Evaluation of IRB s Case Scheduling Processes

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1 Evaluation of IRB s Case Scheduling Processes December 2008 Prepared by for Corporate Planning and Management Practices Directorate CORPORATE PLANNING AND SERVICES BRANCH

2 Table of Contents Executive Summary...1 I. Introduction...9 A. Background 9 B. Evaluation objectives 10 C. Evaluation scope 10 II. Overview of the Current IRB Case Scheduling Process...12 A. Legal framework for case scheduling 12 B. Initial scheduling of hearings 14 C. Decisions to postpone or adjourn hearings 19 III. Attributes of an Effective Case Management System...22 A. Introduction 22 B. Critical success factors in case management and scheduling 23 C. Key lessons from the research on the attributes of effective case management processes 27 IV. Key Findings...29 A. Managing the scheduling of hearings 29 B. Accountabilities and responsibilities for scheduling 31 C. Ensuring both files and parties to cases are ready for hearings 32 D. Reasons for postponements and adjournments 33 E. Impacts of postponements and adjournments on case progression 36 F. Collection and reporting of postponement/adjournment data 40 G. Management responses to the causes of postponements and adjournments 41 V. Conclusions and Recommendations...43 A. Cases of postponements and adjournments 43 B. Key conclusions and recommended actions 45 Appendix A: Sources of Information on Best Practices in Case Management...50 Appendix B: List of Interviewees...51 Appendix C: Management Response to Recommendations...54

3 Executive Summary 1. Objectives of, and approach to, the evaluation of IRB s case scheduling KPMG LLP (KPMG) was engaged by the Immigration and Refugee Board of Canada (the IRB or the Board) in December 2007 to identify the likely causes of adjournments and postponements and the impact both have on timely case finalization, and to establish ways and the means by which the volume of adjournments and postponements may be reduced.. The IRB is the largest administrative tribunal in Canada, with over 40,000 case dispositions per year across three Divisions: Refugee Protection Division (RPD), Immigration Division (ID), and Immigration Appeal Division (IAD). All three Divisions hear cases in Vancouver, Toronto and Montreal on an ongoing basis and a small number of hearings are conducted in other major centres, such as Ottawa and Calgary, and various itinerant locations across Canada. On a Boardwide basis, approximately two thirds of IRB s caseload is processed and heard in the Central Region, 25 percent in the Eastern Region and 10 percent in the Western Region. In scheduling cases for hearing, the RPD, IAD and, to a lesser extent, the ID have encountered challenges in responding to the volume of postponed or adjourned cases in recent years. Information for the evaluation was collected through multiple lines of enquiry. These lines spanned: a combination of interviews with Board members and adjudicative support personnel, a review of IRB documentation; an online search to identify best practices in caseflow management and scheduling; a review of a sample of files for cases that required postponements and/or adjournments; and, a limited number of interviews with selected immigration lawyers and consultants and Canadian Border Services Agency (CBSA) representatives. Readers should note that, in conducting the analysis, KPMG was asked to look at case scheduling performance across the IRB while being sensitive to differences in the situations and performance of each of the Divisions. The higher incidence rates of postponements and adjournments in RPD and IAD also meant that our analysis focused more on these two Divisions. In addition to having a lower incidence of postponements and adjournments, the ID s scheduling process differs from the RPD and IAD to accommodate detention reviews, which have statutory time standards, and differing availability of decision-makers, who are members of the public service. 2. Scope of case scheduling in the IRB Case scheduling in the IRB is the process whereby hearing dates and times for hearings and other oral proceedings such as pre-hearing conferences and ADR conferences are assigned to cases deemed to be ready for hearing and the assignment of members to hear these cases. The output from this process is a master calendar listing the planned hearings, which is usually three to four months in the IRB, and the member assigned to each hearing. Section 162 (2) of the Immigration and Refugee Protection Act (the IRPA or the Act) requires each Division of the IRB to deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit. The supporting sets of Rules for the operation of the RPD, ID and IAD, which form part of the related regulations to the IRPA, set parameters for scheduling hearings and decisions by IRB decision-makers to postpone or adjourn hearings. In addition, the Chairperson has issued a guideline for scheduling CPMP Internal Audit and Evaluation 1 / 64

