Are Liberals screening out Conservative-appointed refugee judges?

A reapplication process for judges in the Immigration and Refugee Board is a sham, used as a false pretense to let go of Conservative-appointed appeal judges with expiring three- to five-year mandates, say two experienced appeal judges.

Between the immigration and refugee appeal divisions, 14 appeal judges with expiring mandates were not renewed, despite most of them reapplying for their jobs, and left the Immigration and Refugee Board (IRB) since August 2016. Those appeal divisions now have 29 vacancies, and another 29 mandates are set to expire before the end of this year out of a full complement of 102 appeal judge positions.

Trudeau’s Liberals last year created what they called an “open, transparent and merit-based” reapplication process for judges within the IRB’s two appeal divisions, which was supposed to be part of a new system for non-partisan selection of cabinet appointments.

The Toronto Star first reported recently that some outside immigration experts and IRB judges assert the Liberals are “housecleaning” appointees of the previous Conservative government of Stephen Harper.

National Observer has learned more details of the reapplication process, apparently “rigged” for failure,” from two IRB judges who say Conservative appointees are being screened out and institutional memory is being lost in the process.

Shortage of judges

The IRB refugee appeal division currently has 23 vacancies within full capacity of 58 judges. Another 13 mandates expire this year. Given the recent spike in cases, if the shortage of appeal judges worsens, a large backlog of refugees awaiting appeal hearings will surely grow.

Authorities estimate 30,000 refugee claims this year. Appeals totalled 3,809 last year, with a backlog of 1,934 pending as this year began.

The two IRB judges that spoke to National Observer say they are frustrated by the Liberal government’s process for applying for reappointment. They spoke on condition of anonymity for fear of repercussions.

Experienced IRB judges applying for reappointment are first given an online test on labour law, a type of law unrelated to the understanding of immigration and refugee law, they said.

Those who pass the test are then interviewed by a selection committee run by the Privy Council Office (PCO), which is supposed to ensure nonpartisan cabinet appointments. The committee includes an individual from each of the PCO, the Prime Minister’s Office, and the immigration department, as well as the IRB chair. Ultimately the Minister of Immigration, Refugees and Citizenship decides on reappointments.

No reasons given for rejection

Several who passed both the test and interview were not reappointed, the IRB judges said.

At least three judges passed the test and interview and received letters of recommendation for reappointment from former Immigration Minister John McCallum but had those decisions reversed by current Immigration Minister Ahmed Hussen. They were not given a reason for the reversal.

At least four other judges who also passed the process were not recommended for reappointment. They were not given any reason either.

Before the Liberals instituted the reapplication process, IRB judges didn’t reapply for their positions but instead were reappointed or let go based on their work record and productivity level.

Past policy also had IRB judges notified six months prior to expiration of their mandates whether or not they’d be reappointed. Under the new process, some judges who passed the reapplication process were not notified until weeks before or after their mandates expired that they would not be reappointed.

“It’s a pretty technical job”

“It’s pretty clear they intend to wipe out probably anyone that was appointed by the last government, which means just about anybody with experience is being removed. And that’s pretty significant because it’s a pretty technical job,” said one judge.

“[It] has a very strange feel to it. It’s been across the board with just wiping out, it appears, anyone who got appointed during the Conservative reign of power,” said another judge who was told they failed the test but was not allowed to see the results.

“So the real question is why does somebody who has been there for five, six, nine, ten years performing the job, who’s had performance evaluations--you could look at those--have to write a test on an unrelated field of law … which has nothing to do with the work you do,” the judge continued. “And if you want to see your test [results] you can forget about that.”

Bernie Derible, Hussen’s director of communications, said in an email that the Liberals “made a commitment to Canadians to fix the Conservatives' broken approach to appointments that resulted in several non-transparent 11th-hour appointments.”

He said that even if an applicant passed the test and/or interview, “a variety of other factors may have played a role in the decision on whether to reappoint a judge."

Other evaluation factors he cited were “feedback from supervisors and the Chair on the applicant’s performance, federal court return rates, productivity and quality of decisions made.”

Loss of institutional knowledge

He declined to comment on why Hussen rejected McCallum’s recommendations, stating he couldn’t speak to specific cases due to the Privacy Act.

On top of a growing list of refugee appeal division vacancies, many current judges are new appointees, which means they will not be at the same productivity level as experienced members, likely exacerbating the backlog problem.

“Generally it takes up to a year for a new member to become fully productive,” explained IRB spokesperson Anna Pape.

A current IRB judge says the board is undergoing a great loss in institutional knowledge.

“There simply will not be a lot of experienced members left to mentor at all. They will be leaving just as the new group is coming in. So the board tries to retain us with an agreement to mentor our replacements,” said the experienced decision-maker.

“This creates a huge hole in the transfer of knowledge because it’s such technical, specialized knowledge. This is not something that you can read a book and off you go.”

IRB ill-equipped?

IRB chair Mario Dion told Canadian Press last month that the board needs more funds to handle a projected 30,000 or more refugee claims this year. “Efficiency has increased significantly, but there is no way we can deal with 30,000 cases when we’re funded for about 17,000,” Dion said.

Refugee appeals have already rapidly increased each year since the division was created in late 2012. In 2013 there were 510 new appeals and by 2016 the number jumped to 3,809. Pending appeals steadily grew from 458 in 2013 to 1,934 by the end of last year.

Back in 2007 the Harper government made a flurry of IRB appointments because a large number of vacancies had contributed to a backlog of almost 1,000 refugee claims added monthly. An immigration backlog was also piling up.

Back then the federal government was responsible for the appointments of judges in all three divisions of the IRB: immigration, immigration appeal, and refugee protection.

When the Harper government overhauled the IRB at the end of 2012, the refugee appeal division was added and the protocol was changed to speed the process for initial hearings. From then on only the two appeal divisions’ judges were government-appointed.

Five years later, thousands still waiting

Although the Harper government eventually addressed a backlog of over 40,000 at the refugee protection division, it also created nearly 17,000 legacy claims by the end of 2013. Legacy claims refer to refugee claimants’ who had their hearings in 2012 pushed aside for new claimants who needed hearings within 60 days under the new legislation.

At the end of 2016, there were 5,601 legacy claimants still awaiting their hearings, five years later. The new increase in claimants this year and the shortage of judges could mean an even longer wait for a decision on their outstanding claims.

The PCO, IRB and Hussen’s office were not definite on the timeline to fill the vacancies currently at the IRB’s appeal divisions. “Selection processes are well underway for existing and future vacancies and announcements will be made in due course,” said Rivet of PCO.

Despite the spikes in refugee claims, the Liberal government did not allocate additional funds in the recent budget for the IRB, but did give more money for ministerial intervention--decisions the government wishes to challenge--and for refugee legal aid.

The IRB was given an additional $4.57 million in late March to deal with an expected increase in refugee claims from Mexicans because a visa requirement was recently waived. But no additional funding was given to address the overall increase in refugee claimants which, according to one IRB judge, exceeded 3,000 in March alone.