Citizenship and Immigration Committee on March 22nd, 2018

[The Chair (Mr. Robert Oliphant (Don Valley West, Lib.)), Liberal, Rob Oliphant]

I call to order meeting 102 on the study of the Immigration and Refugee Board's appointment, training, and complaint processes. This is our third meeting on this relatively short study.

I thank our witnesses for coming today. We have two panels. In the first hour, two individuals are coming from the bar, and they are going to offer their comments as practitioners in the field. Also scheduled to be with us was barbara findlay—we were to have three—but unfortunately she is ill and we're trying to reschedule her for another time.

We are going to begin with you. You have seven minutes each. Who would like to go first?

[Nastaran Roushan, Lawyer, As an Individual]

I'll go first.

[The Chair, Liberal, Rob Oliphant]

Ms. Roushan, thank you. Take it away.

[Nastaran Roushan]

My name is Nastaran Roushan. I thank you for inviting me here today.

I'm mostly going to be talking about the complaint process to you, and in so doing, I will be making recommendations. I will also be countering some of the statements made by Mr. Aterman before you on February 27.

In understanding why we're here and the problem that we have with the complaint system, I'm going to go back to the 1985 case of Singh v. Minister of Employment and Immigration, which is when the Supreme Court of Canada said that it is not in accordance with the principles of fundamental justice under the charter not to have an oral hearing where there are serious issues of credibility.

In that same year, fundamental justice was defined in the Supreme Court of Canada decision “Re B.C. Motor Vehicle Act” as being more than just due process. This is where, in his testimony on February 27, Mr. Aterman did not understand what we were speaking about.

What we expect of board members in accordance with fundamental justice is for a hearing to be procedurally fair. That goes without saying. We also expect board members to be competent, and that requires knowledge of the law, knowledge of country conditions, and knowledge of the facts of the case before them. When this does not happen, which happens quite a bit, the only remedy we have is through the complaint system. This complaint system is not independent, it is not transparent, and it is not responsive to our needs.

What I am suggesting today is that the complaint system actually be composed of a three-member panel selected from a roster of individuals who have already been pre-selected. This roster of individuals and the three-member panel would be separate from the IRB and separate from the minister's office. Their job would be to investigate the complaint and refer the member to discipline where required. Their recommendations must be binding on the chairperson. There must not be any discretion, and they must be bound by timelines, which we don't currently have in the complaint policy.

You cannot dress up an office within the IRB as independent, regardless of where it is located or regardless of how “isolated” it is. You cannot dress up a complaint system as independent when the chair has ultimate discretion over whether or not to even look at a complaint.

Mr. Aterman also told you that usually the board waits until a decision has been rendered before stepping in and that it is very rare for them to step in during the process. This is not in accordance with the principles of fundamental justice. Unless a complaint is frivolous, vexatious, or an abusive process, the charter rights at stake require the board to conduct an investigation into the complaint.

It is not just about charter rights in this scenario. It is also inefficient for the board to use its judicial resources to first have rights infringed and then run up the IRB's budget by sending the matter to the RAD or to the Federal Court, only to be sent back for redetermination. The complaints and the hearings must be responsive, not just to procedural fairness concerns but to principles of fundamental justice, which include the competency already talked about.

This is also a requirement in the code of conduct of members. Mr. Aterman told you:

The code is about how members conduct themselves, their behaviour in the hearing room. It's not about the merits of individual decisions. Concerns about inconsistencies in outcomes are properly a matter addressed through the judicial review process, as well as internally through processes like training members on issues.

This is false. At section 13 of the code of conduct, members are required to have knowledge of the law. At section 14, members are required to be consistent in their decision-making, and at section 20, members are required to have a high level of expertise and professional competence.

It is not the job of the Federal Court to teach refugee law to members. It is not the job of the Federal Court to ensure that the code of conduct is being implemented. This is the job of each individual member, and where they fail, it is the job of the IRB management.

It is certainly not the job of the Federal Court to ensure that a member understands that a breach of the charter has taken place after it has already been infringed. The RAD and the Federal Court should be the route for arguable decisions—decisions on which reasonable, intelligent individuals may actually differ in the results. The RAD and the Federal Court should not be the route to challenge principles of law that have repeatedly been affirmed by the Federal Court and the Supreme Court of Canada, and this happens quite a bit.

