Canadian immigration lawyers say a recent case involving refugee judge Yonatan Rozenszajn exemplifies long-standing concerns they have about the competence of some judges and the lack of accountability they face when getting things wrong.
An Immigration and Refugee Board of Canada (IRB) appeals judge ruled in December that Rozenszajn committed “serious” errors in judgment when he repeatedly asked a woman trying to escape decades of domestic abuse why her husband didn’t “just kill” her.
Now, lawyers and other experts are calling for the creation of an independent panel with the power to investigate judges and for an external review of the board’s Refugee Protection Division (RPD) to see how widespread these problems have become.
“The IRB refuses to take decisive action even when it could only objectively conclude that a member is especially injudicious,” said Toronto immigration lawyer Raoul Boulakia.
Others, including former IRB chairperson Peter Showler, say measures the board has to stop judges from behaving badly — and to discipline them when they do — are not working.
“The majority of RPD members do their job in an ethical and competent manner, but for the ones who don’t, current controls are ineffective,” Showler said.
The IRB, meanwhile, says it has “robust” measures in place to train, monitor and sanction judges.
The board also says it takes allegations of wrongdoing seriously and that judges who commit serious errors, who break the rules or whose decisions do not align with IRB values can be removed from their positions.
Retraining not enough
In her ruling, IRB appeals judge Jennifer Pollock said Rozenszajn violated the law and the board’s guidelines by forcing a female refugee claimant to “speculate” about why her husband didn’t murder her.
Pollock said Rozenszajn’s “unacceptable” questions showed a lack of understanding about domestic abuse and created an “air of disbelief” that deprived the woman of her right to a fair and just hearing.
She also said Rozenszajn’s conduct is “concerning” given his role in adjudicating cases involving intimate partner violence.
“Not all abusers murder their partners,” Pollock wrote.
When Global News first reported allegations about Rozenszajn in November, IRB leadership refused to acknowledge any wrongdoing, saying he understood his questions were “construed” as insensitive and that he would be required to take additional training.
However, after gender-based violence expert Farrah Khan said this response amounted to “blaming the victim,” the board said Rozenszajn’s questions were insensitive and that allegations contained in the Global News report had been sent to its internal Office of Integrity for further investigation.
Rozenszajn hasn’t heard any cases since the story was published, and all refugee judges have been told they must undergo additional training on the board’s gender guidelines “given the concerns that have been raised.”
The board also says it is establishing a team of judges with specialized training to decide gender-based claims, including those based on domestic abuse.
But Boulakia says this isn’t good enough. He thinks Rozenszajn should be removed from his position to “promote faith in the administration of justice.”
He also says Rozenszajn would already have received training on the board’s guidelines, both when he was hired and after. According to the IRB, this includes extensive training on how to decide claims based on domestic abuse.
“It is neither sufficient nor effective to purport that a decision-maker who expresses such extreme biases can be given sensitivity training to redress them,” Boulakia said.
“Training is only as good as what you’re willing to absorb.”
Need for ‘independent’ investigations
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This isn’t the first time an IRB judge has been accused of wrongdoing.
A 2018 Global News investigation revealed allegations of “sexist” and “aggressive” behaviour against two former refugee judges.
In one case, a complaint against a judge was dismissed after he allegedly demanded to see colour nude photos of a woman who, after being trafficked to Canada, was forced into the sex trade.
The judge had already been given black-and-white copies of the photos as part of a police report but said he needed to see the colour photos to help identify the woman.
Following the Global News investigation, Parliament’s citizenship and immigration committee launched a review of the board’s hiring process and complaints protocol.
And while the IRB faced harsh criticism during the hearings — MPs from all parties said they were troubled by the allegations and how the board responded to the complaint — the committee’s final report made no significant recommendations for change.
Boulakia, who appeared before the committee, says this was a mistake, adding that the report failed to recognize the “inherent conflict” between the IRB’s responsibility to protect the independence of judges, such as Rozenszajn, and its obligation to police their bad behaviour.
Pressure to decide cases faster — the board currently has a backlog of 80,000 unprocessed refugee claims — also creates conflict, Boulakia said.
“If you take one board member out, it means less files get processed, even if the files get processed wrong.”
Boulakia is calling on the government and IRB Chairperson Richard Wex to replace the board’s internal process for dealing with complaints with an external process that has the power to sanction judges.
This, he says, will resolve any concerns about the board having a “vested interest” in not disciplining judges, even those who commit the worst kinds of errors.
“We spoke about this at the parliamentary committee on immigration, and nothing has changed since then,” he said.
