Law Times

April 16, 2018

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Law Times • apriL 16, 2018 Page 3 IRB vacancies make for greater delays for clients BY DALE SMITH For Law Times T he government's slow pace in filling vacancies on the Immigration and Refugee Board has led it to declare that it will no longer be meeting legislated timelines in the face of a wave of irregu- lar asylum seekers crossing the Canada-U.S. border. Immigra- tion lawyers say this is creating greater delays and uncertainty for their clients. "People have to wait a lot longer for their hearings," says Chantal Desloges, senior part- ner with Desloges Law Group in Toronto. "That may not be a big deal if you're a person under a deporta- tion order — you might not want your hearing to come quickly, but it's definitely a big deal if you have sponsored your spouse or your parents and you're waiting for your family to be reunited in Canada." Desloges notes that, in some places in Canada, including Toronto, an appeal hearing can take up to two years, after a year or more to get the initial decision on the application, which is dis- tressing for clients. "It's distressing for us, too, be- cause we care about them," Des- loges says. According to figures provided by the IRB, there are currently 15.5 vacant positions out of a to- tal of 58 in the Refugee Appeal Division and six vacant posi- tions in the Immigration Appeal Division out of a total of 44. The IRB notes that some positions are filled by part-time members. Both of these divisions are filled by Governor-in-Council appoin- tees, while the Refugee Protec- tion Division and the Immigra- tion Division are filled by public servants, for which there are two vacant positions out of a total of 119 in the former and one out of a total of 31 in the latter. "The worst part is that clients are waiting for their hearings, and you get a call shortly before the date and they say your case is being postponed adminis- tratively for lack of a member," says Shoshana Green, partner with Green and Spiegel LLP in Toronto. She says under-resourcing at the Canada Border Services Agency also means that its offi- cers can be short-staffed, which can also delay hearings. "It's not getting better," Green says. Desloges says that when hear- ings get postponed because there is no IRB member available to hear it, all of the hours of prepa- ration are lost and need to be re- peated for the next hearing. Be- cause most immigration lawyers work on a f lat fee, this greatly in- creases the amount of work and affects a lawyer's bottom line. "Clients don't understand the systemic issues affecting the processing time of their refugee claim," says Taiwo Olalere, part- ner with Olalere Law Office in Ottawa. "As a lawyer, you can only try to explain what the is- sues are, but most clients still don't understand." Desloges notes that this is not a new problem for the IRB. "It seems to rear its ugly head from time to time over the years," says Desloges. "They go through periods of time when there are hardly any appoint- ments; then there are a f lurry of appointments, and then it goes back to the same thing." Desloges adds that the under- staffing must also affect the IRB members themselves, if not in the quality of their decisions but their mood. "It's just common sense and human nature," she says. Green echoes the sentiment. "I feel for the people run- ning the tribunals because their hands are tied," says Green. "They're given more [of a] caseload without more resourc- es in an imperfect system." While the IRB is attempting to create efficiencies to reduce its backlog, Desloges says that some of the efforts are bearing fruit, which includes a new schedul- ing process done by email that takes far less time and triaging cases so that two straightfor- ward cases can be heard in the same scheduled time slot as one regular case. "Those are great," Desloges says. She says she is concerned, however, that the pressure on IRB members creates the danger that efficiency will overtake fairness. With refugee cases, the IRB announced that it would no longer be respecting the 60-day legislated timeline and move to a first-come, first-served basis be- cause of the increase in claims, particularly because the 60-day period was never enough time for lawyers and clients to get all of the necessary paperwork or for the government to complete the necessary security checks. "You don't come to Canada ready with all of these papers," says Green. When hearings were post- poned because of a lack of docu- mentation and newer claims were being heard within the 60-day period, it created a sense of un- fairness as delays compounded for some claimants whose cases had been put into the system first. "I had one client who had to go and see a psychiatrist because she was so stressed," notes Des- loges. A spokesman for Minister of Immigration, Refugees and Citizenship Ahmed Hussen did not provide a timeline for when the vacancies would be filled. The spokesman said the federal government had put into place a merit-based appointment pro- cess to allow for high-quality candidates that ref lect Canada's diversity. "We have already appointed 99 highly qualified individuals to the Immigration and Refugee Board, with more appointments to follow in the coming months," said Mathieu Genest, press sec- retary to the minister. LT NEWS Chantal Desloges says that when hearings get postponed because there is no IRB member available to hear it, all of the hours of preparation are lost and need to be repeated for the next hearing. Untitled-1 1 2018-04-12 11:13 AM

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