ARCHIVED – Governor in Council Appointments Process — Immigration and Refugee Board of Canada

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Report to the Minister of Citizenship and Immigration Canada
January 2007

• Objective
• Terms of Reference
• Methodology
• Context
• The Immigration and Refugee Board (IRB)
• The Work Context
• Appointment Process for IRB Members
• Issues and Recommendations
• Annexes (PDF, 148 KB)

Objective

This report has been prepared by the Public Appointments Commission Secretariat (PACS) for the Minister of Citizenship and Immigration. The purpose is to review the process whereby the Governor-in-Council (GiC) appoints the members of the Immigration and Refugee Board (IRB). A new and comprehensive competency-based approach to the selection process for IRB members was introduced in 2004. The questions are — how effective is this new approach in meeting the objective of merit-based appointments while respecting the prerogative of the GiC, and what if any are the options for updating it?

Terms of Reference

The detailed Terms of Reference for this review are attached at Annex 1. The review has been done in the context of maintaining competency-based non-partisan appointments while ensuring that:

• the government’s policy objectives are reflected
• appropriate Ministerial input is ensured
• a sufficiently broad pool of candidates is sought out; and
• the various screening tools used throughout the process are adequate.

The principles to be respected are those which the Public Appointments Commission might consider as part of the eventual “Code of Practice” for public appointments. These are:

• the public interest
• Ministerial prerogative (GiC)
• competency
• transparency and fairness
• timeliness
• consistency

Methodology

This review has been undertaken using documents and data provided by the Immigration and Refugee Board. Meetings have been held with the Chair, the Advisory Panel and a number of IRB Members. For benchmarking purposes, meetings were also held with the Heads and selected Members of the National Parole Board and the Veterans Review and Appeal Board.

In addition PACS officers have attended IRB hearings in order to appreciate more fully the nature and complexity of Members' roles, and have discussed these issues with a number of Members. A study of the exam used in the selection process was undertaken by a third party (Sussex Circle).

Context

Immigration: a matter of history and the future

Canada’s non-aboriginal history is based on immigration. From the earliest European settlement to the present time, immigrants have played a key role in Canada’s evolving fabric, its prosperity and its social web. Over several centuries Canada has been the destination of migrants from all the continents, and has been the place of refuge for many who have been persecuted, displaced or rejected by their own societies.

Immigrants have contributed, and continue to contribute, directly to Canada’s rich mosaic of cultures and to the development of a progressive economy. While there have been periods in history when certain groups have been excluded from entry to Canada, immigration policy has been, and continues to be, one of receptivity to all cultures and backgrounds. Indeed, because of evolving demographics, the Government of Canada has recently embarked on a policy of increasing the annual rate of immigration.

Seeking refuge

Canada also respects its moral and its legal obligations under international conventions to accept refugees who have fled from failing, illegitimate, or oppressive regimes (i.e. the 1951 Convention Relating to the Status of Refugees, the 1967 Protocol Relating to the Status of Refugees, the 1984 Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment). As situations change and deteriorate in various parts of the world, the number and origins of “vulnerable persons” can shift in size, scope and complexity. Determining who is a bona fide refugee and who is not, and assessing the risks associated with the possible removal of persons from Canada in these situations are also part of Canada’s obligations to global society. Canada takes these obligations very seriously and is recognized as having one of the fairest, most professional and comprehensive refugee determination systems in the world:

“In general, we find Canada’s procedure for the determination of refugee status to be of a very high quality. From our observation, we find that the Immigration and Refugee Board has in place a fair and sound first instance decision-making procedure, which is very much enhanced by the fact that the IRB is an independent body”. (Jahanshah Assadi, Representative in Canada, United Nations High Commissioner for Refugees)

Becoming part of the Canadian fabric

Immigration leads to citizenship and all of the benefits, privileges and responsibilities which it bestows. Consequently, decisions as to who can come to, or stay in, Canada are fundamental to the current and future interests of the federation, and must be permanently anchored in Canadian values.

