TABLE OF CONTENTS
The Immigration and Refugee Board (IRB) is committed to conducting hearings simply, quickly and fairly. As part of that commitment it has maintained a long-standing practice of conducting hearings by videoconference in all of its Tribunals.
Faced with an unprecedented backlog of refugee claims, which peaked in 2002, the IRB initiated a range of case management measures to deal with the backlog. These included significantly expanding its use of videoconferencing in the Refugee Protection Division. An aspect of the Board's commitment to fairness includes taking people out of a state of uncertainty as quickly as possible, and making the most efficient use of resources to support the hearing process.
Another aspect of the Board's commitment to fairness is its concern with the quality of the hearing process. For this reason, the Board undertook a study of videoconferencing of refugee protection hearings to ensure that the standards of fairness are maintained, and to identify areas of improvement. The IRB commissioned former tribunal chairperson, S. Ron Ellis, Q.C., a well-respected expert in the field of administrative law, to conduct a study of videoconferencing in Refugee Protection hearings, and to report back on his findings. The report is in, and the Board thanks Mr. Ellis and all those who participated in this study. What follows is the IRB's response to the report.
The Board's use of videoconferencing is consistent with the letter and spirit of the Immigration and Refugee Protection Act, and parallels the increased use of videoconferencing in other jurisdictions of the Canadian legal system. The legal authority of the Board to use videoconferencing is clear. Even with that authority, the Board sought Mr. Ellis' assessment of what impact videoconferencing may have on the quality of hearings, and whether its use strikes an appropriate balance between fairness and efficiency.
The Ellis report acknowledges the challenge of reconciling fairness and efficiency in the work of a high volume human rights tribunal operating in five locations across Canada. It also recognizes the value of videoconferencing to conducting the hearings process, as well as the legitimacy of many of the concerns that have been expressed over its use. Mr. Ellis comes to no final conclusion on the quality of the videoconferencing process. A key recommendation of the Ellis report is to conduct a further, more detailed and structured study of videoconferencing. Notwithstanding this recommendation, the Board is satisfied that the use of videoconferencing in refugee hearings is fundamentally fair. For this reason, the Board has chosen not to follow the recommendation to engage in further study. The reasons for that decision are explained below.
One of the concerns acknowledged in the report is the use of videoconferencing in the case of vulnerable claimants. The Board is currently developing Chairperson's Guidelines related to vulnerable persons who appear before any of its tribunals. The Guidelines will be designed to assist the Board in matching the right procedures to the particular circumstances of a vulnerable person. To that extent, the principles outlined in the Guidelines will likely assist in determining whether videoconferencing is an appropriate means of hearing a case which involves a vulnerable claimant. In the interim, and pending the development and release of the Guidelines, the Board will amend its policy to reflect the fact that where the Board is satisfied that, due to a claimant's particular vulnerability, the file will not be transferred for hearing by videoconference.
The Ellis report goes on to make a number of recommendations of a largely technical nature in order to improve the process. These range from standardising how the Board receives claimants and introduces them to the videoconferencing process, to the location of interpreters and technical matters such as standardising the operation of videoconferencing technology. The Board will adopt most of these recommendations, as they will further improve the quality of the videoconferencing process.
With its acceptance of a number of the recommendations made by Mr. Ellis, the IRB will immediately begin to put in place improvements to the process of videoconferencing refugee protection hearings. The details of the Board's response are set out below.
My recommendation is that the Board commit to a significant "testing period" during which the videoconferencing would be delivered in the most acceptable way possible and the relative fairness and effectiveness of videoconferenced hearings as compared to traditional hearings would be carefully and systematically evaluated through an independent and scholarly empirical study. The study ought to be done by academics with the qualifications of the academics who contributed to this review, and would involve a comparison of the experiences and perceptions of two sets of claimants - one set being those claimants whose cases are determined in videoconferenced hearings during the testing period, and the other set being those claimants with cases of comparable complexity and difficulty that are determined in traditional, in-person hearings during the same period.
The mandate of the videoconferencing review was to examine the balance of fairness and efficiency in conducting refugee hearings by videoconference. In addition to Mr. Ellis' report, the Board has examined a number of other indicators of the quality of the videoconferencing process. These indicators include applications for judicial review of the Board's decisions in videoconferenced claims, motions to reopen claims heard by videoconference and the Board's decisions themselves. These indicators do not give the Board cause to doubt the fundamental fairness of conducting a hearing by videoconference. The Board is strengthened in this conclusion by the fact that videoconferencing to determine claims for refugee protection is used in other jurisdictions where the tribunal operates over a large geographical area, notably the United States and Australia.
