The complainant was a refugee claimant whose claim was before the member at the Refugee Protection Division. The complainant and their family members alleged persecution by the government in their country of origin after the complainant reported a rape committed by a senior government official.
Pursuant to the
Procedures for Making a Complaint about a Member (the Procedures), the Chairperson reviewed the complaint and decided to refer the complaint to an external investigator. This decision was consistent with the recommendation of the Ombudsperson. The following allegations were referred for investigation as they were within scope of the Procedures:
- The member acted in a demeaning and dismissive manner; attacking the complainant’s self-esteem and undermined their life struggles. The complainant received discriminatory treatment and the claimants were not treated with dignity
- The member said that the government official who had raped a young girl was punished “harshly” by being demoted from his position
- The member stopped the complainant from describing an incident of sexual harassment and said something along the lines of “I am not going to comment on social norms”
- The member was sarcastic about the complainant’s testimony, especially with respect to testimony from the complainant’s mother-in-law
- The member ignored the complainant’s gender and cultural background. It felt like the member had a sexist view
- The member let the interpreter interfere and bring up their own opinion
- The member did not allow the complainant to have eye contact with their lawyer, their partner, or anyone else in the hearing room. When the complainant did, the member would scold them
- The member reprimanded the complainant for using the English language
- The member kept putting words in the complainant’s mouth. He reprimanded every answer the complainant gave as somehow incorrect. His tone seemed as if he did not believe the complainant from the beginning
- The member did not give the complainant the freedom to provide their testimony. He either cut them off or directed their answers in different ways. This provoked fear, that the member might be trying to trap the complainant
- The member did not listen attentively to the complainant
- The member made a “slight to the complainant’s kids names’ because he did not allow the complainant’s lawyer to name the children
Several allegations were not referred for investigation as they were not within the scope of the Procedures. These allegations included the member merging refugee claims with a family member claimant, the claimant not being allowed to reference their Basis of Claim form, the objectivity of the member, and the length of time the claimant had to wait to have their hearing. As per section 3 of the Procedures, complaints related to the exercise of the member’s adjudicative discretion are not investigated. Members are independent decision-makers; therefore, their adjudicative independence must be unfettered. The appropriate forum for concerns about adjudicative discretion is the associated appeals division or the Federal Court.
After investigating the allegations within scope of the Procedures, the investigator made the following findings:
- The member breached the
Code of Conduct for Members of the IRB (the Code) when:
The member said that the official who had raped a young girl was punished “harshly” by being demoted from his position. This comment was unnecessary and insensitive. The member stopped the complainant from describing an incident of sexual harassment in their country of origin. The member said that they would not comment on social norms. Social norms are often the cause of persecution for women. The member was disrespectful and, given the circumstances of this claim, discriminatory and contrary to Guideline 4.
- There was insufficient evidence of a breach the Code regarding the other allegations.
The investigation report was provided to the Chairperson. He was satisfied that the investigation was thorough and fair. The Chairperson accepted the conclusions in the report and found that there was a breach of the Code.
As the member was no longer an IRB employee, remedial or disciplinary actions were not warranted.
While there were no remedial or corrective actions taken regarding the former member, the Chairperson asked that the file be examined with a view to informing ongoing training, particularly for those members who hear and decide claims which involve considerations of gender.
The complaint was founded in part and the file was closed.