A refugee judge waited almost four years before rejecting the asylum claim of a Mexican family on the last day of his job, but the Federal Court has ruled the delay was not “severe” enough to breach the claimants’ charter rights.

At the centre of the case was Immigration and Refugee Board member David McBean, who gained attention after a Star investigation in 2010 found the adjudicator had denied all of the 169 asylum cases he presided over between 2007 and 2010.

The 26 members of the extended Mexican family — three later withdrew their claims — had their last hearing on Dec. 6, 2011. McBean didn’t deliver his decision on the family, who had settled in Toronto, until Oct. 14, 2015, the same day his government appointment expired. Most asylum decisions are rendered within a year of claims being heard.

McBean is now a refugee appeal officer responsible for strategic advice and case management. A refugee board spokesperson said neither McBean nor the board could comment on the court decision.

A few of members of the family have obtained their permanent resident status on humanitarian and compassionate grounds, while some have pending humanitarian applications and could face removal from Canada.

Lawyers for the family had argued the delay caused psychological and physical harm that amounted to “state-imposed” stress and called into question McBean’s ability — four years after the case was heard — to recall details of the asylum claim in order to make an unbiased decision.

“Notwithstanding the number of applicants and the inevitable volumes of evidence, this is not an overly complex decision that gives rise to difficult questions of fact and law,” wrote Federal Court Justice James Russell in a 196-page decision released in April.

“On the whole, I think I must draw a negative inference from (McBean’s) failure to adequately explain the delay in producing the decision and his resort to vagaries. The applicants have convinced me that, following the hearings, the member took much longer to produce this decision than the inherent time requirements required.”

Still, he said, the applicants did not demonstrate the delay caused impacts serious and profound enough to breach their charter rights or prevented McBean from “properly assessing the applicants’ evidence and making reasonable credibility findings.”

Russell said the family was partially responsible for the delay due to their repeated attempts to remove McBean from their case after they learned of his zero-acceptance rate. He questioned why the family did not complain to the refugee board about the delay or make a plea to the Federal Court to order McBean to issue a decision. (The family’s lawyer had argued they were advised a decision would be forthcoming whenever they contacted the refugee board for updates, hence they never filed a formal complaint.)

According to the court decision, the family, identified only as I.P.P. and others, arrived in Canada in separate groups in 2007 and 2008. Their claims were all related to an incident in 1992 when the principal claimant, I.P.P., witnessed a murder and helped police with the arrest of a gang leader. The family claimed the gang then engaged in a 15-year vendetta against them.

After five pre-hearings, they began giving oral testimony in early 2011. The hearing wrapped up by the end of the year. Their claim was rejected three years and 10 months later because McBean did “not find their story credible.”

In their appeal against McBean’s decision, the family told the court the delay caused them significant distress and financial hardship as they had to pay for medical treatment out of their own pockets. Living in limbo also strained family relationships and led to lost opportunities for employment and education, they said.

Russell said he would expect that genuine refugee claimants would recognize some benefits for any delay in rendering a decision: prolonged safety from the dangers they are fleeing; support and opportunities Canada affords; prospects of obtaining permanent residence based on their establishment; and extra time to submit additional evidence.

However, “this is a case in which the applicants accentuate the negatives and ignore the positives,” Russell noted.

In an interview, I.P.P. said he was disappointed the judge failed to see how the delay has taken a toll on the family.

“I am grateful that my family and I were able to come to Canada and be safe here, but I am frustrated that our refugee claim took so long to be decided. The anxiety and sadness I felt throughout the hearing was made much worse by the four-year delay,” said the 40-year-old truck driver from his Toronto home.

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“This not knowing took a terrible toll on me and my family. It is like my entire life has been suspended. I was frequently overwhelmed by feelings of hopelessness. I came from such a difficult situation in Mexico to find safety in Canada, only to encounter this difficulty.”

The family’s lawyers, Prasanna Balasundaram and Aisling Bondy, said they were pleased the court recognizes there was an unexplained delay in rendering the asylum decision, but disappointed it was not overturned.

“Hopefully, refugee adjudicators won’t interpret the court upholding this decision as a signal that they can take as long as they want to decide claims,” said Bondy.