Former Tory government’s refugee reforms get failing grade

Good evidence-based analysis but would have been helpful to have the pre-changes data as well:

Five years after Ottawa rolled out controversial reforms to build a “faster and fairer” asylum system, also meant to boot out failed refugees quickly, the verdict is in.

Despite the highly-touted changes made by the former Conservative government in 2012, the revamped refugee system has failed to hear claims within tight statutory processing timelines or get rid of the backlog, reports a new study released by the Canadian Association for Refugee and Forced Migration Studies.

“The aim of the Balanced Refugee Reform Act and the Protecting Canada’s Immigration System Act was to make the system faster, fairer and more cost effective,” said Ryerson University criminology professor Idil Atak, who co-wrote the review with colleague Graham Hudson at Ryerson and University of Ottawa professor Delphine Nakache.

“But the new system is not faster. It is not fairer. It is not more cost-effective.”

To restore the asylum system’s “integrity,” then Immigration Minister Jason Kenney introduced substantive changes to the process, including truncated timelines in asylum claims’ processing. Those who claim asylum at a port of entry are given 15 days, not the 28 days that applied prior to that, to submit the form setting out the basis of their claim.

For most claimants, refugee hearings are supposed to be held no later than 60 days after the claim is referred to the Immigration and Refugee Board, while those from the government-designated list of “safe” countries will be heard as quickly as within 30 days.

The government did respond to advocates’ demands by establishing a tribunal to hear appeals by applicants whose claims have been rejected.

However, it also introduced a one-year bar to prevent failed refugees from having a pre-removal risk assessment or applying permanent residence under humanitarian considerations to delay deportation.

The researchers examined the system’s performance against its policy goals. They did this based on government data from the refugee board, immigration department, border service officials and the RCMP, and on 47 interviews with officials from those agencies and others.

Despite the drop in the volume of asylum claims by half over the course of one year, from 20,427 in 2012 to 10,322 in 2013, only 55 per cent of the safe-country claims met the 30-day target, compared to seven out of 10 claims from non-safe countries.

According to the refugee board, 30 per cent of asylum hearings had to be rescheduled in 2015, mostly due to lack of time. One-third of the appeals at the refugee appeals tribunal also failed to deliver a decision within the 90-day limit; on average, appeals cases were finalized 44 days beyond the target.

“The administration’s priority was to schedule the initial (refugee) hearings for new asylum applications,” said the 50-page study. “As a result, secondary intake of claims, i.e. claims returned by the appeals tribunal or Federal court, remained unresolved for a period of time.”

There were more than 5,000 so-called “legacy cases,” which were filed before the new system came into effect in 2012, that were languishing in the system as of 2016, said Atak, adding that the refugee backlog has already reached the number that applied before the 2012 reform.

With a spike in the number of irregular land-border crossings via the United States, Canada this year has already received a total of 12,040 claims up to the end of April.

If the trend continues, it could reach 36,000 cases in 2017.

Refugee advocates have called on the government to do away with the two-tier system based on where claimants come from and the unrealistic timelines for hearings and appeals.

Mario Dion, the refugee board chair, has called on the Liberal government both for more resources and to ease the restrictive process.

The Tories established the one-year bar to pre-removal risk assessments and humanitarian consideration for failed refugees because of the target to kick them out of Canada within one year.

However, the study found only one-third of failed claimants were removed from Canada within 12 months due to many obstacles.

These include lack of co-operation by the home country, inability to locate the individuals and the person’s fitness to travel.

The reforms did not come cheap, said the study; the Tory government allocated a total of $324 million on implementation over five years.

The removal costs almost doubled to $43 million after the reforms, while the number of people deported from Canada dropped from 13,869 in 2012 to 7,852 in 2014, according to the latest data available to the researchers.

Source: Former Tory government’s refugee reforms get failing grade | Toronto Star

Liberals postpone indefinitely overhaul of asylum claim system

Interesting. An overhaul beyond the original campaign promise of an expert panel to determine which countries should be considered as safe would be complex by itself, not to mention the politics involved:

A Liberal election promise to overhaul the way asylum claims are handled has been postponed indefinitely despite rising numbers of people seeking refuge in Canada putting the system at risk, The Canadian Press has learned.

