Complaints to (and about) the IRB
I want to talk today from the perspective of counsel, or refugee advocates, who are faced with a member of the Convention Refugee Determination Division ("CRDD") of the Immigration and Refugee Board ("IRB") whose conduct is inappropriate. According to the IRB's own code of conduct:
Members should perform their duties and responsibilities and comport themselves generally with reserve, courtesy and discretion. Members are required to demonstrate a high degree of sensitivity to gender-based issues, cross-cultural understanding and human rights generally.
And related to this:
Members should avoid creating an apprehension of bias in the conduct of a hearing and should guard against intervention that may interfere with the presentation of the case. A member must refrain from making intemperate, racial, sexist or ethnocentric comments.
So, what does one do when a member appears to be violating these rules, for example, by rolling his or her eyes at certain answers, making other demeaning facial expressions, using a tone of voice that shows irritation and impatience, continually interrupting the claimant's testimony with questions, some of which are far from relevant to the issues at hand, by making sexist or racist comments, or by being just plain rude?
First, it may actually alleviate the problem. As with any schoolyard bully, standing up to an overbearing judge or tribunal member is often all that it takes to make him or her back down. Besides, saying nothing can be interpreted as an implicit acceptance of the member's conduct.
By addressing the problem in the hearing room, hopefully you can avoid the necessity of lodging a formal complaint. In my experience, few refugee claimant feel at ease with the latter. In their mind, one does not want to antagonize the decision-maker any more than is necessary. Dealing with problems in the hearing room is less formal, more direct (in the sense that you are addressing your concerns directly to the person responsible for the behaviour and, in the end, more likely to bring about a speedy resolution of the problem.
A second reason for speaking up is simply that you owe it to your client, as that great, fictitious barrister, Horace Rumpole, would say, "to get up on your hind legs" and come to his or her defence. As an advocate, it is your job to protect your client from being harassed, abused, mistreated or otherwise dealt with inappropriately.
A final reason for raising the concern during the hearing is to ensure that your complaint appears "on the record". Should the matter go the Federal Court on judicial review, it is obviously helpful if this is so, particularly in cases where bias is alleged. In fact, where the allegation is that the member is biased, the first step should be an application in the course of the hearing that the member recuse himself or herself from the case.
Looking at this process from the perspective of the claimant who is affected by the member's inappropriate conduct, a legitimate question arises, which is: "What good will it do?"
Well, if the hearing has concluded, not much. The damage will have been done. The ADC will not, and should not, interfere with the independent decision-making process.
Even if the hearing is ongoing, in ordinary circumstances, not much is going to be accomplished by going to the ADC. Under the Protocol, the offending member will be notified that a complaint has been made. This is done to allow him or her "to recollect events while they are still fresh". But the Protocol clearly states that "ordinarily... the ADC....will postpone dealing with the matter until after the hearing has been completed and a decision rendered."
One exception may be if the complaint is to resume a hearing that has been adjourned for a long period of time. Then a complaint may result in a speedier resumption.
The point is: using the IRB's complaints Protocol may result in improved conduct on the part of the offending member in the future. Or, it may result in some future sanction against the member. But that will be of little solace to the poor claimant victimized by the offensive behaviour that led to the complaint being made in the first place.
I will return to the Protocol in a few moments, but wish to continue with our example of the refugee claimant who has been aggrieved by improper conduct on the part of the CRDD member.
That being said, in a number of cases, the Court has made it clear that offensive, inappropriate conduct in the hearing room on the part of a tribunal member will not be tolerated.
A leading case in this regard is that of Sarah Mohammed Yusuf, in which the Board member kept referring to the claimant as "my dear lady". Mr. Justice Hugessen, speaking for the Federal Court of Appeal said, in reference to this conduct:
This is an outmoded form of address, clearly sexist and completely unacceptable in the Canada of the present day. (This was in 1991)
Later in the hearing, the member cast doubt on the claimant's testimony that she attended a demonstration. Those are dangerous events, the member suggested, and "You were a tiny little woman." How could you possibly have defended yourself against such trouble?
Said Justice Hugessen:
According to her passport filed at the hearing, the appellant is 1.7 metres high and is of normal stature: so why describe her as a "tiny little woman" if not to insult and denigrate her.
