Refugee board patronage appointees will follow political directives
Recent IRB appointees include anti-gay evangelical and brass from CLAC, the anti-union union.
by Ish Theilheimer, with Stephanie Fahey
OTTAWA, May 14, 2009, HarperIndex.ca, with YouTube video: Recent appointments to Canada's Immigration and Refugee Board (IRB) show that despite the government's talk of reform, decisions on the fate of immigrants claiming danger in their home countries remain intensely political. Rulings can be made by a single board members and there is no right of appeal. As a result, the life-and-death decisions board members make are frequently arbitrary and questionable, which raises particular concerns when the appointees have strong ideological viewpoints.
New appointees announced in March include Doug Cryer and and Edward J. Bosveld. Cryer is an evangelical Chrisitan publicly opposed to same-sex marriage. Bosveld has worked for years for the Christian Labour Association of Canada (CLAC), widely regarded as an anti-union organization favoured by construction and other companies trying to avoid dealing with actual unions.
How board members get appointed "has been suspect since the formation of the board in 1989," former IRB chair Peter Showler told HarperIndex.ca. Showler is the Director of the Refugee Forum.
"At one time it was a purely political process, and outrageously incompetent people were appointed to be board members," he said. "There have been slow and incremental improvements over the years. However both the previous Liberal government and the Conservative government say it is now a merit based process. That is false. There is no accountability on who is appointed, when they're appointed and most frequently whether or not they are re-appointed."
See the full Straight Goods News interview with Peter Showler:
"I'm concerned the process is not as merit-based as it should be," Montreal immigration lawyer Mitchell Golberg told HarperIndex.ca. "On questions of life and death, I don't think any excuse for any patronage. It taints the whole system."
IRB decisions are made by individual board members. In the past, two board members made decisions jointly on each case. Currently, because the government has not fully implemented laws that have been passed, refugee claims are decided by a single board member with no appeal process whatsoever.
Critics are concerned that if an anti-gay board member hears a claim from a gay person fleeing persecution or death at home, the claimant's chances are poor. An anti-union board member might not admit a claimant from a country like Colombia, where trade unionists are routinely murdered.
"I do represent people who are gay. There is somone in my office right now making a claim," Goldberg said in a phone interview. "If I had that member [reviewing his case], my client would be very afraid he'd be biased."
Although many IRB members have professional training and all, theoretically, are screened for qualifications, and despite promises to make the process non-political, the Harper government continues to appoint members that suit its own purposes, activists say.
"This current Conservative government, the first thing that they did was fail to re-appoint very good members when they came up for re-appointment," said Showler. "The first consequence of that is they lost a third of their board members because they also failed to reappoint others."
In addition, the Harper government has failed to maintain full staffing of the board, leading to even longer-than-usual backlogs of claimants – 50,000 of them. Appointments slowed after the Conservatives were elected in 2006.
"We are now seeing signs that the Conservatives are starting to do what the Liberals did a lot of, which is to appoint people not based on merit but based upon their connections with the Conservative Party," said Showler. "Neither party have really taken refugee decision making seriously."
"This is part of the very backlog which the Harper government's  amendment to the Immigration and Refugee Protection Act has allowed the government to ignore nearly completely," immigration researcher Salimah Valiani told HarperIndex.ca. "In other words, the Harper government's focus is on processing immigration claims of temporary migrant workers in the 38 occupations prioritized by employers, a list the Harper government made public in November 2008."
In March, Auditor General Sheila Fraser reported that the appointment process for federal boards is a "black hole." Valiani says Fraser highlighted "the lack of accountability of the current government – not only in assuring that public corporations are led by competent people, but in erecting the Public Appointments Commission which was to overlook the government's work in this area. Not surprisingly, the Privy Council has accused the Auditor General of over-stepping territorial boundaries in producing her report!"
Duff Conacher, of Democracy Watch, says the Harperites have broken an important election promise by not reforming appointments. "By not keeping their promise to establish the Public Appointments Commission (PAC), the federal Conservatives are practising patronage and crony politics as usual, and harming Canadian democracy and the rule of law in the same way as every government has since the country was created 142 years ago."
Conacher thinks the Conservatives "thought they were going to get a majority, and just threw the promise in so that if anyone raised fears about a Conservative majority government and patronage and cronyism, they could say 'Don't worry, our election platform states that we will.'"
Janet Dench, Executive Director of the Canadian Council for Refugees, says the appointments process has been a problem since 1989 when the current system came in.
"There has been constant criticism of the partisan and poor quality of appointments under Liberal and Conservative governments," she says. The Liberals made reform attempts that were never completed and implemented. Things became more "politicized," she said, when the Conservatives came in, leading to the resignation in March 2007 of respected IRB chair Jean-Guy Fleury. Lawyers Weekly reported this was "sparked, at least in part, by the Conservative government's refusal to appoint and reappoint people to the board, despite his repeated entreaties to former Immigration Minister Monte Solberg, and Solberg's successor, Diane Finley.
"When I left it had been a very difficult year in terms of appointments and reappointments... we lost 300 years of experience in one year," Fleury told MPs April 24.
Showler says cynical observers think the government has left vacant positions "because they wanted the Board to fail, because it's quite clear the government and particularly the current Minister of Citizenship and Immigration, Mr.Kenny, have a different agenda. They want refugee reform. And what they mean by that is a far more drastic system where they have first level decisions being made by immigration or board security officers who will be quite untrained and base decisions not on the facts and the evidence but upon government policy. The current government has made it quite clear what their views of policy are."
Dench is also concerned about direct political interference in decision-making, saying Kenney "has been quite outspoken about what is the right way to make a refugee appeal. What is the possibility of influence if you've got a board member whose appointment depends on the minister and you've got a minister saying this is how refugees should have their claims determined? There's a clear likelihood that board members will be influenced."
"You're making potential life-and-death decisions about something that happened a long way away from Canada, and also about future events – whether the claimants have well-founded fears. The evidence is often very partial, and translation is often poor," said Dench.
Making matters worse, when the previous Liberal government changed the system so that decisions would get made by a single board member, they did not implement legislation to set up an appeal process.
In 2002, the Liberals brought in a compromise law, going from two decision-makers to one, "without implementing the section that gives claimants the right to appeal. The trade-off was completely sabotaged by this partial implementation," Dench said.
The result, is "a lottery", with "huge variations in acceptance rates" depending on which board member decides. "You can have two brothers with same experiences, and one will be accepted, and one refused," if their cases are heard by different board members.
"It goes both ways," said Goldberg. While agreeing with Dench, he says "There are people who are accepted who don't merit protection."