An asylum seeker, claiming to be from Eritrea, is confronted by an RCMP officer as he crosses the border into Canada from the United States, on Aug. 21, 2017, near Champlain, N.Y.Paul Chiasson
The Immigration and Refugee Board can only go so far to manage historic numbers of asylum claims and it's now up to the Liberals to decide what kind of refugee system it wants, say refugee advocates, opposition MPs and the arms-length tribunal itself.
The board took the formal step this week of invoking an element of Canada's immigration law that says it doesn't have to follow legislated timelines to hear claims if doing so would unduly impact the operations of the board.
The switch to the new first-in, first-out approach is more fair to those seeking asylum, said Shereen Benzvy Miller, deputy chairperson of the refugee protection division.
But while measures like that and others have seen the board increase output by 40 per cent over the last year, it can still only hear about 2,000 cases a month – with 2,100 more being added to a backlog that currently has wait times of 20 months for new hearings.
"Is it my problem there's a backlog? It's my problem from a position as an administrator, because who likes a backlog," she said.
"The truth is that at the end of the day we're a tribunal. Our real job is to do refugee determination on individual claims and we are doing that to the best of our ability. If others feel that we should be doing more, they will fund us more."
Around 47,000 new asylum claims were referred to the IRB in 2017, twice the number in 2012 – the year the Conservative government legislated timelines for hearings as part of a new designated countries of origin policy, or DCO, which triages claims depending on where they are from.
The Tories said DCO would discourage unfounded claims for asylum, because the timelines, a bar on getting work permits and less access to appeals would lead to failed claimants being deported faster.
Critics said it created a discriminatory refugee system and the timelines would never work. The Liberals promised a review. While the courts have struck down some elements of the program, the review has never materialized.
Hursh Jaswal, a spokesman for Immigration Minister Ahmed Hussen, declined to say why. The IRB's decision was its prerogative under the law, and the government remains committed to orderly migration and an efficient and fair system, Jaswal said in an e-mail.
The IRB's move doesn't address the fact that claim numbers aren't likely to decrease any time soon, said Conservative immigration critic Michelle Rempel.
"It feels like admitting defeat when we should be coming up with a plan," Rempel said. "I don't know how we go to the Canadian public and tell them the system is working."
The board's move is simpler than a law reform process often fraught with tension, said Sharry Aiken, an expert in immigration and refugee law at Queen's University in Kingston, Ont.
But no action on the DCO and a "stay the course" approach as asylum seekers have surged across the border do raise questions about the Liberal approach to asylum policy, Aiken said.
"It's fair to say, though, that we've been quite worried about what might be in the works behind the scenes."
Last year, Hussen ordered a third-party review of the IRB. An interim report has been delivered, but the government has yet to make it public. The full report is due later this year.
Sources tell The Canadian Press one option being explored is having civil servants more engaged in the refugee determination process, as well as better co-ordination between the board, Immigration Department, Canada Border Services Agency and the RCMP.
It isn't a broken system, said NDP immigration critic Jenny Kwan, but no amount of efficiency is going to solve the issue of backlogs that leave thousands of people in limbo for years.
"The only thing they can do to fix this problem is to resource it so that the IRB can have the tools that they need to process the cases; if we want to ensure that the integrity of our system is intact, the government needs to step up, Kwan said.
"We have a budget coming up on (Feb. 27), and the big question is will they put money into the IRB to address this situation which has now reached, in my view, a crisis."