than one of the four steps. Yet this gentleman—we don't know of course what happened exactly because there haven't been charges laid; there's been no guilt found—was involved routinely in more than one of the four steps. So your own rules weren't being followed and I guess aren't being followed.

While you have said you made these changes, there's evidence to the contrary. I'd just like you to comment on that and on how widespread that is, where your own rules aren't being followed.

Ms. Nurjehan Mawani: If you look at the statement Mr. Ayotte made, what he said, according to this press report was “perhaps the control measures weren't very strict”. That's what he said. As I said earlier—

Mr. Leon Benoit: Do you disagree with that?

Ms. Nurjehan Mawani: I'm not in a position to say right now. As I said, we immediately started an internal investigation into what has happened, if anything has happened.

Mr. Leon Benoit: Would the RCMP investigation be ongoing?

Ms. Nurjehan Mawani: Yes.

Mr. Leon Benoit: So there'd be no interference whatsoever by the IRB in the RCMP investigation.

Ms. Nurjehan Mawani: Not at all. I think it would be irresponsible for me to make a comment right now while our own internal investigation is also going on. I can assure you if it turns out that the control measures were not very strict—and I don't know that—we will make sure they are.

• 1640

Mr. Leon Benoit: If that were the case, the people responsible for ensuring that proper monitoring is done will be dealt with in some way, not only by you or by the IRB.

The Chairman: Ms. Mawani, a short answer, please.

Ms. Nurjehan Mawani. Yes.

Jennifer, will you deal with this?

Mr. Andrew Telegdi (Kitchener—Waterloo, Lib.): On a point of order, Mr. Chairman, Ms. Mawani's saying that there was an obligation made, that there's an ongoing investigation by the RCMP, and that she feels it would be in bad form to get into the specifics.

Mr. Leon Benoit: That's no point of order, Mr. Chair.

Mr. Andrew Telegdi: I think for the member from Reform to raise that point, Mr. Chair, is wrong.

The Chairman: I'm very conscious of that, but so far the witness has answered in a very discreet fashion, taking into account the presence of law and natural justice, and I think I will leave it to the discretion of the opposition.

But anyway, please proceed with the short answer.

Mr. Leon Benoit: Mr. Chair, just to respond—and I don't want to take much time here because I do have questions for the witnesses—that clearly wasn't a point of order, and I hope we won't be interfered with in our questioning on a routine basis.

The Chairman: Yes. Stop the debate there.

Please proceed, Ms. Mawani, if you would like to give the short answer.

Ms. Jennifer Benimadhu: I think the short answer is that the investigation is ongoing now and we don't want to prejudice the outcome. We will make decisions based on what facts are found once the investigation is complete.

The Chairman: I yield the floor to Mr. Telegdi.

Mr. Andrew Telegdi: Thank you very much, Mr. Chair. I think it's important to remember that we have a system of justice in this country and that we usually let investigations proceed.

I have a number of questions. How many single-panel hearings do we have?

Ms. Nurjehan Mawani: Approximately 25%.

Mr. Andrew Telegdi: These aren't expedited cases. These are where somebody elects—

Ms. Nurjehan Mawani: No. They're full hearings.

Mr. Andrew Telegdi: My next question is, what kind of quality checks do we have? Do we ever have any audits of decisions?

Ms. Nurjehan Mawani: First of all, we have the Federal Court. A claimant can always make an application for judicial review if he or she is not satisfied with the decision.

With respect to the quality control, we have an excellent training program and an ongoing training program. We have monthly meetings of all decision-makers where we discuss the jurisprudence and any other information brought to light at that time. We have the national, geographic teams that my colleague talked about earlier. We have training specifically on the refugee definition, on presiding skills, on writing reasons, on delivering oral decisions—on all the various facets of a member's job.

Mr. Andrew Telegdi: I appreciate that, but I guess my question sort of goes like this. If you have a board member who is rejecting and being much too harsh and another who's being much too lenient, obviously they are both at the extremes. I wonder if anybody ever audits the decisions—and not the Federal Court. I don't want to hear about the Federal Court because very few get to Federal Court.

