Canada’s refugee board abruptly changes its scheduling system amid surging backlog
By changing the system, the board is “shifting things around without solving the problem,” one lawyer says.
Thousands of refugee hearings that had been scheduled for this year have been abruptly cancelled so officials can roll out a “first-in, first-out” scheduling system amid a backlog that has been growing with no end in sight, the Star has learned.
In a form letter, the Immigration and Refugee Board told recent asylum-seekers that they should expect their cases to be heard in between 12 and 24 months as the board prioritizes hearings based on the date they are referred by immigration and border enforcement officers, affecting both those who cross the land border and those who arrive by air.
In recent years the refugee board has been under tremendous pressure to meet a 60-day statutory requirement for most asylum cases, part of the reforms made by the former Conservative government in 2012 to fast-track the refugee determination process and expedite removals of failed claimants.
“It is unfair to the board that the government created this law. The timelines are certainly not working out,” said Janet Dench of the Canadian Council for Refugees, adding that the new scheduling system is good news to those who have been languishing in the backlog but bad for recently arrived claimants.
With limited resources and no control over the intake of new claims, the board has been unable to abide by the restrictive timelines, which fail to account for administrative delays such as when a refugee judge is sick, an interpreter is unavailable or the claimant’s lawyer is absent.
While the board had been prioritizing the most recent claims to meet timelines, it stopped rescheduling cancelled and adjourned hearings — and the backlog has snowballed. The recent surge of refugees illegally crossing from the U.S. border has exposed the long-standing crisis.
“The board has to process claims in so many days and they have not been given the resources to do that,” said Lobat Sadrehashemi, president of the Canadian Association of Refugee Lawyers.
“Immigration (officials) and Canada Border Services Agency schedule new hearings. The board does not have control over scheduling.”
The refugee board has confirmed to the Star the cancellations of the hearings for new claims and said it has notified key stakeholders about the changes, which would be publicly announced in detail later. The number of postponed hearings has been on the rise since 2012, accompanying an increased number of claims, it said.
The “new approach will yield some efficiency gains, thus helping to reduce pressure in Canada’s refugee determination system,” said the board’s spokesperson Anna Pape. “(The board) must postpone recent referrals at this time due to the operational limitations. The refugee protection division is working to ensure that all matters are heard in a manner that maximizes fairness and equal access to justice.”
While the new scheduling approach will process claims in the order in which they are received, Pape said the board will prioritize claims involving unaccompanied minors and vulnerable persons, as well as straightforward cases from one of the eight selected countries with generally high acceptance rate.
Since December, refugee lawyers and their clients who had asylum hearings scheduled for 2018 began receiving notices from the board that their proceedings have been cancelled due to the new scheduling practice, but no new hearing dates were provided.
Toronto lawyer Esther Lexchin said she has had seven hearings for clients cancelled so far and the most recently arrived refugees are all being given a hearing date of June 1. Given the enormity of the backlog, she expects these hearings will be postponed.
“It’s like a placeholder. There is no way they could hear all the cases on June 1. It gives people a false sense of hope. My clients are disappointed to say the least. Some of them left their spouse and children overseas. They don’t come and hope to be here in limbo for several years,” said Lexchin.
“The government made rules on how fast things should be done but the problem is the board doesn’t have the resources to hear all these cases. Something has to be done.”
Raoul Boulakia of the Refugee Lawyers Association of Ontario said the board is essentially playing musical chairs pitting new claimants against those in the backlog.
“They are shifting things around without solving the problem,” said Boulakia. “This (problem) was created by the previous government, but it’s not helped by the Liberals, who have so far ignored it. The new arrivals are guaranteed a long wait unless they can be expedited.”
Despite the surge in claims — a backlog of 34,462 cases as of September 2017 — that almost doubled the total the year before, the Trudeau government has not responded to the board’s repeated pleas for more resources.
Instead, Immigration Minister Ahmed Hussen ordered a review of the board to look for “efficiencies and higher productivity” last summer. Recommendations are expected in June.
Boulakia said advocates and community groups have urged Ottawa to allow people who have been waiting for asylum for a prolonged time to apply for permanent residence. “My view is it should be after two years. That would greatly reduce the backlog,” he said.