The need for adjudication

The majority of immigrants arriving in Canada, or wishing to come here, have followed due process. Some would-be immigrants have not, while others have been refused the right to immigrate or to stay in Canada on various grounds. The status of these individuals, and appeals of decisions regarding their status, requires appropriate adjudication.

Equally, many refugees who arrive in Canada have been dispossessed for some time. Often they have fled their homes and countries of origin in haste following harassment and persecution, or in fear of persecution, and have spent lengthy periods in debilitating conditions. Claims to bona fide refugee status require determination under international conventions as well as domestic law.

The Immigration and Refugee Board (IRB)

The Immigration and Refugee Board (IRB) was created by an Act of Parliament in 1989 as an independent administrative tribunal performing quasi-judicial functions. Its current mandate as contained in Part 4 of the 2001 Immigration and Refugee Protection Act (IRPA) is to:

• determine claims for refugee protection made in Canada;
• adjudicate admissibility hearings (formerly immigration inquiries) and review
• reasons for detention; and
• decide appeals of sponsorship refusals, removal orders and residency obligation decisions, and decide appeals by the Minister of Citizenship and Immigration from decisions made in admissibility hearings.

The IRB consists of three divisions [note 1] (Organization Chart at Annex 2):

The Immigration Division conducts admissibility hearings at the request of the Canada Border Services Agency for foreign nationals or permanent residents who are believed to have contravened the IRPA. It also conducts detention reviews for most persons being detained under the Act. Employees of this division are federal public servants.

The Immigration Appeal Division hears and decides appeals on immigration matters such as refused sponsorship applications and removal orders. It may allow an appeal and set aside the original decision if there was an error in law or fact, or a breach of a principle of natural justice. Hearings are adversarial.

The Refugee Protection Division decides refugee claims made by people who are in Canada. It holds determination hearings or uses other processes to come to these decisions. The refugee claimant has the burden of proof and the refugee determination process is usually non-adversarial and in camera. Members determine whether the claimants are convention refugees or persons in need of protection.

Other than the Immigration Division, all Members are appointed by the Governor-in-Council. For 2006-07, the IRB’s full complement to respond to current workload requires a total of 156 GiC positions. As of 1^st December 2006, 50 of these were vacant.

The current review relates exclusively to the selection processes for members of the Immigration Appeal Division and Refugee Protection Division.

The Work Context

Legislative change

One of the key changes made to the legislation in 2001 was to do away with adjudication panels and to replace them with a hearing by one IRB Member. This seemingly simple change has meant that in order to perform their duties effectively each Member needs to possess or acquire a broader set of skills and experiences than was previously the case.

Responsibility of members

IRB Members decide whether to regularise the status of an individual and allow them to come to or remain in Canada, whether to deny the claim and deny entry or, in some cases, whether to proceed with the expulsion or repatriation of the claimant. Such cases can give rise to significant community and media interest.

In addition to being the sole arbiter of cases, the IRB Member is usually dealing with issues of natural justice and human rights. Depending on the case, they are called upon to dispense declaratory, transformational and, often, restorative justice.

Complexity of the task

The Member must not only prepare for and secure the facts of each case, but also determine the identity and credibility of the claimant. For immigration appeals, Members must also sift through opposing arguments made by Counsel and the Crown, often in public, and in many cases in a situation of highly charged emotions. The Member is frequently reliant on the accuracy of interpretation from various languages and dialects, and is required to be conversant with the social, religious, and political situation and other country-specific conditions affecting the claimant’s case. Credibility of the claimant often has to be assessed in the absence of any corroborating evidence. Members also have to determine the veracity of documents of all kinds.

In addition, Members have to deal with very complex legal issues. Refugee cases involve the interpretation and application of international conventions, human rights law and international law.

The ability of Members to manage hearings and to arrive efficiently and effectively at clear and well-reasoned decisions is crucial, but so too is their comportment and their ability to apply broader skills relating to the nature of the work. These include: the ability to listen; being patient though firm in intent; and being compassionate when necessary — but without bias.