4 Executive Summary and changing the date or time of a proceeding in the RPD 1 pursuant to section 159(1)(h) of the Act. Setting a hearing date and time depends on inputs from various combinations of participants in the hearing process, mainly from the member managers and Registry staff, to ensure that all participants to the hearing will be available on the assigned date. The participants to the hearing are the member, the Minister s counsel, the immigration counsel, the claimant, the appellant or concerned person, the interpreter and the tribunal officer in some cases. This is a dynamic process in which hearing dates and times are constantly subject to change, to accommodate changes in the availability of participants to each hearing and the impacts of postponements and adjournments of other cases. The coordination effort demands a lot of time, mainly on the part of member managers and Registry staff, and thus increases the cost to hear and finalize cases. Changes to the dates and times of scheduled hearings result in postponements or adjournments. In the RPD and IAD postponements are changes to the scheduled hearing dates and times prior to the presentation and hearing of any evidence by the decision-maker. A postponed hearing may be allocated to any of the members in the applicable Division when it is rescheduled. Decisions to postpone may occur prior to a hearing, on receipt and granting of an application to change the hearing date and time, or on the day of a hearing. Adjournments occur when a hearing stops after the presentation of evidence has commenced and must resume at a later date and time. In these situations the member is seized (that is, has commenced hearing evidence) and will stay with the case through to its disposition. The ID differs in that an adjournment is a decision by a member to schedule a hearing at another date whether or not evidence has been presented to the member, which means that a postponement occurs when a hearing date and time is changed prior to the hearing date Major causes of postponements and adjournments in the IRB case scheduling process The most common reasons for postponements and adjournments are subject to varying degrees of control or influence by the Board. The IRB s degree of control spans: Factors controlled by the Board, such as the management and oversight of interpreters, 3 and the management of scheduling and overbooking to minimize 4 the number of hearing postponements. 1 Guideline 6, Scheduling and Changing the Date or Time of a Proceeding in the Refugee Protection Division, December 1, This approach means that ID statistics for adjournments include cases where the member is seized and others where any member can be assigned to the re-scheduled hearing. Ideally, ID should bring its definition of postponements and adjournments into line with that used by the RPD and IAD to provide a consistent basis for monitoring and managing postponements and adjournments across all Divisions. 3 Interpreters are not full-time employees of the IRB but contractors whose services are utilized when hearings require interpretation in a particular language or languages. This means that the availability of interpreters is not fully controlled by the Board and the availability of interpreters with required language skills for scheduled hearings cannot be taken for granted. Detailed investigation of the management of interpreters was outside the scope of this study; however, this is another area of possible risk for the IRB s control processes for case scheduling and caseflow management. 4 Not all Divisions practice overbooking nor do all regions. CPMP Internal Audit and Evaluation 2 / 64

5 Executive Summary Factors partially controllable, such as member availability for hearings. Factors that can be influenced through the way the Board manages its caseflow, such as, the manner in which members manage individual hearings and assess applications for postponements and adjournments, and the way the Board reaches out to persons and counsel to ensure that hearings do proceed as scheduled. Approximately percent of requests for postponements by persons/counsel are made prior to hearings. Member managers review these written applications to provide a consistent basis for decision making within each Division or team. However, it is not clear how consistent decisions on these applications are from one office to another or one team to another, and it is difficult to discern the relative rates of acceptance of applications from the information contained within case files. Administrative postponements also take place close to the time of hearings as a function of such things as member illness and unplanned unavailability, which requires member managers and case schedulers to postpone current cases to match the number of hearings to the available member capacity while finding hearing slots for adjourned cases and rescheduling hearings that cannot be heard as planned. The remaining postponements are made on the day of hearings and most commonly occur as a result of: Unavailability of either the member, person concerned, their counsel or (to a lesser extent) the Refugee Protection Officer or Minister s counsel; Person/counsel being unready to proceed; Incomplete disclosure; and Problems with support arrangements for hearings (such as, interpreter availability or applicability, technical problems with equipment). The most commonly cited reason for adjournments is lack of time for the member to complete hearings. In addition, a certain proportion of hearings continue beyond their allotted times to permit the member to finish and render a decision, which in turn, requires another scheduled hearing to be postponed. Other common reasons for adjournments include to obtain for written submissions, to obtain additional documents/expertise, and abandonment. Adjournments for written submissions need to be looked at differently from other adjournments because they do not require hearing resumptions and thus do not require further work by scheduling personnel. Our review of a sample of completed case files found that, on average, as the number of scheduled hearings per case increased (that is, the number of times a hearing was scheduled but postponed or adjourned plus the final hearing) so too did the average elapsed time. Statistical analysis of the relationship between the number of scheduled hearings per case and the elapsed time from initial referral to IRB to the final hearing suggests that, all other things being equal, every time a hearing is postponed or adjourned the elapsed time to final hearing is increased by about three months. Additionally, a high rate of postponements and adjournments does not necessarily facilitate the achievement of a high level of dispositions. In fact, an increase in the percentage of hearings that are postponed or adjourned hearings will cause a proportionately greater increase in the number of hearings per case. In other words, delay breeds more delay. CPMP Internal Audit and Evaluation 3 / 64

