January 29, 2018 6:00 am
Updated: January 29, 2018 8:25 pm

Lawyers allege ‘sexist,’ ‘aggressive’ behaviour by powerful immigration, refugee judges

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In court documents she is referred to as “the claimant.” A young Ukrainian woman who came to Canada in 2005 when she was just 18 years old with the hope of working as a caregiver.

But soon after arriving in Toronto, those who brought her here stole her passport and forced her into the sex trade. She was alone in Canada, she didn’t know anyone, and her pimp said the police would never help her.

“For three months, [the pimp] threatened to kill her and her family in Ukraine if she left,” reads a 2010 immigration decision.

She was forced to have sex with “upwards of eight men a day,” contracted a sexually transmitted infection, became pregnant and was made to have an abortion, according to her lawyer.

But after 18 months, she escaped. She then sought the assistance of lawyer Asiya Hirji, who helped her apply for refugee protection.

Immigration lawyer Asiya Hirji speaks with Global News about allegations of  “sexism” involving a refugee judge.

The woman’s claim was heard by Michael Sterlin, a judge-like decision-maker from Canada’s Immigration and Refugee Board (IRB) who as a political appointee, was given authority to decide cases like hers.

Hirji alleges Sterlin asked to see nude photos of the woman to prove her identity. She says he asked her to reveal where she received the abortion and why she didn’t go to the police.

Sterlin denied her claim. He said she was not credible.

WATCH:  Global News has spoken with a dozen lawyers who say there is no effective mechanism to address the problem of “bad apple” judges. Abigail Bimman reports.


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Hirji alleges the woman was so traumatized by these events that she tried to kill herself.

Global News spoke with a dozen immigration lawyers. They say the vast majority of judges at the IRB conduct themselves professionally – and with the utmost respect – but the type of behaviour alleged against Sterlin is by no means unique and calls into question whether immigrants and refugees are receiving fair and impartial hearings.

They also say the complaint system set up to address problems is “opaque” and ineffective.

Sterlin has long history of alleged ‘inappropriate’ behaviour

The Ukrainian woman’s case was heard by Sterlin in 2010. Her lawyers appealed the decision and in 2012 a different refugee judge granted her asylum. In 2014, Hirji filed an official complaint against Sterlin. She says his behaviour was “sexist” and “insidious.”

“If Sterlin’s behaviour in this particular claim doesn’t rise to the level of impropriety, or necessitate intervention, I cannot imagine a case that would,” Hirji said.

“This speaks volumes as to the level of disregard that the IRB … has toward vulnerable claimants, women in particular, and the length that they’ll go to protect members who simply aren’t deserving of it.”

Hirji alleges Sterlin insisted she download colour photographs of the woman during a hearing so he could compare them to the way she looked in person — despite the fact he already had black and white photos proving her identity.

“There’s no way to explain what he did other than to re-victimize her,” she said.

“She struggled emotionally. She was required to seek mental health counselling. Her relationship subsequently broke down. I mean, it devastated this woman’s life. A woman whose life had already been devastated. It just annihilated any semblance of happiness she could have for a very long time.”

The young woman declined to be interviewed as she has moved with her life and did not want to relive any traumatic experiences. Hirji agreed to speak out because she says the IRB – which was aware of Sterlin’s alleged actions – cannot be permitted to allow this type of behaviour to happen again.

“My complaint was very much dismissed,” Hirji said. “It was like [the IRB thought] the way he acted wasn’t fantastic, but it doesn’t rise to the level of impropriety,” she said. “This was the most vulnerable of vulnerable claimants.”

WATCH: Lawyer alleges former judge at Immigration and Refugee Board conducted himself unprofessionally

In 2014 there were at least two complaints made about Sterlin – one involving the young Ukrainian woman and another involving a mother of three from Botswana who was the victim of repeated domestic abuse.

Sterlin denied the second woman’s claim because he did not believe a woman who was “beaten some 100 times” wouldn’t report the beatings to police.

“If the claimant were truly beaten some 100 times in 10 months, then she would have reported her husband to the police, tried to take shelter, or do something to put herself out of harm’s way,” Sterlin wrote in his decision.

“It is entirely possible that if the claimant had reported her husband to the police after the first beating, or after a few beatings, then he may have been constrained from beating her again.”

In both cases, the complaints were dismissed by the IRB.

