Speaking Points for the Chairperson - Canadian Association of Professional Immigration Consultants (CAPIC), Toronto November 21, 2008

Good afternoon and thank you for inviting me and my colleagues from the IRB to be here.

I commend you for your conference theme: “Bringing Out the Best,” and your desire to increase the knowledge and skills of practitioners through two of the 4 CAPIC pillars of education and information. This is admirable and something that all organizations should strive for.

We at the IRB have a great deal of respect for the role played by immigration consultants, CAPIC and its members. The three of us who will be presenting today are all hearing room veterans who have presided over numerous cases where consultants have served as counsel.

As the largest organization in Canada representing the interests of immigration consultants, CAPIC has a unique opportunity to ensure that consultants’ voices are heard in policy debates on immigration and refugee matters, and an important responsibility to promote the knowledge and skills of its members. In this regard I am impressed by the range and quality of CAPIC’s activities, of which this conference is a good example.

Both the IRB and CAPIC are integral players in administrative justice in Canada – we are committed to openness, transparency, due process and, in sum, the rule of law. These are fundamental tenets of a democracy.

This is one of the reasons that the IRB was keen to play a role in promoting the regulation of consultants. Regulation helps to ensure that persons with matters before the IRB are represented by professional, trained counsel, and protects them from unregulated, unaccountable consultants who may be incompetent or unscrupulous, or both.

As you know, the issues dealt with at the Board are of the utmost importance to those who appear before us, their families and Canadians: for example, who will be detained for immigration purposes, who will be allowed to remain in Canada, who will be determined to be persons in need of protection, who will be allowed to sponsor their spouse or loved one.

The decisions made by our members in these cases have a profound and lasting impact, and the integrity and credibility of the entire refugee and immigration systems can be called into question if those appearing before us are represented by an unregulated consultant without the necessary knowledge and skills to effectively represent his or client.

Of course, the subjects of IRB proceedings are not only affected by what happens in the hearing room. In my remarks I will address three broader areas that also have an impact on those who come before us and the counsel who represent them: 1) the quality of our decision-makers; 2) our operating environment and member complement situation; and 3) the measures we are taking to become a more effective and responsive tribunal.

Decision-makers

We recognize that the right to a fair hearing starts with having competent, knowledgeable decision-makers. It is important for people involved with the process to know how members of the RPD and IAD are selected for Canadians to have confidence in this vital aspect of the system.

Persons who are the subject of IRB proceedings may be unaware of their legal rights and obligations under IRPA, or of the processes that have been developed to ensure fairness, or how their hearing will proceed, or that only highly qualified and trained decision-makers will hear and decide their claim.

IRB members are drawn from all segments of Canadian society. They come from many different walks of life, including adjudicators and mediators at other tribunals, teachers, community leaders, and lawyers. I am also happy to say that we now have some former immigration consultants who have been appointed as members.

Change

One of the key elements in the IRB’s planning and operating environment is that we have no control over the number or kind of cases we receive. Factors affecting the IRB’s workload range from the political and human rights situation in refugee-producing countries to changing patterns of global migration, to actions by foreign governments to crack down on persons without status and their employers. While the principal legal issues for adjudication remain constant, the volume and the kind of cases brought forward are in constant flux.

As you know, we now have a new government and a new Minister. The Honourable Jason Kenney has recently been appointed the Minister of Citizenship, Immigration and Multiculturalism and in the coming weeks and months we will learn more about his vision and priorities for the immigration and refugee portfolio. I have written to Minister Kenney about the Board’s situation and hope to meet with him soon. Indeed members of my staff and I are scheduled to meet with the Minister’s staff on Monday.

However, regardless of any changes to the system that may be under consideration, we will continue to be a model organization that monitors its operating environment on an ongoing basis, and responds proactively and creatively to the challenges it faces

We’ve shown in the past that we are successful at keeping pace with change, and I am confident that we will be able to meet emerging challenges yet again.

Appointments

One of the most serious difficulties we’re currently facing concerns the appointment and reappointment of our GIC members. The circumstances we face are not unique t the IRB but the impact is particularly serious given the size of our GIC community. We have a funded complement of 164 members – 127 in the RPD and 37 in the IAD – and we are currently 40 members short, almost 25% of our complement.

In the summer of 2007 I worked closely with the Prime Minister and Minister’s offices to further strengthen the selection process with improved suitability criteria, a revised written test and a rigorous interview, to ensure that every candidate that I recommend to the Minister is qualified in nine required behavioural competencies.

Together with the other members of the Selection Advisory Board, which includes both senior Board personnel, as well as individuals from outside the IRB jointly appointed by the Minister and me, we have been working hard to screen and assess hundreds of candidates from across the country. It takes a great deal of time, but it is time well spent, because the competencies and knowledge our members bring to the Board have a direct impact on the quality of our decisions and the confidence we enjoy with the parties who appear before us, our stakeholders and the Canadian public.

