Quality Performance in the Immigration Division 2024

On this page

• Overview
• Assessment methodology
• Limitations
• Results
• Summary of results
• Pre-proceeding readiness
• Fair and respectful proceedings
• Focused and robust proceedings
• Reasons state conclusions on all determinative issues
• Decisions provide findings and analysis necessary to justify conclusions
• Reasons are transparent and intelligible
• Recommendations
• Management response and action plan
• Annex A – ID performance indicators

Overview

This report describes the results of the measurement of quality in decision-making in the Immigration Division (ID). This report aims to provide a perspective to improve the Division's overall performance.

To ensure, neutrality, quality, and consistency in the assessment, a third-party reviewer, Paul Daly, was selected based on his in-depth knowledge of the Immigration and Refugee Protection Act (IRPA), refugee and immigration matters, and administrative law. Paul Daly is the Research Chair in Administrative Law and Governance at the University of Ottawa, a leading commentator on Canadian administrative law, and an expert in decision-making in the administrative state.

The Audit and Evaluation Team of the Strategic Planning, Accountability, and Reporting Directorate (SPAR) provided the statistics found in the table accompanying each result section as well as the information in 1.0 “Context” and 2.0 “Summary of results”. However, the findings in this report, including all strengths, areas for improvement and recommendations are solely those of the third-party reviewer.

Assessment methodology

The study reviewed 70 randomly selected cases decided on their merits, after a hearing held before a single member, finalized between January 1st and March 31st, 2024. The cases were balanced in proportion to region and language. Cases between 25 minutes and 4 hours were included. Members with less than 6 months of experience at the start of the assessment period were excluded from the sample.

The following charts illustrate the sampling design:

Regional office

Language of proceeding

Type of proceeding

The reviewer examined all evidentiary and administrative materials on file, listened to the complete audio recordings, and assessed these against qualitative indicators in an assessment tool developed by the Audit and Evaluation Team, and approved by the Deputy Chairperson of the ID (see Appendix A). The assessment tool includes twenty-seven indicators across six performance categories. Thirteen of the indicators are mandatory for assessment, and fourteen are assessed only when applicable.

1. Pre-proceeding readiness
2. Fair and respectful proceedings
3. Focused and robust proceedings
4. Reasons state conclusions on all determinative issues
5. Decisions provide findings and analysis necessary to justify conclusions
6. Reasons are transparent and intelligible

Each indicator is assessed on a 1-to-3 rating scale. The 1-to-3 rating scale is as follows:

1=Does not meet expectations: The quality requirement was not met. The evidence showed one or more key instances where the proceeding or reasons would have markedly benefited had this requirement been met. There may have been an effort to apply the requirement, but the level of achievement fell short of expectations.

2=Meets expectations: This is a level of acceptable achievement. On balance, the member satisfied this quality requirement though there is margin for minor improvement.

3=Exceeds expectations: This is a level of consistent, above-average achievement. The evidence shows a grasp of the quality requirement and an understanding of its importance to a high-quality proceeding or decision, as the case may be.

Results are also expressed as a percentage of cases that meet expectations. A hearing is considered to meet the quality standard when 80% or more of the indicators for that hearing score a 2 or higher.

In support of Gender Based Analysis Plus (GBA+), the assessment tool includes items which directly address matters of accommodations, self-represented persons, intersectionality, and where applicable, other aspects of the Chairperson's Guidelines.

Limitations

The goal of the study was not to generate statistics but to identify areas of strength, areas for improvement, and patterns in decision-making quality. To mitigate the inherent limitations of qualitative research, detailed performance indicators and guidance were provided to the assessor to help focus the assessment. Moreover, the assessor was provided with orientation by the Division, and data was checked for quality by the Audit and Evaluation Team.

A small sample size limits the inferences that may be made about the broader caseload. Where sample sizes are too small for ‘if applicable' indicators, observations or recommendations may still have been provided but these are not based on representative findings. 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.