Mr. Philip Palmer: Yes. In fact, the legal services to the Immigration and Refugee Board reads every decision that's written in the board, either while it's in development in order to assist members or subsequently. We use that to help design programs of training for members and advise managers on the sorts of training needs that seem apparent from a reading of decisions. To that extent—and that's far from the only way—there's a sort of evaluation of the performance needs or performance delivery by members.

But beyond that, member managers, coordinating members and ADCs, are encouraged either to sit with members or to sit in on the hearing room and listen to the proceedings and take note of how the hearings are conducted. And within legal services, we encourage staff lawyers to sit in on hearings, become familiar with the problems and offer members assistance in terms of saying, “When that problem came up, you might have been able to handle it this way or that way.” We help them develop alternative strategies for dealing with some of these—

• 1645

Mr. Andrew Telegdi: Thank you, but my time is limited.

Let me just say that what happens at that hearing is obviously the most critical part of the process. When I look at the diagram that exists in the Auditor General's report—it was exhibit 25.3—I find it a bit better than the one you have on page 37 of the performance report, because it talks about some of the other processes that are involved.

When I look at the chart on page 37, I see a risk-of-return review. This is after one has been denied, let's say, and there is a risk-of-return review. The only time you really get a risk of return is if you apply for a risk assessment—and if you don't apply for it, you don't get it—and if you apply for H and C, humanitarian and compassionate. Then they might or might not do a risk opinion. So I think this box on page 37 doesn't give the total true picture, because it would have us believe that everybody who goes through the system ultimately has a risk-of-return review, which is really not the case.

Mr. Philip Palmer: I apologize for the fact that we don't know more about it, but it is a function of Citizenship and Immigration. It's not one that is carried out by the board, so I can't speak with any authority on what percentage of cases go through a risk-of-return review and how formal that process is in a case where specific risks have been brought to our attention.

Mr. Andrew Telegdi: There are just two ways. First, you have to apply for a risk assessment if you are rejected and you have to apply within three weeks. If your lawyer messes it up, you don't get one. Unfortunately, we don't get to deport the lawyers; it's the client, the person who applied, who goes.

The Chairman: Ms. Mawani, do you have any observations?

Ms. Nurjehan Mawani: Of course it's something that's within the purview of the Department of Citizenship and Immigration; however, I think it's important to remember that there is a risk-of-return assessment done in the refugee claim itself in a sense. After all, the whole issue of a refugee claim is a fear of persecution and the fact that there isn't state protection in those circumstances. We are constantly dealing with that issue.

Now, I agree that we are limited. We are limited to the convention grounds, and that's why, after our process, there is another one, because a person might still be at risk, but not for one of the convention grounds, and that's where this is triggered. We can't really speak too much more about it because it's a departmental responsibility.

The Chairman: I now yield the floor to Mr. Martin.

Mr. Pat Martin (Winnipeg Centre, NDP): Thank you very much, Mr. Chair.

I'm sorry to have missed the earlier part of the meeting, and I hope the questions I have to ask aren't redundant as a result. They may have been covered.

The Chairman: I'll try to remember.

Mr. Pat Martin: My questions are of a more general nature. I represent an inner city riding of Winnipeg, and we deal with the refugee issue or refugee advocacy groups quite often. They have a number of concerns regarding general trends, and one figure that you did mention, ma'am, was the rate of refusal or the number of applications that are actually granted. Would it be accurate to say that as a percentage of the number of applications the number of admitted refugees is going down?

Ms. Nurjehan Mawani: Yes. It has been going down over the years. Over the years since the board was established in 1989, there has been a general gradual decline, except for 1994 when there was an increase, and then it went back down. But it's been gradual.

Mr. Pat Martin: Is that a deliberate policy shift or is it the result of more rigid criteria? What would cause the increase in the refusals? For instance, is it for medical reasons or CSIS checks?

• 1650

Ms. Nurjehan Mawani: There is no policy that tells anyone how to decide a case, whether to reject a case or to approve a case. That's fundamental in an independent decision-making process and for a tribunal.

I think there are some factors that have contributed generally to a decline in the acceptance rate over the years. And one of them, of course, we have to bear in mind, is the issue of the source country. For example, I've noticed that Somalia, which was, as we know, a major refugee-producing country and was one of our top 10 source countries for a number of years, has now dropped off from being one of our top 10 source countries.