In my opinion (said the Court) these sexist, unwarranted and highly irrelevant observations by a member of the Refugee Division are capable of giving the impression that their originator was biased. The day is past when women who dared to penetrate the male sanctum of the courts of justice were all too often met with condescension, a tone of inherent superiority and insulting "compliments". A judge who indulges in that now loses his cloak of impartiality. The decision cannot stand.
You can almost imagine the claimant's counsel reading this decision and going, "YES!!"
The code of conduct states that: "Members should be aware that there is a fine line between extensive questioning which is fair and intrusive questioning that may offend the rules of natural justice." Members are advised to keep their tone of questioning "neutral and patient" and not to unduly interfere with a claimant's presentation of his or her case.
Although the Federal Court has acknowledged that CRDD members do have considerable leeway in questioning a claimant, it has also overturned decisions where the Board member has made "sarcastic comments" and/or "grossly interfered with the orderly presentation of the claimant's case."
Again, the point is: where a member's conduct has interfered with his or her ability to render an impartial, unbiased decision, complaining to the ADC (as per the IRB's complaints Protocol) is not going to provide full relief to your client. For that, your are going to have to go the Federal Court.
The hearing was scheduled for an afternoon session, to begin at 1:00 o'clock. To say that it was a disaster would be a profound understatement. On three occasions, counsel remarked on the record that the atmosphere in the hearing room was "one of hostility".
Things came to a head when around 4:30 in the afternoon, counsel indicated that he had some other commitments that day. Since the hearing appeared to be far from over, he requested an adjournment.
The presiding member refused his request.
According to the statement of claim, the lawyer was not given an opportunity to explain why he had to leave. It was to pick up his kids at daycare. There was shouting, sarcastic remarks, and threats by the presiding member to report the lawyer to the law society.
In the end, at 4:40 p.m., the panel announced that the hearing would not be adjourned. Presumably, it was to continue indefinitely into the evening if necessary, until it was concluded.
Suffice it to say, the lawyer was put in a rather impossible situation. Continue with the hearing, and abandon his children at day-care, or leave the hearing and abandon his client.
He chose to leave.
By the way, the statement of claim mentions that at this stage Mr. Rowe's client was somewhat "traumatized" by what was happening around him. As Mr. Rowe was getting up to leave, the presiding member warned the claimant that if he left too, the Board would commence an "abandonment" hearing against him.
What was the poor guy to do? Remain unrepresented in the hearing room with the "hostile atmosphere", or follow his lawyer? He said, "I go with my lawyer" and left the room. Later, in large part because he had walked out of the hearing with his lawyer, the Board held that the claimant had abandoned his refugee claim.
Rowe and his client, with Galatia as their counsel, sued the Board members for abuse of process and authority, and the presiding member for libel and slander. They asked for $250,000 in general damages against each Board member, $350,000 in punitive damages, and against the presiding member, $500,000 for libel and slander.
Eventually, this claim was withdrawn - for a number of reasons. The Federal Court had overturned the Board's decision on the claim, and the plaintiffs were concerned about the potential costs that might result from the litigation.
I spoke to Rocco Galati in preparation for this session. He says that suing members lets them know that he is serious, and that they cannot get away with inappropriate behaviour as far as his clients are concerned. In other words, according to him, this tactic works in improving the quality of decision-making in his cases. Board members, I would imagine, are a bit intimidated by him.
I greatly admire Mr. Galati, but clearly this route is not for everyone. In effect, it is a form of reverse-bullying, and, I would think, does little to improve the overall quality of Board/claimant/counsel relations.
What to do about them?
The IRB Protocol does provide for a more formal resolution of a complaint made against a Board member as an alternative to, or in addition to simply raising the concern with the ADC. In such cases, a written complaint is filed with the Deputy Chair ("DC") of the IRB, and a formal inquiry is held.
Under the Protocol, it is contemplated that in most cases "legal counsel from the head office of the IRB" will conduct the inquiries. Outside counsel may also be appointed, at the discretion of the DC. After the inquiry, a recommendation is made to the Chairperson of the Board, who will decide what "remedial measures" are required.
This type of inquiry is happening now in Toronto, in a case where a lawyer has filed a formal complaint against a particular member. The grounds for complaint are that the member in question has, over the past four years, maintained a rejection rate of between 90-95%. His approach, says the complainant, is to look for reasons to reject a claim.
