March 8, 2018 7:00 am

Refugee judge accused of ‘incompetence’ in Global News investigation, ‘no longer an employee of the IRB’

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A powerful refugee judge accused of a “pattern of incompetence” and aggressive behaviour aimed at lawyers and refugee claimants is no longer employed by Canada’s Immigration and Refugee Board (IRB), according to the organization.

“Ms. [Natalka] Cassano is no longer an employee of the IRB,” said a statement from IRB spokesperson Anna Pape. “As this is a private matter, we will not comment further.”

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Claims about Cassano’s troubling behaviour were first reported in a Global News investigation from January looking at her actions and those of a fellow refugee judge who lawyers allege acted inappropriately toward claimants. The investigation also looked at allegations the IRB is either incapable of or unwilling to address complaints about the conduct of immigration and refugee judges.

Though Cassano is a lawyer, “judges” at the IRB do not require any formal legal training and are not real judges per se. Complaints about their conduct are handled internally by the IRB.

Following the Global News report – which MPs from all parties have raised concerns over – a parliamentary committee tasked with studying immigration chose to investigate the IRB’s complaint process.

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

In a Feb. 27 hearing, Conservative MP David Tilson expressed concern about whether the IRB could maintain public confidence in light of the “devastating” revelations regarding the conduct of some of its judges contained in the Global News investigation.

“I’m sure the board had a fit when they saw this [report],” Tilson said when questioning the IRB acting chairperson, Paul Aterman.

“It’s very devastating towards the decisions that have been made. And these aren’t decisions on the merits of the case. These are comments that have been made about the conduct of [refugee judges],” Tilson said.

Aterman, who took over the top job at the IRB when former chairperson Mario Dion was appointed Canada’s new ethics commissioner in December, said the IRB was not happy to read about the allegations.

“As you’ve indicated, it wasn’t something that the board was pleased to read about at all,” Aterman said. “The reputation of other decision-makers gets dragged down by single incidents like that.”

Cassano’s departure leaves several unanswered questions

While the IRB confirmed Cassano no longer works for the organization, the circumstances surrounding her departure are still a mystery.

The IRB has repeatedly said information about a judge’s employment status is “private,” including whether disciplinary action was taken against a judge after a finding of misconduct.

In Cassano’s case, at least one complaint filed by Toronto-area immigration lawyer Nastaran Roushan last May resulted in a finding of misconduct.

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

In a letter sent to Roushan in November, then-IRB chairperson Dion, said Cassano’s actions resulted in a “lack of fairness” and were a “significant concern” for the IRB.

This was echoed in a follow-up letter from Aterman in February, who agreed Cassano’s behaviour was a “significant concern.” He said he would look into providing Roushan with more information about her complaint.

READ MORE: MP calls allegations of ‘sexist,’ ‘aggressive’ behaviour by refugee judges ‘disturbing’

But another letter from Aterman dated March 2, says the complaint is now “closed” and no additional information will be provided.

“I’m angry,” Roushan said. “It shows a disregard for the process of providing resolution to a legitimate complaint. Even though my client was given a new hearing, I don’t have any reasons why. … The failure to provide that in a timely manner means my client didn’t really get the justice he sought.”

Letter from IRB acting chairperson, Paul Aterman, to lawyer Nastaran Roushan, March 2, 2018

Raoul Boulakia, with the Refugee Lawyers’ Association of Ontario, says this is unacceptable. He had an outstanding complaint against Cassano, but received a similar letter from the IRB saying his complaint was also closed because the judge no longer worked for the IRB.

“Your complaint against [Cassano] has been closed,” said the letter from Karin Michnick, assistant deputy director of the IRB’s refugee protection division. “Thank you for bringing the complaint to the attention of the IRB.”

But Boulakia says the complaint is far from over. Closing the file because Cassano is gone does nothing to address the injustices he alleges his client was forced to endure. The decision also provides no direction to other judges on whether the type of behaviour he says Cassano displayed was inappropriate.

“I can’t infer anything from the letter,” Boulakia said. “Claiming that [it] somehow shows there’s been some kind of finding or admission would be a big jump. It could be she simply reached the end of her contract, it could be she was transferred to another department. We have no way of knowing.”

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

Hart Kaminker is another Toronto-area lawyer. He says the IRB’s failure to answer questions about Cassano’s departure does nothing to restore confidence in the IRB’s ability to address complaints and ensure claimants appear before reasonable and unbiased judges.

“It leaves us with not having public trust in this institution and how they are measuring the competence of [judges],” he said.

Kaminker was scheduled to appear before Cassano for the second part of a client’s refugee claim, but recently received a letter from the IRB saying the judge was no longer available to hear the case.

READ MORE: Conservative MP calls for ‘overhaul’ of IRB complaint process following Global News investigation

The letter, which Global News confirmed at least two other lawyers have received, offered two choices: either allow a different judge to make a decision based off the transcript of the earlier hearing conducted by Cassano; or his client could receive a new hearing before a different judge.

Given concerns about Cassano’s past conduct, Kaminker thinks the choice to have another judge decide his client’s fate based on Cassano’s work should never have been an option. He called the choice “egregious.”

“In my view, it sort of seemed to indicate that [the IRB] was more interested in saving resources than necessarily ensuring somebody was going to get a fair hearing,” he said.

Lawyers question ‘independence’ of IRB complaint process

In December the IRB approved a new complaint process in response to concerns the old system was ineffective and biased.

The “Office of Integrity,” which is housed within the IRB, was created and is now responsible for investigating complaints about the conduct of immigration and refugee judges.

Both the IRB and Immigration Minister, Ahmed Hussen, have said the office operates independently and is an “arms-length” institution.

WATCH: Immigration minister ‘confident’ in IRB complaint process

In his appearance before the committee last week, Aterman went so far as to say the director of this office “leads a somewhat lonely life” because he’s not invited to meetings with other IRB managers.

Both Kaminker and Boulakia have said the director of integrity is “not independent,” as nearly every decision – whether a complaint is investigated, findings are accepted, or what disciplinary action, if any, is taken – must be approved by the IRB chairperson.

“We should have a body outside of the IRB that receives the complaints,” Boulakia said.

The chairperson is caught in a “Catch-22,” he said. Where he must somehow respect the independence of immigration and refugee judges, while at the same time determine if they’ve behaved inappropriately.

Boulakia says this isn’t how it works with the Federal Court and it’s not how it should work with the IRB. He thinks it’s impossible for the chairperson, who’s responsible for upholding the IRB’s reputation, to effectively adjudicate claims about judges’ behaviour.

During the consultation process for the new complaint process, lawyers recommended a truly independent body be created outside the IRB to deal with complaints. This proposal was not accepted.

Boulakia says the IRB doesn’t resolve complaints because it’s “awkward.” He says it’s time for the government to step up and deal with a problem the IRB clearly doesn’t want to resolve.

“It’s something the [immigration] minister should deal with,” he said. “Because if the IRB sets up some kind of outside system, it’s just setting up something that just reports back to itself.”

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

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