Mr. Pat Martin: But there are 13 million other refugees in the world. I don't think source is going to be any problem.

Ms. Nurjehan Mawani: But with respect, we can only deal with those who come to Canada before the IRB, so I'm only responding to what comes before the IRB.

Mr. Pat Martin: I understand.

Ms. Nurjehan Mawani: So the changes in some of the sources countries can account for that.

But the other matter, I would submit, is that there is a big change. I have been with this board for a number of years, and I myself have noticed, as a decision-maker and as a manager, that there is a change in the overall mixture of people who are coming to Canada and making their claims. We are finding that there is a mixture. Therefore, we have to be able to determine who qualifies for refugee status. There are others who, for some very good reasons, are also trying to come to Canada but are not refugees.

Mr. Pat Martin: Would it be accurate to say that there's been an increase in people being turned down based on their CSIS checks, their background checks, the criminal records, the media hysteria?

Ms. Nurjehan Mawani: Not before the IRB. The only time that would happen is in fact if such information was brought to us and on the basis of that information—

Mr. Pat Martin: On the application.

Ms. Nurjehan Mawani: On the application—and only then if the person were under an exclusion clause. An exclusion clause, for example, is if somebody has been a war criminal or has committed crimes against humanity or has acted in a manner contrary to the principles of the UN. In our case, those would be the only ones.

The Chairman: I will now yield the floor to Mr. Mahoney.

Mr. Steve Mahoney (Mississauga West, Lib.): Thanks very much.

If this issue was covered when I was out of the meeting, just tell me. Was there any discussion about the appeal process?

The Chairman: What is your question?

Mr. Steve Mahoney: My question has to do with the statement I take from this document that the number of appeals has risen significantly over the last 18 months.

Ms. Nurjehan Mawani: Yes.

Mr. Steve Mahoney: You give an explanation there, but I'm concerned because of the number of opportunities for appeal. I find the issue of humanitarian and compassionate appeal—I've said this before in other meetings—to be somewhat redundant, because I would have thought we were looking at this from a humanitarian and compassionate point of view from the beginning. I'm just concerned that the good news you've brought us might get clogged up with the amount of appeals. I wonder if you have any thoughts or suggestions on how that could be resolved.

Ms. Nurjehan Mawani: I really don't have any further insight, other than simply the reason that we've provided here, which is the high level of refusals by CIC. We don't control the number of people who sponsor their families. Therefore, if there are more people who are sponsoring, it is also possible that more people will be rejected if they don't fit within the family class criteria or if they don't comply with the immigration regulations.

I would agree with you that in all cases the very first decision that is made should be the best possible decision. I think that's a philosophy all of us subscribe to, because that would obviate the need for appeal, which would be beneficial for the applicant as well as the system and the taxpayer. That clearly is an objective for all of us who are working in the system. It is, of course, the responsibility of different players in the system to make sure that happens.

• 1655

Mr. Steve Mahoney: What do you see as the biggest difference between an IRB decision and an H and C appeal decision? What do they look at differently?

Ms. Nurjehan Mawani: I really don't have an answer to that. What we get, though, I can tell you— When I look at the refusal letter we receive from the visa officer from abroad, there is normally a very short statement at the bottom, a sentence, which says that the officer did consider humanitarian and compassionate reasons and decided that none exist.

For our system in Canada, the Federal Court, for example, has provided quite a lot of guidance to us in the way in which we should deal with the exercise of discretion, because generally the court doesn't interfere with exercise of discretion. But it gives guidance and from time to time does. What we are trying to do is make sure those decisions, the IRB's jurisprudence, is communicated to visa officers abroad more frequently so that there is a closing of the gap between our respective approaches.

Mr. Steve Mahoney: Do you think it's safe to say that the majority of the decisions of visa officers abroad are based on the fact that they simply don't believe the stories?

Ms. Nurjehan Mawani: That certainly may be a factor, but if I can also remind all of us, the visa officer has before him or her the applicant in the country, wherever they are, and the IRB has the appellant in front of it. We have the sponsor, a Canadian citizen, the permanent resident who's wanting to bring family to Canada. We don't see the applicant overseas, but we do occasionally get their testimony, certainly through affidavit material, but from time to time through—not through video conferencing, but that is beginning to happen—audio conferencing.