Results

Summary of results

The primary performance target for this assessment is for 80% of cases to meet the quality standard. A case meets the quality standard when 80% or more of the indicators for that case score a 2 or higher. The primary performance target was achieved with 100% (70 out of 70) of cases meeting or exceeding the expectation.

Where an indicator had many cases that did not meet the target, it is addressed in the reviewer's observations following the table (“What we can improve”).

What we did well

• Members were invariably well prepared for hearings. It was evident that they had reviewed the file in advance, appreciated the key issues, and arrived ready to focus discussion on relevant legal and factual matters.
• In detention reviews specifically, members undertook fresh assessments in all cases, considered the s. 248 factors and invited evidence from bondspersons.
• Members' training in managing hearings, their training in relevant legal issues and their use of standard-form scripts allowed them to excel on these indicators.
• Persons concerned were treated with sensitivity and respect, were accommodated where appropriate, and members ensured that persons concerned and the Minister could address all relevant issues.
• Members addressed all relevant issues in their reasons and based their decisions on evidence adduced in the proceedings.
• In virtually all cases, members supported findings of fact by reference to credible evidence, addressed evidence running contrary to their conclusion and relied on legislation, regulations, rules, or Chairperson's guidelines, where appropriate.
• Members rendered plain-language, issues-based, point-first decisions which were generally very easy to understand, were concise, well-organized and logically sequenced.

What we can improve

• The person concerned should be informed in all cases, in plain English or French, of the nature of the proceedings, the relevant legal and factual issues, the possible conclusions and the availability of appeal or judicial review routes.
• Members should produce succinct summaries of decisions, whether they are rendering them orally or in writing, in order to optimize the accuracy of decision-making and enhance the accessibility of their decisions to the person concerned and the general public.
• The Immigration Division should consider whether it is advisable to encourage members to invite oral testimony more often from potential bondspersons in detention reviews.

Pre-proceeding readiness

Why measure this

The groundwork for quality is set before the hearing when the member prepares for the proceeding and understands the facts and key issues of the case. Indicator 1 of this study assesses this principle.

Considerations

Indicator 1 applies to all admissibility hearings.

Overall result

General observations

Members were invariably well prepared for hearings. It was evident that they had reviewed the file in advance, appreciated the key issues, and were ready to begin the hearing without delay.

What we did well

Members had all necessary documents available to them to determine the relevant legal and factual matters for each hearing. Members also had reviewed the documents in question and arrived ready to address the relevant legal and factual matters.

What we can improve

There is no room for improvement. The current procedures and expectations in relation to hearing-readiness, and the existing document management structure, should be maintained.

Fair and respectful proceedings

Why measure this

Individuals appearing before the IRB expect that they will be treated with sensitivity and respect. Any shortcoming in this regard potentially undermines tribunal integrity and public confidence. Indicators 2 to 10 of this study apply these principles to the context of IRB decision-making.

Considerations

Indicators 2, 4, and 5 apply to all cases. Indicators 3, 6, 7, 8, and 9 are only assessed if applicable. Indicators 6 and 10 only apply to detention reviews and are assessed if applicable.

Overall result

General observations

Members scored very well on these metrics.

Persons concerned were treated with sensitivity and respect and were accommodated where appropriate.

Members ensured that persons concerned and the Minister could address all relevant issues and mostly ensured that unrepresented persons concerned understood the proceedings.

Members intervened to ask questions where the evidence was unclear, intervened whenever translation or audio-visual facilities were inadequate, ensured a designated representative was appointed where appropriate and actively engaged the parties to verify that adequate disclosure had been made.

These high scores resulted from the implementation of best practices, such as high-quality training of members, and the use of scripts or memory aids to ensure consistency and transparency.

What we did well

The current member training ensures sensitivity and respect in hearings by educating members about the needs of persons concerned. Members' training about sensitivity and respect for the needs of persons concerned was evident:

• Members appreciated the need to be sensitive with persons concerned who, for example, do not speak English or French, might not understand the nature of the proceedings or have suffered trauma. Members used appropriate language and tone to convey sensitivity and respect.
• Members offered accommodation where it was appropriate because they have a strong understanding of the possible impediments to meaningful participation by persons concerned.
• Members intervened swiftly when audio-visual or interpretation issues became apparent.

