It’s a cold and snowy Monday night on January 2, 1989; the Immigration and Refugee Board has been in operation for one business day; Brian Mulroney is Prime Minister ; there are ten centimeters of snow on the ground in Ottawa; the Canada-United States Free Trade Agreement came into effect on the same day as the Board; and David Matas is about to publish a book titled “Closing the Doors: The Failure of Refugee Protection”.
This might pose the question of relevance, as three decades have passed since the inauguration of the Board; but wait, because what is old, is new again.
In Matas’ book, readers would learn about the obstacles to protection that the vulnerable faced in Canada. They would also learn of the inherent flaws and the challenges facing our new refugee determination system. What might come as a surprise to many is how little things have changed in three decades.
The Pre-Modern Era of Canadian Refugee Adjudication
The pre-modern era of Canadian refugee adjudication began on January 1, 1989 with the coming into force of Bill C-55. The newly minted Board was immediately confronted with 85,000 cases. This was the result of a multitude of problems, including: the inheritance arising out of the previous, outdated system, the reluctance of the government to impose visa requirements , and an influx of Central American refugees.
Matas -writing more than 30 years ago appears to have oracular gifts. Much of what he said could be repeated down the years to present day. For example, he writes of the backlash after a boat load of Tamils showed up seeking protection (deja vu anyone?) that led to Bill C-55 the Refugee Reform Act:
“It had heard so much criticism of the abuse generated by its policies that it over-reacted by closing the doors more tightly than necessary, barring abusive claimants and genuine refugees alike.”
That statement could also have been made after Jason Kenney's Balanced Reform Act in 2012.
Matas also writes:
“The West is less and less inclined to open its doors to refugees seeking asylum.”
This last statement could easily be applied to the racist underpinnings of “Brexit” and the success of Donald Trump -and perhaps this new Bill C-97.
The Modern Era of Refugee Adjudication
Years passed and the pre-modern era gave way to the modern immigration era with the IRPA. Legislation, policy and procedure changed. The challenges however have not.
I was a Refugee Protection Officer or RPO with the Board in 2002; it was there that I met my (now) law partner. As RPOs we were to triage files, screen files, conduct research and participate in hearings. With the surge of claims following September 2001, the Board was confronted with an escalating backlog. The same terms that we hear today, we heard then. Getting to the quick yes or no, dedicated/specialized teams, expediting claims, etc. etc.
The RPO role was eliminated years ago. But wait -I learned recently that there's a pilot project bringing them back. This time they will be called ACO's or Adjudicative Case Officers.
The most recent government led by Justin Trudeau saw significant change in outlook and tone towards refugees.
But it appears the sun is setting on the Liberals' declared "Sunny Ways". There is rising public sentiment against the border crossings and refugee claims that basically started with Donald Trump’s inauguration and Justin Trudeau’s welcoming tweet.
"No one will really understand politics until they understand that politicians are not trying to solve our problems. They are trying to solve their own problems -- of which getting elected and re-elected are No. 1 and No. 2. Whatever is No. 3 is far behind".
Thomas Sowell, Economist
Storm clouds are once again on the horizon.
In 1989 the IRB had a backlog of over 85,000 cases. The RPD/IRB has a backlog of over 71,000.
Two decades after the advent of the Board, the IRB set out its Reports on Plans and Priorities, where it identified strategic priorities to manage its case inventory through “innovative adjudicative and case management strategies” (including the use of: the computerized Integrated Case Management System; case readiness procedures; reduction of adjournments and postponements; evaluation of streamlining processes; and the continued training of decision makers and tribunal officers).
A decade after that Report, the Auditor General has released its own report card.
Simple administrative issues such as different information technology systems between the IRCC, IRB and CBSA have made the tracking and storing of information about claimants function at an unreasonably low-level. To add to this absurdity, all three organizations continue to use paper files, even with access to the information electronically. Information is printed out and shared between them by fax or courier.
Around 65% of hearings are postponed at least once and about a quarter of claims are postponed multiple times. The most postponements were due to administrative issues within the government’s control - with the most frequent reason being the unavailability of Board members. Last year during the audit, the Board postponed 8,389 claims because the required security screening was still pending. However, one in five of these hearings were postponed in error, as the screening had been completed or was not yet due. These postponements delayed hearings by an additional 10 months on average. Fewer than 10% of postponed hearings were rescheduled within the 10 days normally practiced. Additionally, new claims were prioritized over postponements and because the schedule was fully booked for at least three months ahead, the postponements weren’t heard in a timely manner.
Further, the audit found that the claims that could be decided on file review as opposed to a hearing were rarely utilized as such. The Board only expedited a quarter of those eligible claims and they weren’t processed more quickly, taking about the same amount of time as regular claims (the Board announced changes to its expedited process in January 2019).
There are numerous other shortcomings. Officials from CBSA and IRCC on behalf of the Minister can currently intervene in a claim if they have credibility or security concerns and IRB members must alert the Minister when they have concerns with a claim that may warrant intervention. There was poor communication found between IRB and officials from CBSA or IRCC on claims being reviewed for possible intervention. This resulted in a duplication of effort. CBSA and IRCC officials are not required to inform IRB about claims they have reviewed and in which they will not intervene, only the ones they will.
“Sooner or later, everything old is new again.”
-Stephen King
Conclusion
“Difficult to see. Always in motion is the future…” -Yoda
Despite Yoda’s sentiment, it’s not hard to see the future for the Board. Nothing should be truly surprising for the refugee advocate or the claimant. If there’s a “new” proposal by the Board to address the challenges it faces, there will be an antecedent.
There are silver linings of course. The Board is no longer "larded" (the term used by Peter Showler, a past Chairperson) by political hacks, completely unfit to rule over the lives of the vulnerable. Board Members are now public servants and there is a transparent, merit based process. There is now a substantive appeal mechanism (the Refugee Appeal Division or RAD, first promised when IRPA was brought into existence but only came into existence after the 2012 reforms).
“All of this has happened before, and will happen again” –Battlestar Galatica
The challenges -namely that demand exceeds resources and rising public sentiment against refugee claimants have always been with us. They have never really changed since the pre-modern era of refugee adjudication began. I think backlogs are here to stay. It will take longer to get to a hearing. Be prepared for this government (or another) to implement policy to restrict claimants from entering Canada in the first place. Be prepared for rising public sentiment against refugees that many term as queue jumpers.
I don’t believe that there is a simple solution to the challenges that the Board faces. But the Board has demonstrated in the past that it is capable or rising to the occasion and it is taking steps at present to address the current backlog. The demand of course, is due to circumstances outside of its control.
There is an inherent tension between policy considerations that speak to cost, efficiency and legal pluralism and ensuring justice to the individual. Ultimately, justice should not be denied because too many are asking for it.
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