Citizenship and Immigration Committee on March 22nd, 2018

[Jenny Kwan, NDP, Vancouver East, BC]

Thank you for that.

The reason I ask is that if the IRB is embarking on the consultation process, it would seem to make sense to me to go to the complainants to ask how the process was for you and if you had any suggestions with respect to how to improve on it. I'm hearing from both of you that it was not done.

I did ask the IRB for the list of who they consulted with. We have not yet received it. That's why I asked the question. Thank you for that.

Would you agree that if someone has gone through that system, that process, it would be helpful for them to be consulted and to offer their thoughts on how it could be improved?

[Asiya Jennifer Hirji]

Yes, I think so. I think also that it's incumbent on the IRB to implement the suggestions. For instance, Nastaran just mentioned having an independent decision-maker. Those suggestions have been ignored.

[Jenny Kwan, NDP, Vancouver East, BC]

Thank you.

Mr. Aterman told the committee that after the complaint, if the individual complaint was founded and maybe sanctions were imposed, such as having to go through training and such, after the training they don't do any evaluation process to see how effective the training had been. At the end of the year, they do the annual review of the member, and then they will make the determination.

What are your thoughts on that?

[Asiya Jennifer Hirji]

My concern is that currently the system places far too much emphasis and responsibility on the immigration bar and individuals. I'm not sure if Mr. Aterman was asked, but I suspect that if you were to ask him how many complaints have been filed by self-represented litigants, the answer would be zero, which means this population, which is an extremely vulnerable population, is being subjected to individuals such as the member whom I complained against. They are not aware they have recourse and they are certainly not exercising that recourse.

Many members of the bar are not filing complaints and are not necessarily aware of the process. I think the IRB's position on this is very troubling.

[Jenny Kwan, NDP, Vancouver East, BC]

Do you have anything else to add to that, Ms. Roushan?

[Nastaran Roushan]

I think the reason, Ms. Kwan, that the IRB doesn't take the results of a complaint and then funnel them back into the training process is that the IRB doesn't want to acknowledge that there is anything wrong with their members. That's really the crux of the problem.

If you're going to ignore that anything wrong has happened, then why would you put it into the training process? What that does is just perpetuate these incompetent board members, and they continue to hear cases.

[Jenny Kwan, NDP, Vancouver East, BC]

For example, in a normal workplace, if a person has been found to have breached their professional conduct or to have issues with competency, normally an employer will sit down and talk with them and go through all of that. Depending on the level of that issue, they might go through training and so on, but then they're put on notice, so to speak, on a temporary review notice period.

Do you think something like that should kick in with the IRB board members?

[Asiya Jennifer Hirji]

I think that's a great idea.

I think also having a lateral move while there are complaints that are well founded.... In the case of this particular member, certainly it was found not to be a breach of the ethics code, but he received sensitivity training, which in my view was an admission that something was amiss. Then during this process he was transferred to the IAD, so I certainly think that behaviour should be stopped.

[Nastaran Roushan]

I think it's important to remember as well that this is not a regular workplace. The ramification of having somebody who doesn't know how to do their job is having someone removed to a place where they can undergo persecution.

[Jenny Kwan, NDP, Vancouver East, BC]

I have one and a half minutes and I do want to get to this issue.

In the case of Ms. Cassano, there were outstanding complaints against her, and then she left the IRB. We don't even know why she left the IRB, and there was no recourse. The complaints were just dropped.

I would like you to comment on that, please.

[Nastaran Roushan]

That again is an indication that the IRB doesn't really want to address that there is a problem. There had been many complaints about Cassano in the past. They didn't address that.

One of the things that I actually asked the IRB to tell me was how many complaints had been made about her in the past, the nature of the complaints, and why they hadn't done anything about it. Because she is no longer there, they claim that they don't have to give this information over.

[Jenny Kwan, NDP, Vancouver East, BC]

Do you think there should be a process in place to ensure that those complaints are completed?

[Nastaran Roushan]

Of course, yes.

[The Chair, Liberal, Rob Oliphant]

You have half a minute.

[Jenny Kwan, NDP, Vancouver East, BC]

Do you have anything else to add in half a minute?

[Asiya Jennifer Hirji]

No. I completely agree.

[Nastaran Roushan]

I would like to add that while these complaints are ongoing.... For example, in what happened with Cassano, it took about 10 months for there to be a final decision. Hearings ongoing with her on which she hadn't made a determination, hearings that had been adjourned for another date, were just left standing. There were claimants who, for 10 months, didn't know when their next hearing date would be, and then they had a letter about a year afterward saying, “Well, you can have a de novo now with a new member.” We can just imagine the ramifications, when they had been so traumatized already, to have to wait during that time.

[The Chair, Liberal, Rob Oliphant]

Thank you. We need to end it there.

For the committee's information, I was just speaking to the analyst and I think I'm going to be requesting some work from the analysts on other examples of what the complaints processes are in quasi-judicial administrative tribunals and whether or not there are good examples and best practices. Also, because it is quasi-judicial, there may be some examples from the judiciary or justices of the peace, or from the regulatory bodies such as the bar association and those things.

If the committee is in agreement, I'm just going to ask the analyst to come up with a comparative study so that we can see some examples.

[Some hon. members]

Agreed.

[The Chair, Liberal, Rob Oliphant]

Very good.

Go ahead, Mr. Sarai.

[Randeep Sarai, Liberal, Surrey Centre, BC]

Thank you both for coming.

I'm a member of the bar. I don't practice in this area, but soon after getting elected, I had an array of immigration lawyers come to me to complain about this. I had never actually realized the severity of this issue for certain members until seeing their cases and cases like the ones you brought up, for over two years.

I might sound like I'm going backwards, so just bear with me. In terms of the interview and complaint process—and you say there was no interview when you complained—in a normal law society complaint process there's usually, at a bare minimum, an interview with the complainant. I haven't been through it exactly, but I think there then potentially is an interview with the person being complained about, which would be the lawyer in that case.

What that does is at least make it appear to the accused and to the complainant that they are being heard, as opposed to what I've just heard from you, which is that the person being accused never even knows that they are being investigated and that the complainant feels they've just given a paper file that yields nothing back.

Ms. Hirji, what's your opinion? Do you think, as a bare minimum, an interview with the complainant as well as with the accused should be done?

[Asiya Jennifer Hirji]

I think it depends on the case, because it can be quite traumatic for individuals. Oftentimes the counsel is the complainant who is complaining against the behaviour, and not necessarily the individual.

Refugee claimants oftentimes are very vulnerable. In my instance, she would have refused to go to a hearing. I'm certain of it. In the interim—this is in my complaint to the board—between Sterlin's refusal of her claim, the Federal Court remitting it back, and her redetermination, she was hospitalized. She attempted suicide. She became very addicted to painkillers and so on. This really devastated this woman's life, so the idea that she would have to go back and face questions—

[Randeep Sarai, Liberal, Surrey Centre, BC]

What about yourself? You would be interviewed as to the complainant, to get the gist of it perhaps—

[Asiya Jennifer Hirji]

Sure.

[Randeep Sarai, Liberal, Surrey Centre, BC]

—and then you could go back to your client and say, “Yes, I was contacted. This is what they asked me. This is what I told them,” so that she knows the complaint is being addressed—