6 Executive Summary 4. Weaknesses in control processes for case scheduling At a high level, the Act, the Divisional Rules and the Chairperson s Guideline 6 for RPD provide the principal control framework for the operation of the IRB s case scheduling process. This high-level framework has not been effectively applied, in terms of providing the basis for consistent interpretation and application of the Rules to ensure timely progression and resolution of cases, thus leading to weaknesses in the Board s processes for managing case scheduling, and minimizing the incidence of postponements and hearings. 4.1 Limited control procedures Current approaches to controlling postponements and adjournments focus on: Case readiness prior to hearing, by checking that all necessary documents are in the file and any supporting requirements for the hearing are arranged, such as interpretation. Hearing readiness, by using contacts with persons and counsel to maximise the likelihood that they will appear and be ready to proceed at the scheduled time. Consistency within Divisions, within each regional office and within teams within the regional offices in reviewing applications for postponements prior to hearings by assigning Assistant Deputy Chairpersons and Coordinating Members (ADCs/CMs) and ID Directors the task of reviewing such applications. (Note, however, that the assessments of these applications may not be consistent between regional offices.) However, the IRB has neither a policy nor a set of standards for its case scheduling processes, including key steps and procedures, nor a policy or standards regarding the management of postponement and adjournment incidence rates by its Divisions. Guideline 6 provides general guidance only on scheduling and changing the date or time of a hearing in the RPD and this guidance does not appear to be applied consistently (and recognizing that members do have discretion in the way they apply the guidelines). According to participants in our interviews, this results in a high degree of uncertainty that hearings will take place as scheduled and the development of a credibility gap for those Divisions with high rates of postponements and adjournments. 4.2 Ad hoc approach to performance measurement Development of performance measures and reports to monitor scheduling and caseflow performance is largely ad hoc, outside of the IRB Key Indicators report, which has limited applicability to the identification and analysis of caseflow management issues. Approaches to the structuring, recording and reporting of reasons have evolved independently in each of the regional offices without attention to the development of a consistent basis for reporting breakdowns of postponement and adjournment outcomes across all three regions. The reliability of input data for the current reports may also be suspect given the current steps involved in compiling, interpreting and entering postponement and adjournment information. In using the data generated, most attention is directed to the hearing-by-hearing breakdowns with only limited attention to the aggregate flow of cases, identification of and responses to systemic issues, and assessment of performance against targets or standards. CPMP Internal Audit and Evaluation 4 / 64

7 Executive Summary 4.3 Informal risk management IRB s senior members, managers and schedulers invest a lot of time and effort in juggling hearing schedules to maximise the volume of hearings and re-schedule postponed and adjourned hearings at the first available opportunities. In other words, tribunal managers are managing the risks of individual hearings not taking place as planned. However, attention to the aggregate flow of cases, identification and responses to systemic issues and assessment of performance against targets or standards appears to be piecemeal, at best. 5. Recommendations Exercising effective leadership Recommendation 1: 1.1 Review and clarify case scheduling accountabilities of member managers, registry and adjudicative support personnel to clearly delineate responsibilities in three areas: (a) Where Divisional management is responsible for the performance of activities and tasks flowing from their legislative mandate, including decision-making and hearing management. (b) Where Registry and adjudicative support management are responsible for the performance of activities and tasks related to their goal to support quality decisions through efficient tribunal management. (c) Where Divisional, Registry and tribunal support management share responsibilities as a result of interdependent activities that require ongoing coordination and collaboration. Recommendation 2: 2.1 As part of the organisation s learning and development strategy, the IRB should view the provision of training and development related to caseflow management as being of equal importance to learning from best practices in rendering quality decisions. This training and development should be provided for both Divisional and Registry management. Caseflow management should be viewed as part of improving tribunal administration and governance, and improving overall tribunal efficiency, fairness and integrity. Developing and meeting appropriate time expectations Recommendation 3: 3.1 Establish time standards for the completion of key steps involved in scheduling and hearing cases, and monitor performance against these standards. In developing these standards it will be necessary to establish and maintain realistic estimates of member availability and case resolution capacity. Early and continuous control of case progress Recommendation 4: 4.1 Manage case scheduling and control of postponements and adjournments from a caseflow perspective rather than focusing only on the volume of, and individual outcomes from, hearings. CPMP Internal Audit and Evaluation 5 / 64