The current member training about the legal provisions they apply ensures fair and respectful proceedings. Members' training about legal issues was evident:

• Members ensured that the parties could address and respond to relevant issues because of their knowledge of the legal provisions they are asked to apply: this knowledge allowed them quickly to appreciate what issues are relevant and determine when evidence and/or responses were appropriate.
• Members' keen grasp of the legal provisions they apply meant that they were able to intervene to ask questions where the evidence led by the parties did not address an important issue.

Members use standard-form scripts to ensure that all persons concerned receive the same information. Members follow scripts that ensure consistency and transparency:

• Members ensured that unrepresented persons concerned were given relevant information about the proceedings.
• Members appointed a designated representative where appropriate.
• Members engaged counsel to ensure that disclosure of information was adequate.

What we can improve

Members could improve their communication with persons concerned.

It is the essence of fair and respectful proceedings that the person concerned be adequately informed of all relevant information. The person concerned should be informed in all cases, in plain English or French, of the nature of the proceedings, the relevant legal and factual issues, the possible conclusions and the availability of appeal or judicial review routes.

On occasion, members did not use plain English or French to transmit this information, especially when the person concerned was represented. This was presumably because members believed that the person concerned would be adequately informed by their representative. Whether the person concerned is represented or not, it is important to explain the nature of the proceedings, the relevant legal and factual issues, the possible conclusions and the availability of appeal or judicial review routes. The IRB should consider revising the indictor to apply to all persons concerned, not just those who are unrepresented.

Members should use a plain English or plain French script to communicate relevant information. Members should not rely on representatives of persons concerned to transmit all relevant information.

Focused and robust proceedings

Why measure this

Proceedings that are efficient and well managed create conditions for quality outcomes to emerge and support the IRB's efforts to make the most effective use of its resources. Indicators 11 to 18 of this study apply these principles to the context of IRB decision-making.

Considerations

Indicators 11 and 12 apply to all cases. Indicators 13, 14, and 18 are only assessed if applicable. Indicators 15-17 apply only to detention reviews and are assessed if applicable.

Overall result

General observations

Members made sure that parties focused testimony and submissions on relevant issues, engaged in focused and organized questioning, actively managed challenging situations, dealt with oral applications when made and took an intersectional, trauma-informed approach to assessing testimony.

In detention reviews specifically, members undertook fresh assessments in all cases, considered the s. 248 factors and invited evidence from bondspersons.

What we did well

Members' training in managing hearings, their training in relevant legal issues and their use of standard-form scripts allowed them to excel on these indicators.

Members managed hearings very well, using their training in hearing management and their legal knowledge to focus the parties' submissions and their own interventions, responding quickly and effectively to challenging situations (often by adjourning the proceedings briefly), considering all relevant factors and following an intersectional, trauma-informed approach to testimony.

What we can improve

Members should carefully consider whether they require oral testimony from bondspersons in detention reviews. In many detention reviews, the evidence of a bondsperson will be very important. However, few bondspersons were asked to testify: members often relied on documentary evidence. Even though the assessed cases met expectations against the relevant indicator, current practice may disadvantage persons concerned, especially if a member has doubts about the bondsperson that might have been addressed by oral evidence. Hearing evidence from bondspersons would enhance the fairness of the detention review process without unduly lengthening the proceedings. It would also lead to better decisions that are based on direct evidence obtained from a bondsperson rather than on inference and conjecture. However, this is not something that strikes at the heart of the decision-making process but is something to consider balanced against other objectives, such as efficiency.

Reasons state conclusions on all determinative issues

Why measure this

The Supreme Court of Canada set the requirement for justifiability, intelligibility, and transparency in a decision of an administrative tribunal. Through indicators 19 to 27, this study applies the Court's requirement in the context of IRB decision-making.