Mr. Steve Mahoney: Just to give you an idea of some of the frustrations I'm sure my colleagues on all sides face, I have a case right now where a sponsor is attempting to bring a wife over. I won't say from where. It doesn't really matter. There's a 20-year difference in age. There's a lack of information and knowledge on the part of the new bride in the old country as to— and she's not even aware that the individual has a couple of kids, apparently.

As an MP sitting there trying to adjudicate this and being pressured to go for some kind of ministerial intervention or minister's permit, I find it very difficult to get a sense of comfort level on that information. I wonder how you would do that as an adjudicating board in a hearing like that. Is it just best judgment or is there any way they clarify the information?

Ms. Nurjehan Mawani: On the appeal division, we have an adversarial assistant. We have the sponsor in Canada who appeals the decision of the visa officer. We have the Minister of Citizenship and Immigration Canada, who is represented by a hearings officer. We have the benefit of the oral evidence—which is under oath most of the time—of the Canadian sponsor here. What we are able to do that, with respect, you would not be able to do is to ask some questions of the person who is in front of us and is under oath. We can ask the person to clarify contradictions, inconsistencies, gaps.

As a result, we are able to assess whether the person is credible, whether we have an internal coherence and consistency, and whether the answers are plausible. It's the combination of the viva voce, the testimony, and the documentary evidence that enables us to decide. It is based on a probability, that it is more probable than not that the person is telling you the truth. On the basis of that we are able to make a decision. I think we have a pretty good system.

The Chairman: Mr. Benoit has the floor.

Mr. Leon Benoit: Thank you, Mr. Chairman.

Earlier, in your opening comments, I think, you stated that some people feel the IRB is too tough in its evaluation in the process and others feel it's too generous, as though one is mutually exclusive of the other. In fact, just from the knowledge I have of the system now, I see both.

• 1700

I see that it's too tough in cases where there's a high probability of it being a legitimate refugee claim. In fact, it's too tough because of the backlog. Many legitimate refugees never find their way to our system, in fact, so they're excluded from the process because of that. That's a real concern to me.

I feel it's too generous, on the other hand, because of a very liberal interpretation of the UN convention, which is what guides you in your decisions. And then, there are too many loopholes, mainly after it's left your jurisdiction and gets back to the immigration board. There are too many loopholes and appeals and so on.

So I think both are the case.

But I want to just ask you about—I won't use the gentleman's name because I don't have permission to—a gentleman who contacted our office. He's from Nigeria and has been held since 1997 in a detention centre in Rexdale, Ontario. He can't leave. He wants to leave, to just to give up his refugee claim entirely and go back to Nigeria, because his mother is dying.

He contacted us by letter. We tried to get in touch with this gentleman and his caseworker and haven't been able to so far. But here's a person who wants to give up on his refugee claim and just wants to go back to Nigeria, and he feels he isn't being heard by anyone. The people he's contacted won't listen. That's a real concern. I think that's clogging the system.

The Chairman: Ms. Mawani, would you like to answer?

Ms. Nurjehan Mawani: I'm a little confused. A person can withdraw a refugee claim if he or she wants to do so, but that's quite apart from the fact that this individual seems to be in detention. I have no idea what the person is in detention for, and it would be speculative and, again, irresponsible for me to comment further on that.

Mr. Leon Benoit: Of course. We don't know the particular case. That's okay. I guess what I'd like you to do is just explain to me what some of the possible reasons are for this gentleman being in detention and how that would affect his ability to go back to Nigeria if he has the appropriate recognition in Nigeria.

Ms. Nurjehan Mawani: One of the reasons why the person could be in detention might be that his case is pending removal and perhaps travel documents are not available or ready yet, so that's the reason why he can't leave right now. That could be one of the reasons.

Mr. Leon Benoit: In that case, even if he wanted to leave—and I don't remember all the details of this—he just wouldn't be allowed to because he doesn't have the appropriate papers.

Ms. Nurjehan Mawani: Yes, but that's really a factor for another country—to give him the papers.

Mr. Leon Benoit: Yes. And I just don't remember enough of the details to be able to pursue that.

But certainly, I think the two positions—that it's too tough in some cases and too generous in others—aren't exclusive one of the other. That's what I've seen.

