Refugee board member with zero acceptance rate chastised

Posted by admin on Mar 8th, 2011

Nicholas Keung, Toronto Star, Mar. 8 2011

The day the Star broke the story on a wide variation of acceptance rates by refugee board members, a Federal Court judge issued a decision chastising an adjudicator who had not granted asylum to anyone in three years. In an order issued Friday on an appeal by failed refugee claimant Bingrou Xu, the judge eight times repeated that the credibility findings by Immigration and Refugee Board (IRB) member David McBean were “unreasonable.”

McBean rejected Xu’s refugee claim last summer, stating 14 times that the claimant’s story was unsatisfactory and lacked credibility. Xu fled Belize in 2007 with his two children, claiming his wife was shot to death in a botched robbery of their convenience store and his family continued to be threatened.

“The (refugee) board’s conclusion . . . appears to have been based on the cumulative effect of the ‘discrepancies, contradictions and other problems’ that the board identified,” Justice Paul Crampton ruled.

“In my view, the board’s findings with respect to several of them were not reasonable, such that the board’s overall conclusion cannot stand.”

The court’s decision is hailed by refugee lawyers who have complained they dread being assigned McBean for their clients’ asylum hearings.

“It is a robust reminder to all IRB members to slow down, remember the law and adhere to the principles of the law when claims are considered and analyzed,” said Xu’s lawyer Robert Blanshay.

Data analysis by Osgoode Hall law professor Sean Rehaag revealed last week that McBean granted asylum to none of the 169 cases assigned to him since his 2007 appointment – most of his rejections cited claimants’ credibility as an issue. The data also showed several board members had extremely high acceptance rates.

When contacted at his home Tuesday night, McBean would not comment on his record. “Your paper has already been instructed to speak with our communications department,” he said.

The Conservative government recently reappointed McBean to a five-year term.

Asylum claims are based on individual merit, but McBean’s zero acceptance rate has raised concern among critics, including former IRB chairperson Peter Showler.

“It certainly hints at bias, that this member has an attitude about either particular claimants from particular countries or claimants in general,” Showler told the Star.

In his claim, Xu said his children were wounded during the robbery, that the suspects continued their threats and local authorities were unable to protect them.

Despite the undisputed fact of his wife’s casualty, daughter’s loss of one eye and scars to the son’s body from bullet wounds, McBean was not convinced.

“Had his son really been shot and this resulted in a week-long hospital stay, I would have expected the claimant to be able to document this beyond the pictures of scars that were presented,” McBean wrote in his July 5, 2010 decision.

“The fact that he did not present medical documents with respect to his son undermine (sic) his credibility.”

McBean also contended there was no document from the police or Belize media to corroborate the family’s story.

“I simply do not believe that, on a balance of probabilities, that any of the significant events that the claimant alleged happened to him, actually happened,” said McBean, a former IRB operations manager called to the bar as a lawyer in 1995.

According to the IRB data, McBean often concluded that his cases had no “credible basis” – in 38 out of 62 cases in 2010 and 32 out of 72 cases in 2009.

“Judges shy away from overturning such rulings because adjudicators heard the claimants and are better positioned to make that decision,” said refugee lawyer Tim Leahy.

“Adjudicators who want to ensure the Federal Court will not overturn their decision claim . . . the claimant was not credible.”

McBean is prohibited by the IRB to speak to the media. Repeated requests for comment on the issue by Immigration Minister Jason Kenney have been unsuccessful.

As for Xu, whose family is still recovering from the trauma, his lawyer Blanshay said the case has been returned to a new IRB hearing by a different adjudicator.

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