One of the options on the table, multiple sources have told The Canadian Press, is rejigging the historic Immigration and Refugee Board, and giving some of its authority over to the Immigration Department itself.

But those advocating for the government to do something before backlogs threaten the integrity of the system say they are running up against a Liberal government seeming to have lost interest in spending any more money or political capital to help asylum seekers.

The starting point is the designated country of origins system, which determines how fast asylum claims are heard based on where they are from – a system that should, in theory, help weed out unfounded claims faster.

Internal evaluations have shown that hasn’t quite worked, and the system has drawn the ire of refugee advocates for creating a two-tier approach that includes unworkable timelines for hearing cases and their appeals. Elements of the program have already been struck down by the Federal Court.

The Liberals had been on the cusp of doing away with it, going even farther than their original promise to use an expert panel to determine which countries belonged on that list.

But a planned January roll-out was postponed after the election of U.S. President Donald Trump and the subsequent Liberal cabinet shuffle that saw a replacement of the federal immigration minister.

Then in March, as the issue of illegal border crossers dominated global headlines and Question Period, plans to repeal the designated-country-of-origin scheme were scrapped again, sources said.

They haven’t been rescheduled, even as the IRB itself has been among those saying the system needs to go as a way to ease the pressure.

“It would simplify our life from a case management point of view,” chairperson Mario Dion said in an interview with The Canadian Press in March.

“I don’t have a political view.”

The Liberals do, observers said.

When they came into power and moved to make good on a promise to resettle 25,000 Syrians, the government believed it had broad public support for refugees, said immigration lawyer and refugee advocate Lorne Waldman.

Things have changed.

“The concern at the centre is that support has dissipated significantly because of a series of factors, the most important one being the emergence of Donald Trump,” he said.

“And I think the concern is amplified by the Conservative leadership race where you have many of the candidates taking a very anti-immigrant posturing in their campaign.”

Source: Liberals postpone indefinitely overhaul of asylum claim system – Macleans.ca

Asylum seekers fleeing U.S. may find cold comfort in Canada’s courts

Useful article on how the system works:

Migrants who applied for asylum in the United States but then fled north, fearing they would be swept up in President Donald Trump’s immigration crackdown, may have miscalculated in viewing Canada as a safe haven.

That is because their time in the United States could count against them when they apply for asylum in Canada, according to a Reuters review of Canadian federal court rulings on asylum seekers and interviews with refugee lawyers.

In 2016, 160 asylum cases came to the federal courts after being rejected by refugee tribunals. Of those, 33 had been rejected in part because the applicants had spent time in the United States, the Reuters review found.

Lawyers said there could be many more such cases among the thousands of applicants who were rejected by the tribunals in the same period but did not appeal to the federal courts.

The 2016 court rulings underscore the potentially precarious legal situation now facing many of the nearly 2,000 people who have crossed illegally into Canada since January.

Most of those border crossers had been living legally in the United States, including people awaiting the outcome of U.S. asylum applications, according to Canadian and U.S. government officials and Reuters interviews with dozens of migrants.

Trump’s tough talk on illegal immigration, however, spurred them northward to Canada, whose government they viewed as more welcoming to migrants. There, they have begun applying for asylum, citing continued fears of persecution or violence in their homelands, including Somalia and Eritrea.

But Canadian refugee tribunals are wary of “asylum-shopping” and look askance at people coming from one of the world’s richest countries to file claims, the refugee lawyers said.

“Abandoning a claim in the United States or coming to Canada after a negative decision in the United States, or failing to claim and remaining in the States for a long period of time — those are all big negatives. Big, big negatives,” said Toronto-based legal aid lawyer Anthony Navaneelan, who is representing applicants who came to Canada from the United States in recent months.

The Canadian government has not given a precise figure on how many of the border crossers were asylum seekers in the United States.

But it appears their fears may have been misplaced. Trump’s attorney general, Jeff Sessions, has said that anyone in the United States illegally is subject to deportation, but there is no evidence that asylum seekers with pending cases are considered illegal under the new administration.