Wex declined multiple opportunities to be interviewed for this story.
In a written statement, IRB spokesperson Anna Pape said the board disagrees with Boulakia’s claims, adding that creating an external panel for investigating judges would require approval from the government and that the independence of judges would still need to be protected.
“It is in the Chairperson’s interest to uphold the integrity of the conduct of the board’s members,” Pape said.
Pape also said the IRB’s director of integrity, who investigates complaints, operates independently.
But according to the board’s complaint procedures, it’s the chairperson who decides if a complaint gets investigated, what findings from an investigation are accepted and what, if any, disciplinary action is taken.
This, Boulakia said, is the opposite of independent.
Board ‘hides behind’ judicial independence
Boulakia isn’t alone in criticizing the board’s handling of complaints.
Audrey Macklin, a University of Toronto law professor and former refugee judge, says the board has “long hid behind” its obligation to preserve the independence of adjudicators as a way of avoiding its responsibility for dealing with their bad behaviour.
She says concerns raised by lawyers such as Boulakia are legitimate and that senior management at the IRB must commit themselves to ridding the board of problematic decision-makers before these concerns will ever go away.
“(The IRB) interprets the scope of its jurisdiction as narrowly as it possibly can to deny that it possesses authority to deal with the complaints before it,” she said.
Macklin also says there are judges at the board — past and present — who are ideologically opposed to the idea that Canada has an obligation to protect asylum seekers and who lack the empathy needed to sit in judgment of others.
She points to the recent rehiring of a judge who, in 2001, wrote an op-ed that said nearly all refugees are liars and which criticized a Supreme Court of Canada decision expanding protections for asylum seekers as an example of an adjudicator who does not belong at the board.
When asked about the op-ed, the judge said he was an academic when he wrote the article, that his comments referred to the IRB’s rules that existed decades ago and that his opinions have since changed.
Showler, meanwhile, who served as IRB chairperson from 1999 to 2002, says changes meant to increase efficiency at the board ended up weakening protections for refugee claimants.
Prior to 2001, all claims were heard by two judges. If one judge rejected a claim and the other accepted it, the positive decision would override the negative. Having more than one person in the hearing room also helped “moderate the inappropriate conduct” of some judges, Showler said.
Refugee judges now have “tremendous power” over claimants, he said, many of whom do not understand their rights and are “confused and terrified.”
“Most refugees are profoundly vulnerable,” Showler said. “They know that if they don’t communicate effectively, they and their families could be deported back to the persecution they fled.”
He also says measures currently in place to shield claimants from problematic judges do not work. This includes the board’s appeals division, its complaints process and the Federal Court.
“In my opinion, none of them have been particularly effective in moderating, correcting or eliminating inappropriate conduct by specific board members,” he said.
The IRB did not answer questions about Macklin’s and Showler’s concerns.
“We have reviewed the comments made by Professor Macklin and Mr. Showler, and we are not in agreement with their perspectives. We have no further comment on their statements,” Pape said.
Judges should ‘own’ decisions
Rozenszajn isn’t the first refugee judge to have a decision overturned.
A review of IRB statistics from the past five years reveals that roughly 30 per cent of all claims rejected by first-level judges, such as Rozenszajn, were overturned by the board’s appeal division.
Sean Rehaag, director of York University’s Centre for Refugee Studies, says the rate of overturned decisions is high but not surprising.
“Refugee decision-making is hard,” Rehaag said.
Having a decision overturned can also be the sign of a good adjudicator, he said. This is because thoughtful judges consider both sides of an argument in their rulings, which makes their decisions easier to overturn because there’s more material for appeals judges to work with.
Pape, meanwhile, says about one-third of appeals include new evidence that wasn’t available to the first judge, making them more likely to succeed.
Overturned decisions also prove the system works, she said, because refugees that would otherwise be rejected are able to stay in Canada.
But not everyone agrees with this assessment.
Barb Jackman, a Toronto immigration lawyer, says she was “shocked” to learn how many cases are overturned.
Jackman is also concerned that refugee judges who make errors are shielded from scrutiny because appeals judges and the Federal Court almost never publish their names, even when they commit serious errors.
When reviewing Rozenszajn’s ruling, Pollock said she had concerns about his ability to decide cases based on domestic abuse, but she didn’t name him anywhere in her decision. Instead, she refers to him as the “RPD Member.”
This practice, Jackman says, which is based on professional courtesy, deprives claimants and the public of their right to know which judges are making mistakes. It also contributes to a lack of accountability because adjudicators — especially refugee judges — are rarely subjected to open criticism.
“If you make a decision, you should own it,” Jackman said.