The public interest

The decisions made by IRB members have significant import for the public interest. Failure to make appropriate decisions can create risk to society and can undermine the integrity of Canada’s immigration and refugee programs. The range of risks is high and includes screening in individuals who may become a threat to Canada’s interests, or rejecting legitimate claimants based on a misinterpretation of facts.

Weak members can also have a negative impact on the IRB’s collective caseload and lead to uneven workload distribution amongst members and increased backlog if members are unable to hold timely hearings.

Over the last several years the IRB has been significantly professionalized and, as noted earlier, it is now seen as one of the most competent and well-functioning organizations of its kind. There is clearly neither an interest nor a desire to reduce the high level of expected competence.

It is therefore critical that potential IRB Members meet the high standard of competence expected of them, and this is why a new and sophisticated recruitment approach was introduced in 2004.

Appointment Process for IRB Members

Required competencies

One of the key elements of the reformed IRB appointments process was the introduction of a new set of competencies related to the role of Members. The updated competencies aim at ensuring that GiC Members have the necessary skills, abilities and personal suitability to perform their duties. These are used in the selection process to develop lists of qualified candidates for consideration by the Minister and the Governor-in-Council and are applied to Members seeking reappointment. They are also used to determine the capacity of each candidate to undertake the extensive training required before exercising the role of a Member. The required competencies are at Annex 3.

Selection process

In March 1995, the then Minister of Citizenship and Immigration established a Ministerial Advisory Committee to assist in the selection of members of the IRB. In December 1997, the Auditor General considered this as “a step in the right direction” as it allowed the selection of qualified candidates in a more transparent way.

In March 2004, the IRB implemented a more independent, transparent and merit-based selection process. Competency profiles were updated to ensure a supply of high quality candidates for appointment and to respond to current and future needs of the IRB. Revised screening tools were introduced to assess the competency and experience of applicants. One objective of the new selection process was to address the perception of patronage by replacing the existing Ministerial Advisory Committee (appointed by the CIC Minister) with an Advisory Panel and Chairperson’s Selection Board accountable to the IRB Chairperson. The reappointment process for IRB Members was also revised to include performance evaluation consistent with the new merit-based criteria.

PREVIOUS PROCESS		2004 AMENDMENTS* Minister is accountable for system
Accountability for selection and quality rests with the Minister		Accountability for selection and quality is shifted to the IRB Chairperson
Advisory Committee members nominated by the Minister		Advisory Panel to be appointed by IRB Chairperson and the CIC Minister; Chairperson’s Selection Board to be appointed by IRB Chairperson
Screening criteria and evaluation tools guarantee a minimum of qualification		Merit-based criteria are strengthened and screening tools are revised to reflect redefined competency profiles
Interviews conducted by Advisory Committee members who have no expert knowledge of IRB		Chairperson’s Selection Board is composed of experts with an in-depth understanding of IRB and its decisionmaking process

* Source: Ministerial Press Release, March 16, 2004

Advertisement of vacancies	Average length
Application Made to IRB
Preliminary Screening (evaluates basic requirements)	2-3 months
Written Test Evaluates 4 competencies: Judgement/Analytical Thinking, Conceptual Thinking, Decision Making, Written Communication
Advisory Panel - Re-evaluates the 4 competencies of the written exam - Candidates screening and assessment using other available documentation	Within 5 months after application to the IRB
Chairperson’s Selection Board - Evaluates 6 competencies: Oral Communication, Information Seeking, Organizational Skills, Results Orientation, Self-Control, Cultural competence - Reviews evaluation results - Interview and reference check - Qualified candidates identified	Within 1 month after the Advisory Panel meeting
Recommendation to Minister IRB recommends qualified candidates to Minister
Recommendation to the GiC Minister recommends appointments to the GiC taking into consideration IRB operational, gender and diversity requirements
Appointments to IRB

Applications to become an IRB member are first screened to evaluate basic requirements. Those screened in are then required to take the written test, which is marked by people with in-depth knowledge of the IRB process. Successful candidates are then reviewed by the Advisory Panel and by the Chairperson’s Selection Board. The Board forwards the list of names of successful candidates (typically three per vacancy) to the Minister who, in turn, reviews the list and forwards his/her choices for consideration by the Governor-in-Council. The average length of time this process takes has been reduced from eight to five months since 2004.

