Thank you for taking the time to investigate what we also think is a very important issue.
At the outset, I would like to say that I and I believe many other members of the immigration bar applaud the efforts of the IRB to investigate the complaints process, to modify it, and to try to make sure that there's more transparency and fairness in the refugee determination process and in IRB determinations more broadly. We certainly recognize the tremendous caseload the IRB handles and that they're tasked with making very serious decisions every day.
Many members at the IRB—the majority, I would say—deal with clients in a professional and respectful manner and are able to apply the Immigration and Refugee Protection Act in a meaningful and robust manner; however, there are a select few who continue to fail to meet this threshold, and I'm concerned that the new process being implemented by the IRB is not mindful of the past mistakes that were made and that it risks repeating them.
As you may know, I was counsel for a woman who was trafficked to Canada. She escaped her traffickers, and her claim was ultimately refused. Based on the conduct of the member who we appeared in front of, I filed a complaint. I'll just briefly read a few excerpts from the complaint so that the committee is aware of the type of behaviour that took place.
In my complaint to the board I say:
In connection with her refugee claim, we provided the IRB with a variety of evidence including proof that [the claimant] had contracted an STI, had had an abortion, that the Toronto Police were aware of her traffickers and were investigating her case, a psychological report and we also provided black and white printouts of the web pages where [the claimant] had been advertised as an Eastern European escort. In many of the photographs, [the claimant] was nude and her genitals were exposed. In all her face was at least partially obscured but her body was prominently displayed.
At the commencement of the hearing..., [the member] advised me that he wanted to see colour photographs of the web pages so that he could compare them with the way that [the claimant] appeared in person to the way she looked [in the photos]. This in spite of the fact that [the member] had before him corroborating proof from the Toronto Police that [this claimant] was in fact a victim of human trafficking.
My complaint went on to state:
[He] was abrasive and rude to [the claimant] throughout the hearing.
[The member] openly berated [the claimant] for not having sought assistance from the police in Toronto earlier. This in spite of evidence on the record that her traffickers had informed her numerous times that the police in Canada were, much as they are in [her home country], on side with the traffickers.
At one point the member referred to the individuals who had trafficked her as her friends, and in reply to evidence that through a forced sexual experience the claimant had become pregnant and was forced to have an abortion by her traffickers, the member asked, “I'm just curious. Where do you get abortions in Toronto? No, just tell me, not that it matters. Just tell me.”
This complaint was filed on the heels of another complaint that this same member had exhibited very similar behaviour. I filed my complaint in October of 2014. During that time, this member continued to hear and decide refugee protection matters, and he continued to hear and decide gender-based claims. He was transferred from the RPD to the IAD, another arm of the Immigration and Refugee Board. I myself continued to appear in front of him.
My complaint took 10 months to be decided, and a decision was only rendered after numerous attempts by me and the other complaining lawyer to prompt a decision. Ultimately my complaint was dismissed, and it was determined that the behaviour did not violate the code of ethics and did not rise to the level of impropriety required.
This particular member has continued to make decisions in what I would say is a similarly offensive manner, and as recently as December 2017, a case that he decided at the IAD was returned for what the Federal Court deemed insensitivity.
While I know there are positive changes in the new complaints process, I think there's a failure to be mindful of experiences similar to mine. I'm concerned that there's no new guideline for conduct. I feel that the existing code deals with behaviours in the most general and vaguest of terms, and it is the same code against which this member's behaviour was found permissible.
I'm concerned that there's no fully independent decision-maker, and I would urge the IRB to ensure that the individual or individuals who are reviewing these complaints are completely at arm's length from the IRB, that they do not interact with these members, and that they do not work out of the same office or see them on a day-to-day basis.
I would also urge that timelines be imposed, because, as Mr. Aterman testified, lawyers are still expected to appear in front of these same members, and these individuals are allowed to continue hearing sensitive matters while the complaints are pending.
I would also urge that there be an initial vetting of a complaint once filed, to determine its well-foundedness. In my view, if a complaint is well founded, then that member should stop hearing whatever particular type of case it is, whether it's sexual orientation, domestic violence, or gender-based claims.
Further, I am concerned that nothing appears to be done by the board on their own initiative to intervene in members' conduct, and I believe strongly that the IRB should be using the data that's available to them to ensure the integrity of their system and their members. I think it is an error to rely exclusively on the immigration bar and individuals themselves to file complaints.
There are a number of statistics that are published by the CCR, the Canadian Council for Refugees, in partnership with a professor at Osgoode Hall, and we know that year after year the same members are issuing the lowest grant rates. In many cases, this can be indicia of a problem.
For instance, the statistics of the member against whom I filed a complaint show that he heard 40 more claims than any other sitting member, so that's 20% more claims than any other immigration member of the RPD. His overall approval rate was less than 23% of the average variance, and that takes into account the country he's receiving a claim from. More specifically, there are a number of countries for which his statistics, in my view, are particularly troubling. For instance, his rates for Afghan claimants are around 61% less than the average.