An example given was the case of a Sri Lankan Tamil claimant, speaking through a Tamil interpreter but, on occasion, using a word in English. According to the counsel who initiated the complaint, the claimant's ability in English had nothing whatever to do with the basis of his refugee claim. The member, however, on hearing the claimant utter some words in English found that he had lied about his abilities in English. This "lie" went to the claimant's overall credibility, and the claim was rejected.
I asked the complainant counsel what he hoped to accomplish through this inquiry. He said he hoped that the member would be dismissed.
But, under the Protocol, this is not possible. In fact, one of the significant limitations of the Protocol is the type of "remedial measures" that the Chairperson of the Board has available to him. Certainly, a notation can be made on the member's file. Re-training may be suggested or required. The member may be spoken to by the Chair about his or her behaviour.
But can the Chairperson of the IRB actually dismiss members, or relieve them of their responsibilities? No.
A well-founded complaint may affect the Board's recommendation to re-appoint the member to a new term or not. But in cases of re-appointment, the ultimate decision rests not with the Chairperson of the Board, nor even with the Minister of Citizenship and Immigration, but with the Governor-in-Council (the Cabinet). In other words, the final decision on re-appointments is made by the politicians and, one would imagine, sometimes for political reasons.
Under this system, even the worst, most undeserving IRB member can be re-appointed - if he or she has the right political connections. This is so, regardless of how many complaints against the member are determined to be well-founded.
The only way that a Board member can be removed from office - for misconduct, or failure in the "due execution" of the office - is after a formal inquiry initiated pursuant to s. 63.1 (1) of the Immigration Act. In such cases, the IRB Chair may recommend to the Minister that an inquiry be held to determine whether the member in question should be "subject to any disciplinary measures". The inquiry is conducted by a judge, or former judge, of the Federal Court. The judge reports to the Minister, possibly with recommendations for removal or suspension of the member. The Minister in turn submits a report to Cabinet. The ultimate decision, again, rests there.
How often has this very formal inquiry been instituted? Very very rarely.
A number of people have suggested that the only way to really improve the quality of decision-making is to appoint a better quality Board member. That is, someone appointed not because of his or her political affiliation, but on the basis of his or her relevant past experience.
As an aside - I remember years ago being at the House of Commons Standing Committee on Immigration. Before my appearance as a witness (as I recall, to comment on some piece of draft legislation) the Committee members spent a few minutes being formally introduced to a new member of the CRDD. The appointee was from Montreal and had had some connection to the government party. He made no effort to hide the fact that up to that point in his life, he had had no experience whatsoever dealing with refugees. I do not wish to disparage the man in any way. In fact, he seemed to be very forthright and honest about his background. What was surprising was the reaction of the committee members around the table. Several pronounced that it was refreshing to have someone coming to the Board without a lot of "baggage" - by which I think they meant pre-conceived ideas about who is a refugee.
According to Montreal law professors François Crépeau and France Houle, this is precisely the kind of appointment that needs to be done away with. They propose that CRDD members must have training either in law, psychology or psychiatry, anthropology or relevant cultural studies and ten years of experience working with refugees, exiles or migrants - in Canada or abroad - for an NGO, international organization or a government agency.
In their proposal, the selection of CRDD members is completely de-politicized. Selection will be done by an independent selection committee composed of a Federal Court judge, the current chairperson of the IRB, the chair of the CCR, a representative from an association of immigration lawyer, a member of the Canadian Human Rights Commission, a representative from Citizenship and Immigration, a representative from Foreign Affairs and International Trade, and a representative from the UNHCR. Finally, professors Crépeau and Houle recommend one term only - of seven years - for members, with no renewals.
What is the expression? "From your mouth to God's ear"?
I have only two brief comments to make about these proposals. The first can be succinctly stated with another expression, namely, "in your dreams". As sensible as the Crépeau/Houle proposals are, from a realistic, political perspective, they are unlikely ever to be implemented.
Secondly, one of the problems with this approach is that, from what I can tell, relevant past experience does not always translate into a good Board member. Some of the worst members that I have seen have come from what would seem to be an ideal background. Some of the best have not. In other words, choosing from a very elite pool will not necessarily result in a better Board.
In the meantime, I believe, the best "solution" to the problem of Board misconduct is: a more transparent system of complaints (and I believe that sessions like this go a long way towards that goal); ongoing and meaningful evaluations of Board members; ongoing and, where necessary, more individualized training for members; and more support for Board members. This latter could be done, for example, by "buddying" newer members with more experienced and well-respected members of the Board.