Advisory panel

As announced in 2004:

“The advisory panel will be independent and representative of Canadians. Nominated by the IRB Chairperson and the Minister, the panel will, for example include membership from the legal community, academia, nongovernmental organizations and human resource experts. The panel will assess the application form, curriculum vitae and written test results of each candidate to determine whether further consideration is warranted.” (Ministerial Press Release, March 16, 2004)(at annex 4)

The Panel reviews candidates against the same four competencies as the written exam, namely: judgment/analytical thinking; conceptual thinking; decision making; written communication. The Panel can choose to consider candidates who have failed the written exam. Decisions by the Panel are the result of lengthy discussions, and recommendations are made only once consensus has been achieved. Candidates who meet the requirements of the Panel are then forwarded for review by the Chairperson’s Selection Board. (see Advisory Panel and Chairperson’s Selection Board Members list at annex 5)

Chairperson’s selection board

The IRB Chair presides the Chairperson’s Selection Board, which is composed of IRB officials who possess an in-depth knowledge of the IRB and its decision-making process. The Board is responsible for conducting a Behavioural Event Interview of all candidates referred by the Advisory Panel, and for undertaking reference checks. (All members of the Selection Board are trained to conduct this type of interview.) The interview lasts approximately one and a half hours. The Board assesses candidates in terms of six competencies, namely: oral communication; information seeking, organizational skills; results orientation; self-control; and cultural competence.

Issues and Recommendations

Overall approach

The design, structure and timeliness of the IRB selection process is generally comparable to that of the Veterans Review and Appeals Board and the National Parole Board. (Annex 6)

The challenge of stocks and flows

IRB members are appointed by the Governor-in-Council for fixed terms subject to good behaviour. In 2006-07, to respond to the IRB’s workload, the full complement of GiC members requires 156 Members.

Since Members are appointed at different times, some are reappointed while others not, some resign to take on other duties, and some reach their maximum ten year limit, the full complement of Members (stock) is rarely achieved and the search for Members (flow) is a constant and ongoing task.

For logistical reasons the current practice is to hold specific recruitment campaigns, and to process a large number of applications at the same time. This allows for the effective use of the Advisory Panel by minimizing the number of times it meets, and therefore the cost of meeting, and it also permits the “bunching” of training when “batches” of appointments are made by the GiC.

The impact of this approach, however, is that while a recruitment campaign is under way the number of vacancies continues to increase ’ and the stock of Members goes down. Clearly, any delay in proceeding with appointments can exacerbate this situation and lead to greater individual workload for the Members and to significant growth in the backlog of cases to be heard by the IRB.

The current recruitment campaign has been undertaken on a fast track basis so that lists of names can be provided more quickly.

Casting the net wide enough

The legislation requires that 10% of IRB Members and leaders of the Immigration Appeal Division have five years standing at the bar of a Province or, for notaries in Québec, at the Chambre des notaires du Québec. Given the need for the broad competencies outlined earlier, it is clear that technical abilities need to be complemented by broader skills and other Members are thus drawn from a wide variety of backgrounds.

The scope of the IRB’s role necessitates that the Board as a whole should represent the complex nature of Canada and its regions, provide services in both official languages, and be flexible enough to keep up with ever changing demographics. This means ensuring that the search for candidates is broad and inclusive in nature.

The most recent recruitment campaign was announced in the Canada Gazette and advertised widely in national newspapers. This resulted in three hundred and fifty (350) individuals with a variety of backgrounds presenting their candidacy for consideration.