8 Executive Summary 4.2 Improve the reliability of estimates of member availability for hearings. Since hearing room activity is not the only activity expected from the decision-maker, factor in other required activities (e.g., case preparation, writing reasons for decision, training and professional development and contribution to IRB jurisprudence and policy development) to improve the accuracy of member availability and scheduling calendars. 4.3 Review the parameters provided to registrars and schedulers by ADCs/CMs regarding the allocation of RPD members to hearings to ensure they are not unnecessarily increasing the complexity of matching members to hearings. Recommendation 5: 5.1 Promote the identification and adoption of best practices in schedule management and control of postponements and adjournments, such as the use of scheduling conferences and assignment courts. 5.2 Further develop case file readiness methods to ensure the Divisions can maximize the certainty that hearings will take place as scheduled. 5.3 Implement hearing readiness methods to ensure parties are prepared and ready to proceed with hearings, including measures to inform unrepresented persons about the nature and requirements of IRB proceedings, and improve the likelihood they will appear at scheduled hearings and be ready to proceed. 5.4 Promote the tracking of the determinants of postponements and adjournments to proactively identify and respond to trends or issues in the progress of cases. Providing firm and credible dates for hearings Recommendation 6: 6.1 Implement a scheduling policy whereby the IRB specifies its case scheduling process, including essential factors and procedures to ensure that hearings are scheduled in a manner that minimizes delay for the parties, promote a high degree of hearing certainty and reduce the possibility of postponements and adjournments. 6.2 Implement a postponement and adjournment policy whereby the IRB clearly states the manner in which the Divisions control the incidence of postponements and adjournments consistent with the principles of natural justice and procedural fairness. Monitoring and information systems to inform strategic and tactical management of case progression Recommendation 7: 7.1 Establish a systematic and consistent data collection and performance measurement system to track the progression of cases through the case scheduling and hearing process, and provide breakdowns of the numbers of postponements and adjournments per case and associated reasons. In doing so, establish an easy-to-use and structured set of categories for recording and reporting on reasons for postponements and adjournments. 7.2 To this end, collect reasons for postponements and adjournments for the following three outcomes since each imply a distinct setting or context: (a) Postponements prior to the hearing date; (b) Postponements at the day of the hearing; CPMP Internal Audit and Evaluation 6 / 64

9 Executive Summary (c) Adjournments. 7.3 Base the collection and reporting of reasons on a structured set of categories and reasons for postponements and adjournments, to enable consistent tracking, reporting and analysis of the composition of, and trends in postponements and adjournments. The number of categories and sub-categories should be kept relatively small to facilitate the recording of reasons and aggregation and reporting of outcomes. Recommendation 8: 8.1 Conduct a detailed analysis of scheduling performance to: (a) Identify realistic levels of postponements to maximize rates of case finalisation; (b) Identify and assess ways in which postponements and adjournments can be accommodated without requiring other, already scheduled hearings to be postponed. Consideration should be given to holding a percentage of slots open as new months are added to the calendar to better accommodate adjournments, priority cases and limit administrative postponements; (c) Establish methods to further reduce the incidence of administrative postponements prior to the hearing. Recommendation 9: 9.1 Divisional and Registry management should jointly monitor and review in an appropriate regional and/or national forum: (a) The rate of postponements prior to hearings to promote consistency in the assessment of applications to change hearing dates and times between CMs and among different regions, and the extent to which applications are refused and subsequently postponed on the day of the hearing, while respecting the independence of decision-makers. (b) The rate of postponements made on the day of hearings and, where necessary, provide guidance and support to members to ensure consistent interpretation and application of the Rules relating to changes to hearing dates and times, while respecting the independence of decision-makers. (c) The rate of adjournments due to lack of hearing time to: (i) Identify the incidence of cases where the hearing time allocated was insufficient and provide guidance on means of improving the estimation of hearing length. (ii) Identify trends and patterns in adjournment rates per member and, where appropriate and within the principles of natural justice and procedural fairness, provide guidance or training in active management of hearings to enable more hearings to be completed within the times allocated. (d) The age breakdown of cases that are scheduled but not yet heard to assess compliance with time standards and reasons why any have protracted delays. Recommendation 10: 10.1 At a minimum, consider reporting on three aspects of case scheduling performance, on a monthly basis: CPMP Internal Audit and Evaluation 7 / 64

10 (a) (b) (c) Immigration and Refugee Board of Canada Executive Summary Trends in the number of postponements and adjournments, covering: (i) Numbers of cases scheduled; (ii) Number and percentages of cases postponed prior to hearing; (iii) Number and percentages of cases postponed on day of the scheduled hearing; (iv) Number and percentages of cases that were heard; and (v) Number and percentages of cases adjourned. The age distribution of cases, including comparisons to time standards for case scheduling and hearing, focusing on: (i) Cases in the pending inventory (that is, waiting for initial scheduling); (ii) Cases where at least one hearing has been scheduled but a final decision has yet to be made; (iii) Cases where final decisions have been made. Characteristics of decisions made in hearings: (i) Number and percentages of cases that were heard and an oral decision made at the end of the hearing; (ii) Number and percentages of cases where hearing and receiving the evidence was completed but the decision was reserved; (iii) Number and percentages of cases that were heard but the decision is delayed pending receipt of written or oral submissions by the parties. CPMP Internal Audit and Evaluation 8 / 64