Considerations

Indicators 19 and 20 apply to all cases.

Overall result

General observations

Members addressed all relevant issues in their reasons and based their decisions on evidence adduced in the proceedings.

What we did well

Members understand the legal provisions they apply and as they put this knowledge to use in writing decisions, they do an outstanding job of identifying and addressing all relevant issues in their reasons.

Members' training in managing hearings and in the legal provisions they apply allows them to ensure that all relevant evidence is adduced, which they can then use as the basis for their decisions.

What we can improve

Members have no need to improve in these indicators.

Decisions provide findings and analysis necessary to justify conclusions

Why measure this

The Supreme Court of Canada set the requirement for justifiability, intelligibility, and transparency in a decision of an administrative tribunal. Through indicators 19 to 27, this study applies the Court's requirement in the context of IRB decision-making.

Considerations

Indicators 21 and 22 apply to all cases. Indicators 23 and 24 are only assessed if applicable.

Overall result

General observations

In virtually all cases, members supported findings of fact by reference to credible evidence, addressed evidence running contrary to their conclusion and relied on legislation, regulations, rules, Chairperson's guidelines, or where appropriate.

What we did well

Members have been trained to ensure that their conclusions are based on findings of fact and, in turn, that those findings are supported by credible evidence. Members structure their decisions so as to outline the credible evidence and demonstrate how it supports their findings of fact.

Members have also been trained in the legal framework they are asked to apply and demonstrate familiarity with legislation, regulations, rules, Jurisprudential Guides, Chairperson's guidelines and persuasive decisions, which they rely upon in appropriate cases.

What we can improve

Members have no need to improve in these indicators.

Reasons are transparent and intelligible

Why measure this

The Supreme Court of Canada set the requirement for justifiability, intelligibility, and transparency in a decision of an administrative tribunal. Through indicators 19 to 27, this study applies the Court's requirement in the context of IRB decision-making.

Considerations

All indicators apply to all cases.

Overall result

General observations

Members render plain-language, issues-based, point-first decisions which are generally very easy to understand, are concise, well-organized and logically sequenced.

What we did well

Members have been trained in the fundamentals of the preparation of good reasons.

They use plain language, i.e. English or French that can readily be understood by a reader; this ensures that their decisions are understandable to the public.

They render decisions in a point-first way, making one point per paragraph and per sentence; this ensures that their decisions are concise.

They follow an issues-based approach to preparing reasons, organizing their analysis around the issues raised by the parties rather than organizing their analysis chronologically; this ensures that their decisions are well-organized and logically sequenced.

What we can improve

The main area for improvement is in the provision of overviews of decisions. Whether giving decisions orally or writing them, it is important for members to give a concise summary of the outcome before engaging in a detailed analysis of the law and the facts. The recommended overview is not a recitation of the facts, nor is it a simple statement of the member's conclusion. Rather, the overview is a concise summary of the key facts and grounds for decision, distilling the essence of a decision into several short paragraphs. The IRB's Refugee Appeal Division (RAD) overviews, which summarize the outcome of an appeal and explain the context, are useful reference points.

Summaries serve two important purposes. First, summaries alert the reader or listener to what is coming. In high-stakes decision-making, where immigration status and constitutional liberty interests are on the line, it is vital to introduce complex analysis with a succinct summary. Otherwise, the listener or reader may struggle to follow the analysis of a decision of great importance.

Second, summaries discipline the decision writer. Providing a brief overview of the analysis ensures that the member applied appropriate rigour to their legal and factual analysis. If members are not capable of succinctly explaining their legal conclusions and the principal factual bases for them, this indicates that parts of the analysis may need to be redone. Accordingly, the discipline of providing summaries ensures more accurate decisions.

In addition, members could make greater use of sub-headings, even in oral decisions, to better organize their analyses.

