Objective of QMI
- Assess quality of decision making
- Identify strengths and areas for improvement,
- Inform performance reporting to TBS on program results
Background
- Conducted by a third-party reviewer
- Assessment period: August 1, 2019 to October 31, 2019
- 75 hearings were sampled from 49 randomly selected cases
- Only Detention reviews were sampled
- 11 SOGIE hearings between December 2018 and October 2019 were assessed
Key Highlights of 2018-2019 ID QMI – See Table 1 below
- Strengths identified in the report (based on the sample data)
- Reasons are provided within the statutory time-limits, in accordance with the Chairperson’s guideline on detention in 100% of hearings assessed
- The member treats participants with sensitivity and respect in 100% of hearings assessed
- The member uses plain language in 100% of hearings assessed
- The member identifies applicable legislation, regulations, rules, or guidelines in the proceeding in 100% of hearings assessed
- The member identifies applicable legislation, regulations, rules, or guidelines in the decision in 98.5% of hearings assessed
Linkages between the 2017-18 Audit on Long Term Detentions and the 2019-20 ID QMI - See table 2 below
The overall findings of the 2017-18 audit on long term detentions indicated that substantive changes were required to the way the Immigration Division (ID) manages, conducts and decides detention reviews. The IRB agreed with the audit recommendations and launched a comprehensive action plan that included the implementation of a new Chairperson’s Guideline on Detention, revised procedures and advanced training.
To address this, additional questions were added to the 2019-20 ID QMI to assess improvements made since the findings of the Long-term Detention Review Audit.
- Summary of positive findings noted in this QMI as a result of actions taken in response to the Report of the 2017-2018 External Audit (Detention Reviews) –
- The member ensures parties have an opportunity to present and respond to evidence and to make representations in 99% of hearings assessed
- The members do not hesitate to simplify their language, particularly with respect to alternatives to detention, in 100% of hearings assessed
- The member undertakes a fresh assessment of the issues at each hearing and gives due consideration to new circumstances in 100% of hearings assessed
- The member hears evidence from potential bondspersons and other witnesses when assessing alternatives to detention in 100% of hearings assessed
Table 1: Recommendations and Response to the 2019-20 ID QMI
The ID has developed a management response action plan (MRAP) that will address the following recommendations made by the reviewer by the end of Q1 2021-22:
| Recommendation | Management Response and Action Plan: |
|---|
| 1. A professional training session or a communiqué addressed to all members could make them aware of the importance of adapting the explanations according to whether the person is vulnerable, whether a designated representative and/or counsel is present, or according to the sequence of detention reviews. | The ID recently issued an aide-mémoire for members’ use in detention review hearings to assist them in addressing the detainee in plain language that is accessible to unrepresented persons. In addition, the ID will remind members during a professional development session and/or by way of a memo to adapt their language and explanations according to the particular circumstances of the proceeding. |
| 2. A communiqué could remind all members of the importance of summarizing for the record, any discussions or changes that may have occurred during a break or an adjournment. | The ID will remind all members during a professional development session to summarize for the record any discussions or other developments that may have occurred during an adjournment of the hearing. The ID will also amend its aide-mémoire for members’ use during detention review hearings to incorporate this recommendation. |
| 3. With respect to the appointment of designated representatives, the procedure leading to the presence of a designated representative in the hearing room may require a review, and training at the regional level on the responsibilities of members in the appointment of designated representatives may be appropriate. | The ID is in the process of engaging the services of a mental health law expert to develop a reference document and deliver a training session to members that would assist them in dealing effectively and humanely with detained individuals who are experiencing mental health issues. It is expected that this initiative will support members in determining the circumstances when the appointment of a designated representative would be appropriate. The ID will also ensure that members are reminded of their responsibilities in the appointment of a designated representative. |
4. It is recommended that the ID develop a communiqué for members to raise awareness about the importance of facilitating the participation of the person detained in the hearing by:
- Ensuring that all relevant evidence is disclosed by the Minister in advance and with enough time to allow the detained person or their counsel to review it and respond;
- That all evidence is translated for the person detained where appropriate, and routinely asking the person detained on the record if the evidence has been translated for them;
- That objections to evidence raised by the person detained are dealt with appropriately, particularly when they are unrepresented by counsel.