‘Lack of seriousness’

The asylum seekers will make their cases before Canada’s refugee tribunals, which rejected 5,000 cases last year.

The tribunals’ decisions are not made public, so the reasons are not known. An Immigration and Refugee Board spokeswoman confirmed, however, that an applicant’s time in the United States can be a factor in a tribunal’s decision.

Rejected applicants can appeal to Canada’s federal courts, whose rulings are published. The federal courts upheld 19 of the 33 tribunal rejections they heard last year and recommended fresh tribunal hearings for the other 14 cases.

The judges believed those claimants had a good explanation for having been in the United States first. The outcomes of the new tribunal hearings are not known.

The federal court handles only a small portion of all applications rejected by the refugee tribunals. But overall, applicants who have spent time in the United States have a higher chance of being rejected, said multiple immigration lawyers, including two former refugee tribunal counsel, interviewed by Reuters.

Source: Asylum seekers fleeing U.S. may find cold comfort in Canada’s courts – Manitoba – CBC News

Liberals accused of ‘housecleaning’ of Tory appointees at refugee board

Leave it to others to comment, particularly those with experience in dealing with the IRB.

Like all GiC appointments, there is a strong political element (and has always been).

The delay in appointments appears to be characteristic of the government, partially due to its commitment to increased diversity in appointments, but one that affects the timeliness of decision-making.

The in-depth study, 2016 Refugee Claim Data and IRB Member Recognition Rates | Canadian Council for Refugees, shows a variation in acceptance rates among members, as happens to a certain extent in all such processes:

A slew of seasoned decision-makers tasked with hearing refugee and immigration appeals have either left or will depart from their job in what some call the Liberals’ “housecleaning” of Conservative appointees.

In light of what some critics call inadequate funding and a growing backlog stemming from the recent spike in asylum-seekers crossing into Canada via the United States, the loss of the adjudicators on the immigration and refugee appeals tribunals is expected to toss the system into disarray.

“Our concern is the government is continuing to have a governor-in-council appointment process that is political and discretionary instead of going for a transparent process to appoint the most suitable candidates who are competent, judicious, fair-minded and efficient,” said Raoul Boulakia of the Refugee Lawyers’ Association of Ontario.

“The efficiency and quality of the decisions could be compromised if the people who are brought in do not have the expertise and are not judicious.”

The Immigration and Refugee Board, which oversees both appeals tribunals, said 14 appointees have left their job since last August and another 39 will have their appointments expire by the end of this year. The board confirmed a total of 42 people applied for reappointments to the tribunals, but would not say how many have been successful.

Currently, 23 of the 58 positions at the refugee appeals tribunal are unfilled while the immigration appeals division has six vacancies out of the full complement of 44 appointments.

Like the court system, the refugee and immigration appeals tribunals require adjudicators to have stronger knowledge and experience with the administration of the law in order to review decisions by lower-level refugee judges or immigration officials, who are civil servants.

While failed refugee claimants — and sometimes the immigration minister — can appeal to the refugee tribunal any questionable decisions made by asylum judges, rejected immigration applicants in sponsorships or those facing removal orders can take their cases to the immigration appeals tribunal.

As of the end of December, the immigration appeals tribunal had a backlog of 10,206 cases and a processing time of 20.4 months (compared to 17 months in 2013), while the refugee appeals division had 1,938 cases in the inventory with the average processing time at 124 days (compared to 65 days in 2013), said the refugee board.

Under the old system by the former Conservative government, existing adjudicators seeking reappointment to the tribunals would have all their previous decisions evaluated in terms of quality and quantity before being recommended by the board chair based on their track records.

However, last summer, the Liberal government, which ran an election campaign on transparency and bipartisanship, rolled out a new process for those already sitting on the tribunals by requiring them to reapply for their appointment and pass an online test.

They are then interviewed by a hiring committee made up of the refugee board chair and one representative each from the Prime Minister’s Office, Privy Council Office and the Immigration Department. The composition of the committee opens the door for partisan selection, Boulakia said.

The Privy Council said the government’s new approach to governor-in-council appointments supports “open, transparent and merit-based appointments.”