In rendering oral decisions, in some circumstances it may be preferable not to provide an overview of a decision, for example where a person concerned might react negatively to the overview and thus fail to focus on the remainder of the decision. This is a particular possibility in the case of detention reviews. Any change to current practice in relation to the provision of overviews should therefore take account of the context of member decision-making. Any change should also preserve member discretion to render decisions in the most effective way, taking into account the characteristics of the person concerned and the context of the hearing.

Recommendations

Recommendation 1

Members are very well trained in the substantive law they apply and in how to handle hearings. They evidently rely on scripts for conveying information during hearings and on templates for decision writing. The excellent results in this review are largely attributable to the work being done by the Immigration Division before members hear matters. This preparatory work should continue.

Recommendation 2

The Immigration Division should prepare new plain language scripts for communicating information about the nature of the proceedings, the relevant legal and factual issues, the possible conclusions and the availability of appeal or judicial review routes. Members should ensure fairness and respect by communicating in plain language with the person concerned, whether they are represented or not, at the outset of the hearing.

Recommendation 3

The Immigration Division should consider whether it is advisable to encourage members to invite oral testimony more often from potential bondspersons in detention reviews. This may assist in resolving doubts or gaps in evidence in relation to a bondsperson.

Recommendation 4

Members should produce succinct summaries of decisions, whether they are rendering them orally or in writing, in order to optimize the accuracy of decision-making and enhance the accessibility of their decisions to the person concerned and the general public.

Management response and action plan

Recommendation 1

Members are very well trained in the substantive law they apply and in how to handle hearings. They evidently rely on scripts for conveying information during hearings and on templates for decision writing. The excellent results in this review are largely attributable to the work being done by the Immigration Division before members hear matters. This preparatory work should continue.

Management response

Accepted. The Immigration Division (ID) appreciates this commendation.

Management action plan

The ID will continue to monitor training delivery and support to members.

• Lead responsible: ID

  Completion Date: Q2 2025-26

Recommendation 2

The Immigration Division should prepare new plain language scripts for communicating information about the nature of the proceedings, the relevant legal and factual issues, the possible conclusions and the availability of appeal or judicial review routes. Members should ensure fairness and respect by communicating in plain language with the person concerned, whether they are represented or not, at the outset of the hearing.

Management response

Accepted.

Management action plan

A. The ID will review and update the memory aids for members to ensure that they convey information in plain language and address the issues identified in the recommendation.

B. Members will receive training on plain language communication in an adjudicative setting.

C. Management will remind members in team meetings to communicate key information in plain language to persons concerned.

• Lead responsible: ID

  Completion Date: Q3 2025-26

Recommendation 3

The Immigration Division should consider whether it is advisable to encourage members to invite oral testimony more often from potential bondspersons in detention reviews. This may assist in resolving doubts or gaps in evidence in relation to a bondsperson.

Management response

Accepted.

In conducting detention reviews, members must balance fairness, efficiency as well as the time and other constraints inherent in presiding over hearings where the person concerned is housed in a detention facility. That said, the Division agrees that prospective bondspersons' oral testimony may in certain cases be critical in informing a member's decision on whether or not to order release.

Management action plan

The ID will offer refresher training to members on when to consider inviting oral testimony from prospective bondspersons.

• Lead responsible: Legal Services

  Completion Date: Q1 2025-26

Recommendation 4

Members should produce succinct summaries of decisions, whether they are rendering them orally or in writing, in order to optimize the accuracy of decision-making and enhance the accessibility of their decisions to the person concerned and the general public.

Management response

Accepted.

The ID appreciates the assessor's recognition that members are best placed to determine how to deliver their decision and that, in some cases, it may not be appropriate to provide a summary of the decision at the outset to avoid unduly provoking a strong emotional reaction on the part of the person concerned. That said, the Division agrees that the provision of succinct decision summaries may enhance transparency and accessibility in some circumstances.

Management action plan

The ID will develop and deliver training to members on providing succinct decision summaries, to be provided in circumstances where it is appropriate to do so.

• Lead responsible: Legal Services

  Completion Date: Q3 2025-26
  

Annex A – ID performance indicators