By MARINA JIMNEZ
From Saturday’s Globe and Mail – July 24, 2004

If you are seeking asylum in Canada, you may not want to present your claim to Immigration and Refugee Board member Andrew Rozdilsky. He rejected all 73 cases he heard from 2001 to 2003. Only four other IRB members had a 100-per-cent rejection rate in this three-year period, but several others had acceptance rates that wound up well below the national average of about 42 to 47 per cent.

Lawyers call them the board’s “refuseniks.” Some board members have acceptance rates as high as 81 per cent.

Immigration and refugee lawyers say what they term the wild variation in board members’ acceptance rates is unacceptable and underscores the fact that some of these political appointees make life-and-death decisions in an arbitrary manner.

Records obtained by The Globe and Mail under the Access to Information Act show that former Toronto IRB member Jose Andres Sotto, a Filipino Canadian and community activist who lives in Windsor, Ont., accepted just six of 258 asylum seekers (2.3 per cent) from January of 2001 to June of 2002.

Reid Rossi, an author and analyst in the board’s research branch until he was appointed to the board in Toronto in 1996, accepted 20 of 289 claimants (7 per cent) in the 2001-03 period, while Fahimeh Mortazavi, a failed Liberal candidate in the 1999 Ontario election, accepted 31 of 202 cases (15 per cent).

In contrast, Lois Figg, a former member of the Ontario Human Rights Commission, accepted 289 of 353 (81 per cent) refugee claimants, while her Toronto colleague Elke Homsi, a community activist and German translator, had a 70-per-cent acceptance rate, granting asylum to 596 people.

“A refugee claimant’s life hangs in the balance and could be decided on the whim of a member who is only there because they are a political appointee. Although some patronage appointments may find an aptitude for this work, it is not a good selection criteria,” said Raoul Boulakia, head of the Refugee Lawyers Association of Ontario. “A negative decision can be devastating to a person who truly fears persecution. I have had clients attempt suicide after being turned down.”

The documents show the Vancouver region had a lower acceptance rate than Toronto: 43 per cent versus 58 per cent. Montreal’s acceptance rate was 50 per cent from 2001 to 2003.

The IRB is working to improve the appointment process of members to the $97,000-a-year job, said spokesman Charles Hawkins, noting that the variation in acceptance rates can be explained, in part, by the fact that members specialize in certain regions. Vancouver’s acceptance rate is also affected by the kinds of cases it hears, he said.

“The IRB, like other tribunals, strives to achieve consistency in its decision-making, but at the same time absolute consistency in a quasi-judicial setting, where each case is determined on its own merits, … is not possible,” Mr. Hawkins said.

The IRB seeks to resolve issues of inconsistences, he added, and failed claimants may appeal to the Federal Court, which overturns IRB decisions in 1 per cent of cases.

Some individuals with a high volume of positive cases such as Ms. Homsi preside over “expedited or fast-track” cases from war-torn countries that are accepted by a case officer and then approved by board members.

However, lawyers say regional specialization cannot fully explain IRB members’ lopsided track record because they usually hear a wide variety of cases within a geographic region, and may be assigned to more than one region.

Mr. Rozdilsky, the member with a 100-per-cent rejection rate, has no area of specialization. His qualifications are impeccable: he has a master of law degree and worked for the United Nations High Commission for Refugees before his 1996 appointment by then-immigration-minister Lucienne Robillard.

Ms. Mortazavi, a board member from 1990 to 1994 who was reappointed in 2000, heard claims from Mexico and China, while Mr. Sotto, first appointed in 1994 by former Liberal immigration minister Sergio Marchi, presided over a wide variety of cases including those from Europe, the Philippines and Sri Lanka.

Mr. Sotto’s high refusal rate prompted the Refugee Lawyers Association of Ontario to file a complaint against him in 2000, Mr. Boulakia said. He analyzed Mr. Sotto’s decisions by country in the 1998-2000 period and documents show that his refusal rates for claimants from Sri Lanka, Bangladesh, Pakistan and China were much higher than the national rates.

“Mr. Sotto was known to routinely reject claimants with strong cases,” Mr. Boulakia said.

A retired judge found the complaint against Mr. Sotto, who completed his nine-year term in 2002, to be unfounded.

The federal Ethics Commissioner also dismissed the lawyers’ complaint that Mr. Sotto made a $1,000 donation to then-deputy-prime-minister Herb Gray in the 2000 election.

Several of Mr. Sotto’s decisions have been overturned in Federal Court. A judge described his June, 2002, rejection of a Sri Lankan as “filled with so many errors and ….. credibility findings” that it was sent back to be reheard. In another case, a judge described as “patently unreasonable” Mr. Sotto’s 1996 rejection of a Sri Lankan Tamil on the grounds that the claimant spoke good English.

Mr. Sotto was unavailable for comment yesterday.

A Federal Court judge also sent Mr. Rossi’s 2001 rejection of a family of Roma, sometimes called Gypsies, to be reheard, reminding him that patience, respect and restraint are required of IRB members at all times.

Other lawyers such as Max Berger believe the “crazy fluctuations” in acceptance rates will continue as long as IRB members are selected for political reasons, although he notes that not all patronage appointees are ill-qualified.

Other lawyers charge that lower-than-average acceptance rates in Vancouver stem from a “general attitude of negativity” from members who may suffer from burnout.

“We have some excellent board members. But with some members who have been there a long time, there is, in general, a sense of disbelief of refugee claimants,” said Bediako Buahene, a Vancouver lawyer who has become so discouraged he no longer appears before the board. “You feel when you walk into a hearing that your client is deemed to be lying and has to convince the board otherwise. A gay Mexican claimant will have a very hard time getting accepted in Vancouver, but that is not the case in Toronto.”

Many of the gay claimants in Toronto have been transferred to Vancouver, which has a lighter work load.

Among the so-called refuseniks in Vancouver is IRB member Richard Vanderkooy, a former refugee lawyer who spent nine years assessing claims. He had a 20-per-cent acceptance rate in the 2001-03 period, and so did Fred Hitchcock, a former B.C. parole officer appointed in 1998 by Ms. Robillard.

They had no area of specialization, although many claimants in Vancouver are from South and Central America, China and Iran.Mr. Hawkins said Vancouver has no culture of negativity and that each case is determined on its merit.

The appointment process for the IRB has been criticized in the past for its political patronage, and earlier this year Immigration Minister Judy Sgro pledged to “professionalize” it. She said an advisory board of lawyers, academics and other experts will screen candidates’ applications. The IRB chairperson will then interview selected candidates and recommend appointees to the minister. Members can be appointed for terms ranging from one to five years and may seek reappointment.

Lorne Waldman, a Toronto lawyer, believes the immigration minister must completely give up control of appointments and allow the advisory committee to select members.

In the past, refugees and their lawyers were so familiar with the biases of IRB members they would attempt to manipulate the system to avoid negative members and win a hearing before “sympathetic” ones, lawyers told The Globe and Mail. In 2002, the law was changed, introducing single-member panels. The names of IRB members are no longer released to lawyers in advance.