Patricia Ritter and church volunteer David Breech;  Photo by Paul Lawrence Click here to see full sized version.

Grace is on the verge of drowning in an endless sea of troubles. She thinks she is possessed by a demon. She has an itch so bad that her doctor worries she might literally scratch herself to death. And then there is the mental anguish that she and thousands of other refugee claimants suffer daily as they anxiously wait for their fates to be determined by the beleaguered Immigration and Refugee Board (IRB).

Grace (not her real name) and her husband fled the horrors of the Democratic Republic of Congo, where an estimated three million people have died so far due to the disease, hunger and violence associated with the continent-wide conflict.

Supported by a dedicated group of church volunteers in Toronto, Grace survives, but she suffers too as she waits in the depressingly long and fast-growing queue of people who seek determinations from the backlogged and understaffed IRB.

On April 23, 2007, 15 months after the Conservative government assumed power, more than one-third of the IRB’s 156 posts were vacant, including the chair — a staff shortage unprecedented since the board was created in 1989.

In the wake of four new appointments announced by the government April 30, 51 spots remained open at press time (there were five vacancies when the Liberals left office). Since Jan. 23, 2006, the Harper government has appointed 25 new members and reappointed 20 existing members to new terms, a spokesperson for the IRB said.

Meanwhile Grace’s health declines as she agonizes over her future, says her counsel Patricia Ritter of Toronto’s Czuma Ritter. “The medical and psychological reports we have indicate that her physical wellbeing could be enhanced if she were able at least know that she is going to be able to stay here permanently,” she says.

Immigration and refugee lawyers complain that although the IRB strives to deal with cases within six months, people are now routinely languishing for at least a year.

Other refugee lawyers told The Lawyers Weekly they are appalled at the extent to which the Harper government appears to be playing politics with the board’s membership.

While past Liberal and Conservative regimes routinely appointed their friends and supporters to the IRB, lawyers say what is new now is the extent to which the present government has short-staffed the board – despite a large pool of available qualified candidates who had passed a merit-based vetting process – and the government’s refusal to reappoint many existing well-qualified (but Liberal-appointed) board members, thus leaving the tribunal without enough experienced decision-makers to train its new recruits who face a steep learning curve.

Those protests were heard last month at the Commons Committee on Citizenship and Immigration, where Jean-Guy Fleury, the IRB’s respected, non-partisan chair since 2001, also admitted publicly for the first time that his surprise resignation in March 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. “On March 16, I still did not have the appointments I needed and this had been going on for some time. What more could I do? I felt that I was getting to be a liability to the board and it needed a new chair. I was not successful in getting the appointments. The time was good to have a new leader in the institution. I think you’ll see appointments coming better now. That’s my prediction.”

But Fleury went on to deny rumours that he had been forced out. “There was never any pressure put on me by the government,” he insisted. “I made the decision that [my resignation] was best for the board because we weren’t getting appointments, regardless of the system, that the board was being penalized and they needed a new chair, and the government needed to appoint a new chair.”

The longtime federal public servant noted the IRB has always undergone a transition period with personnel changes under new governments, but he admitted this “is a tough transition.”

Fleury spearheaded changes in 2004 to make the selection process for board members more objective and merit-based. He made it clear to the Commons committee that he fundamentally disagrees with the government’s announced intention to appoint its own people to half the spots on the IRB’s external advisory panel. The government’s move follows a recommendation made last January by the Public Appointments Commission Secretariat, which was tasked by Solberg with reviewing the appointment process.

Under the existing appointment system, an applicant for the IRB must first pass an initial screening and write a proficiency test. He or she is then vetted by the advisory panel. If successful, the application is passed on to a selection board chaired by the IRB chair, and the chair subsequently presents the minister with a list of qualified candidates from which the federal Cabinet makes the order-in-council appointments.
Under Fleury’s reforms, which were designed to remove much of the political patronage from the appointment process, the chair chose all six members of the advisory panel.

Fleury’s panel was a non-partisan advisory panel and was drawn from the legal community, academe, and non-governmental organizations. That panel resigned en masse last February to protest what they anticipated was the Harper’s government’s return to political patronage.

“I couldn’t see myself being the one implementing [the changes], in fairness to the government,” Fleury testified. “It is certainly not the way I would go.”

Elaborated Nick Summers, a St. John’s refugee lawyer who resigned from the advisory panel, “if it ain’t broke don’t fix it.”

The selection process since 2004, he told the Commons Committee April 17, “was working extremely well. We were getting extremely good candidates and were passing people on for appointment who were very good. The problem wasn’t our selection process; the problem was the minister’s office not appointing people. We also could not see any purpose in putting minister’s representatives on the selection committee, other than to bring partisanship into the process. We all had some experience with the refugee board and the history of patronage... We did not want to see the board go down that road again because we knew that it was harmful to refugees and their rights.”

Summers’s concerns were expanded upon by the Canadian Bar Association and other legal groups who appeared before the immigration committee April 19 to oppose the government’s intended appointment reform. “We do not support the ... recommendation that the Minister ... should name members to the advisory committee of the IRB, let alone 50 per cent of those members,” said Montreal’s Joseph Allen, president of the 120-member Quebec Immigration Lawyers Association.

Allen said he considers it legitimate for the government to select senior IRB administrative staff who are in tune with government policy.

But he speculated that the government’s changes to the appointment scheme for the tribunal’s membership “is partly couched in the belief that it is legitimate and appropriate for selected candidates to be in tune with, and sympathetic to, government policy. Respectfully I disagree. The sole mandate and duty of an IRB decision-maker is to hear the parties and the facts adduced in evidence and to rule in accordance with the law.”

After hard-won progress in reducing its backlog in recent years, the IRB projects that its inventory of claims pending could skyrocket to 34,700 by the end of 2007-2008, up from 25,700 last year, and 20,500 in 2005-2006. The projected average processing time could climb to 13.5 months or more.