Halima Alari sat before a Canadian refugee judge and tried to explain why her husband didn’t kill her.
“If he really wants you to be gone, why doesn’t he just kill you?” asked refugee judge Yonatan Rozenszajn during a hearing at Canada’s Immigration and Refugee Board (IRB) in April.
Alari claims her husband raped and beat her for years, with the attacks getting worse each time she became pregnant with a girl.
He wanted a boy, she said.
Wait, There’s More: How refugee claimants are being let down by judges
But Rozenszajn didn’t believe her. He also said he didn’t understand why the beatings continued for years after she left her husband and moved to a different city.
“Why wouldn’t he just kill you then? Why spend all these years, just, like, harassing you?” he asked.
Alari’s lawyer, Talia Joundi, says Rozenszajn’s line of questioning was an “egregious violation” of the IRB’s guidelines set out for cases involving allegations of sexual assault and domestic abuse.
And experts who spoke with Global News — including more than a dozen immigration lawyers — say there are refugee judges who often do not apply or who improperly apply the board’s guidelines.
The consequences of these problematic decisions, they say, can mean the difference between life and death for some claimants.
Rozenszajn rejected Alari’s claim for refugee status, saying there were too many omissions and inconsistencies in her story.
“I do not believe what she says,” Rozenszajn wrote in his final decision.
Global News has agreed to change Alari’s name because of fears she could be harmed if her appeal is denied and she is returned to Nigeria.
Guidelines must be considered
The IRB cannot tell judges how to decide cases, even when the facts of two claims are nearly identical, because that would interfere with their judicial independence.
The board can, however, require judges to consider specific sets of guidelines when assessing evidence and writing their final decisions. If judges deviate from these guidelines, they have to provide a reasonable explanation why.
For cases that involve women who allege gender-based violence, such as Alari, the board’s gender guidelines say judges should consider the effect trauma has on a woman’s ability to testify.
The guidelines also say cases involving sexual violence “may require extremely sensitive handling” because of the psychological and emotional trauma victims of rape and domestic violence often experience.
In Alari’s appeal to the IRB, Joundi said Rozenszajn’s decision didn’t meet these requirements.
She also said his “inexplicable” line of questioning about why Alari’s husband wouldn’t “just kill” her breached the board’s guidelines by forcing Alari to speculate about the mindset of her alleged abuser, and because it showed a “complete lack of understanding” about the basic facts of domestic abuse and its cyclical nature.
Alari, meanwhile, says Rozenszajn’s questions made her feel worthless.
“How can a fellow human being look at me and ask me that, why are you not dead?”
Alari’s claim rejected
In his written decision, Rozenszajn said he rejected Alari’s claim because she was untrustworthy and because she didn’t provide credible testimony or documentary evidence.
He made these findings, in part, because he said Alari submitted fraudulent and fabricated medical records from a private hospital in Nigeria — although his decision contains no indication that he tried to authenticate the documents himself, despite having the hospital’s phone number.
The Federal Court has said IRB judges should take steps to verify documents they suspect could be fraudulent if contact information is available, and that decisions can be overturned when this is not done.
Rozenszajn also said Alari misrepresented her medical history and omitted important information about her husband’s profession and his ability to find her in Nigeria if she fled. He said this was critical to her case and that it negatively affected her overall credibility.
The IRB considers refugee claims private and typically does not disclose information about specific cases.
The board did, however, respond to a request about Alari’s claim that Rozenszajn’s questions breached IRB guidelines — though it did not acknowledge if these questions were inappropriate.
“In this case, IRB management has spoken with the Member. He understands that his question to the claimant was construed as being insensitive, and he is undertaking further training,” said IRB spokesperson Line-Alice Guibert-Wolff.
Guidelines are effective
Queen’s University law professor Sharry Aiken says the IRB’s guidelines, when applied properly, are extremely effective at helping judges decide cases fairly and protecting the most vulnerable refugee claimants.
While she can’t comment on Alari’s case specifically, she says judges who improperly apply the guidelines or the law remain “hugely concerning” for refugee advocates in Canada.
But this doesn’t mean the guidelines are broken. In fact, Aiken says refugee decision-makers around the world envy the guidelines because of their clear framework for how to deal with the most challenging and complicated cases.
What it does mean, she said, is that despite the board’s significant efforts to improve its hiring policies and to overhaul its training procedures, there remain ineffective judges at the IRB who lack the competency needed to properly apply the law or the guidelines.
It’s these judges, Aiken said — the ones who consistently make the same errors — that should concern the IRB and whose performance should be watched closely.
