Canada’s Immigration and Refugee board is returning to ‘pre-COVID’ in-person hearings — despite lawyers’ objections

Canada’s Immigration and Refugee Board will turn back the clock and start hearing asylum claims as it did in pre-pandemic days — with judges, lawyers, refugees and interpreters all in enclosed hearing rooms.

After months of consultation, the IRB said Thursday it will begin transitioning to its “pre-COVID model” for refugee hearings, with all parties in the same hearing rooms beginning Sept. 14.

The move goes against a recommendation from the Canadian Bar Association’s immigration section, whose 1,200 members had asked that virtual hearings be the default option due to health concerns.

“The IRB response has fallen short,” said Toronto immigration lawyer Lina Anani. “They said they’re adding plexiglasses. The virus is airborne and plexiglass may work when you go to a grocery store. … We’re inside a small, enclosed space. Plus high-risk activity, which is talking continuously and going on for hours.”

As of March 31, the IRB had a backlog of 90,267 asylum claims to be processed.

The IRB shut down all hearings in March but has slowly resumed its in-person hearings since July, first in Vancouver and at its offices in the rest of the country at the beginning of August. Since Aug. 3, it said, there have been 880 refugee hearings scheduled, including 62 through videoconferencing.

Under the current protocol, judges and interpreters have worked off-site or in different rooms than claimants, appellants and their counsel to observe social-distancing. However, claimants and lawyers are often asked to remove their masks during oral submissions and when testifying.

Virtual hearings and what’s called “paper-based file review” — adjudicating a claim based on documents only — have also been carried out in limited capacity.

“We are in the midst of the most ambitious transformation of our operating model in the board’s 30-year history,” board chair Richard Wex said in his latest operational updates, which were posted online.

“We have been guided by the dual objectives of both protecting the health and safety of all those appearing before the IRB and ensuring access to justice, including for those vulnerable populations who have been disproportionately affected by the pandemic.”

With the full resumption of in-person hearings, the IRB said plexiglass barriers are being installed in its larger hearing rooms as an added layer of protection in addition to physical distancing and a requirement that everyone wear masks during the hearing. (Effective immediately, hearing participants who would like to wear masks while testifying or providing submissions can do so.)

It said the percentage of external air in the ventilation system has been increased in IRB facilities, and high-quality filters are being used. There is also extra attention being given to ensuring that ventilation maintenance schedules are adhered to.

In its submission to the IRB this month, the bar association raised concerns over the risk of exposure to COVID-19 for claimants and counsels travelling to the IRB offices, using public elevators and being confined to small rooms for extended periods of time.

“Installing plexiglass and taking temperatures will not eliminate those risks,” said Ravi Jain, chair of the bar association’s immigration division. “A vaccine — the only effective method to mitigate the risk of harm — will not be available for public distribution in the foreseeable future.”

Last week, more than 250 lawyers and advocacy groups wrote a petition to the IRB demanding it stop scheduling both in-person and virtual hearings until their health and safety concerns were addressed, which includes the logistics for claimants to participate in remote hearings.

“I’ve been appearing at the (Toronto office of the) board for the last 20 years. The ventilation is a huge issue there. We want to open the door but, due to privacy, we can’t keep the door open to get some air into the room,” said lawyer Preevanda Sapru, who spearheaded the campaign with other colleagues.

“We have to be up and ready with Microsoft Teams for virtual hearings. I’m OK with it, but my clients don’t have Microsoft or internet. And we have a small office. There’s no way to do social distancing. What’s been done for the claimant to have a safe space?”

To date, Sapru said, 15 of her clients have declined to be scheduled for an in-person hearing out of safety and technical concerns even though they are eager to get a hearing and move on with their lives.

“Many clients in the refugee bar are marginalized. They don’t have access to a computer or any type of videoconference system. Some of them don’t have a smart phone,” said lawyer Nastaran Roushan, who has already had clients expressing concerns about in-person hearings.

“Compelling them for a hearing virtually sometimes is not an option, especially when you add in language barrier. Connecting between an interpreter and one or more claimants virtually is a logistical nightmare.”

IRB spokesperson Line-Alice Guibert-Wolff said the board’s detailed health and safety protocols have been reviewed by the Public Health Agency of Canada.



To further reduce the need for in-person hearings, she said, the board has also begun to hold more virtual hearings and resolve less-complex refugee claims through a paper-based file review, so certain well-documented cases can be resolved without a hearing.

The IRB is also exploring arrangements that would let claimants and appellants use computers on IRB premises to participate in virtual hearings, while their counsel attend the proceedings remotely.

“We are confident that they address the concerns expressed by the group of lawyers and advocates,” Guibert-Wolff said.

Nicholas Keung

Nicholas Keung is a Toronto-based reporter covering immigration for the Star. Follow him on Twitter: @nkeung