Below is a message sent to the Immigration and Refugee Board of Canada’s (IRB) consultative committee on August 26, 2020, from Richard Wex, Chairperson of the IRB.
August 26, 2020
Dear IRB Consultative Committee members:
I am writing to provide you with an update on the status of our business resumption efforts in light of COVID-19 and to address issues recently raised with respect to operations in the Refugee Protection Division (RPD).
COVID-19 has had a significant impact on our operations, and has required us to rethink our processes, approaches and hearing models. As we learn from experience, and with your valuable input and advice from others, we have and will continue to adjust our practices.
As you are aware, we are in the midst of the most ambitious transformation of our operating model in the Board’s 30-year history: rendering a significantly increased number of refugee decisions without a hearing; adopting remote platforms and new procedures in support of virtual hearings; and adapting our in-person hearing practices to reflect evolving public health guidance.
Throughout this transformation, we have been guided by the dual objectives of both protecting the health and safety of all those appearing before the IRB and ensuring access to justice, including for those vulnerable populations who have been disproportionately affected by the pandemic.
We have also been focused on meaningful engagement and consultation knowing that those who have direct experience with our operations are in a position to provide valuable insight. As you will recall, in early May, we met by way of an ad hoc IRBCC session to obtain your feedback as we began to outline our business resumption plan. Since then, we have had several topic-specific consultations, including on remote hearings, in-person hearings, the RPD’s paper-based file review process for less complex claims, as well as on other substantive operational issues.
Transformation at this scale will take some time. It is still early days. For example, we resumed in-person hearings in late July in Vancouver, and at the beginning of August in the remainder of our offices. As we adapt to holding hearings in a pandemic situation, we are making adjustments based on lessons we have learned and on your continued feedback, for which I am most grateful.
I am pleased to provide you with the following updates, which I encourage you to distribute within your organizations’ respective memberships.
RPD paper-based file review:
- We have now returned a portion of our registry and mailroom employees, subject to local occupancy limits, to our offices across the country. These employees are supporting our resumption activities, including the mailing out of decisions, access to files for members to conduct RPD paper-based file reviews, and the scheduling of hearings.
- Based on suggestions you provided during our recent stakeholder consultations, we have introduced a number of important changes to significantly increase the number of refugee claims that will be resolved without a hearing through a paper- based file review by the RPD’s Task Force on Less Complex Claims (the Task Force).
- The return of registry employees means that the Board is now able to regularly access files at our various offices across the country, to triage files for review by the Task Force.
- In an effort to increase the number of refugee claims to be considered for a paper-based file review, rather than a hearing, the RPD has recently revised and significantly expanded the triage criteria for assessing whether a claim is eligible to be considered by the Task Force. The RPD has also adjusted its approach to make greater use of case management conferences, to narrow the determinative issues with a view to being considered for the paper-based file review process. Further, in the coming weeks, the RPD will implement a new procedure that will allow counsel to request that a claim be reviewed proactively for potential processing under the paper-based file review process.
- To support these ambitious efforts, the RPD has more than doubled the number of members on the Task Force. The additional members recently assigned to the Task Force will begin reviewing claims in early September following the completion of their training.
- These and other measures will help ensure that claims that have well-founded legal arguments, and that are well-documented with evidence, can receive a positive decision without a hearing.
- Some courts were able to move their hearings to virtual platforms shortly after the pandemic hit. However, given the private nature of the majority of the Board’s proceedings, the Board worked to identify and implement a technological platform that provides a higher degree of security, and that allows access through a web browser (with no app download required). This has been a significant undertaking, and, to our knowledge, has been the first remote hearing solution at the requisite protected level across the Government of Canada. We also developed training material, consent forms, and communications products to help all involved participate successfully.
- Since late June for the Immigration Appeal Division (IAD), and early July for the RPD, we have been successfully piloting remote hearings, the designs of which were informed by procedural fairness interests raised during our recent stakeholder consultations. The pilots have begun on a small scale to ensure that the technology can be used effectively.
