May 9, 2019 Interview on the Danielle Smith Show -the Growing Refugee Backlog and the Auditor General Report
Danielle Smith: …you probably saw that the press conference, a couple of days ago from the Auditor-General talking about the myriad problems that we have at the federal level, but this is one that we have known about because my guest has been raising the alarm about this ever since at the crisis of people coming across the border illegally, saying, “We just do not have the ability to handle this influx. We do not even have the ability to handle the existing refugees that we are trying to process, let alone this new influx.” And it sounds like everything he has been telling us is absolutely true.
Danielle Smith: Joining me now to see whether we are any closer to solutions is Raj Sharma, Calgary Immigration Lawyer.
Danielle Smith: Raj, thank you so much for being with me today.
Raj Sharma: Good morning.
Danielle Smith: So let us talk a bit, if we can, about the Auditor-General report. What stood out for you on it?
Raj Sharma: Well it was not surprising, I do not think. I think what stood out, for me, is that we are trying to fix a plane while we are flying it, and that is inherently difficult to do. I think what stood out for me is that we need to understand that our refugee system is set up, essentially like a court and it adjudicates complex issues and legal issues, and it is inherently ill-suited for high volumes. And we are expecting a fish, I think, to climb a tree and that is just not going to happen.
Raj Sharma: What stood out for me was the remarkable reliance on paper and facts and between these three agencies, the Refugee Protection Division, the CBSA and the IRCC, they came across in reading the report, they came across as Moe, Larry and Curly.
Danielle Smith: <Laughs>I like the way you put that. Well that is the thing that surprises me. Is it because they have had so many catastrophic failures at trying to bring in new technology? I think of the Federal Gun Registry, which ballooned to two billion dollars in costs, I think of the Phoenix pay system which is still a fiasco. Do they just not have the internal competence to move to a technologically based system? So they stick with paper? I am trying to interpret what is going on here.
Raj Sharma: It is hard to say. I was a Refugee Protection Officer with the RPD 17 years ago, and the Personal Information Form, or PIF that we called it, the newest incarnation is the BOC, the Basis of Claim form. And one would imagine that in 17 years we would take advantage of electronic forms, for example. As always there has been issues in terms of, you know, there are multiple inefficiencies that the audit by the AG revealed. But I am not sure, you know, other than being an accurate synopsis of the challenges that the board faces, I am not sure what it adds to our understanding as to what can be done. The system, in my opinion, is inherently not scalable.
Raj Sharma: Geometric problems can not really be solved with arithmetic, so if you have a system that is funded for 22000 claims, and you are getting 50000 claims on top of that. Short of, tripling the staff, and Minister Ahmed Hussein is correct, he has added 64 more members, but these are cosmetic changes as opposed to systemic.
Danielle Smith: Can you solve this by adding geometrically more staff? I mean, rather than just hiring a handful of new people, hoping they will be able to handle the deluge. Should you scale up your staff? If you can say, “One person is able to process X many claims in a year.”, then would not that dictate how many people that you hire? Am I thinking about this the wrong way?
Raj Sharma: Well, no, I think you have got it. But you have got to address a couple of things at the same time. So, like Michelle Rempel says If you impose a Visa ban on certain countries, that may result on a decrease in terms of the overall load, and so you will then need less adjudicators, for example.
Raj Sharma: Just simple things that the board is not doing. I was an RPO in the days following September 11, 2001, and so there was a massive border crossing at that time as well -only eclipsed recently. And at that time they were talking about MUCs. M-U-C. Manifestly Unfounded Claims, and getting to the yes faster, the easy yes and the easy no’s. And the Auditor General’s report talks about that, that there are claims that we could decide without a hearing, for example, a claim from Yemen or Syria or an objectively well founded claim, for example a Christian from Pakistan for example.
Raj Sharma: So there are claims that can be resolved without a hearing, and the board is not taking advantage of that. And so of the claims that could be decided on file review as opposed to a hearing, that is rarely utilized. The board only expedited a quarter of those eligible claims. And even when you try to expedite the easy yes, they end up taking the same amount of time as any other claim. And the board does have the ability to do this, and there are efficiencies and abilities within the system. It seems that they are simply not being utilized.
