Immigration Lawyers Still Concerned Over Immigration and Refugee Board

House of Commons’ IRB Study Leaves Questions Unanswered for Law Professionals, Critics

Canada’s Immigration and Refugee Board was recently subject of a House of Commons study on the lack of an independent complaints process against board members.

Report 20: Responding to Public Complaints: A Review of the Appointment, Training and Complaint Processes of the Immigration and Refugee Board, was presented to the House of Commons Standing Committee on Citizenship and Immigration on September 17, 2018.

The lack of a complaint process around specific areas (credibility of LGBTQ refugee claimants and sensitivity to those who have experienced trauma as result of gender-based violence, torture, or due to being vulnerable persons) was given particular focus in this study.

This study also follows specific allegations of sexism and incompetence amongst IRB members and decision makers. Back in January 2018, NDP Immigration Critic Jenny Kwan called for a parliamentary study of the IRB’s process after several lawyers and claimants came forward with their allegations.

But now that the review and study have been completed, critics and lawyers alike are frustrated by the parliamentary committee’s apparent complacency.

Recommendations Do Not Go Far Enough

As reported by the Law Times, many refugee and immigration lawyers welcome the study and review, but feel it does not go far enough to address the concerns at issue.

“It appears that the committee thought that things are not so bad that they require any sort of extreme measure or overhaul,” commented Toronto-based lawyer Nastaran Roushan.

Back in early 2018, Roushan filed a complaint against IRB judge Natalka Cassano, alleging both incompetence and aggressive behaviour towards Roushan and a refugee claimant.

Roushan appeared before the parliamentary committee, and while she welcomed some of the committee’s eight recommendations, she feels there’s still ground to cover.

Those eight recommendations include:

  • Maintaining the current Governor in Council appointment system, but with the inclusion of an evaluation of a candidate’s awareness and understanding of discriminatory conduct and the standards of behaviour to which IRB members are to be held;
  • A more vigorous approach to the IRB’s ongoing training processes, with additional sensitivity training, trauma-informed investigation techniques, and credibility assessment; and
  • The creation of an independent complaints process for all administrative tribunals, including the IRB.

Roushan and others believe that the lack of any sort of recommendation that IRB appointees have any sort of knowledge of refugee law is a glaring oversight.

“I don’t know of any job where someone would apply for a job and not have some requisite degree of knowledge and skill,” said Roushan.

Missed Opportunity

Other lawyers feel that the parliamentary report is a missed opportunity for IRB membership to include the skills and expertise of legal professionals with experience in refugee and immigration law.

“It is a missed opportunity to be able to staff up the board with people that are already very well equipped with an education and training in skills that are necessary for a board member,” said lawyer Barbara Jo Caruso.

Lawyer Chantal Desloges appeared before the committee and stressed that an IRB member’s behaviour and knowledge were critical for her clients.

“The stakes are really high for these people, so the quality of decision-making is really important,” said Desloges.

Mathieu Genest, a spokesperson for immigration minister Ahmed Hussen, said that Immigration, Refugees and Citizenship is carefully reviewing the report before providing an official response. Meanwhile, an IRB spokesperson said the Board is still reviewing the committee’s recommendations, offering no further comment.

The IRB is an important decision-making body responsible for accepting or rejecting refugee claimants. It is a sensitive position that requires the exercise of discretion, expertise in the subject matter, and well-articulated decisions. The Board’s decisions have a profound impact on the lives of the claimants and their families with life-or-death consequences.

Procedural fairness must govern all of the Board’s proceedings and all of those who appear before the Tribunal legitimately expect to be treated in a dignified and respectful manner with due regard to their culture and unique circumstances. Providing greater transparency in the complaints process is vital in reinforcing procedural fairness and improving the quality of decision-makers and hearings that take place before the Refugee Protection Division of the IRB.