The board is bound by some pretty definite guidelines, but again, I've heard that there are really quite different interpretations even amongst board members, and that's reflected in the number of cases they approve and reject. Could you give me a range of percentage of approvals, let's say, from the board member who approves the highest percentage of claims compared to the board member who approves the lowest percentage of claims?

The Chairman: Ms. Mawani.

Ms. Nurjehan Mawani: It would be futile, quite frankly, and not very meaningful, because it would really depend, first of all, on whether the board members are on the same team. We are dealing with so many different countries from which we get claims, and as we said earlier, we divide up the members into teams, regional teams, so it would be— Unless you could really say that this board member and the next board member are dealing with exactly the same cases and one is accepting a lot and the other is rejecting a lot, you couldn't do a meaningful analysis.

Mr. Leon Benoit: It would be interesting, though. How many cases does the average board member hear in a year?

The Chairman: A short answer, please.

Ms. Nurjehan Mawani: It's 105 cases.

The Chairman: I now yield the floor to Mr. Telegdi.

Mr. Andrew Telegdi: Thank you.

• 1705

Actually, a good way of seeing if somebody's far off the norm would be to do some quality checks in terms of the decisions.

In terms of the point Mr. Mahoney raised earlier on, the agency hearing done with the department is different from the humanitarian and compassionate grounds the board might look at, because what they look at is what the individual's personal circumstances are, if that individual is now married to a citizen here, if that individual has relatives here, which play a big part but which really shouldn't be taken into account in an IRB hearing.

Mr. Mahoney does raise a good point, because I've seen cases where somebody was going through for a refugee hearing, and then when you looked at their qualifications, they were exactly the kind of person we wanted in the country as an economic immigrant. If prior to an IRB hearing an agency hearing can be done by the department where they can be checked on to see if they would make a good economic immigrant to this country, which would accomplish the same purpose, they wouldn't necessarily have to go through a hearing, which would probably lessen the number of cases that actually come forward to you.

We get to review the act, so we get to look for those kinds of things. In some ways, if we can make those kinds of adjustments, it might reduce the numbers.

One thing I'm very keen on is the quality of the decision-making. I know if it were black and white, it would be easy, and I know there are all kinds of shades of grey.

I think it would be useful to the board if you maybe had some external auditors, if you will, some outside experts on various countries and various regions. We have a great deal of expertise in our universities. We also have former ambassadors to all parts of the world who could be utilized as a resource. Much of the integrity of everything the IRB does depends on the quality of the board members, including knowledge of the area, understanding the subtleties, and making the best possible decisions, recognizing that there are all kinds of grey areas, and also taking into account the risk-benefit, if you will.

The Chairman: Would you like to comment?

Ms. Nurjehan Mawani: Yes, if I may. We do have quality control mechanisms. We don't have an external audit. For a tribunal that really is very court-like in terms of its independent decision-making, I'm not sure that an appropriate way would be to actually bring in an external auditor to look at the quality of decisions. I think it's our responsibility to ensure that we are satisfied about quality. There are certain things over and above what my colleague here spoke about that we do.

We emphasize the importance of quality decision-making, and what does it mean? In terms of the appraisal, we have an evaluation process with regard to all members, and one of the elements in that evaluation process is the assessment of the quality of decisions.

How is this done? The manager, who is a coordinating member, a senior member, reads a lot of the decisions. Legal services read a lot of the decisions. We listen to tapes as well. We'll observe from the back of the hearing room as the cases are proceeding. There is a fairly comprehensive assessment of the quality of decisions without actually commenting on whether the decision is right or wrong. The moment we enter into that, we are in very dangerous territory.

So it is the balance we have to strike, and I believe we have struck a good balance. I think we have to keep working at it.

We have identified what are the key elements of a member's job. Obviously, the member needs to have very good knowledge of country conditions. A member needs to know the UN definition, international conventions, the principles of natural justice, of fundamental justice. A member needs to know how to conduct a hearing, how to assess credibility, how to analyse, how to come to a decision and then how to articulate that decision. All those are elements of our training. All those are elements of our evaluation process.

• 1710

The Chairman: Before I go to the fourth round, the chair would like to ask a few questions, with the permission of the committee.