“It’s more an issue of decision-makers who are doing a poor job and could probably be rebuked for a whole range of reasons,” Aiken said. “Not least of which is their inability to properly apply the guidelines.”
But Guibert-Wolff says there “should be no doubt about the competence or professionalism of IRB decision-makers.”
She says new judges are evaluated throughout their initial training period and are then monitored by their supervisors.
The board also conducts “post-training mentoring exercises,” which include reviewing complaints it receives about judges and decisions that are overturned by either the IRB’s appeal division or the Federal Court.
IRB ‘creates trauma’
A 2018 Global News investigation revealed allegations of serious misconduct at the IRB, including claims of “incompetence” and “aggressive” behaviour made against two former refugee judges.
In response to these claims, Parliament launched a review of how the board handles formal complaints made against its own members.
Paul Aterman, then-head of the IRB, told MPs that the board takes allegations of wrongdoing seriously, that it monitors judges’ decisions, and that they receive extensive training on how to follow the board’s rules and guidelines.
The IRB also revamped its complaint process, promising to make it more transparent and to continue investigating complaints even after judges leave their positions.
But Preevanda Sapru, a Toronto immigration lawyer who specializes in gender-based cases at the IRB, says these measures are often ineffective and that the board “systemically creates trauma” for the most vulnerable claimants by ignoring its own rules, procedures and guidelines.
She recalls the case of a Hungarian client whose husband allegedly beat her, locked her in an apartment and forced her to have sex with men for money over a period of several years.
After coming to Canada and making a refugee claim with her husband — because she said that was the only way he would allow her to leave Hungary with her children — the woman left him and then applied to separate their cases at the IRB.
The board denied this application twice, however, before finally agreeing, Sapru said.
The woman then submitted four separate applications under the board’s Vulnerable Person guidelines to get permission to testify with the help of a “designated representative.” Sapru says the woman found it difficult to speak about her past experiences due to the severe trauma she endured.
But judges at the IRB rejected these applications despite Sapru having submitted, as the board’s guidelines recommend, psychological and psychiatric reports that concluded the woman was too traumatized to testify.
The judges made their decisions, in part, because they said the woman did not lack the intellectual or mental capacity to testify.
And while the IRB did assign a female judge to the case and allowed someone into the hearing room to comfort her, it wasn’t until the presiding judge saw the claimant in person and realized she was incapable of testifying that a designated representative was assigned.
Sapru says all of this could have been avoided, however, if the board followed its own guidelines.
Other lawyers who spoke with Global News say it’s routine for decision-makers to approve accommodations without an application.
This usually happens in an informal manner, they say, with judges agreeing to specific requests on the day of a hearing.
But Sapru says this process was insufficient for her client because of the severe trauma she endured. That’s why she submitted her request in advance, as the guidelines suggest.
Quantifying problematic decision-making
Statistics obtained by Global News show there is significant variation in approval rates for vulnerable person applications across the country.
Over the past three years, judges at the IRB’s Toronto office rejected 63 per cent of the vulnerable person applications they received, while the board’s Montreal office rejected 22 per cent of applications.
In Vancouver, just six per cent of applications were rejected.
Sean Rehaag, director of York University’s Centre for Refugee Studies, says the “stark difference” in acceptance rates raises concerns about unequal treatment for the most vulnerable refugee claimants.
“If the differences are attributable to varying decision-making practices across Canada, then there is a serious fairness problem,” he said.
Rehaag has spent more than a decade collecting data on decisions made at all levels of Canada’s refugee determination process.
His work has revealed “massive variation” in acceptance rates for individual judges at the IRB, its appeals division, and the Federal Court.
In 2018, for example, acceptance rates for individual judges at the IRB’s refugee protection division ranged between 95 per cent of the cases they heard at the high end and 10 per cent of the cases they heard at the low end.
This extreme variation between judges, Rehaag said, leads to questions about whether refugee claims in Canada are decided based on law and facts or are instead decided by the “luck of the draw.”
In response to these concerns, the IRB says it “strives to achieve consistency” in decision-making, but adds that individual cases are decided based on their merits and the evidence presented.
The board also says asylum seekers have a right to present their claims “as they see fit,” which can affect the outcome of a case.
A ‘check the box’ approach to guidelines
Rehaag says it’s not uncommon for refugee judges to take a “check the box” approach when applying the board’s guidelines to their written decisions.
This means judges acknowledge the guidelines exist, often mentioning them by name in their rulings, but then fail to explain why they do not apply to a specific case.
