Speaking Notes for Brian Goodman, Chairperson - University of Saskatchewan Videoconference on March 23, 2009

• I appreciate the opportunity to speak to you today and I would like to thank Professor Beth Bilson for her kind invitation. 
• Let me begin by congratulating you on your field of study.  Public administration is an important responsibility and can be an extremely rewarding career.  It is with this in mind that I am here today to share with you my experiences as Chairperson of the Immigration and Refugee Board of Canada (IRB) – Canada’s largest federal administrative tribunal.  I was appointed interim Chairperson a little over two years ago and Chairperson in June 2007.
• I can attest that my personal experiences in public administration have afforded me some unique perspectives and wonderful opportunities to serve Canadians.
• Before being appointed to the IRB as a member in 2001, I was a senior public servant with the Province of Ontario, and worked for a number of provincial ministries, agencies and Boards. These included the Office of the Ombudsman, the Rent Review Hearings Board, which I chaired, and the Consent and Capacity Board when I served as a lawyer member.  I have also been a member of the board of directors of the Council of Canadian Administrative Tribunals (CCAT), when I met Beth Bilson, as well as Chair of the Conference of Ontario Boards and Agencies, and co-chair last year of CCAT’s Annual Conference.  I also served as an Assistant Deputy Attorney General and Executive Head for agency reform.
• Professor Bilson asked that I provide you with a brief overview of the IRB, our operations and challenges. She also asked that I discuss the decision-making processes and the various tools used by our Members in the hearing room. These include federal legislation (Immigration and Refugee Protection Act, IRPA), persuasive decisions, jurisprudential guides, and chairperson’s guidelines.
• If you have any questions during my presentation, please do not hesitate to ask.

History of the IRB

• I would like to start by giving you a sense of the history of the IRB.
• As you may know, the IRB was created as a result of a Supreme Court of Canada decision rendered over twenty years ago – the Singh decision.
• The Singh decision of 1985 was one of the first Supreme Court decisions to be decided under the Charter of Rights and Freedoms.
• Singh v. M.E.I. (Canada) is often referred to as the most important legal decision affecting immigration policy in Canadian history. The ruling was fundamental to the creation of the IRB in 1989.
• The case involved a refugee claimant who submitted that he had the right to an oral hearing before a decision-maker. The Supreme Court of Canada ruled in his favour, but noted that no provisions existed for such a process under the Immigration Act, 1976.
• Four years later, through an Act of Parliament, the IRB was created through the new Immigration Act and gave the Board the authority “to make well-reasoned decisions on immigration and refugee matters.”
• In 2002 the Immigration and Refugee Protection Act came into force replacing earlier legislation.
• IRPA provides the IRB with the jurisdiction to hear and decide cases on immigration and refugee matters efficiently, fairly and in accordance with the law, and sets out the core principles and the concepts that govern the work of the IRB.
• It is an independent, accountable administrative tribunal that reports to Parliament through the Minister of Citizenship, Immigration and Multiculturalism.
• And as part of Canada’s immigration and refugee determination system, the IRB works with Citizenship and Immigration Canada (CIC) and the Canada Border Services Agency (CBSA), while the same time ensuring that its arms-length relationship with the government is respected.
  IRB Organization
• Through its three divisions, the IRB hears a wide variety of cases.
• The Immigration Division conducts admissibility hearings for people alleged to be inadmissible to or removable from Canada, and holds detention reviews for those detained for immigration reasons. Its decision makers are public servants.
• The Immigration Appeal Division hears appeals, primarily on failed family sponsorship applications, but also by permanent residents who have been ordered removed from Canada or failing to satisfy residency requirements. IAD decision makers are Governor in Council appointees.
• Finally, the third Division is the Refugee Protection Division. It is the Board’s largest division and decides refugee protection claims made by persons in Canada. Like the IAD, the RPD decision makers are also appointed by Governor in Council.
• Canada has an obligation to grant protection to persons whom the IRB determines to be refugees and other persons in need of protection under a number of international instruments, including the 1951 Convention Relating to the Status of Refugees, the 1967 Protocol Relating to the Status of Refugees the 1966 International Covenant on Civil and Political Rights, and the 1984 Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment.
• The RPD also renders decisions on applications filed by CIC to exclude persons claiming refugee status or vacate this status.
• CIC is responsible for granting refugee protection to individuals who make requests from outside Canada.
• The IRB has a complement of 164 decision-makers appointed by Cabinet in the IAD and RPD.  The ID has a complement of 30 public servant decision-makers.  Overall, the Board has about 1,000 personnel in three regional offices and a budget of $113 millions.