One, how many new precedents are created in a given year? How many new precedents are established by a given hearing? Are there any?

Ms. Nurjehan Mawani: There are some. I wouldn't say there are very many.

The Chairman: Are you able to provide the committee with those new precedents that, say, three, four or five years ago were not there?

Ms. Nurjehan Mawani: We could certainly provide you with that.

The Chairman: The second question relates to the question that Jean Augustine raised with respect to the potential change as a consequence of the review and the input you may have given to the department. You indicated in your reply that you were satisfied with the process. I would like to hear whether in fact you're equally satisfied with the potential change or not.

Ms. Nurjehan Mawani: The role of a tribunal here is, quite frankly, not to get involved in the ultimate decision with respect to policy.

The Chairman: Certainly I accept the answer, and perhaps the same answer may be given, but I will pose the question nonetheless. This committee made a recommendation about the need to have detention reviews in detention facilities. My interest, which is a follow-up to the question raised, is this. Does the IRB reject or accept this proposal, or are you able to comment?

Ms. Nurjehan Mawani: I will speak with my colleague as to whether we have taken a position on this or not. We have our director general of adjudication here, so it will be very helpful for me to confer.

The Chairman: It is protected by immunity, you know.

Ms. Mary Chaput (Director General, Adjudication Division, Immigration and Refugee Board): We currently have a position that reviews are conducted, generally speaking, on IRB premises where the circumstances of the case permit this type of treatment. They can be conducted in person or electronically via video conferencing. There are cases, however, where, for example, you have a highly dangerous person, where there's a risk-management decision to be made and transport is not worth the risk, where the adjudicator will travel to the institution. There are also cases where for one reason or another—maybe a person concerned is ill, or maybe there are many documents or witnesses—we would choose to travel to the facility or, in the reverse, have the person concerned brought to us.

So it's not a hard and firm rule. But in the interests of impartiality and independence, it's important for an administrative tribunal to be practising its business, and to be seen to be, in a manner that is not overly closely associated with the department.

The Chairman: Thank you.

Would you like to add anything, Ms. Mawani?

Ms. Nurjehan Mawani: I think the director general covered it. It's an important matter for a tribunal. This has been something we've been struggling with, the importance of bringing the person concerned before us on tribunal premises so that it is in fact the tribunal that takes jurisdiction, so to speak, over the individual, as opposed to doing this in detention facilities, which don't always lend themselves to these proceedings very appropriately.

The Chairman: You indicated earlier that you needed some 18,000 cases for the system to move and you mentioned the scheduling. My curiosity is raised. If you have less than 18,000 cases, what happens to the system?

• 1715

Mr. Philip Palmer: It's not a legal question, but what happens is eventually you start to not renew terms of members and you start to downsize your operations. There would be a gap there obviously, but that would be the effect of cases starting to dry up. They would go out of business eventually.

The Chairman: That was my inference, and I did not want to make a presumptuous conclusion. But it would be good news for Canada, in a sense.

Mr. Benoit.

Mr. Leon Benoit: Thank you again, Mr. Chair.

I'd just like to follow up on a question the chair has asked about how many new precedents have been set. I think the chair was asking about the number that had resulted and about getting a listing of them and an explanation of those that have been a result of board hearings.

Is that your question?

I would also like, if I could, to get a list of other court cases—Federal Court, the appeals courts, including the Supreme Court—whose decisions have in effect changed our law. I would like those—a listing—and just a little bit of information on each one. That would be much appreciated.

I'd just like to follow up a little bit on an issue Mr. Telegdi brought up a while ago, and that's the situation where a person who appears to qualify as an economic immigrant is within the refugee system.

Last week, or the week before, I was at a meeting of NATO parliamentarians. It's my third time at these meetings and I've gotten to know quite well some MPs, not only from NATO countries, but also former Soviet bloc countries such as Albania, Poland, the Czech Republic, and so on. From comments from some of these people— One conversation that particularly struck me was with one of the Albanian MPs from the governing party who said Canada was widely recognized as a country in which you should go through the refugee system rather than the immigration system, even if you would qualify under one of the economic classes. He was concerned about that. It was kind of interesting.