Nonetheless, the Ellis report provides a number of suggestions for further improvement of the Board's process. In response to Mr. Ellis' report, the Board will improve the quality of videoconferencing by focusing on two areas:
- the technical and operational support to videoconferencing
- the criteria and mechanisms for selecting claims for videoconferencing.
The improvements to technical and operational support are outlined in detail in the following section of the Board's response. These changes ensure high quality, nationally consistent procedures for all claims. The Board will also review the criteria used to select claims for videoconferencing and amend its Policy on the Transfer of Files for Hearings by Videoconference. The amended Policy will identify as generally unsuitable for videoconferencing those claims which involve vulnerable claimants, claims which are factually or legally complex, involve large families or groups and claims of persons in detention. A narrowing of the scope of claims selected for videoconferencing, along with improved technical support will enhance the quality of videoconferencing. For these reasons the Board is satisfied that its use of videoconferencing does strike an appropriate balance between fairness and efficiency. Accordingly, it will not undertake the further study of videoconferencing which Mr. Ellis recommends.
Cases involving allegations of physical or sexual abuse, or torture
As mentioned previously, in my view, cases involving allegations of physical or sexual abuse or torture should be removed from the videoconferencing regime immediately, and cases involving unrepresented claimants should not now go forward unless an RPO and an interpreter are in attendance in the claimant's room. I would also recommend a short adjournment of videoconferenced hearings while the most important changes are put in place - subject, perhaps, to a claimant's consent to proceed under the existing arrangements. These immediate changes should include, in my view: the provision of an appropriate Board "reception" of claimants in the claimant's room and staff support to ensure that the hearing is started and the technology is working; placing the interpreter in the claimant's room; installing a feedback screen in the claimant's room; changing the "normal" view of the member's room so that it gives a closer look at the member; installing controls in the claimant's room that will allow counsel to call up a pre-set close-up of the member, and simplified controls in the member's room so that one button will call up a pre-set close-up of the claimant. Members should also be trained on the importance of viewing the claimant's testimony generally in the close-up mode.
As is indicated above, the Board will not conduct a further study of videoconferencing. Accordingly, it will continue to hear claims by videoconference based on the improvements to its process set out above.
The Board is currently developing Chairperson's Guidelines relating to vulnerable persons appearing before it. The Guidelines are aimed at assisting the Board in matching the right procedures to the particular circumstances of a vulnerable person. The principles outlined in the Guidelines will assist in determining whether videoconferencing is an appropriate means of hearing a case which involves a vulnerable claimant. They will inform the IRB's exercise of discretion in selecting cases for videoconferencing. In the interim, and pending the development and release of the Guidelines, the Board will amend its Policy on the Transfer of Files for Hearings by Videoconference to reflect the fact that where the Board is satisfied that, due to a claimant's particular vulnerability, a face-to-face hearing would be more appropriate, the Board will not transfer a file for hearing by videoconference.
It is important to note that with its increased use of videoconferencing the Board has, as a matter of practice and of its own initiative, identified claims which were initially transferred for videoconferencing but which, upon further examination, were determined not to be suitable for hearing by videoconference. As a result, over the period covered by the Ellis report, some 200 claims initially transferred for hearing by videoconference were returned to the sending region. The reasons for doing so included the vulnerability of claimants, the complexity of the claims and intervention by the Minister. The proposed amendment of the Policy on the Transfer of Files for Hearings by Videoconference will codify and standardise existing practice.
Reception at hearings
The absence of any "reception" at the beginning of the hearing in the claimant's room should be corrected. From a justice system perspective, it seems to me wrong that claimants attending a hearing in which their future is to be decided by an adjudicator in what is effectively a judicial proceeding, should not be received in the hearing room at the outset by a real person with official status, who can address the claimants by name, confirm that they are in the right place, introduce them to the equipment, explain what to expect, and so on. This would be a significant step in the creation of a receptive and comfortable hearing environment. It is apparent that this is not currently available, at least certainly not in the Toronto hearing rooms.
The Board agrees that a receptive environment contributes to the perception of the quality of its process.
An IRB employee will be designated in each office to ensure that all videoconference hearings proceed smoothly at both ends.
In the office receiving the claimant, the designated employee's tasks will include:
- welcoming the claimant
- taking him/her to the appropriate room
- ensuring that the electronic connection has been established
- ensuring that the claimant has understood the videoconference instructions translated by the interpreter.
In the office where the member is presiding, the designated employee's tasks will include:
- establishing communication with the other region
- ensuring that the interpreter translates the videoconference instructions for the claimant.