Danielle Smith: Well, talk me through how each of those would work. Let us leave the complicated cases in the middle for a minute. How would an easy yes work? So I am a Christian from Pakistan, and I show up at the border, making a claim. What would be the way to get to an easy yes on that?
Raj Sharma: Well it has to be triaged. You know, notification has to be made to CSC, IRCC officer. And once it is then referred, or deemed referred to the RPD within 72 hours, within three days, the board should grab that. And again, as RPO’s, we used to screen files. So as soon as you screen a file there is a box. It is like triage at a hospital. It is not complicated. This is not, again, rocket science. This is identifying a manifest. You got a claim and you have a success rate, and let us say the success rate of a activist Christian individual from Pakistan is 90%. Well you should probably be streaming that into an easy yes, a paper review and allowing that claim, requesting some documents, making sure that you verify their identity and of course their religious affiliation. And if everything is okay, you make a decision. “Can I make this call based on paper? Do I need a quick one hour meeting or hearing with this individual to ask some basic questions?” And then you decide it, and you move on to the next file.
Danielle Smith: Oh. That sounds very quick. I mean, that sounds like that could take place in a week. Give me some idea of what you think would be a realistic timeframe for that easy yes approach that you are proposing.
Raj Sharma: I will give you an example. I had evangelical Christians from Sudan. That hearing took over a year to schedule. This is in the middle of Sudan’s melt down. I mean, this should have been resolved some time ago.
Raj Sharma: I will give you another example. I had an Iranian Muslim professor who converted to Christianity. That should not have gone to a hearing.
Danielle Smith: Or even if it did, it could have gone to a fast track hearing, the one hour hearing, and then bang, you are done.
Raj Sharma: Absolutely. And what happened is it went to a full hearing. The board member looked at me and said, “Mr Sharma, why are we here?” She accepted the claim in five minutes. Now the problem is that is great for my client, but that afternoon now can not be used for any other hearing.
Danielle Smith: What is the difference between a full hearing versus the alternative you are proposing?
Raj Sharma: Well, a full hearing is typically scheduled for half a day. The board member goes in ready to ask the questions first. They go first in this sort of set up. And then the counsel has a chance, and there are submissions. So it is much more like a court system. So what we did when I was involved, there was officers that would meet with the claimant and they could recommend the acceptance of the claim without a full hearing, for example. So you are using different resources, you are not tying up a hearing room. And again, these are finite resources, so when we talk about geometric problems and sort of arithmetic responses there is only so many hearing rooms -In Calgary there is only about eight rooms available, so how many can we use per day and how many decision makers do we have and can we get to.
Raj Sharma: Again, the easy yeses and the easy no’s.
Danielle Smith: Okay Raj, let me pause you because you have given us a lot to think about. I want you to walk us through what an easy no process would look like, as well. Especially if that is what we keep getting told is, “No, no, no. [inaudible 00:08:50] decision. Everybody has got to have a fair hearing.” Can you streamline that side? Be interested in your thoughts. When we return, Raj Sharma is my guest. Calgary Immigration lawyer. Stay with us…
Danielle Smith: Got someone saying ask him if he will ever run for government. He would be good at it. How about we just put him in charge of this whole process? He has fixed already, the easy yes side. What the easy no side looks like. But before we leave the easy yeses, how many categories do you think that would be? I mean, either a 100 different scenarios that would fall into the easy yes, or is it smaller than that? I am trying to get a sense of the scope of the problem.
Raj Sharma: It could be quite a bit. I mean if you look at it, there is profiles that would fit. Depends on the country. I mean, Egypt, Turkey for example conscientious objectors for military service, a journalist from Turkey. I mean, journalists basically from, you know, a 100 different countries, I imagine. There is domestic violence, there is gender claims for example, you know, gay, lesbian, bisexual, transgendered individuals from a whole host of countries. A huge swath of the world. I mean do not underestimate the number of claims that could be expedited in this fashion. It could be [crosstalk 00:09:59] evangelical Christians from a number of countries including China, for example.