But internal emails obtained by Global News show Sterlin was required to undergo gender training because of one complaint.

READ MORE: MPs tell Trudeau Liberals to scrap ‘discriminatory’ immigration law

This was confirmed by immigration lawyer Aadil Mangalji, who represented the woman from Botswana. He said Sterlin’s decision, in this case, was overturned by the Federal Court and is currently before the IRB for reconsideration.

Despite all of this, Sterlin continued to hear cases.

Other emails show the IRB was discussing complaints about Sterlin as early as September 2010, with a “serious complaint” filed in February 2011.

As recently as December 2017, Federal Court Justice Shirzad Ahmed condemned Sterlin’s decision-making as “perverse and capricious.” He said Sterlin behaved like the “moral police” when he denied the immigration application of an HIV-positive man.

Sterlin’s decision also seemed to suggest he blamed the man for contracting the virus, saying he took a “foreseeable” risk when having the affair that led to his infection.

Ahmed struck down Sterlin’s decision in that case, too.

Global News made multiple efforts to contact Sterlin but was unsuccessful. The IRB refused to forward our request to Sterlin and the Law Society of Ontario could not provide current contact information.

Claimants could face torture, imprisonment if wrongly denied

 

Nastaran Roushan, a Toronto immigration lawyer , says the IRB complaint system is flawed.

While IRB decisions can – and often are – appealed to the Federal Court, complaints about the conduct of IRB judges are handled internally.

About one-third of the IRB’s 225 judge-like decision-makers are political appointees. The rest are public servants.

Many of these “judges” have no formal legal education. Some are lawyers, others are not.

READ MORE: Immigration Canada ‘breaking the law,’ when denying some disabled applicants, say legal experts

Everyone is tested for general aptitude before being hired. Once selected, they’re given training specific to their role, as well as training on gender sensitivity and dealing with vulnerable persons. Their decisions – and whether they believe a claimant or not – are the difference between an application being accepted or denied.

Unfortunately, say lawyers, a history of “problematic” behaviour by a handful of “bad apples” now calls into question the entire decision-making process at the IRB.

“Claimants and representatives who appear before the [IRB] must presume the competence and impartiality of decision-makers,” wrote immigration lawyer Nastaran Roushan in a letter to the IRB. “They do not deserve to be subject to a lottery wherein they can potentially appear before a [judge] who is clearly unable to adjudicate fairly.”

A ‘pattern of incompetence’

In May 2017, Roushan filed an official complaint against IRB decision-maker, Natalka Cassano.

The complaint alleged she displayed a “pattern of incompetence” and “bias” incompatible with someone in her position. It also challenged her ability to perform her job, saying she should not be allowed to decide refugee claims until she received “significant re-education.”

“Cassano has a pattern of engaging in inappropriate behaviour,” wrote Roushan in her complaint. “The IRB cannot continue to inadequately address – if at all – her pattern of conduct. Vulnerable claimants fleeing persecution appear before [her] on a regular basis. They deserve a hearing wherein the decision-maker affords them with an open mind and procedural fairness.”

Roushan’s complaint stems from an April 2017 hearing in the case of Yusuf — a Turkish refugee and follower of the Hizmit religious movement — which Roushan says reveals the depth of Cassano’s incompetence.

Yusuf, a Turkish refugee and follower of the Hizmit religious movement discusses fear of returning home.

Global News has agreed to use a pseudonym for Yusuf because of fears his family still living in Turkey could be persecuted if his identity were revealed.

Throughout the hearing, Cassano asked long and “incomprehensible” questions – sometimes eight to 10 sentences in length. Roushan says she twisted answers, acted aggressively towards Yusuf  – sometimes stopping to chastise her  – while appearing to lack knowledge of the political situation in Turkey. For example, she was unaware political opponents could be arrested for simply having a certain application on their mobile phone.

“If I return back to Turkey there’s a big chance that I would be arrested,” said Yusuf in an interview with Global News. “I have never had any physical maltreatment against me … I am scared anything could happen to me.”

Roushan says Cassano, who is also a lawyer,  was dismissive during Yusuf’s hearing. Instead of focussing on his answers, she says Cassano insisted on trying to find tiny inconsistencies in his testimony.

