NDP immigration critic, Jenny Kwan, is calling for a review of the way Canada’s Immigration and Refugee Board (IRB) handles complaints following a Global News investigation that revealed allegations of inappropriate behaviour by two powerful refugee judges. The investigation also exposed lawyers’ concerns that the complaint system set up by the IRB is “opaque” and ineffective.
“It’s very disturbing and shocking,” Kwan said, referring to the Global News investigation. “When I read these stories and the allegations, I was quite taken aback.”
The allegations stem from complaints made by several lawyers.
In one case, immigration lawyer Asiya Hirji alleged former IRB decision-maker, Michael Sterlin, behaved in a “sexist” and “aggressive” manner when deciding the refugee claim of a young Ukrainian woman forced into the sex trade after moving to Canada.
In another complaint, lawyer Nastaran Roushan alleged a current refugee judge, Natalka Cassano, displayed a “pattern of incompetence” and acted aggressively towards herself and a claimant during a refugee hearing.
WATCH: Lawyers allege ‘sexist,’ ‘aggressive’ behaviour by powerful immigration, refugee judges
Hirji says the IRB dismissed her complaint about Sterlin in the case of the young Ukrainian woman.
Six months after Roushan filed her complaint against Cassano, former IRB chairperson, Mario Dion, sent her a letter saying the decision-maker’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.
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.
How does the complaint system work?
At present, complaints about the behaviour of an immigration or refugee judge are sent to the IRB’s Office of Integrity for review. The director of integrity considers the complaint and makes recommendations to the IRB chairperson on how to proceed.
The decision to conduct an investigation, dismiss a claim, or handle it through a different process, is left to the discretion of the chairperson. In extremely serious cases, a complaint can be sent to an external investigator for independent review.
WATCH: Immigration lawyer says hearings at the IRB are very ‘Kafkaesque’
But no matter how a complaint is investigated, the power to accept the findings of an investigation rests entirely with the chairperson of the IRB.
“After careful consideration of the investigation report and, having ensured that the principle of procedural fairness was applied, the Chairperson will decide whether to accept the conclusions in the investigation report,” reads the IRB guidelines on how to file a complaint. “The Chairperson will also decide whether there was a breach of the Code of Conduct.”
It’s this apparent lack of independence that lawyers have told Global News is one of the biggest problems with the way the complaint process works. They also point to the fact that investigation reports – even when serious misconduct is found to have occurred – are not made public or even shared with the lawyers who made the complaint.
Meanwhile, Kwan is calling for a parliamentary study into the way the IRB handles complaints. She says there must be a truly “independent” process – one separate from the IRB – in which complaints can be addressed fairly and with transparency.
While she believes the current system of having IRB judges decide refugee claims is the best and most responsible way to deal with what are often very complicated decisions, she says the consequence of allowing “problematic” judges to continue hearing cases can be far-reaching.
“I’m not saying that there are a lot of bad apples, if you will, at the IRB,” said Kwan. “But all you need is one.”
Immigration minister defends complaint process
In December 2017, the IRB made changes to the way it handles complaints. These changes included creating the Office of Integrity and promises to be more transparent when publishing details of complaints in annual reports.
Canada’s Immigration Minister, Ahmed Hussen, who’s responsible for the IRB, says these changes have produced a system that’s “more independent” and “more arms-length.”
“Whenever someone launches a complaint against an adjudicator, they refer the process to an independent office of integrity,” said Hussen. “That officer investigates independently and then shares the results with the chairperson directly.”
Confronted by lawyers’ statements that the process is neither fair nor independent, Hussen said he has confidence in the recent changes.
“I’m confident that that process will lead to fairer, faster, more efficient, more transparent and more independent complaint process,” he said.
Hussen would not answer questions about specific allegations.
The IRB did not agree to an interview.