Canadian refugee judge had ‘predisposition against Roma claimants,’ court finds as it grants couple’s bid for asylum


In a damning decision by a federal tribunal, a refugee judge has been criticized for having “a predisposition” against Roma claimants from Romania.

In an April ruling, the refugee appeal tribunal, a division of the Immigration and Refugee Board, quashed a decision by David Mungovan to reject a Roma couple who had sought asylum in Canada. Arnold Sincu and Diana Ancuta Gramnea claimed they were persecuted and discriminated in Romania due to their ethnicity.

Appeal tribunal adjudicator Erin Bobkin took the unusual step of reviewing four other recent decisions rendered by Mungovan on other Romanian Roma claims. “The board reviewed five decisions by the same refugee judge to come to the conclusion that he has inappropriately used boilerplate reasons and has repeatedly engaged in a pattern of credibility findings based on inappropriate considerations,” Bobkin wrote in her April 4 order.

“Looking at these patterns along with the confrontational and sarcastic tone used… I find the test for bias is made out.”

Bobkin’s decision did not name the refugee judge, but the Star has confirmed it was Mungovan, a lawyer who was appointed a refugee judge in 2010 by the then-Conservative government. He could not be reached for comment, and the refugee board said he no longer works there.

The court not only set Mungovan’s decision aside but accepted Sincu’s and Gramnea’s asylum claim and granted them protection in Canada.

Citing privacy concerns, the refugee board declined to comment on the case or the judge, but said when an appeal decision indicates a possible issue about the conduct or competence of a refugee judge, the board’s management takes appropriate measures, which could include further training or disciplinary action, depending on the situation.

“All members must go through extensive training and orientation before hearing cases, with a strong emphasis on professional, fair, and ethical conduct. Training topics include intersectionality and trauma-informed practices, unconscious bias in decision-making and avoiding myths and stereotypes,” said Immigration and Refugee Board spokesperson Line-Alice Guibert-Wolff.

“Throughout their employment, members receive ongoing professional development on all aspects of their work. This includes topics like the principles of natural justice, which includes issues of bias.”

the qualifications to be a refugee judge include a university degree from a recognized post-secondary institution and relevant work experience in drafting documents, managing projects and files, as well as a decision-making in an administrative tribunal or court of law. An educational background in law, immigration, refugee, migration, settlement or diaspora is considered a plus.

Sincu and Gramnea declined an interview request by the Star but their lawyer, Peter Ivanyi, said Bobkin going out of her way to review other Roma cases handled by Mungovan is unprecedented.

“I’ve never seen the Refugee Appeals Division make reference to previous decisions by the same member in coming to a decision (like) in the current one, and then make the generalized findings about bias that it did,” said Ivanyi, who represented all the five cases referenced in the appeal decision.

“I suspect, in reading the decision, the court itself was frustrated with having to deal with the repeated negative decisions, making the same errors by the same member in a dismissive, insensitive manner.”

Ivanyi has represented more than 200 Roma refugees from Romania since 2017, when Ottawa lifted the visa requirement for travelers from that country.

The yearly number of asylum claims from Romania, almost all by Roma minorities, has shot up from zero in 2017 to 1,366 in 2018 before coming down to 131 and 109 in the past two years due to the pandemic. Of the 500 Romanian Roma claims heard by the refugee board between 2018 and 2021, 72 per cent (360 cases) were granted.

In her decision, Bobkin said there’s a high bar for appellants to establish bias or even an apprehension of bias; an allegation cannot be just based on “mere suspicion, pure conjecture or mere impressions.”

The adjudicator said she assessed the couple’s allegations based on Mungovan’s tone and demeanour; his use of boilerplate reasons in Romanian Roma cases; and his pattern of focusing on “peripheral, microscopic and sometimes inappropriate credibility issues” in this case and others.

“They shed light on a pattern that I find leads to, at the very least, the appearance that this member is biased against these types of cases,” wrote Bobkin, who has served on the board since 2016.

Not all instances of abrupt, impatient or challenging tone will amount to bias, but the court found Mungovan crossing that line after reviewing the recording of Sincu’s and Gramnea’s 2021 refugee hearing.

The refugee judge made comments with a “sarcastic tone,” such as “I didn’t know that I was limited to non-leading questions, but nevertheless,” said Bobkin. Others were made with an angry, argumentative tone, Bobkin said, such as, “You don’t want them to answer the question, I will move on,” and “Is it to be answered or not?” and, “I am going to ask this for the last time.”

“At times, the member interrupts counsel. All of these issues together render this interaction concerning,” wrote Bobkin, adding that the claimant’s complaint — that Mungovan “sneered” and “seemed condescending” and was “confrontational” — were borne out in the recording of the hearing.

Although boilerplate language alone does not necessarily raise a reasonable apprehension of bias and is generally acceptable, the appeal tribunal said the boilerplate paragraphs used by Mungovan did not address particular evidence of the claimants before him and “co-mingled” their evidence with from other cases ‘.

In all five refugee refusals under review, for instance, the refugee judge opened the decisions stating: “The claimant/s fear/s that if she/they were to return to Romania she/they would not get the same health care as Canada offers .” But he ignored the actual allegations raised in each individual case — in Sincu’s and Gramnea’s case, their complaint was about having to pay extra fees or bribes to receive health care in Romania, and being refused care when unable to pay.

“This is a very different fear than being afraid of not getting the same health care that Canada offers,” Bobkin noted. “The same types of statements are made about employment and education, where the same imputed fear is put upon each claimant without applying the country conditions to their personal situations de ella.”

She also criticized the refugee judge for making credibility findings based upon peripheral issues, often focusing on petty criminality or claimant’s marital histories, and “microscopic discrepancies,” sometimes without putting inconsistencies to the claimants.

In one case, Mungovan found a sexual assault did not occur because it was not plausible that the assailant said he did not like Roma people. In another, said the tribunal, he made comments about the Roma ethnicity that belie a fundamental misunderstanding of ethnicity, asking a claimant whether she could “extricate” herself from the group.

“All of these types of credibility findings demonstrate a zealousness to discount claimants in Romanian Roma claims and relies on stereotypes or myths, in particular with respect to gender-based violence,” said Bobkin.

“This board member has a predisposition against Roma claimants from Romania. I find that the test for a reasonable apprehension of bias is met.”

Ivanyi said refugee judges wield a lot of power in determining the fate of asylum seekers, and deserve closer scrutiny. “On thing that refugee counsel have lamented over the years is there’s a lack of transparency to complaints and complaints mechanisms,” he said.

“With the immigration and refugee board making a generalized finding here, this is clearing transparent. We all wish that the board would closely scrutinize its members, take more seriously complaints. That process should be transparent. that I’m still not sure it has happened or is happening.”

Nicholas Keung is a Toronto-based reporter covering immigration for the Star. Follow him on Twitter: @nkeung

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