While he did not comment on Alari’s case specifically, Rehaag says some refugee judges use this approach as a way of appeal proofing decisions — meaning that because the guidelines are mentioned, their rulings are more difficult to overturn on the grounds that the guidelines were not considered.
According to the Federal Court, an example of the guidelines being mentioned but not properly applied is the IRB appeal decision in the case of Vincent McKenzie, a gay pastor from Jamaica.
Fearing he could be hurt, even killed, for being gay, McKenzie kept his sexual orientation a secret from nearly everyone he knew, including his family.
So when a judge at the IRB denied his refugee claim because he couldn’t prove he was gay — the judge said he was “not an LGBT person” — McKenzie said he felt helpless.
“You live every day with the fear that you’re going to die,” McKenzie said. “You’re constantly told being gay is an abomination.”
But the IRB anticipates some people, such as McKenzie, may find it difficult to prove their sexual orientation and has directed judges in cases that involve LGBTQ2 claimants to consider its Sexual Orientation and Gender Identity and Expression (SOGIE) guidelines.
When reviewing McKenzie’s case, however, Federal Court Justice E. Susan Elliot said the IRB appeals judge did not properly apply these guidelines because he failed to consider McKenzie’s claim that he came from “an extremely homophobic country” and that it was reasonable he couldn’t provide hard evidence in support of some aspects of his case.
Elliot also said the judge gave no explanation why he didn’t believe McKenzie’s story and why he decided to deviate from the guidelines.
Saying it was “unreasonable” and “unintelligible,” Elliot overturned the IRB appeal decision.
The IRB, meanwhile, denies the claim that judges take a “check the box” approach to the guidelines, adding that the board is committed to ensuring they are “properly and rigorously applied.”
The board also said it is currently reviewing the SOGIE guidelines, while seeking ways to strengthen its policies around appointing designated representatives to better help the most vulnerable refugee claimants.
Challenges assessing credibility
Whether a claimant is believable or not is the deciding factor in almost all refugee claims in Canada, said McKenzie’s lawyer Adrienne Smith. There is, however, a legal presumption that claimants are telling the truth unless there’s a good reason to disbelieve them.
Judges make “credibility findings” based on a range of factors: such as whether a claimant’s testimony appears trustworthy, the quality of any documentary evidence submitted, and because of a lack of corroborating evidence in situations where a judge thinks hard evidence should exist.
But the board’s SOGIE guidelines give judges leeway when considering these factors. The guidelines also help judges make decisions in difficult cases, even where there’s no corroborating evidence.
Maurice Tomlinson, a Toronto immigration lawyer who has spent much of the past decade giving sensitivity training to police and challenging anti-gay laws in the Caribbean, says the board’s guidelines are critical for making sure LGBTQ2 claimants are not disadvantaged in their efforts to seek refugee status in Canada.
While he acknowledges that assessing credibility is challenging, he says the persecution people throughout the Caribbean face due to their sexual identity is “pervasive.”
He says this extends to police forces in countries such as Jamaica and Antigua where many officers are still unwilling to help LGBTQ2 people in need of protection because they are “intrinsically homophobic.”
“Acts of murder and abuse against LGBT people in the Caribbean are legendary,” Tomlinson said.
Similar principles to help judges assess evidence under difficult circumstances are contained in the board’s gender-guidelines.
While judges are allowed to reject claims based on allegations of sexual assault or domestic violence, they are encouraged to recognize that women who make these claims often face unique challenges when trying to prove their cases.
The guidelines say judges should be familiar with Rape Trauma Syndrome and Battered Woman Syndrome — both of which can significantly affect a woman’s ability to testify.
Toronto psychiatrist Dr. Michaela Beder, who routinely works with refugee claimants, says trauma, including sexual assault and domestic abuse, can affect a woman’s memory and her ability to recount past experiences in a linear way.
Black-outs, forgetting important details such as dates, and subconsciously putting walls around certain memories as a way of avoiding pain are some of the more common symptoms associated with severe abuse and post-traumatic stress disorde, she says.
And while Rozenszajn’s decision says he considered the gender-guidelines when assessing Alari’s case, Joundi says his ruling was incorrect because it gave only “boilerplate” attention to the guidelines and did not explain why he decided to deviate from them.
She also says his decision did not consider the effect prolonged trauma had on Alari’s emotional well-being, and that her mental health condition changed once she came to Canada and the alleged threat from her husband no longer existed.
“His role was to ask her questions, yes, but also to handle her case and the hearing in an extremely sensitive way,” Joundi said.
“That’s what the guidelines say.”