“All candidates seeking appointment to a GIC position with the Immigration and Refugee Board, be they incumbents or new candidates, are subject to a rigorous selection process developed for the position, which includes inputs and insights from the independent bodies, including the chair of the refugee board,” said Mistu Mukherjee, a spokesperson for the PCO.

“The results of these assessments, made against public and merit-based criteria, are provided to the minister. The minister makes appointment recommendation from this list of highly-qualified candidates.”

Adjudicators who took the test said the questions had nothing to do with immigration and refugee laws and complained they had no way to review the exam or find out why they might have failed.

“The process is partisan and not based on merits. They are cleaning out anyone who was appointed by the previous government, whether they are really affiliated with the Conservatives or not,” complained one adjudicator, who underwent the process and asked not to be identified for fear of repercussion.

“This is complex, technical work. It takes a long time for new members to learn the stuff. This purge means people’s (immigration) status is going to be uncertain for longer. It is going to further affect people’s ability to bring their family members to Canada. This is going to have a huge impact in people’s lives.”

Although it is a common practice for a new government to fill board and tribunal appointments with their party supporters, another affected adjudicator said the test is “flawed” and the process is “rigged.”

“What happens is you feel you are shackled to a political party with your job security resting on the whim of that party. But you are not supposed to get involved in any politics. It is just so wrong when you are not assessed by your performance and good judgment but by who you know,” said the source, whose appointment was not renewed.

“Our political leader has said to refugees, ‘Come to Canada and we will welcome you.’ It’s like an open invitation, but some people who come here are not really who they say they are. With more refugees coming, everybody will be appealing and rushing to the appeals tribunals when they are turned down. This is all about cleaning house.”

Refugee board spokesperson Anna Pape said it is not a requirement for appointees to have experience in refugee and immigration matters and “(complete) training” is provided to all new decision-makers, regardless of their education or experience.

Source: Liberals accused of ‘housecleaning’ of Tory appointees at refugee board | Toronto Star

Too soon to put Canadian price tag on Trump’s immigration overhaul: officials

Useful questioning of the Minister and officials, and reasonable responses to an evolving situation:

The Liberal government is examining whether the fallout from U.S. President Donald Trump’s executive orders on immigration will require more cash to be spent north of the border.

But both immigration officials and the federal minister told a House of Commons committee that right now, there’s no new money.

Departmental officials say Trump’s executive orders are too new for them to be able to estimate how much they could cost Canada and in what ways.

The Immigration and Refugee Board, however, has been saying for months that a rise in the number of asylum claims is already straining its resources and it has put in a pitch for more cash.

Board officials had been hoping to get an answer in Wednesday’s federal budget but Immigration Minister Ahmed Hussen wouldn’t commit Monday to new funds.

He says the fact that claims have been rising at the IRB since 2015 is proof the problem goes beyond the so-called Trump effect.

The board did receive about $4.5-million to deal with an expected increase in claims from Mexican nationals following a government decision to lift visas for Mexicans last December.

Those numbers are already up over last year – 241 Mexicans lodged asylum claims in all of 2016 and 156 have already done so in 2017.

Many anticipate the U.S. president’s executive orders curtailing immigration from certain countries, scaling back refugee admissions and speeding up deportations could push the numbers of people seeking asylum in Canada higher.

Hussen and his officials were pressed Monday by the NDP’s immigration critic Jenny Kwan on whether any more money has been earmarked yet to deal with the potential fallout.

The executive orders are too new and the money currently being requested from Parliament deals with already identified needs, said Daniel Mills, an assistant deputy minister in the Immigration Department.

“We haven’t yet estimated the amount that we will need,” he said in French.

What might be needed next is under review at least in one area.

“The IRB is already facing a number of pressures and recent events will only give rise to further pressures,” Richard Wex, an associate deputy minister in the department, told the committee.

“This matter is under active consideration by the government.”

Hussen tried to bolster the case at committee that the so-called Trump effect isn’t to blame for the rise in claims.

Of the 143 people who’ve who crossed illegally into Manitoba to make an asylum claim in 2017, he said only about 50 had U.S. visas, 97 per cent had been the U.S. less than two months and had not filed an asylum claim there.