I am committed to provide the Minister with the names of qualified candidates as soon as they successfully complete the process and to continue to make strategic representations to the government with respect to member appointments and reappointments. I am optimistic that we will see movement in this area with the resumption of Parliament. In the interim we will continue to rely on the professionalism and commitment of the people who work in our tribunal and the patience of those who work with us, to see the IRB through this difficult time.

Backlog

The Board is currently experiencing a dramatic increase in the number of refugee claims, after several years of declining referrals. The number of cases we received in 2007/08 was up 30 percent as compared to the previous year, rising from 23,400 to 30,500. In the first 9 months of this year, Canada has received the second highest number of refugee claims (after the US) among countries in the industrialized world. At the same time, we have also seen an increase in the number of immigration appeal cases, especially sponsorship appeals.

This combined with the shortfall in the member complement has resulted in a significant backlog for the IRB, particularly in the Refugee Protection Division, where the number of pending claims now exceeds 50,000. As a result, the average processing time has increased to unacceptable levels in both the RPD and IAD: 16.3 months and 11.3 months respectively.

Faced with this situation, we have a responsibility to do what we can within our mandate to take people out of a state of uncertainty caused by a backlog, and render high quality decisions in a timely fashion.

We have been taking measures which have mitigated the impact of the member shortfall on claimants and appellants For example we have used:

• Videoconferencing and temporary member transfers between regions
• Innovative case management strategies
• Standardization of the evidentiary base for refugee claims through National Documentation Packages
• More effective use of staff resources, for example through Alternative Dispute Resolution or ADR, case streaming and early informal resolution, which allow our members to focus on their unique adjudicative responsibilities

Our review of Roles and Responsibilities, carried out earlier this year, is another example of how we are taking steps to optimize our efficiency and effectiveness. We have begun to implement recommendations from the Review, including changes to our organizational structure, that will allow us to better meet our mandate.

Realizing greater efficiencies in the system need not compromise fundamental rights, or infringe on principles of justice.

A More Proactive Tribunal

In the past few years, we have also become a more proactive tribunal.

This means:

• Obtaining more information earlier from the parties
• More effective case management and triage (streaming and screening of cases)
• Early informal resolution
• And last but not least – a more proactive hearing – more focused and efficient

A more proactive tribunal also recognizes that the core business of a tribunal is not confined to hearing and deciding cases; it is resolving cases. Your clients are interested in a successful resolution to their case as early as possible so that they can achieve some measure of certainty in their lives and the lives of associated others.

This shift in thinking underscores the point that the success of a tribunal depends on more than the decision makers. It also depends on effective adjudicative support staff who provide screening, streaming, early resolution and hearing readiness support. And it is also about your contributions in the key role of counsel for the subjects of IRB proceedings.

A proactive hearing requires that the necessary groundwork is done prior to the hearing to identify and narrow the issues, facts and evidence in dispute, and that actions are taken in a timely manner before the hearing so that the hearing will be more focused and effective.

A proactive hearing means that everyone involved knows at the outset what the key issues are, and what the expectations are in terms of the proceeding, including how long the different phases of the hearing will take, which witnesses will be called, and so forth.

I suggest that you, as counsel, ask yourself: “How can I best represent my client as a proactive counsel?” 

Communications and Stakeholder Relations

Another important trend that I see in the tribunal world is that we are reaching out more to the parties and our stakeholders. It is not enough to sit back like a traditional court and be detached and distant, and communicate only through our decisions.

A tribunal is often in the public eye through its work and decisions – certainly our Board is! And we must recognize that reality by devoting adequate attention to our communications strategy and stakeholder outreach.

While we can never discuss individual decisions, we can and will ensure that the public – and the media – has a proper understanding of what we do and how we do it. And we also benefit greatly from consulting, both within the Board and with our stakeholders, so that we can improve what we do and the way we do it.

We have our national Consultative Committee on Practices and Procedures that meets in Ottawa twice a year. You may already be aware that Donald Igbokwe will be representing CAPIC at our next CCPP in just a couple of weeks. We also have regional consultative committees which engage our stakeholders on important local issues.

With the many changes we are undergoing, these consultations have become more important than ever. We recognize and appreciate the contribution made by our stakeholders who are fellow members of the immigration, refugee and administrative justice communities.

Summary

Looking to the future, there is no question that the Board is facing a number of daunting challenges, which will not be addressed without considerable effort and resources.

However, I am fully confident that we will succeed in substantially reducing our backlog and bringing our case processing times down to an acceptable level.

I am confident both because of the increase in appointments and reappointments in the year prior to the drop of the election writ in September, the positive impact we are seeing as a result of the measures we have already taken and, because of the dedication and professionalism of our personnel.

We are also fortunate to have stakeholders such as yourselves who are passionately committed to your work and care deeply about your client’s and the integrity of our processes. I appreciate the support you have shown to the Board to date as well as your continued understanding.

In the final analysis, we are all here for the same purpose. We are working towards common goals of justice, fairness and quality, and I want to thank every person in this room for their dedication and commitment to those goals.

 Thank you.