Clearly the nature and content of advertisements affects the inflow of candidates. As vacancies occur, it will be necessary from time to time to review the collective competencies and backgrounds of the Board and identify gaps. The advertising strategy should flow from this analysis and, as necessary, target identified gaps.

Testing the required competencies

Candidates who are screened into the selection process following a paper review are then required to take the exam prepared by the IRB. Sussex Circle has reviewed the structure of the written exam (Annex 7), the way it relates to the required competencies, how it fits into the selection process, and how it compares with other federal quasi-judicial agencies.

The review concluded that the exam appropriately tests the required competencies and is now less subjective than the previous version. It also found that the period from invitation to write the test and referral to the Advisory Panel has been reduced from three months to one and a half months, and the time from invitation to write the test to referral to the Chairperson’s Selection Board has been reduced from five months to two. These are impressive improvements in efficiency and timeliness.

Use of the pass mark for the written exam

The results of the written test as a predictor of success in the overall selection process were also examined. In the current marking system “A” is the lowest grade and “E” is the highest. The IRB’s rating guide (“Marking For the Written Test”) specifies that in order to proceed beyond the written test, a candidate must achieve a minimum pass mark of “C” (9 points) in each of the four competencies and a minimum overall grade of 36 points. (See Annex 8). However, based on IRB data, a significant number of individuals who failed to achieve the pass mark were subsequently considered by the Advisory Panel and referred for Ministerial and GiC consideration.

Of the current list of 71 names available for Ministerial selection, 20 individuals (28%) did not meet the two “pass conditions” set out in the rating guide. The reason for retaining these individuals in spite of weak test scores is unknown.

When candidates who fail to meet the requisite pass marks are nevertheless able to proceed to further stages of the selection process, this reduces the usefulness of the test, weakens the transparency of the process, reduces equity for other candidates, and increases the workload of the Advisory Panel and the Chairperson’s Selection Board. In comparison, the other two quasi-judicial processes that were examined rely on pass marks to determine whether candidates should be further evaluated.

Advisory Panel and Chairperson’s Selection Board

As noted previously, there are two distinct groups involved in the review of candidates: the Advisory Panel and the Chairperson’s Selection Board. Each is composed of different people who are required to acquaint themselves with the relevant information and files.

As a result of the inclusion of applicants who did not pass the written exam, a very large number of applications are considered by the Advisory Panel. Since the written exam has been in place, 449 individuals have written the test:

• 101 were screened out based on the test results (22%) while 348 were referred to the Advisory Panel;
• of the 348 referred to it, the Panel screened out a further 222 candidates (49% of the original intake); and
• the remaining 126 individuals were referred to the Chairperson’s Selection Board. (See Annex 9 for “metrics”)

If the written exam served its intended screening purpose, there would be fewer candidates referred onwards. This would reduce the workload of the Advisory Panel. It might then be possible to realize further streamlining by combining the Advisory Panel and the Chairperson’s Selection Board. The combination of the two groups would lead to an expanded role for the new Committee which might need to be somewhat larger than either of the existing bodies. This would have to be considered against the benefit of increased timeliness resulting from the compression of the process.

Consideration could also be given to putting in place regional selection committees, but the efficiency thus gained would have to be weighed against the need to have consistency in decisions.

The prerogative of the minister and the governor-in-council

As determined in the legislation, Members of the IRB are appointed by the Governor-in-Council on the recommendation of the Minister of Citizenship and Immigration based on a process undertaken by the Chair. The Minister and the GiC, because of their prerogative, have a direct and legitimate interest in both the appointment process and in the development of the lists of potential IRB Members which are provided for their consideration by the Chair. The question is — when and how should this prerogative be expressed in the selection process? Currently Ministerial input occurs only once the process is completed and a list of candidates is forwarded for referral by the Minister to the GiC.