Danielle Smith: But you could say, “Here are the target countries, here are the 10 different categories where these are legitimate claims.” And you could develop a profile that would very easily kick out the number of people who are in that quick yes category.
Raj Sharma: Remember one thing, immigration is one of the most studied departments. I mean we have the statistics on almost every type of profile and every type of country.
Danielle Smith: Okay, so tell us how you get to a quick no because that is where the real problem is. Right?
Raj Sharma: The quick no -I mean Jason Kenny tried it in the 2012 reforms and so this is a little bit modeled on the UK approach. They had this sort of “white paper” on certain countries where they did not get the full gamut of immigration, refugee, options, and that came across some level of challenge. But I would certainly say that you could expedite claims by US nationals, for examples. You could expedite claims by nationals of every Western European country, I suppose.
Danielle Smith: So those would be a couple. How do you deal with South America? Because those are the ones that may be tricky, because those are the ones that are under temporary protection order in the US [inaudible 00:11:11], El Salvador, Honduras and Nicaragua.
Raj Sharma: The UK has a system where they assess both refugee protection and potential humanitarian stay at the same time. So again, these are separate processes right now. One option might be to combine the two where one judge determines, “Okay, are you a refugee? Is there risk to your life?” Or, failing which is that, “Well, should I consider a stay on humanitarian grounds?” And that might be an interesting option as well, especially for Central America for individuals under TPS that have been in the US potentially for decades.
Danielle Smith: What are the consequences of not solving this problem? I mean they painted a pretty sharp picture and I imagine that can be even worse than they have painted. They said, “You know, if your average wait is now two and a half years, it could double to be five years.” I wonder if you would even suggest that they have to wait two and a half years. What is your experience?
Raj Sharma: Well I think the consequences are clear. If you get to five years or more I think it necessarily individuals… Some policy makers somewhere will then consider the possibility of an amnesty. And that is basically accepting the reality [crosstalk 00:12:25] that we may never be able to adjudicate, in a timely fashion, tens of thousands or hundreds of thousands individuals in Canada.
Danielle Smith: Are you getting any sense that there is anyone in government that is pushing the kind of reforms you are talking about? Pushing them along. Obviously Michelle Rempel, you have made reference to, but she is in opposition. Is there anyone in government who says, “Yeah, I think these are the changes that we need to make.”?
Raj Sharma: Hidden in this omnibus legislation that Trudeau had indicated that he would never bring in is this sort of beefed up STC Safe Third Country agreement. It could be possible to utilize or expand the STC, and what it sounds like. And this is something I will be discussing at the National Immigration Conference. What it sounds like is they are going to restrict the oral hearing to individuals that have made a claim in a safe third country. And so if you have an individual who has made a claim, perhaps it has not been decided, and you know any, I think, group of five. The five eyes which is Australia, New Zealand, US, UK and us. That could be an interesting systemic change because it would then free up an oral hearing. You would get a paper based review. So that would be more systemic rather than a cosmetic. And ultimately, you know, shuffling deck chairs on the Titanic rarely addresses the underlying issue.
Danielle Smith: What about the issue of bringing it in to modern times with some technology? To be able to help ease this process. Is there some off-the-shelf technology from some other country that we could use that will allow us to expedite that?
Raj Sharma: Well the Auditor General talked about other administrative tribunals using electronic systems, and so I think that this is… There is nothing complex about it. I mean, we can do online applications for visitor Visas for any number of immigration applications, so this is again not rocket science. This is something that our G7, G8 country should be able to implement at the drop of a hat.
Danielle Smith: Raj Sharma, always appreciate your perspective. Thank you for your time today.
Raj Sharma: My pleasure. Thank you very much.
Danielle Smith: Yep. That is Raj Sharma, Calgary Immigration Lawyer with Stewart Sharma Harsanyi. <Sighs> You kind of regret the fact that he’s not still in the government bureaucracy and can push through some of these changes, pushing up as everyone else is trying pushing down.