Good morning, all.
Thank you very much for inviting me to speak before the committee today.
My name is Cheryl Robinson. I'm an immigration and refugee lawyer. Although I practise before all four divisions of the IRB, I am going to be focusing my remarks on the refugee protection division and the training of its members, with a particular focus on what I believe to be inadequate training regarding questioning of traumatized, marginalized, and vulnerable persons, and the intersection in the quest for truthfulness or credibility, which is the heartland of the refugee board's mandate.
By way of background, at the refugee board there's a core principle of credibility, which is that sworn testimony of a refugee claimant is presumed to be true unless there's a reason to doubt that truthfulness. This is a Federal Court-mandated principle that has to be respected in all credibility findings. Even though there is this presumption of truth, what we often see in practice is that this results in a hunt for a reason to doubt truthfulness, for the board member to search for inconsistencies, plausibility concerns, or omissions. This often causes the board members to engage in very detailed, thorough, intrusive, and repeated questions on issues. Leaving aside the appropriateness of that response, I would note that when you engage with vulnerable and historically marginalized groups, such as the LGBTQ community and women facing gender-based violence, this search for truth, or the truthfulness or credibility of a claim, becomes that much more difficult.
In my own practice before the board, I have seen board members take a gamut of approaches on how to find the truth. I've seen board members engage successfully in very sensitive, inclusive, and most of all, respectful questioning of claimants. They ask about feelings, how the person felt about an event. They ask about what they recall as opposed to subjecting them to a series of intrusive questions with a particular response expected.
There are many others who take less positive approaches. For example, some will ignore the sensitive issue altogether. They won't ask any questions. They will instead engage in credibility determinations based on completely peripheral issues. I had a refugee claim that was denied because the address history was wrong, and this was used to determine that the claimant wasn't gay. These are not related.
On the other hand, we also see some board members who engage in very intrusive and specific questioning, and they will keep on asking because they believe it's part of the mandate to determine the credibility of a claim. I've heard board members ask things like “Do you remember how long the rape lasted?” “On average, how many times a week were you beaten?” “Per month?” “Just guesstimate.“ None of these questions actually draw out useful testimony. Instead, what happens is that you're re-traumatizing the claimant when these questions are being asked, and it inhibits their ability to answer. Claimants will shut down. They start providing incoherent or scattered answers. In fact, this type of questioning actually prevents the board from carrying out its mandate. It prevents them from getting to the credibility of a claimant and their experiences.
With all due respect to the very difficult task that RPD members have in determining claims, to me this points to inadequate training. That's because we see these completely inconsistent approaches being applied by different board members. It's quite clear that some of these negative approaches persist at the board despite whatever training is present.
I have a number of concrete suggestions, and I'm sure that some of them are going to repeat those of previous witnesses. I think some of these elements bear repeating.
The first is that training should include those who have gone through the refugee process as well as the agencies that work with these communities. What better way for board members to truly understand the impact of the questioning than to hear from someone who has been through that process? This could be done by way of recording, or by working with the agencies that work with these communities. It doesn't have to be an in-person experience. It should be focused on how they felt about questioning, not elements of their claim.
The training should also be trauma informed. The training should include working with mental health professionals to understand the impact on trauma, not just in terms of being able to provide testimony but also to recall memories and to be able to verbalize those traumatic events.
It should also include how to read and apply the psychological reports, because that, quite frankly, is a stumbling block in refugee determinations, as well as consideration and training on the potential for re-traumatization through the hearing process itself, which I believe is often left aside.
All of these training elements have to be coalesced through situational-based training, running through scenarios and case studies. It's not enough to simply have someone lecture at you, and then put you into a hearing. That training cannot happen on the job.
Related to that is the need for follow-up training. Mr. Aterman spoke about how there was a three-hour afternoon training on the application of the sexual orientation, SOGIE, guidelines. That isn't sufficient. What needs to happen is that, after this training, after the board members have had an opportunity to try out this training, they reconvene and discuss, canvass those issues, and see how well they are applying that training. Where are they struggling? That doesn't seem to be addressed. I see the same issues coming up with the same board members.
I also think it would be a really ideal time for those board members to listen to their own past hearing recordings to objectively hear for themselves how they dealt with a difficult line of questioning or a case, not just what they said, but how they said it. Tone impacts on the person's ability to answer. Feedback on the application of the training would allow those board members to really hone and develop their skills and training.
My final suggestion is a bit different, which is that, if it is too onerous for the training to be conducted for the entire board, that there be developmental teams that specifically engage with certain communities or certain case types. For example, right now the board uses country-based teams. You have a team that hears lots of claims from China or lots of claims from Somalia.
Why don't we use that to have a team that deals with primarily gender-based violence claims where it is a central element of the claim or where a sexual orientation or gender identity is the core? This would allow for the training of very specialized expert teams that would not just understand how to work with such claimants, but be trained on how to question them, how to elicit the appropriate testimony, and how to ignore peripheral issues that really aren't relevant to the issue of whether someone is gay or someone has been raped. I think this would be an extension of the guidelines that are already in place. We recognize that these populations are particularly vulnerable. I believe that this would be an appropriate step to consider.
