The Power of Perspectives

The Canadian Bar Association

Kim Covert

What the IRB needs: Transparent appointments, adequate training

June 20 2018 20 June 2018

 

The Immigration and Refugee Board is Canada’s largest federal administrative tribunal, and has an important role in the Canadian immigration law landscape.

As such, it’s imperative that IRB members be appointed through a transparent process and trained properly for the roles they have to play, says the CBA’s Immigration Law Section in its contribution to the Citizenship and Immigration Committee’s study of the IRB’s appointment, training and complaints process.

The CBA has called for transparent, accountable and impartial federal tribunals for decades, and recent problems have highlighted the need for improvements, the Section writes, with particular emphasis on enhancing transparency throughout the IRB process.

The Section says that in order to instil confidence in the parties appearing before the IRB, the appointments process must be transparent, systematic and merit-based. Canadians should be well-informed about positions open on the Board and well-qualified people should be sought out and encouraged to apply.

Given the nature of the work and the competencies required, the majority of Board members should be practising lawyers, and all should be vetted for knowledge, expertise and personal suitability, including a deep background check. A candidate’s demeanour and attitude must be suitable for the position.

Reappointments to the Board should continue to be based on performance and merit, but appointees shouldn’t have to start all over again like beginners if they seek another term, the Section says. They should have a right of renewal, subject to passing a performance review. The Minister should consult with stakeholders such as the CBA on reappointments, to gather feedback on actual hearing-room experience with the member in question. And longer terms would encourage more qualified candidates to apply.

Once they’re appointed, members should have access to introductory and ongoing training to equip them with tools to render informed, independent and fair decisions throughout their terms, the Section says. That training should include how to deal with vulnerable litigants, and how to conduct “trauma-informed” hearings. It also would be helpful if new members could shadow more senior members until they’re equipped to hear cases alone.

And regardless of the process, steps should be taken to address delays between the time when candidates are approved and when they’re appointed by the Minister. “A severely shorthanded IRB greatly affects its ability to perform its duties, and excessive delays can cause undue hardship on those awaiting decisions,” the Section notes.

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