Tribunals

• Based on information in your course outline, I understand that you have recently been learning about administrative tribunals and their role in the administration of justice.
• One of the noteworthy features of the Canadian immigration and refugee system is that a refugee claimant is entitled to the full range of Canadian rights and protection based on the principles of the Singh decision. This includes the right to a hearing before an independent and impartial decision-maker.
• As a specialized tribunal, the IRB is independent from government in its decision-making, but fully accountable to government for its performance.
• This allows the IRB, when adequately resourced, to render decisions more efficiently and quickly than traditional courts, but with no less attentiveness to the rigour of the law.  This is the strength of a tribunal process.
• The independence of the Board ensures that cases are decided based on their own merits, and that domestic and foreign policy considerations do not factor into decisions. Decision-makers hear and decide cases without any undue influence.
• The importance of the Board’s independence is that it gives those who appear before it an opportunity to present their case knowing that decisions will be rendered with no consideration other than the evidence and the applicable law.
• In addition, having cases decided by an expert and independent tribunal can lead to more deference from the reviewing courts – and, therefore, a less expensive and faster system overall.

Decision Making

• Our tribunal members are extensively trained to make decisions on the merits of the case based on a thorough assessment of the evidence before them and application of the relevant law.
• However, even though our members enjoy adjudicative independence and decide each case on its merits, it is nonetheless proper for an administrative tribunal to promote consistency in decision-making.
• By consistency, I don’t mean consistency of outcome, but rather consistency of approach. Individuals appearing before the IRB have a right to expect that similar cases will be dealt with in a similar manner.  This is important so that counsel can advise their clients.
• A number of resources and tools are in place to promote consistency. In addition to the evolving jurisprudence which guides members in their decision-making, IRB members also meet regularly to discuss issues with the aim of reaching consensus on an agreed-upon adjudicative approach, for example in relation to the availability of state protection to refugee claimants in a given country.  As Chairperson, I prefer this “on the ground” approach to top-down policy instruments from me.
• The IRB has also established a world-renowned research program, which carries out research on country conditions and prepares documentation packages on refugee-producing countries. These packages in turn form a common evidentiary base for members across the country to use when hearing refugee claims.  

Quality of Decisions

• Closely linked to consistency in decision-making is the issue of quality.
• A quality decision requires an understanding of the relevant facts and arguments, sound application of the law, and thorough analysis. 
• It also means reaching the decision in a reasonable period of time and using processes which are fair, transparent, and understood by all.
• The reasons for decision must be intelligible, transparent, and provide justification for the conclusions reached.
• One of the ways in which the Board promotes quality of decision-making is through an extensive training program for new members and ongoing professional development for members beyond the initial training period. Another way is regular monitoring and appraisal of members’ performance by their member manager.
• While it would not be appropriate for a manager to comment on whether a member reached the “right” decision or not, it is entirely appropriate for managers to review decisions and reasons and listen to audio recordings of hearings to ensure that the member is for example proactive in identifying the issues at the outset, is in control of the proceeding, and is courteous with parties, witnesses, and counsel.
• The IRB is currently in the process of developing benchmarks of quality in decision-making.  These quality standards will be helpful to both members and managers in establishing performance objectives, developing customized training programs and so forth.

Guidelines

• The IRB also has a number of juridical tools that can be used to promote quality and consistency in decision-making.
• Under the Immigration and Refugee Protection Act, the Chairperson can issue Guidelines to assist members in areas where the law is subject to significant divergence or there is an issue of importance over which members require some guidance. 
• In short, these guidelines can help to ensure the Board is accessible and responsive to the needs of the people who appear before it.
• The development of a guideline requires extensive internal and external consultation before it is issued.  Internal consultations typically involve our members, legal staff and adjudicative support personnel.
• External consultation includes our stakeholders – those organizations that have a direct interest in immigration and refugee matters. These include bar associations, NGOs and the United Nations High Commissioner for Refugees.
• Ongoing consultation on major initiatives with our stakeholders is critical to the development of any guideline as it serves to improve awareness and understanding, and leads to a higher quality and more readily accepted instrument.
• Currently, the IRB has guidelines on gender-related persecution, child refugee claimants, vulnerable persons, and non-combatants in civil war situations, as well as a number of other guidelines dealing primarily with procedural issues.
• There is an expectation that members will adopt the recommended approach
• However, decision-makers are not bound by the guidelines and must decide each case on its own merits.  Should a member choose not to follow a guideline in a case where normally he or she would have been expected to do so, the decision maker is required to provide a rationale for departing from the guideline in the reasons for decision.