I thought his concern would be that he would want to keep the highly educated—the people who would likely be eligible under those classes—in Albania. In fact, he said no, if they have no commitment to the country, we'd just as soon they leave. But they want them to do it in a way that is clearly obeying the laws of the country they want to go to, that isn't abusing the system of the country they want to go to. He said he had a real concern with the well-educated Albanians who are going into the refugee system, or trying to and are, because they would understand and could use the system to their advantage when they should be applying through one of the economic classes.

Just to follow up on Mr. Telegdi's question, is there any kind of screening really done on that? If so, could you just explain to me how that would work?

Mr. Philip Palmer: Well, there is, but I think you've caught the principal dilemma of refugee determination, which is to sort out those who are genuine refugees from those who are migrating to Canada for other purposes. If you like, it's the only reason we have hearings, because if everybody were refugees we wouldn't have to go into the elaborate kind of hearing processes and the challenging of credibility that we do. But in fact—

Mr. Leon Benoit: But from a country like Albania, is a hearing likely to reject that individual, or are they pretty much safe in assuring they'll be accepted as refugees?

Mr. Philip Palmer: No, I think you'll find in the board today, with the level of training, competence, and continuity of membership, these claims tend to come under pretty careful scrutiny, and a large number of those who would fit in the pool of economic migrants do get detected. I mean, nobody claims 100%. Nobody claims that we recognize all the genuine claims either.

Mr. Leon Benoit: But what would happen if they're detected? They have these almost endless appeals.

Mr. Philip Palmer: Well, that's another problem, and we don't minimize the problems that are posed by the various systems of review, appeal, and ultimately removal.

• 1720

Mr. Leon Benoit: Is it within the board's mandate to make recommendations for policy change to the department so that some of these things could be dealt with?

Mr. Philip Palmer: We have no formal rule, but informally we do, of course, try to be of assistance in these matters.

Mr. Leon Benoit: Do you on a regular basis say to the department this is a problem we have and this is what we see as a possible solution?

Mr. Philip Palmer: We have a number of fora for doing that. As we mentioned, there is the portfolio management agreement, which enables us to have conversations with the department in the absence of decision-makers, I'd have to say, where we can talk about some of the problems in the system. Generally speaking, they're fairly operational in terms of relating to the business of them sending us cases and our sending the cases back to them. But particularly in light of legislative reviews, there are some broader fora where we have talked about some of the larger system issues.

The Chairman: Mr. Telegdi.

Mr. Andrew Telegdi: Ms. Mawani, members of Parliament, more than most folks, get to deal with failed refugee claimants, if you will, because they come to our offices. If a member of Parliament wanted to direct to you a concern regarding a particular finding, would they write to you?

Ms. Nurjehan Mawani: Can you clarify for me what you mean by a particular finding?

Mr. Andrew Telegdi: I mean if a member of Parliament thought there was something questionable about the decision or what have you

Ms. Nurjehan Mawani: A member of Parliament can write to me, but my response is going to be that the proper avenue in this case would be to seek a judicial review of the decision. That would be the normal course of action.

Mr. Andrew Telegdi: No, it's not to revisit the decision, because once it's done—

Ms. Nurjehan Mawani: It's done.

Mr. Andrew Telegdi: —it's done.

You told us you do your internal quality check, and it would be nothing more than that. If somebody were concerned about some aspect, such as a conclusion and the reasoning behind it, they could write to you with the understanding that you could not revisit the decision, but it could therefore be part of your quality check, if you will, either to the—

Ms. Nurjehan Mawani: From time to time people do write to us, and the position we take is we would explain the process to the individual concerned, and if there were something that was of such a concern that goes to a particular behaviour or conduct issue or a bias issue, then those would be the types of things that could be brought up more formally through a process we have. But other than that, no, there would not be any other response the person would get.

The Chairman: We have about five minutes left, and we'll turn to Pat for one question and then to Mr. Benoit for one question. Please proceed.

Mr. Pat Martin: Thank you.

I have a number of things I would have liked to ask, but I'll narrow it down to a quick question and answer.

I noticed in the briefing notes that you're making an effort to bring down the average cost per refugee claim, and you anticipate going from $2,400 down to $2,000.