Members of the Advisory Panel are currently appointed by the IRB Chair. The original intent of the 2004 process was that Advisory Panel members would be chosen jointly by the Minister and the Chair. The 2004 Press Release states that: “The advisory panel will be independent and representative of Canadians. Nominated by the IRB Chairperson and the Minister, the panel will…”

At a minimum, and consistent with the original intent of the current selection process, the Minister’s views should be considered in choosing Advisory Panel members. If the proposed model of merging the Advisory Panel and the Chairperson’s Selection Board is accepted it would be appropriate and timely to ensure Ministerial input into the selection of the external members of this new Committee.

At the end of the selection process the Minister would be presented, as is the current practice, with a list of three names of qualified individuals for each vacancy. This would allow for the continuation of Ministerial and GiC discretion while ensuring that all who are on the list have the right combination of knowledge, background, experience and required competencies to perform the function of an IRB Member in an effective manner.

Board stability

In recent years, the length of time it takes to complete a selection process has, on average, declined. However, there are still significant — and perhaps unavoidable — uncertainties. Individuals who apply to become Members may also be involved in other job searches, and so the sooner they can be informed of the outcome, the better.

Existing Members who are candidates for re-appointment are in some ways in an even more precarious position since non-renewal means that they will most likely have to seek other gainful employment. The period of time before learning whether or not they are to be re-appointed can be one of great anxiety and uncertainty for Members. By some accounts this uncertainty is having an important multiplier effect. When the overall complement of Board Members is less than the approved number, the workload of current Members is necessarily increased. This can lead some whose term has not expired to be attracted to other opportunities elsewhere — thus leading to even more vacancies and a further loss of talent.

It would be inappropriate and impractical for the Minister and the GiC to provide guarantees concerning the timeliness of decisions regarding appointments and reappointments. However, a simple undertaking to deal with appointments and reappointments expeditiously, and to provide information in a timely manner, would go a long way toward stabilizing the organization. For example, if it is known that a certain Member is to be re-appointed (or not, as the case may be), the individual should be informed as soon as possible.

According to the legislation, IRB Members can be appointed for a maximum individual term of seven years, and can be re-appointed. The current practice is to appoint Members for a first term of two years followed by re-appointments of five and three years (when approved by GiC). The informal protocol is that after ten years Members are not considered for further re-appointment. Clearly, if the average tenure of an IRB Member were longer, the churn rate and flow of appointments would be lower; the converse is also true.

All new Members are given extensive up-front training, and it takes them some time (six months to one year) to become fully contributing Members. If the length of appointment is too short, this investment by the Crown and by the Member can be lost. Also, the longer someone is a Member, the greater the likelihood that he/she can take on more complex cases and act as a mentor to newly appointed and less experienced Members — in other words, the individual becomes a source of corporate memory. The more experienced Members are also the most important source of Board leadership.

However, lengthier tenures can impede the introduction of new and different skills to the Board and can reduce the flexibility of the Minister, the GiC, and the Chair to adapt the Board to new and different circumstances. The challenge is to get the balance right.

By appointing members for a first term of two years, the Chair and others are able to use this probationary period to assess the performance of the new Member and to recommend re-appointment or non-re-appointment. (However, since these are GiC appointments, positive performance does not automatically lead to a renewed term.) Given the up-front investment in developing Members’ skills, consideration should be given to increasing the length of the first appointment to three years — thus trading off some of the probationary advantages of a two-year appointment against stability while the Board rebuilds itself to a fuller complement.

In the case of re-appointments, the Minister and the GiC need to maintain as much flexibility as possible, even considering short term re-appointments when necessary. However, the IRB would be provided some stability if the GiC continues the practice of re-appointing for five years, followed by another two years.

Conclusion

The above recommendations reflect the principles that underpin this study (Annex 11).

The proposed changes would also: strengthen the competency focus of the IRB selection process for GiC members; better reflect the interest of the Governor-in-Council; ensure broader representation on the Board; provide a more efficient selection process; allow for greater transparency and equity for candidates; and lead to increased Board stability.

In order to avoid further delays in the appointment process, the implementation of any of the above changes should take place after the current selection process is completed.

1. The Refugee Appeal Division has never been put in place but was intended to decide appeals from decisions made by the Refugee Protection Division.