Persuasive decisions

• Persuasive decisions are another way the IRB promotes consistency and transparency in decision-making.
• The Heads of the three IRB Divisions, namely the Refugee Protection Division, the Immigration Appeal Division and the Immigration Division, may identify a decision as having persuasive value.
• Persuasive decisions do not have a statutory basis but are part of a Division’s adjudicative strategy to achieve greater consistency and efficiency in decision-making.
• There are currently three persuasive decisions in force, all in the RPD. The most recent one, from May 2008, addresses state protection in Mexico for victims of criminality. The other two deal with claims against Colombia and Costa Rica.
• Like the Chairperson’s Guidelines, persuasive decisions are not binding. However, in the case of a persuasive decision, a member is not asked to provide a rationale should he or she decide not to follow its reasoning. 

 
Jurisprudential Guides

• Jurisprudential guides are a third mechanism used by the IRB to ensure similar cases are treated in a consistent manner.
• In June 2002, the Immigration and Refugee Protection Act provided the IRB with the authority to identify decisions as jurisprudential guides, and subsequently the IRB released its Policy on the Use of Jurisprudential Guides.
• As Chairperson, I can identify a decision as a jurisprudential guide to:
  • Address an issue of importance to the IRB
  • Address an emerging issue
  • Resolve an ambiguity in the law, or
  •  Resolve inconsistency in decision-making
• Like Chairperson’s Guidelines, while members are not required to follow the reasoning set out in a jurisprudential guide, they are expected to provide a justification for not doing so when dealing with cases involving similar facts.
• There are currently two Jurisprudential Guides in force, both dealing with refugee claims from Costa Rica.

Challenges

• Finally I was asked to share with you some thoughts regarding the IRB’s challenges.
• One of the major challenges facing the IRB at this time is the growing pending inventory and increasing average processing time, particularly in the Refugee Protection Division.
• This growing inventory is due to a significant shortfall over the last three calendar years in the number of members appointed to the Board by the Governor in Council, combined with substantial growth in the intake of new cases. In the RPD, intake in 2008 was almost 35,000 refugee claims, up 52 percent as compared to 2006.
• The IRB is funded for 164 members – 127 in the RPD and 37 in the IAD – and despite the numerous recent appointments and reappointments in the last four months, we are still 22 members short at the present time.
• However, I am confident that we will return to a full complement soon. In large measure, the recent appointments are a sign of the government’s confidence in the revised selection process for members that was implemented a year and a half ago.  The process, which includes initial screening, a written test, an interview and reference checks is overseen by a Selection Advisory Board (SAB), chaired by me.  The SAB includes external members selected jointly by the Minister and me.
• The revised process is very rigorous and demanding, but it ensures that only competent and qualified candidates are recommended to the government for appointment.
• In turn, this means that our new members have the skills necessary to discharge their responsibilities effectively, and that the IRB can enjoy the confidence of the parties who appear before us, as well as our stakeholders and the Canadian public.
• Looking forward, we are in the process of seeking new resources from the government to meet our growing intake and tackle the backlog, which will be in the order of 60,000 refugee claims by the end of the month.
• Despite these challenges, the IRB continues to be recognized internationally, including by the UNHCR, as a leading-edge tribunal and a model for other jurisdictions in refugee determination.
• Moreover, we have taken measures to mitigate the impact of the member shortfall and the increased intake.
• For example, we are making increased use of videoconferencing and temporary member transfers between regions; we have implemented enhanced streaming and screening of cases; and are maximizing opportunities to resolve cases as quickly and efficiently as possible through expedited processes and alternative dispute resolution.
• Through these measures and other strategies we are currently exploring, I am confident that we will succeed in reducing our backlog and bringing our case processing times down to an acceptable level.
• There is much more I could share with you about the IRB, but I will stop now to allow time for your questions.