Quality performance in the Immigration Appeal Division 2024: Summary report

​Methodology

50 cases reviewed | 27 indicators across 6 themes

The study aims to assess the quality of decision making to identify strengths and areas for improvement, as well as to inform performance reporting to the Treasury Board Secretariat (TBS).

Two third-party reviewers were hired to conduct the assessment. Faisal Bhabha is an associate professor at Osgoode Hall Law School, York University and, previously, sat as Vice-chair of the Human Rights Tribunal of Ontario (2008-2011). Anne Levesque is an associate professor in the French Common Law Program at the Faculty of Law at the University of Ottawa. They were supported by the Immigration and Refugee Board of Canada (IRB) Audit and Evaluation team.

The cases in the sample were proportionally representative of the overall case composition for region and language.

Considerations

To ensure quality and consistency in the assessment, two reviewers were selected based on their in-depth knowledge of the Immigration and Refugee Protection Act (IRPA), refugee and immigration matters, and administrative law. Their observations do not lend themselves to firm conclusions on legal matters such as the correct application of the law, the weighing of the evidence, or the fairness of the proceedings from a natural justice perspective. Only a court reviewing the case can arrive at such conclusions.

Sometimes the sample size is too small for ‘if applicable’ indicators to make inferences about the broader caseload. Where sample sizes are too small, observations or recommendations may still have been provided but these are not based on representative findings.

Overall performance

*The Departmental Results Framework target is for 80% of assessed cases to meet or exceed the high-quality standard. This target was surpassed, with 94% of cases meeting or exceeding the expectations.

Performance by theme

What we did well

The Immigration Appeal Division (IAD) performed well in many areas, especially in being well-prepared for hearings, conducting fair and respectful hearings, and producing justified, complete, transparent, and intelligible reasons.

• Members were well-prepared for their hearings and demonstrated a good understanding and familiarity with the file.
• Members were strongly committed to resolve technical issues when they arose.
• Most members provided accessible explanations to witnesses on sworn testimony. When relevant, most members adapted hearings for self-represented appellants, to ensure that the latter understood the proceedings.
• Members generally began hearings by explaining the process and how the proceedings would unfold.
• In their reasons, members made clear connections between testimony and documentary evidence adduced during the hearing to the factual findings necessary to reach their conclusion.
• Members used point first writing, and clear and concise headings to organise their reasons.
• Reasons were written in an accessible language to the parties, including when self-represented, and to the general public. A strong uniformity in style and structure helped make the decisions easier to read, and easier to understand.

Recommendations

1. The IAD should develop and implement comprehensive best practices and resources applicable to hearings involving marginalised parties particularly those who are self-represented and/or who facing intersecting barriers including addiction, mental health, disability, and trauma. These practices and resources should aim to promote substantive impartiality that is to level the playing field and ensure the fairness of hearing for marginalised litigants. For example, it could consider preparing a job aid or checklists for members for communicating information about the nature of the proceedings, the relevant legal and factual issues, the possible outcomes and the availability of appeal or judicial review routes.
2. The IAD should work with members to develop strategies for effectively managing interactions between participants to a hearing and ensuring civility and equitable treatment.
3. It is recommended that the IAD work with members to develop best practices and training in active adjudication, specifically focusing on how to effectively open and direct hearings. These best practices should include how to provide clear explanations of the legal issues to be determined, the types of evidence that need to be adduced to address the legal issues, the applicable legal tests as determined by statute and binding precedent, and the various functions to discharge through the stages of the hearing.
4. The IAD should consult with members to understand the reasons behind the underutilization of available technical support during hearings. By identifying and addressing these barriers, the IAD can enhance the effectiveness of technical assistance, ensuring that members can resolve communication issues more efficiently and reduce lost time during hearings.

Management Response

The IAD accepted the recommendations, all or in part. The Division noted that actions to address recommendations 1 and 3 were already completed as additional training in these areas was delivered to members throughout 2024. The IAD also reviewed and updated its hearing scripts to aid members in presiding over hearings.

The IAD​ will continue assessing whether additional training or training aides would be beneficial. They will hold discussions with members to share strategies on dealing with problematic behaviour during hearings. They will also review their troubleshooting procedures with members to ensure they reflect best practices for ​resolving common technical issues in hearings.

For more information

For more information, please see the full report: Quality Performance in the Immigration Appeal Division 2024.