The RAD and the Federal Court should not be the route to challenge country conditions that are so atrocious that the colleagues of the member whose decision is under review are accepting almost all credible claims before them.

I've said this before in the media piece, and I'll say it again: the accordance of a refugee claimant's charter rights should not depend on who walks in through that door. The IRB must ensure that the right to security of the person in accordance with the principles of fundamental justice is accorded to each individual claimant.

Thank you.

[The Chair, Liberal, Rob Oliphant]

Thank you very much.

Go ahead, Ms. Hirji.

[Asiya Jennifer Hirji, Barrister and Solicitor, As an Individual]

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.

[The Chair, Liberal, Rob Oliphant]

You have about half a minute.

[Asiya Jennifer Hirji]

Sure.

Zimbabwe was 55%, Sudan was less than 64%.

I question the reluctance of the IRB to use this statistical information, at least to further investigate.

I'll close with an analogy. If there was a hospital where doctors were performing surgeries and the overall survival rate was 50%, and you had doctors for whom only 2% or 3% of their patients were living, surely that would be a cause for concern and for that hospital to at least look into the conduct and what's happening.

[The Chair, Liberal, Rob Oliphant]

Thank you both for your testimony today and also for your advocacy in every sense of that word.

Mr. Anandasangaree will begin the seven-minute round.

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

Thank you, Mr. Chair, and I appreciate both of you for coming forward and giving your constructive suggestions with respect to reforming the IRB.

I wondered, Ms. Hirji, if you could elaborate on the nature of the complaint. Were you ever contacted by the IRB for your version, or was it a paper-based complaint? Were you or your client interviewed, and do you know if the member was notified that he was under investigation and that you were representing the subject, the complainant?

[Asiya Jennifer Hirji]

No, the client was not contacted. I was not contacted. All RPD hearings are recorded, but I'm not aware whether or not the CD of this hearing was listened to by the reviewing individual. This particular member was not aware that the complaint was filed, because while it was pending, I was convoked to appear in front of him before the IAD and I raised the issue of bias. I informed him that I had a complaint pending against him, to which he responded that this was the first he'd heard of it.

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

Did he recuse himself when it was brought up?

[Asiya Jennifer Hirji]

He did not. He refused to.

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

Did you continue the case at bar at that point, or did you—

[Asiya Jennifer Hirji]

We were successful in that appeal, and we had a consent from—

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

That in itself causes some concern too, right? Apart from the merit of the case, you don't know if that's the result of his perhaps thinking that there's a complaint against him and he doesn't want to....

[Asiya Jennifer Hirji]

It's certainly possible.

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

I know you indicated that while a complaint is ongoing, and let's say it's relating to harassment or sexual harassment, that person should not be hearing cases of gender-based violence or what have you.

Do you think it's appropriate to limit it to that, or would you recommend a broader limitation on hearings? Should there be a de facto suspension or reprieve for the hearings?

[Asiya Jennifer Hirji]

This is why I think there should be an initial vetting. I think if the behaviour is particularly egregious, then remove that member from hearing all cases altogether. If there's a particular issue with the lack of sensitivity only when it comes to gender-based claims, that would be sufficient, in my view.

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

What do you think is an appropriate timeline?

[Asiya Jennifer Hirji]

I can't imagine why these would take more than two or three months, especially if they're just paper-based.

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

Do you think paper-based is sufficient, or at the very minimum should there be an interview process of the parties involved?

[Asiya Jennifer Hirji]

I think the Office of the Integrity Commissioner, or whoever it is, should be reviewing the CD, because I think that most, not all, of the information should be on there and available.

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

Ms. Roushan, you indicated you're suggesting a three-member panel. Who should that membership be comprised of?

[Nastaran Roushan]

It would be chosen from a roster of individuals who have already been pre-approved, and the recommendation should come from experts within the immigration and refugee bar, non-governmental experts, similar to what happens with a judicial complaint or even with JPs.