- Feedback and results on these pilots have been positive. Over the coming months, the RPD will continue to train all members to allow the IRB to increase the number of remote hearings being held. We are also working to establish lists of counsel and claimants who wish to participate in remote hearings and have the capacity to do so (“ready lists”) by early October. This will allow the RPD, more and more, to achieve our goal of providing increased choice to claimants and counsel regarding the manner in which they wish to have claims adjudicated.
- We have taken note of the recent request from stakeholders for the IRB to arrange for claimants and appellants to be able to participate in virtual hearings on IRB premises, using IRB equipment, while counsel participate from off-site. The Board is actively exploring ways that it may be able to arrange this.
- The RPD will be meeting with you again on August 31st to seek further feedback, with an eye to expanding the initiative to allow for a greater number of remote hearings throughout the remainder of the year. We look forward to continuing to work with you as we move forward on providing technological solutions to vulnerable populations for whom in-person hearings are not an option.
- When in-person hearings resumed in Vancouver in late July, we established several different operating models in the interest of ensuring physical distancing requirements were respected, including having members and interpreters off-site or in different rooms than claimants, appellants and their counsel. This allowed us time to learn how best to handle the flow of people in and out of hearing rooms and throughout our buildings.
- Based on our experience to date and feedback you have provided, I am pleased to report that as of the week of September 14th the IRB will begin its transition to its pre-COVID model for refugee hearings with all parties in the same hearing room. This will include members, interpreters, and Minister’s counsel, with some exceptions that existed before the pandemic.
Health and safety protocols:
- The IRB has followed all guidance received from the Public Health Agency of Canada (PHAC). The IRB has been assured, through consultation with public health authorities, that the protocols currently in place allow for our in-person hearings to be safe. PHAC has recently reviewed the IRB’s health and safety protocols and concluded that they offer robust measures to mitigate the risk of COVID-19 infection.
- The extensive health and safety measures in place on IRB premises are communicated to all those appearing before the Board as part of the Notice to Appear package as well as
on the IRB website.
Plexiglass and masks:
- Based on feedback from stakeholders and others, and in the context of changes to the IRB’s in-person hearing model with additional people being in the hearing room, the IRB will be further enhancing its protocols to provide even more protective measures. Plexiglass barriers are being installed in the IRB’s larger hearing rooms, as an added layer of protection in addition to physical distancing, and the IRB is further strengthening its mask policy.
- Starting September 14th, the IRB will
require non-medical masks to be worn at all times in hearing rooms, including when testifying or providing submissions, subject to exemptions as listed on IRB’s
health and safety webpage. Individuals who wish to be exempt should raise their request with the presiding member.
- Effective immediately, if hearing participants would like to wear masks while testifying or providing submissions, they are welcome to do so, consistent with the approach described above. Given this new measure, we have tested our audio devices in hearing rooms and reconfigured them to allow for better recording when speaking with a mask.
- To our knowledge, this approach goes beyond existing guidance and is more precautionary than courts in jurisdictions in which the IRB operates.
- Hearing rooms are sanitized after each hearing and public spaces – including bathrooms – are sanitized at least twice a day. Participants are asked to sanitize their hands when entering IRB facilities and hand sanitizer is available in all hearing rooms.
Screening and temperature checks:
- In addition to the self-assessment screening questions parties receive as part of their Notice to Appear and the health and safety information published on our website, individuals are asked screening questions on the day of their hearing. They are not asked to identify any pre-existing medical conditions as part of this process.
- As a further measure, IRB will also move to integrate temperature checks in all its locations in the near future.
- The percentage of external air in the ventilation has been increased in IRB facilities, and high-quality filters are being used. There is also extra attention being given to ensuring that ventilation maintenance schedules are adhered to.
- The IRB is carefully monitoring the flow of traffic in and out of our premises, and we are applying lessons learned from our first few weeks of operation. For example, hearing start times and breaks are being staggered and carefully monitored, and an increased complement of commissionaires is ensuring proper flow of people in the public spaces, hearing rooms, and elevators to ensure physical distancing.
Reporting COVID-19 cases on IRB premises:
- If there is a confirmed case of COVID-19 in an IRB facility brought to the Board’s attention, potentially affected parties will be advised.
As we move forward, the Board will continue to adjust by examining our procedures, learning from our experience, and benefitting from the feedback that you continue to provide.
I want to thank you for your continued support and advice during these exceptional times.