If the claimant does not require the services of an interpreter, he/she will be given a written document explaining the technical details of the videoconference procedure. The employee will ensure that the claimant has understood the written explanation and will be available to respond to questions about the process.
The role of the employee extends to being available to address problems that arise mid-hearing (such as the transmission of documents or the interruption of the video link).
The Board will ensure the continuous availability of these employees, taking into account in the various time zones affecting the participating offices.
When a videoconference hearing is held in a room not located in one of the IRB offices, measures will be taken to ensure that the claimant and his/her counsel, if applicable, are received appropriately.
Location of Interpreters
Make it the usual practice to locate the interpreters in the claimant's room with the claimant. Exceptions could be made where an interpreter in the required language is not available close to the location of the claimant's room. It is apparent from the survey evidence that it is not impossible to have reasonable interpretation services with the interpreter in the member's room, but the advantages in terms of putting claimants at ease, and facilitating the efficiency of the translation are sufficiently clear that having the interpreters with the claimant as a regular rule is clearly desirable.
The Board will adopt this recommendation and ensure that, as a usual practice, the interpreter is located in the hearing room with the claimant. However, as the choice to use videoconferencing always requires a balancing of fairness and efficiency, the Board retains a discretion to depart from the norm of locating the interpreter with the claimant when it is not practical to do so (for example, for reasons of interpreter availability or cost).
Location of RPOs
Having the RPO also located in the claimant's room would be preferable in an ideal world. This however is not as important - except if the claimant is not represented.
In choosing to conduct a hearing by videoconference, the Board is trying to make the best use of its resources. It does so, not only by assigning the case to an available member in another region, but also by making use of other resources in that other region to support the hearing process. This includes RPOs. Having determined that it is appropriate to locate interpreters with the claimant, the Board is of the view that some of the efficiency gains of videoconferencing would be lost by also locating the RPO with the claimant. For this reason the Board will not adopt this recommendation.
Install feedback screens in all of the claimant's rooms in the system. Fairness and effectiveness both require that both the claimants and their counsel be aware at all times of the picture of their room transmitted to the screen in the member's room.
All offices with videoconferencing equipment currently have feedback screens: either picture-in-picture or a separate television screen.
The Board, through the designated employee, will ensure that participants are using this technology correctly.
Improve the lighting in both the claimant and member's rooms in all locations
The lighting currently installed in the hearing rooms meets recommended norms for videoconferencing. Lighting in all videoconference facilities across Canada will be examined to enable the Board to ensure that current standards are not only met, but exceeded.
Where hearing rooms have windows, the Board will review the existing arrangements in order to eliminate glare from exterior light sources.
Making "close up" option available in claimant's room
Install a pre-set control mechanism in the claimant's rooms that will allow counsel (or an RPO) to call up a close-up of the Board member as they feel it appropriate from time to time during the hearing. Claimants and their representative need to be able to see and read the ongoing reactions of the member to their testimony or submissions. These controls should be preset so that by pushing one button the screen displays a predetermined level of close-up, and by pushing it again, the display returns to a more distanced focus. Of course, with the feedback screens in the members' rooms, the member will always know what picture of him or her is being shown on the screen in the claimant's room.
The Board agrees with the recommendation. Pre-set control mechanisms will be installed in the claimant's room, within the limits of existing technology. The pre-set views will limit use of the zoom function in the manner recommended in the report.
Control of "zoom" feature
The member's control of the zoom feature in the claimant's room should be pre-set to a selection of views: a normal view - one that would display both the claimant and counsel sitting side by side - one or two levels of close-ups on the claimant or other witness, and a close-up on counsel. Each of these pre-set views to be summoned by pushing an appropriate button. The member should not be able to use the full capacity of the zoom feature - or be thought to be able to do so - to achieve an extraordinarily close view of a claimant's face.
The Board agrees with the recommendation.
Pre-set views of the zoom feature control in the member's room will be installed, within the limits of existing technology. The pre-set views will limit use of the zoom function in the manner recommended in the report.
View of Member's room
Adjust the normal view of the member's room so that the member and his or her bench are sitting relatively close to the front of the screen. This will mean that the RPOs (or the interpreters if they are not in the claimant's room) will not appear in the normal view. However, it is not important that they be always on the screen. The controls in the member's room could also be pre-set so that by pushing a button the camera would automatically shift to a predetermined close-up of the RPO when he or she is speaking. This button could be available to both the RPO and the member, and also to the counsel in the claimant's room.
The Board agrees with the recommendation.
The default view of the member's room should show the member.
The view could be changed to show the RPO and/or the interpreter, if needed.