11 I. Introduction KPMG LLP (KPMG) was engaged by the Immigration and Refugee Board of Canada (the IRB or the Board) in December, 2007, to evaluate the Board s case scheduling process, with a focus on the causes of postponements and adjournments of tribunal hearings. This report presents the findings from KPMG s work and related conclusions and recommendations. This chapter summarizes the circumstances that gave rise to IRB s decision to commission this work, the objectives and scope of the evaluation, and the methodology used, including its limitations. A. Background The IRB is an independent administrative tribunal that reports to Parliament through the Minister of Citizenship and Immigration, with a mandate to resolve immigration and refugee cases efficiently, fairly and in accordance with the law. The IRB is the largest administrative tribunal in Canada, with over 40,000 case dispositions per year across three divisions: Refugee Protection Division (RPD) Hears refugee protection claims, and applications for vacation or cessation of refugee protection. Immigration Division (ID) Conducts admissibility hearings for foreign nationals or permanent entrants who seek entry into Canada or who are already in Canada and are alleged to be inadmissible, and detention reviews for foreign nationals or permanent residents who are detained for immigration reasons. Immigration Appeal Division (IAD) Hears appeals: By sponsors whose applications to bring family members to Canada have been refused by Citizenship and Immigration Canada (CIC). Of removal orders made against permanent residents, Convention refugees and other protected persons. By permanent residents where a CIC officer outside of Canada has decided that residency obligations have not been fulfilled. By the Minister of decisions on admissibility made by the Immigration Division. All three Divisions hold their proceedings in Vancouver, Toronto and Montreal on an ongoing basis while a small number of hearings are conducted in other major centres, such as Ottawa, Calgary and various itinerant locations across Canada. On a Board-wide basis, approximately two thirds of IRB s caseload is processed and heard in the Central Region, 25 percent in the Eastern Region and 10 percent in the Western Region. As of June, 2008, the IRB employed 114 Governor in Council (GIC) appointed decision-makers at the RPD and IAD, and an additional 30 public service decision-makers at the ID. These decision-makers are supported by case managers, tribunal support officers and management personnel. In total, the IRB employs approximately 1,000 people (full-time equivalents) in its three regional offices and at National Headquarters. In scheduling cases for hearing, the RPD, IAD and, to a lesser extent, the ID have encountered challenges in responding to the volume of postponed or adjourned cases in recent years. To CPMP Internal Audit and Evaluation 9 / 64

12 Introduction enhance its tribunal management performance, the IRB commissioned KPMG to identify the likely causes of adjournments and postponements and the impact both have on timely case finalization, and to establish ways and the means by which the volume of adjournments and postponements may be reduced. Case processing times and costs are also expected to be reduced if the incidence of postponements and adjournments are reduced. B. Evaluation objectives The objectives of the evaluation were to: Identify the factors outside the IRB s control which are the likely causes of adjournments and postponements of proceedings. Identify the factors within the IRB s control that cause adjournments and postponements of proceedings. Evaluate the efficiency and effectiveness of the scheduling process in case processing. Assess the efficiency of compliance to time schedules of proceedings. Establish how risk management procedures are used to mitigate the impact of adjournments and postponements on caseload. Assess the efficiency of the monitoring and performance measurement process which is used to identify the causes and impacts of adjournments and postponements. Evaluate how tribunal administration is addressing the challenges and issues associated with adjournments and postponements. In general terms, an efficient and effective scheduling process is one that supports, and enables, the achievement of IRB s mandate and mission whilst operating within the parameters set by the Divisional Rules Guideline 6 with respect to the RPD and the principles of natural justice and procedural fairness. C. Evaluation scope 1. Methodology The methodology for the evaluation involved multiple lines of enquiry: A review of IRB documents and information relating to planning for, and performance of, IRB hearings and the incidence of postponements and adjournments. Exploratory interviews with Deputy Chairs and their advisors, and the Directors General of Immigration Division and Operations. An online search to identify best practices in case management and scheduling in courts and tribunals. Appendix A contains a list of the most relevant documents identified and reviewed. Visits to each of the Toronto, Montreal and Vancouver offices to interview Assistant Deputy Chairs (ADCs), Coordinating Members (CMs), Regional Directors, ID Directors, Registrars and schedulers. Reviews of samples of files involving postponements and/or adjournments in each of the three regional offices, and spanning all three Divisions. CPMP Internal Audit and Evaluation 10 / 64

