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.