Accessibility of documents
It is essential that the document problems be solved. This was a dominant concern for many of the participants in the surveys including both counsel members, RPOs and interpreters. One cannot have an adjudicative process which is routinely put off the rails whenever the need arises for the member or the claimant or counsel to examine a document and the document is not in the right place, or needs to be interpreted, or can't be read etc. The movement of documents back and forth amongst counsel, claimants, witnesses, board members and interpreters wherever those individuals may be located needs to be seamless and routine. Surely there is technology that would meet that need.
The Board agrees with the recommendation. All videoconference sites are equipped with faxes and scanners. The IRB will ensure that participants know how to use them properly.
As indicated in the response to Recommendation concerning Reception at hearings above, the designation of an IRB employee to support the videoconferencing process extends to the employee's assistance when document transmission problems arise in the course of a hearing.
Availability of IRB technical support in claimant's location
In the building where each claimants' room is located, there needs to be a board staff member tasked with responsibility for the smooth running of the hearing, including the reception of the claimants and their counsel at the outset of the hearing, explaining how the equipment works, and what to expect, and who the presiding member is going to be. That staff member should stay in the room until the hearing starts and if it is delayed should have the responsibility for finding the reason for the delay and fixing it. It is unseemly to leave these Board responsibilities on the shoulders of counsel or interpreters. That staff member should also be available at the end of a phone should anything go wrong with the technology during the hearing.
The Board agrees with the recommendation.
The measures announced in the response to the Recommendation concerning Reception at hearings meet this requirement.
Phone or internet link
Indeed, there should be a direct, open telephone link - or, perhaps, an internet link - between the claimant's room and the member's room to facilitate communications when the video portion of the proceedings is going wrong. Such a link could also be so organized that, if the interpreter has had to be located in the members' room, he or she could provide simultaneous translation to the ear of the claimant alone while counsel is making submissions.
The Board agrees with the part of the recommendation regarding a telephone and/or Internet link between rooms to facilitate communication when the video portion of the proceedings is going wrong.
Given the Board's decision to locate the interpreter with the claimant, there is no need to implement the part of the recommendation addressing simultaneous translation.
Decisions delivered orally
I would also recommend that oral decisions delivered from the bench immediately at the end of the hearing should not be given in videoconferenced hearings except in circumstances where the member would be equally comfortable in giving an oral decision in a face-to face-hearing.
The Board agrees that oral decisions in videoconferenced hearings should be given in circumstances where the member would be equally comfortable in giving the decision orally in an in-person hearing. However, the Board has no reason to believe that this is not the case, as the rate of oral decisions in videoconferencing has remained slightly below the norm for that in face-to-face hearings.
Hearings across time zones
Then there are a number of other problems and suggestions for improvement that one finds in the survey responses that should be considered. Amongst these are the problems presented by holding hearings across time-zone differences. In my view, if the Board schedules a hearing that it is intended will run into the evening past closing times at one of the locations, it has an obligation to provide evening support staff and make proper arrangements with Building security at that location. Leaving a refugee claimant and a representative working alone into the evening in an otherwise vacated premises is both disrespectful and unsafe. It will also be important to be able to ensure claimants that the broadcast of their testimony in a videoconferenced hearing is encrypted or otherwise made secure from unauthorized interception.
The Board agrees with the recommendation. Welcoming claimants and ensuring the safety of the premises are issues covered by the response to the Recommendation concerning Reception at hearings.
At no time will the claimant and his/her counsel be left alone in IRB offices after hours, whether for a regular hearing which has gone over time, or a videoconference hearing outside the usual hours of the office receiving the claimant and his/her counsel.
IRB management also agrees with the second part of the recommendation regarding the confidentiality and security of videoconference communications. The IRB will ensure the use of encrypted lines, which guarantee confidentiality.
The board member who suggested that the videoconferencing ought to be offered by a special, national unit of the RPD was onto something important, in my opinion. Involving all board members at all locations in videoconferenced hearings dilutes the competence with which the equipment is operated and prevents choosing members for assignment to videoconferencing hearings who have the particular talents and commitment necessary to make this technology work. Moreover, it means that individual counsel in the various cities find themselves dealing in their videoconferenced cases with an amorphous, de facto national bench - a bench consisting of such numbers of members that counsel has little chance of ever establishing any rapport with any particular member, or of getting to know the style and tendencies of the members with whom they are dealing from day-to-day.
All members who hold videoconference hearings have been trained in the use of the medium and the IRB will further its efforts in that regard.
The Board needs to retain sufficient flexibility in member assignments to address the needs for geographic specialization, linguistic ability (English/French) and the need for adequate member availability. Accordingly, the IRB does not intend at this time to assign videoconference cases to a small number of members exclusively.