“It puts into context the claim made by many that this is as a result of the U.S. administration,” he said.

“In fact, the rise in asylum claims through the border . . . there’s been a small and steady increase since 2015, most of 2016. This is definitely not specific to the incoming U.S. administration.”

Another element that could complicate the IRB’s caseload is the upcoming plan to lift the visa requirement people coming from Romania and Bulgaria. Romania in particular was a large source of asylum claims in Canada prior to a visa requirement being imposed and the decision to phase-out the visa later this year is likely to lead to a renewed increase in asylum claims.

No money has been earmarked yet for the IRB to deal with that.

Source: Too soon to put Canadian price tag on Trump’s immigration overhaul: officials – The Globe and Mail

ICYMI: Refugee board redeploys staff to cope with surge in asylum claims

The IRB also has about 20 vacancies out of a total of over 90:

The Immigration and Refugee Board of Canada says it is changing its approach for scheduling asylum hearings in order to cope with “increasing refugee claims” and “global instability.”

The board has seen a dramatic increase in the number of inland refugee claimants (those who arrive in Canada and seek asylum) from 10,751 in 2013 to 16,914 in 2015. Just nine months into 2016, 16,279 claims had been filed and the yearly tally, which isn’t yet available, is expected to reach 20,000.

U.S. President Donald Trump’s anti-refugee and anti-immigrant policies coupled with as Ottawa’s recent move to lift the visa requirements for Mexican travellers mean Canada is expected to see its annual asylum claims peak again this year.

In a terse notice, the board said it will redeploy up to half of its capacity to address its backlog of claims, which stands at more than 21,000, while the rest of staff will continue to focus on newly arrived claims that must be heard within 60 days under the controversial statutory timelines imposed by the former Conservative government.

In the last year or so, lawyers have been complaining of delays by the Canada Border Services Agency in issuing security clearances, which refugees need before their claims can be heard. If they don’t have a security clearance at their first hearing, lawyers say, claimants are doomed to wait “in a black hole” until a new hearing is scheduled.

“Under a new process, certain claims identified by the (board’s) refugee protection division as straightforward will be scheduled for a short hearing,” said the notice issued Friday.

“The expectation is that a substantial majority of these claims will be finalized at the end of the short hearing. The provision to grant refugee protection to certain claims without a hearing will remain.”

Source: Refugee board redeploys staff to cope with surge in asylum claims | Toronto Star

Asylum outcomes vary widely among refugee judges, study finds

Good reporting by Nicholas Keung.

The IRB should not be so dismissive of the analysis and may benefit from reading Daniel Kahneman’s Thinking Fast and Slow for similar examples where cognitive bias has resulted in different decisions. No system is completely immune:

Despite recent reforms to the refugee system, whether an asylum claim is approved or denied has remained the luck of the draw, according to a new report.

Based on Immigration and Refugee Board data, Osgoode Hall law professor Sean Rehaag looked at all 7,818 asylum decisions made in 2015 by 92 board members under the new system. He found their decisions vary widely on claims from the same country.

The former Conservative government made these new decision-makers government employees — replacing the old political appointees — with the hope of making the system free from political influence based on the adjudicators’ political affiliation.

“It’s striking that the refugee determination system is making life-and-death decisions and the outcomes of the claims vary depending on who is making the decision,” Rehaag said of his findings in the report to be released Wednesday.

In 2015, a total of 8,268 new claims were processed; 279 were withdrawn and 160 were deemed abandoned with claimants absent from their hearings. Of the 7,818 decisions rendered, 65 per cent of the claims were granted and 35 per cent were denied.

While some decision-makers rarely granted refugee status, Rehaag said others accepted most of the cases they heard.

Member Gloria Moreno, for example, had a grant rate of 27.3 per cent out of 22 decisions, the lowest of all adjudicators, followed by David Young, who only accepted 32.9 per cent in 79 decisions.

At the other end of the spectrum, 98.5 of James Waters’ 65 decisions were positive, with Maria Vega in a close second at 92.9 per cent.

Although some of the differences may be due to the members’ specialization in particular types of cases such as geographic regions with especially high or low refugee claim recognition rates, Rehaag compared decisions by different adjudicators on claims from the same country and found the variations unjustified.

