STATEMENT BY
Jean-Guy Fleury,
Chairperson of the
Immigration and Refugee Board
OTTAWA, Friday, June 18, 2004 - Today I released the results of
an inquiry into allegations that were made recently regarding the decision-making
and decision-writing processes at the Immigration and Refugee Board's
(IRB) Toronto office. Mr. Edward Ratushny, professor of law at the University
of Ottawa, conducted the inquiry. Having reviewed the report of Professor
Ratushny and the responses of the persons affected by the report, I agree
with Professor Ratushny's findings that improper conduct occurred in three
cases only, which were heard before the Refugee Protection Division. However,
I have no reason to believe, nor do I have any indication, that the conduct
identified in Professor Ratushny's report, is widespread.
BACKGROUND
The Refugee Protection Division of the IRB is mandated with determining
refugee protection claims made in Canada. Independent decision-makers
called Members, determine those claims. The Members are assisted by Refugee
Protection Officers (RPOs) who are responsible for preparing refugee protection
files and may, at the hearing, ask questions to clarify facts or issues
of credibility and make representations. It is the sole responsibility
of the members to render independent decisions: RPOs have no role to play
in decision-making and reasons-writing.
The conduct of Members and RPOs is governed, notably, by the Chairperson’s
Instructions Governing Extra-Hearing Communications Between Members of
the Refugee Division and Refugee Claims Officer and the Code
of Conduct for Members of the IRB. Although Members and RPOs
work together, they are not permitted, under those instruments, to discuss
the merits of a claim under consideration without the presence of the
claimant's counsel.
On March 10, 2004, a Toronto RPO wrote to the Public Service Integrity
Officer (PSIO) and made allegations, some of which related to inappropriate
conduct in cases heard by IRB's Refugee Protection Division in Toronto.
In particular, it was alleged that RPOs were involved in writing reasons
for decisions. Other allegations raised issues relating to the work environment1.
The PSIO is pursuing its own investigation into the allegations.
As Chairperson of an administrative tribunal, it is my duty and responsibility
to look into any allegations of improper conduct. This is why on becoming
aware of the allegations, I immediately took the necessary steps to determine
if the principles of natural justice had been breached in any of the cases
mentioned.
After preliminary fact finding, I hired, on March 31, 2004, Mr. Edward
Ratushny, a well-respected administrative law professor at the University
of Ottawa, to make an independent inquiry into the allegations relating
to the decision-making and reasons-writing processes.
I received Professor Ratushny's report on April 30, 2004. In the interest
of fairness and in order, to protect the rights and privacy of the people
affected by the report, I instructed that no information on this matter
would be made public until those affected by the report had the opportunity
to respond and final decisions were made. All responses were received
by June 2, 2004. Unfortunately, before I was able to conclude my review,
the report was inappropriately released to the media.
PROFESSOR RATUSHNY'S INQUIRY
Professor Ratushny conducted interviews with thirteen individuals. The
complainant declined to be interviewed and to make available within a
reasonable period of time, the extensive documentation, which he claimed
supported his allegations.
In one case, Professor Ratushny concluded that improper conduct was established
on the part of two Members and the complainant, who collaborated in preparing
reasons for the decision.
In a second case, Professor Ratushny concluded that both the Member and
the complainant had breached the principle of fairness by not disclosing
to the claimant's counsel, a document drafted by the complainant, which
was provided to the Member hearing the case.
In a third case, Professor Ratushny concluded that in 2000, a Member
had a conversation with the complainant regarding the case without the
presence of the claimant's counsel and prior to the writing of his reasons
for decision.
Professor Ratushny found no evidence of the participation of RPOs in
reasons writing apart from the one case mentioned. In the other two cases,
he concluded that the members crossed the line of propriety in their communications
with the complainant. He rejected the other allegations and stated that
one allegation appears clearly to be false and possibly fabricated.
FINDINGS
After reviewing Professor Ratushny's report and the responses from the
persons affected by the report including the complainant, I agree with
Professor Ratushny's findings of improper conduct in three cases.
In these cases, there has been a breach of the Chairperson's Instructions
Governing Extra-Hearing Communications Between Members of the Refugee
Division and Refugee Claims Officers and the Code of Conduct
for Members of the IRB.
ACTIONS TAKEN BY THE IRB
Immediately after becoming aware of the allegations and before Professor
Ratushny was hired, I determined that, in one case, the claimant should
be provided with the opportunity to have his case re-opened and reheard.
As a result of the findings, appropriate administrative measures have
been taken in respect to each of the four Members involved in the three
cases already mentioned. These decisions are based on the information
that became available in the context of the inquiry, and are in accordance
with the Code of Conduct for Members of the IRB.
The investigation of the Public Service Integrity Officer is still ongoing
in respect to public servants' alleged involvement in this situation.
The IRB is taking additional steps. Specifically:
CONCLUSION
The IRB plays an important role in Canada's immigration and refugee program,
with 190 Members making over 44,000 important and difficult decisions
annually regarding refugee protection. At the IRB, we are committed to
due process and fairness, not only for people appearing before us, but
also for our employees.
If any allegations of wrongdoing are made, I will ensure that these allegations
are thoroughly investigated in accordance with the principles of transparency,
fairness, natural justice and the laws of Canada. All the necessary actions
to address both improper behaviour of individuals and also any systemic
issues related to our policies and procedures will be taken.
- These other allegations are being dealt with separately
through the appropriate mechanisms.
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