| The ID will address this recommendation at an upcoming national training session for all members. It will also undertake an assessment of whether other actions may be required to ensure that persons concerned have access to all relevant evidence in advance of the hearing. |
| 5. Given the regional differences observed, it is recommended that the ID ask legal services to highlight relevant FC jurisprudence for member training and attention on the subject of the interpretation of paragraph 248 (d) of the Regulation (whether facts prior to detention can be taken into account by the decision maker in determining whether there have been unexplained delays or an unexplained lack of due diligence on the part of the parties), to improve consistency of application and approach across the regions | The ID will address this recommendation at an upcoming national training session for all members. |
| 6. Teleconferencing and videoconferencing remain valuable tools in some cases. However, hearings by teleconference or videoconference may make it more difficult to detect interactions, particularly when trying to determine if the person detained is a vulnerable person, or in need of a designated representative. A communiqué could make members aware of the fact that they should be especially vigilant in their dealings with the person detained when conducting hearings by video or teleconference in order to detect vulnerable persons status, or a possible incapacity to understand the nature of the proceedings. | The ID will remind all members by way of a memo of the importance of particular vigilance during hearings conducted by teleconference or videoconference of a potential vulnerability or incapacity that may cause them to be unable to appreciate the nature of the proceedings. |
Table 2: Findings of the 2019-20 QMI related to areas of concerned reported in the 2017-18 Audit on long term detentions
| Areas of concern reported in the 2017-2018 External audit of Detention Reviews | ID QMI 2018-2019 Improvements |
|---|
| 1: Inaccuracies and inconsistencies in factual findings | The member bases findings on evidence established as credible and trustworthy in 97% of hearings assessed. The member makes clear, unambiguous findings of fact in 97% of hearings assessed. The member supports findings of fact with clear examples of evidence shown to be probative of these findings in 97% of hearings assessed. |
| 2: Uncritical reliance on statements by CBSA hearing officers | The member undertakes a fresh assessment of the issues at each hearing and gives due consideration to new circumstances in 100% of hearings assessed (repeated below for area of concern 7 and 8). |
| 3: Failure to Hear Evidence from the Enforcement Officer or Investigator in Appropriate Cases | The member hears evidence from potential bondspersons and other witnesses when assessing alternatives to detention in 100% of hearings assessed |
| 4: Failure to Allow Detained Person to Hear and Present Evidence | The member ensures parties have an opportunity to present and respond to evidence and to make representations in 99% of hearings assessed The member explains clearly the allegation(s) / criteria against the person concerned and the possible consequences in 99% of hearings assessed. The member addresses parties’ evidence that runs contrary to the member’s decision and why certain evidence was preferred in 91% of hearings assessed. The member ensures that the Minister discloses all relevant evidence in 94% of hearings assessed. |
| 5: Failure to Question CBSA on Delay | The member considers the factors set out in section 248 of the Immigration and Refugee Protection Regulations before ordering continued detention in 99% of hearings assessed. |
| 6: Barriers to Participation of the Detained Person in the Hearing | The members do not hesitate to simplify their language, particularly with respect to alternatives to detention, in 100% of hearings assessed. The Member deals with oral applications made by parties in 100% of hearings assessed. The member ensures that the Minister discloses all relevant evidence in 100% of hearings assessed. |
| 7: Failure to Decide Afresh | The member undertakes a fresh assessment of the issues at each hearing and gives due consideration to new circumstances in 100% of hearings assessed (repeated above in #1) |
| 8: Over-Reliance on Past Decisions | The member undertakes a fresh assessment of the issues at each hearing and gives due consideration to new circumstances in 100% of hearings assessed (repeated of above in #1 and 7) Conclusions are based on the issues and evidence adduced during the proceedings in 100% of hearings assessed. |
| 9: Fairness Issues for Detained Persons with Mental Health Problems | The Member treats participants with sensitivity and respect in 100% of hearings assessed. |
| 10: Need for Active Adjudication in Consideration of Alternatives to Detention | The member hears evidence from potential bondspersons and other witnesses when assessing alternatives to detention in 100% of hearings assessed |
| 11: Rigid Interpretation of Statutory and Regulatory Factors | Not within scope of QMI |