13 Introduction A limited program of interviews with immigration lawyers and consultants in each of the three regions and Canadian Border Services Agency (CBSA) representatives. Data collection and analysis was conducted over the period from January to April, Appendix B contains a list of who was interviewed within the IRB and the participants in the external stakeholder interviews. 2. Limitations Readers should note that the present evaluation was primarily qualitative and, as such, drew upon the knowledge and observations of GiC members and IRB staff who are directly involved in the scheduling and management of hearings, with limited recourse to quantitative breakdowns of supporting quantitative data relating to the progression of hearings and reasons for the postponements and adjournments. In many ways this approach reflected the current approach to case scheduling, where decisions are based on immediate demands and workloads with limited recourse to data on trends in, and factors influencing, the IRB s ability to complete hearings as planned. Readers should note that, in conducting the analysis, KPMG was asked to look at case scheduling performance across the IRB while being sensitive to differences in the situations and performance of each of the Divisions. The higher incidence rates of postponements and adjournments in RPD and IAD also meant that our analysis focused more on these two Divisions. In addition to having a lower incidence of postponements and adjournments, the ID s scheduling process differs from the RPD and IAD to accommodate detention reviews, which have statutory time standards, and differing availability of decision-makers, who are members of the public service. Other differences in the ID s approach to case scheduling are highlighted in the text, where appropriate. As part of the process of conducting the site visits and interviews it was possible to conduct only a limited amount of cross-validation of findings within and between each of the regional locations, supplemented by the file review, which provided an indicative profile of the issues encountered in scheduling initial and postponed/adjourned hearings. Additional, in-depth research will likely be needed as a first step in responding to and implementing the recommendations. We have highlighted areas where further work may be needed in our conclusions and recommendations. CPMP Internal Audit and Evaluation 11 / 64

14 Overview II. Overview of the Current IRB Case Scheduling Process This chapter of our report presents a brief overview of the current case flow and scheduling process within IRB. In doing so, it focuses on the key decision points and events in case scheduling, and the management of postponements and adjournments. Differences between each of the Divisions are also highlighted. A. Legal framework for case scheduling The context for the management and scheduling of hearings by the IRB is defined by the IRPA, the Rules of the three Divisions and their Commentaries, and Guideline 6 in the case of RPD. Section 162 (2) of IRPA requires the Board to deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit. Each set of Rules includes sections that establish the parameters for scheduling hearings or have a bearing on decisions to postpone or adjourn hearings. These Rules relate to: Fixing the date and time of a hearing, and issuance of a formal Notice to Appear to the parties to a hearing (RPD Rules 21 and 22, ID Rules 21 and 22, IAD Rules 22 and 23). Timeframes for disclosure and exchange of documents between the parties to a hearing and their submission to IRB prior to the date of a hearing (RPD Rule 29, ID Rule 26, IAD Rule 30). The process to be followed if a party applies to change the date or time of their hearing, and the factors to be considered by the applicable Division when deciding these applications (RPD Rule 48, ID Rule 43, IAD Rule 48). Applications are expected to include at least six alternative dates on which they would be prepared to proceed. Factors to be considered in reviewing these applications are presented in Section C, below, of this chapter. Applicants seeking a change of date or time are expected to be prepared to appear and proceed at the time originally scheduled, that is, should not suspend their preparation on the presumption that their application will be accepted. Conditions under which a refugee claim may be declared abandoned and requirement for a special hearing to enable the claimant to explain why their claim should not be abandoned (RPD Rule 58). Statutory requirements for detention reviews, which account for over 80 percent of the hearings conducted by the Immigration Division (with the balance being admissibility hearings), include specific time standards for the scheduling of these hearings. These requirements are found in Division 6, Section 57 of IRPA, and require the IRB to conduct an initial hearing within 48 hours of detention or without delay thereafter, a second hearing within seven days thereafter if the person concerned is not released, and further hearings every 30 days to review the reasons for the continued detention. For admissibility hearings where the person concerned is detained by Immigration, cases are often scheduled to coincide with the next detention review. At that date, if the case is not ready to proceed, the ID will proceed with the detention review and re-schedule the CPMP Internal Audit and Evaluation 12 / 64

15 admissibility hearing for the next detention review in expectation that CBSA will obtain the necessary documents that allow the admissibility hearing to proceed. RPD and IAD hearings, and admissibility hearings conducted by the ID, do not have statutory time standards for scheduling hearings. The IRB has also prepared a set of commentaries on each set of Rules that provide additional guidance on the interpretation and application of key rules. In the case of the RPD and IAD, this includes commentaries on the Rules relating to setting hearing dates and notifying parties, and applications to change the date and time of hearings. For example, the Commentary on RPD Rule 22, Notice to Appear, describes the types of information that may be contained in a Notice to Appear, identifies that the Minister will also receive a copy of the notice (in addition to the claimant), and notes that Notice may be provided orally prior to issuance of a written Notice. The RPD and IAD Commentary on applications to change the date or time of a hearing includes a number of points that specifically relate to the postponement or adjournment of hearings. In the case of the RPD, these include statements to the effect that: The Division may allow an application but set a peremptory date for the re-scheduled hearing (that is, an absolute and unconditional date) in order to meet the IRB s statutory obligation to deal with its proceedings fairly and quickly. The Division may set a new date without the agreement of the parties to the hearing, and provide the parties with at least three weeks notice. When a hearing is initially scheduled (usually in consultation with the parties to that hearing) it is on the basis that the parties will be able to appear and be prepared to proceed. In other words, a change of date or time should be due to exceptional circumstances and not at the convenience of the parties or their counsel. In situations where a counsel accepts a case after the date of the hearing has been set they are expected to appear on that date, prepared to proceed, or if they are unable to appear, to make diligent efforts to arrange for a replacement. Guideline 6 describes the RPD s general approach to scheduling hearings and changing the date and time of a proceeding as well as expectations of participants. Key elements of the Guideline relate to: The Division attempts to accommodate the availability of counsel for claimants but is not bound to do so. As a general principle, applications to change the date or time of a proceeding will be granted only in exceptional circumstances and where such a change is justified. Allowances will be made for unrepresented claimants and vulnerable claimants. The Claimant is responsible for making sure that their counsel is available on the scheduled date if they have retained counsel after the RPD has scheduled the proceeding. In reviewing applications for schedule changes, the RPD takes into account its obligation to deal with proceedings as quickly as possible, if the parties have been given notice of the date and time of the proceeding, and if they have had reasonable time to prepare. ( Reasonable CPMP Internal Audit and Evaluation 13 / 64