“People have faced electric shock in prison, they have faced rape, they face sexual assault and psychological torture,” Roushan said. “This is the type of treatment my client could have faced if Member Cassano was permitted to continue with this hearing and continue to subject my client to an unfair procedure.”

Complaint process ‘futile,’ say lawyers

In December 2017, the IRB changed the way it handles complaints. This included creating an “independent” Office of Integrity, which is responsible for all complaints, and promising to publish general details of how complaints were resolved. A spokesperson for the organization said this was done when “the IRB recognized that there was a need to improve the complaints process.”

Complaints against IRB judges must relate to their conduct. Concerns about the outcome of a decision are handled through a separate process.

If a complaint is serious enough, the director of integrity will investigate and share their findings with the head of the IRB. In cases where misconduct is found to have occurred, a judge could be subjected to discipline, ranging from re-training to being fired.

But a dozen lawyers who spoke with Global News said the complaint protocol – including recent changes – is deeply flawed. Some say it’s opaque, ineffective and incapable of dealing with “problematic” decision-makers such as Sterlin and Cassano.

WATCH: Immigration lawyer says hearings at the IRB are very ‘Kafkaesque’

Raoul Boulakia, with the Refugee Lawyers Association of Ontario, says the recent changes have done little to remove the shroud of mystery that surrounds the process.

“The complaint system is quite secretive,” Boulakia said. “Say I submit a complaint; I may not get a response for a long time … I’m not told how the board member gets to respond to it. I’m not told how it’s being investigated.”

He says there are also serious problems with the way the IRB shares information once an investigation is complete, even in cases where serious misconduct is found to have occurred.

Roushan’s complaint is an example of this. While the IRB was concerned enough to “take the rare step” of removing Cassano from Yusuf’s case, they did not provide any details on what disciplinary action – if any – was taken or whether she would continue hearing cases.

Six months after Roushan filed the complaint, former IRB chairperson, Mario Dion, sent her a letter saying Cassano’s behaviour during the hearing resulted in a “lack of fairness.” He called the issue a “serious concern” and said “appropriate measures” would be taken to make sure it didn’t happen again.

WATCH: Complaint process against refugee judges deeply flawed, says immigration lawyer 

But Roushan has no idea what these measures are. She asked Dion to provide a copy of the investigation report and to confirm whether Cassano would continue hearing cases.

No one from the IRB has responded to her questions in more than a month, she says.

“It’s very frustrating,” said Roushan. “I don’t know what those appropriate measures are, I don’t know what was found by the chairperson … I don’t know which of the allegations I brought forward were substantiated.”

The IRB says it considers the complaint system “private” and would not answer any questions relating to specific complaints. They also would not allow Cassano to speak.

“The IRB must balance the public’s desire for information against the privacy of the individuals involved in a complaint,” said Anna Pape, a spokesperson for the IRB. “As with all workplace investigations, all parties involved are afforded privacy as part of that investigation. This is a basic principle of fairness.”

Pape says Sterlin underwent a “merit-based selection process” when initially appointed to the IRB. His performance – including the decisions he made – was considered before the IRB recommended him for reappointment in 2011 and 2014.

Sterlin’s term was not renewed in June 2017. The IRB did not offer a reason why, only saying this is “personal information.” Though licensed to practice law in Ontario, he is not currently working.

As for Cassano, she’s a public servant. And while subject to the same code of conduct as Sterlin, the process for disciplining her is similar to that of any other government employee.

Meanwhile, lawyer Amedeo Clivio says Cassano is still scheduled to hear the case of a client he represents in early February.

“I knew there was this complaint and that they had found misconduct,” Clivio said. “All of us were kind of kept in the dark … with what was going to be the aftermath of this complaint.”

Clivio says it’s “unacceptable” the IRB didn’t provide more information.

He says it’s time the IRB seriously reconsiders the way it handles complaints, perhaps look at the way other professional bodies handle such issues; like doctors, lawyers, social workers or dentists, who publish detailed accounts – including names – when serious violations of their code of ethics occur.

But for Hirji, no amount of change will ever undo the trauma she alleges her client was forced to endure.

“She suffered a tremendous amount,” Hirji said. “It was 100 per cent as a result of the very aggressive questioning [Sterlin] subjected her to and his flagrant disregard of her victimization. He simply re-victimized her.”

© 2018 Global News, a division of Corus Entertainment Inc.

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