One of the things that was raised with me today, in fact, when we met with the Canadian Council for Refugees is that it's getting to be more common that hearings are done by video conferencing or by, to use your term, audio conferencing, which to me would be a phone call. I presume that's what you mean by audio conferencing. Do you find that this is satisfactory? Are people getting equal service or equal representation if one person's claim is done in person before the tribunal and one person is stuck with video conferencing or audio conferencing? In the interest of the humanitarian nature of the work you do, aren't you concerned that when it comes to the natural justice issue, this person is not getting as good a hearing as the other one?

Ms. Nurjehan Mawani: We have certainly looked into that, and we are of the view that in most circumstances a person can get a fair and full hearing through a video conference. I say most circumstances because there are circumstances in which it's not something that will work, such as when you have too many witnesses, for example. That's the most likely case, because when you have too many witnesses, the case is going to last very long. Video conferencing does not lend itself to very lengthy cases. However, in most cases that are less than half a day and in which there are not many witnesses—the claimant and maybe one more witness—it is appropriate.

• 1725

The technology is quite far advanced. In fact, if you feel like doing so, I would invite you to come to observe one of these video conference hearings. We use video conference hearings in our Ottawa office.

Mr. Pat Martin: You service the Maritimes—

Ms. Nurjehan Mawani: Yes, and sometimes there are cases from Montreal because people can't travel.

The most important thing is to be able to provide access to our system and to hearings, and access of a quality that we can stand behind. We are committed to doing that.

The Chairman: Pat, you may pose your second question. Leon has given it to you.

Mr. Pat Martin: Very good. Thank you very much.

I was interested in some of the numbers. Maybe this is a policy issue, but I think it's relevant to the IRB as well. They contemplate 9,500 refugees this year—that's the target, I understand—but in the last 20 years the average has been 19,000. How do we reconcile this with our reputation as being a safe refuge and a sanctuary for the people who need it most in the world? I know that's a very general question, so I'll narrow it down.

I'd like your comments on the idea that Canada has a reputation of only taking the cream of the crop even in our refugee selection. Really, refugees needing resettlement are judged on the basis of whether or not they'll make good immigrants, not on the basis of how much they need sanctuary for political reasons. Certainly, looking at the numbers, it would seem there has been a deliberate effort to minimize the number of refugees coming into the country. Is that a policy shift that you can identify?

Ms. Nurjehan Mawani: No. I presume the number you are talking about, the 9,500, is the number that deals with the government-sponsored—

Mr. Pat Martin: That's the total, both government and private.

Ms. Nurjehan Mawani: —refugees or that selection. I think the number was 11,400 last year, if you look at the total of government-sponsored and NGO-sponsored together. That is a number that is set by the government, by the department, and it takes into account what resources they have available to be able to do that. So I think that's something you might wish to pose to the department when it appears before you.

From our perspective, there are no numbers of people we will accept and we will reject. We will simply deal with them on a case-by-case basis. If that means it leads to a 40% acceptance rate at the end of the day, then so be it. If it leads to a 50% acceptance rate, so be it too. So our system very much does not get into setting targets in this situation.

The Chairman: Mr. Telegdi, one short question.

Mr. Andrew Telegdi: I just wonder if Mr. Martin is aware that usually it's about 25,000, I would guesstimate, in terms of the numbers of refugees received by Canada. Some come inland and some are processed overseas. The number is anywhere from 20,000 to 25,000.

Mr. Pat Martin: And that's per year?

Ms. Nurjehan Mawani: Yes, per year.

The Chairman: There's one very short question from the chair, and it's the last one.

Only because you indicated in your report that a pilot project of one year was started in the spring in regard to alternative dispute resolutions for the sponsorship appeals, my question is for clarification. Your report was issued in the spring of 1998. Did it begin in the spring of 1997, or just about the time your report was being issued?

Ms. Nurjehan Mawani: Just about the time the report was being issued. In fact, it was delayed a little bit and became effective in June. We will be reporting on it the next time.

The Chairman: Thank you again for your presentation. It certainly has been very informative to all of us.

Ms. Nurjehan Mawani: Thank you all very much.

The Chairman: Just for the committee members, there will be a meeting of the subcommittee on procedure and agenda tomorrow at 9.30 a.m., in room 269 in the West Block. That's for members of the steering committee.

• 1730

We're adjourned.