16 time and reasonable notice of the date and time of a hearing is not defined in the Guideline, however.) If a claimant is ill, the fact should be supported by a medical certificate wherever possible. If the RPD believes that a party is trying without valid reason to delay the proceeding, the RPD may set a peremptory hearing date. Other IRB instruments that define the context for the management and scheduling of hearings are: Guideline 2 Guidelines on Detention: summarize factors to consider when ordering the detention or continued detention of a person, or considering the release of a person held in detention. Guideline 3 Child Refugee Claimants: Procedural and Evidentiary Issues: the Guideline provides that Before the panel, RCO 5 and interpreter are assigned, consideration should be given to their experience in dealing with the claims of children. Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution: In some cases it will be appropriate to consider whether claimants should have the option of providing their testimony outside the hearing room by affidavit or by videotape, or in front of members and refugee claims officers specifically trained in dealing with violence against women or of a particular gender. Guideline 8: Guideline on Procedures with Respect to Vulnerable Persons Appearing Before the IRB: The IRB makes procedural accommodations for vulnerable persons that may include providing a panel and an interpreter of a particular gender or holding the hearing in a different, less formal, room. Instructions Governing the Management of Refugee Protection Claims Awaiting Front-end Security Screening: The RPD will generally not hear a claim unless the RPD receives confirmation from the CBSA that front-end security screening of the claimant has been completed. Instructions for the Acquisition and Disclosure of Information for Proceedings in the Refugee Protection Division: the RPD may postpone a case until information is received. Policy on Court-Ordered Rehearings: When there is a court-ordered rehearing in the RPD or the IAD, certain decision-makers need to be selected to rehear the case. Policy on Designation of Three-Member Panels, RPD Approach: Three-member panels are made up of certain decision-makers. Protocol for High Profile Cases: High Profile Cases are heard by certain decision-makers. B. Initial scheduling of hearings Case scheduling is the process whereby hearing dates and times are assigned to cases deemed to be ready for hearing and members assigned to hear these cases. The output from this process is a 5 RCO refers to Refugee Claim Officer. They subsequently became RPO, Refugee Protection Officers and are now referred to as Tribunal Officers. CPMP Internal Audit and Evaluation 14 / 64

17 master calendar that lists the hearings scheduled for the scheduling cycle (period over which cases in the pending inventory are assigned dates and times, which is usually three to four months in the IRB, and assignment of members and tribunal officers (in a proportion of cases) to these hearings. Exhibit II-1 presents a schematic overview of the generic steps in the flow of IRB cases from initial referral through to disposition. Readers should note that this exhibit describes the case flow and scheduling process in general terms and each Division and regional office is likely to have variations in their approaches. Readers should also note that the exhibit primarily relates to the work of RPD and IAD, and the conduct of admissibility hearings by the ID. As noted in the previous section, detention reviews conducted by the ID are governed by statutory time standards set in Division 6, Section 57 of the IRPA. Setting a hearing date and time depends on inputs from various combinations of participants in the hearing process, such as member managers, members, Minister s counsel and counsel for claimants (RPD), appellants (IAD) and concerned persons (ID), to ensure that the key parties will be available on the assigned date. 6 This is a dynamic process in which hearing dates and times are constantly subject to change, as a result of both changes to the availability of parties for each hearing and needs to accommodate postponements and adjournments of other cases. The coordination effort demands a lot of time, mainly on the part of case schedulers, and thus increases the cost to hear and finalize cases. The following sections describe the key steps in the IRB s case scheduling process in more detail. 1. Initial triage Following receipt of the minimum information required to assess the merits of a claim or appeal the case file is reviewed by IRB adjudicative support personnel to confirm that the necessary information has been received and is ready for hearing. For a refugee protection claim a completed Personal Information Form (PIF) must be received before a hearing can be scheduled. This triage process is used to determine if the case can be resolved without going to a full hearing, using either: An expedited process (for refugee protection cases) using a fast-tracked expedited process or a fast-track hearing. In the expedited process a tribunal officer interviews the claimant and makes a recommendation regarding acceptance, or otherwise, of the claim. If the claim is recommended for acceptance it is then reviewed by a member. If the claim is not granted it is referred for a formal hearing. Fast track hearings are conducted by members and are used for claims that appear to hinge on one or two issues. A streamed process (for immigration appeal cases -sponsorship appeals, removal order appeals, residency obligation appeals and Minister s appeals) using paper hearings, where the case is assessed on the basis of written submissions; early resolution by informal methods, such as phone calls, letters to the parties obtaining further documentation, obtaining agreed statements of facts; or, using a less formal alternative dispute resolution (ADR) process. Cases are generally categorized on the basis of early estimates of expected hearing complexity and thus, the time it will take to hear the evidence and the member to reach a decision. At 6 In this report, we have used the terms person(s) and tribunal user(s) to describe in generic terms the refugee protection claimant for refugee protection cases; the appellant for immigration appeal cases; and, the person concerned for detention reviews and admissibility hearings. CPMP Internal Audit and Evaluation 15 / 64