The IRB does not agree with the part of the recommendation implying that counsel should be able to establish a special rapport with members and is of the view that a consistent approach by members to presiding over videoconference hearings is the best means to ensure that claimants are treated fairly in such hearings.
Videoconferencing unit: testing period
I think it would be important for the Board to explore the possibility of establishing for the period of the testing period a national videoconferencing unit, with a small number of specially selected adjudicative members in each location and with a central management team. Such a team would be empowered for the period in question to make all the decisions respecting videoconferencing: the selection and means of utilizing the equipment, and managing its operation; the procedures and protocols governing its use; and be tasked, as well, with the responsibility for ensuring that those decisions are implemented in all of the regions.
This recommendation addresses a portion of the issue covered in the Recommendation concerning Hearings across time zones. However, as noted above, the Board has decided to continue with its use of videoconferencing. Thus the measures it will adopt are for the longer term, and not for the duration of the type of testing period recommended in the report.
The IRB encourages members assigned to videoconference hearings to discuss and share information about the technical aspects of this procedure and make suggestions for improvement.
The Board will ensure central coordination of operational support for videoconferencing by assigning the Director General, Operations, responsibility for co-ordinating and monitoring the practices, procedures and protocols used in support of videoconferencing throughout the IRB.
Videoconferencing unit: standardized process
The hearing procedures for cases assigned to such a unit, and the adjudicative culture in that unit, could also be standardized, so as to avoid counsels' experience of encountering in videoconferenced hearings procedures and culture with which they are not familiar. Apparently, hearing procedures and adjudicative culture can vary significantly from province to province.
One of the goals of the Chairperson's Action Plan is to standardize procedures in all IRB offices. To date, these procedures have been increasingly standardized. All claimants are entitled to expect their case to be processed in a standardized way, regardless of where in Canada they file their claim. With respect to this issue, cases processed via videoconference will not be an exception.
From information derived from the various interviews and surveys, it is clear that the system now in place suffers from lack of central control over regional implementation. The shortcomings in the Toronto set up -- the lack of feedback screens, the absence of any reception or readily available support staff - might be thought to have contributed significantly to the overall hostility to the system on the part of Toronto counsel. Also, the lack of lighting in the Vancouver office, obviously complained about often but never fixed, and the failure to arrange camera coverage in Calgary that would ensure that the features of black members could be seen on the screens in claimants' rooms, are all incidents that suggest a lack of sufficient regional commitment to making this technology as acceptable as possible for the clients it is intended to serve.
The response to the Recommendation concerning Videoconferencing unit should also address the concerns expressed in this recommendation.
Assigning responsibility for co-ordinating and standardizing service delivery via videoconference (choosing and using equipment and updating and maintaining protocols in effect) to the Director General, Operations will address this concern.
ideoconferencing unit: training
A national videoconferencing unit would also simplify the training requirements, allow for consistent use of the technology, and for the dissemination of best practices, etc. It might also allow for greater concentration during the testing period of particular country expertise.
To ensure sufficient availability of members, and to make it possible to respect geographic specialization, the Board prefers to draw on a large enough pool of members to keep videoconferencing operating efficiently.
The Board will ensure that all members who participate in videoconference hearings continue to receive the necessary training as well as the appropriate coaching and technical support.
In the planning and design of the testing period and the adjustments to be made, it will be important for the Board to work closely with experienced counsel. This is technology that can offer important advantages to the refugee community and to refugee representatives as well as to the Board, and it should be possible to enlist those communities in assisting the Board in making it work as well as possible and in studying its advantages and shortcomings. Indeed, once the technology has been made more user-friendly in all of the ways mentioned above, it would be useful to have videoconferenced hearings conducted wherever possible with the consent of the claimant and their representative. Calling for volunteers might well prove viable. Videoconferencing on consent would go a long way to ensuring the environment of enhanced comfort that one is seeking.
The Board has decided to continue with its use of videoconferencing. The measures it will adopt are for the longer term, and not for the duration of the type of testing period recommended in the report.
The Board will not limit its use of videoconferencing to cases that proceed on consent, as it needs to remain master of its own process.
The Board is committed to improving the quality of the videoconferencing process in accordance with the measures it has set out in its response to the Ellis Report. The Board will report on its progress in implementing these changes through its national and regional stakeholder consultative committees. In addition, the Board will periodically survey counsel to seek counsel's reaction to the Board's implementation of the commitments it has made in responding to the Ellis Report.
Videoconferencing in Refugee Hearings - Ellis Report to the Immigration and Refugee Board