Immigration lawyers say report on IRB too mild

OTTAWA — The House of Commons immigration committee has completed a study on the Immigration and Refugee Board and the problems around the lack of an independent complaints process against board members, especially around areas such as the credibility of LGBTQ refugee claimants and sensitivity to those who have experienced trauma, whether due to gender-based violence or they are survivors of torture or other vulnerable persons.

Some immigration and refugee lawyers say that the report, while welcome, doesn’t go far enough to address their criticisms of the current system, which can have a huge impact on the lives of their clients.

Nastaran Roushan, a sole practitioner in Toronto, who appeared before the committee, says that there is a sense of complacency in the recommendations.

“It appears that the committee thought that things are not so bad that they require any sort of extreme measure or overhaul,” she says.

Roushan is particularly dismayed by the lack of recommendations on knowledge of refugee law for appointees to the IRB.

“I think that’s very concerning,” says Roushan.

“I don’t know of any job where someone would apply for a job and not have some requisite degree of knowledge and skill.”

The report makes eight recommendations, which includes: maintaining the current Governor in Council appointment system but that the screening process include an evaluation of a candidate’s awareness and understanding of discriminatory conduct and the standards of behaviour to which members of the board are to be held; that the IRB’s ongoing training process be more vigorous and include sensitivity training, trauma-informed investigation techniques and credibility assessment; and that the federal government create an independent complaints process for all administrative tribunals including the IRB.

Another lawyer says the report missed the opportunity to recommend that those appointed to the IRB should be practising lawyers.

“It is a missed opportunity to be able to staff up the board with people that are already very well equipped with an education and training in skills that are necessary for a board member, including analysis and procedural fairness,” says Barbara Jo Caruso, founder of Corporate Immigration Law Firm PC in Toronto and past chairwoman of the Canadian Bar Association’s immigration law section.

Chantal Desloges, founder and senior partner with Desloges Law Group PC in Toronto, appeared before the committee and says that an IRB’s member’s behaviour, including their knowledge of things such as country conditions, is critical for her clients.

“If it’s an appeal, it will affect people’s family reunification, it will mean the difference between whether their spouse joins them in Canada and then you have refugee cases that are literally life and death,” says Desloges. “The stakes are really high for these people, so the quality of decision-making is really important.”

While Desloges says she likes the recommendations around longer mentorship and supervised decision-making for new members, credibility training, as well as the notion of an independent complaints process for all federal adjudicators, she would rather see the Governor in Council appointment system scrapped in favour of the public service hiring process.

Andrew Brouwer, vice president of the Canadian Association of Refugee Lawyers, who also appeared at the committee, says the organization is pleased by the recommendations of maintaining the IRB as an independent and expert tribunal and supports the recommendations aimed at strengthening its expertise.

“The report is especially timely, considering that the federal government is poised to propose reforms to the refugee determination system,” says Brouwer.

Mathieu Genest, spokesman for immigration minister Ahmed Hussen, says they are carefully reviewing the report in order to provide an official response.

“The findings in this report will inform our review of Canada’s asylum system as we determine how best to maximize efficiency while ensuring that all clients are treated with respect and fairness,” said Genest in an emailed response to Law Times.

A spokeswoman for the IRB says it is still reviewing the committee’s recommendations and would have no additional comments at this time.

Liberal MP Robert Oliphant, the committee chairman, says that what came out of the report was the sense that parliament needs to give the changes that have already been made to IRB’s complaints process more time before fully evaluating them, a position that Brouwer echoed.

“It’s too early to judge them quickly, so a major recommendation out of the report was to say that yes, there were complaints in the past, changes have been made and let’s review and analyze it over the next year,” says Oliphant.