18 present, the established screening categories at the RPD are simple hearings (two hours), regular (three and a half hours) and complex (one or more days). In practice, however, there appears to be apart from the expedited interview category four categories of hearing duration: Short up to one hour, which can allow for six to eight hearings per day by a member Medium two to two and a half hours, allowing three hearings per day Full three to four hours, allowing two hearings per day Complex one day or more. If a hearing is scheduled for more than one day it is adjourned at the end of each day and resumes the next day. Practices in the ID differ by region. The Central Region has a triage officer who triages admissibility hearings; in the Eastern Region triage activity is done in a summary court proceedings room, equivalent to a roll call; and, in the Western Region, members conduct the triage activity. The IRB has sought to divert a higher proportion of cases to expedited hearings (for RPD) as well as ADR (for IAD). This use of expedited and streaming strategies represents an application of a best practice in caseflow management, namely that of practising differentiated caseflow management, and provides a way of accommodating a higher volume of cases without commensurate increases in the number of members. CPMP Internal Audit and Evaluation 16 / 64

19 Case Referred to IRB Initial File Preparation Triage Expedited/ Streamed Exhibit II-1 Overview of the IRB case scheduling process Scheduling Priorities & Criteria Master Calendar Updated Member Availability Notified Pending Inventory Hearing Scheduled, Notice Sent New Date and Time Set Member Assigned Readiness Checks Postponed Prior to Hearing Weekly/Daily Hearing Calendar Decision Maker s Calendar Hearing Decision Postponed Day Of Hearing Member Seized; Hearing Adjourned CPMP Internal Audit and Evaluation 17 / 64

20 Overview 2. Scheduling of hearings Normally, if the triage process determines that a case should go to a formal hearing, a date and time to hear and receive evidence and possibly for the sitting member to render an oral decision at the end of the hearing is scheduled. The IRB may consult with parties when it schedules the hearing to confirm their availability but is not required to do so. A formal Notice to Appear is sent to participants notifying them of the scheduled date and time. Participants are expected to use the time between the scheduling of the hearing and its conduct to prepare their cases, which includes such steps as examining the issues that are likely to be dealt with at the hearing, obtaining supporting documentation and disclosing additional evidence within the time limits set in Divisional Rules. The Divisional Rules and Guidelines cited in Section A, above, identify a range of considerations in prioritizing and scheduling proceedings: Unaccompanied minors Persons detained under the IRPA Persons considered to represent a danger to public health or safety, or who would cause excessive demands on health or prescribed social services Persons who are serving a sentence for a criminal offence Persons identified by the Division as requiring priority processing Adjourned hearings Persons identified as vulnerable for the purpose of procedural accommodations 7 The output from this process is a master calendar that lists the hearings scheduled for the scheduling cycle (period over which cases in the pending inventory are assigned dates and times, which is usually three to four months) and the member assigned to each hearing. This is a complex and dynamic process. Scheduling personnel must work with such information as: Case hearing priorities. Estimates of the daily availability of each member over the length of the scheduling cycle. Availability of counsel, tribunal users and Minister s counsel. Parameters for the assignment of members to particular types of cases, for example, the Toronto office of the RPD assigns members to hear the cases of claimants from particular geographic regions of the world such that some members predominantly hear cases concerning refugee claimants from Africa, others hear cases from Central America, etc. Requirements for and the availability of interpreters, supporting technical equipment or facilities (for example, where a case may be heard using video conferencing), and the availability of hearing rooms. The ongoing flow of requests from member managers and members for changes to the schedule to accommodate postponements and adjournments. 7 RPD Case Management Manual: 17. Scheduling of Proceedings, IRB, Issue No , para CPMP Internal Audit and Evaluation 18 / 64

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