Rehaag said his findings speak to the importance of allowing universal access for failed claimants to appeal to the refugee appeal tribunal.

The IRB, however, said outcomes of decisions vary because decision makers render impartial decisions in accordance with the law based on the evidence presented.

“It’s important to note that there are no ‘expected recognition rates’ at the board . . . each case is unique and determined on the basis of its individual merit,” said IRB spokesperson Anna Pape, adding that failed refugees are entitled to have decisions reviewed by the Federal Court of Canada.

The Liberal government has dropped its constitutional challenge to the designated-country-of-origin regime established by its Tory predecessor, intended to deny appeals by claimants from countries presumed to be safe and capable of protecting their nationals.

ICYMI: Canada rejects African-American’s asylum claim

Expected:

A Canadian tribunal has rejected a claim for refugee status from an African-American man who said he feared persecution and police abuse in the United States based on his race, the Immigration and Refugee Board of Canada said on Friday.

While saying he did find Kyle Lydell Canty to have a genuine fear of returning to his home country, adjudicator Ron Yamauchi said that was not enough to grant asylum.

A string of shootings of black men by U.S. police over the past 18 months have led to widespread protests and the issue has fuelled a civil rights movement under the name Black Lives Matter.

“The Act does not protect claimants from every form of ill-treatment, suffering, and hardship,” he wrote in the decision, dated Dec. 3. “It is addressed at situations of persecution, which is serious harm, an interference with a basic human right.”

He added: “There are no substantial grounds to believe that his removal to the United States of America would subject him personally to a danger of torture.”

Source: Canada rejects African-American’s asylum claim – The Globe and Mail

Refugee board members’ rulings varied widely in 2014, data suggests

Good and necessary analysis and wonder if the IRB uses this data as a quality control measure. There may be valid reasons for variation, and the sample sizes are relatively small, but generally variation on this scale suggests “automatic thinking” and biases may be playing a role.

The good news is that under the new system and a better selection process for judges, the variation appears to be decreasing:

The data show many decisions by adjudicators fall far below the average rate of acceptance that would be expected based on country of origin, and others far above. And that’s the case in both the old, or “legacy,” system and the new system, which is supposed to be more fair.

As examples, Rehaag pointed to some judges least likely to grant refugee status:

In the legacy system, Edward Robinson (2 claims granted out of 65 total decisions, or 3.1 per cent) and David McBean (1 out of 21 decisions, or 4.8 per cent).

In the new system, Teresa Maziarz (15 of 53 decisions, 28.3 per cent) and Brenda Lloyd (25 of 64 decisions, 39 per cent).

He also pointed to others on the other end of the scale, who granted refugee status in most of the cases they heard:

In the legacy system, Barry Barnes (59 of 77 decisions, 76.6 per cent) and Kevin Fainbloom (53 of 75 decisions, 70.7 per cent).

In the new system Nina Stanwick (35 of 38 decisions, 92.1 per cent) and Rabin Tiwari (104 of 117 decisions, 88.9 per cent).

In a written response, a spokesperson for the IRB noted there are many factors that can cause variations in acceptance rates.

“Each refugee protection claim is unique and is determined by members on its individual merit,” Melissa Anderson wrote.

Anderson cited as factors the region or city in which claimants lived, their ethnicity or nationality, their gender, whether they spent time in a third country without making a refugee claim before coming to Canada, and the evidence they or their lawyer presents to the refugee protection division.

Analysis of data on Immigration and Refugee Board decisions shows a wide variance in outcomes depending on who is hearing a case.

She also noted that the credibility of the claimant can be a key factor in the decision.

Still, immigration lawyers who regularly appear before the board say those factors don’t explain the extreme discrepancies among some decision-makers.

Immigration lawyer Lorne Waldman says he’s always worried if he has to argue a case before certain judges.

Waldman added, that while there is still inconsistency among adjudicators in the new system, he believes the variation is “less extreme” for cases post-2012.

He attributes the change to a new selection process for board members that includes people from outside the IRB.

Refugee board members’ rulings varied widely in 2014, data suggests – Politics – CBC News.