The complainant appeared as Minister’s counsel in a detention review before the Immigration Division.
The complainant alleged that the member gave the impression that she was an advocate for the detainee rather than an impartial decision-maker.
The complainant submitted that in her decision the member stated: “Perhaps you know or perhaps you don’t know but once the Minister sets a date for removal you can apply to the Federal Court for stay of that removal but it’s up to you to get those legal processes going as without any of those legal processes the Minister has to remove you.” And, further in the decision, “for you ma’am, I would recommend that you speak to Legal Aid about whether you will proceed with a Federal Court case, either for a stay of removal or pursuing an appeal on humanitarian and compassionate grounds.” The complainant was of the view that these statements were unsolicited and that it is not the member’s function to counsel detainees on various methods to delay the removal process.
The Oﬃce of Integrity forwarded the complaint to the Chairperson for a decision on whether the complaint was outside the scope of the complaints process under paragraph 5.5 of the Procedures for Making a Complaint About a Member (Complaints Procedures).
Both parties were informed about the resolution of the complaint. In his decision letter of April 10, 2019, the Chairperson noted that the complaint process is not meant to address a member’s decision nor related adjudicative matters.
The Chairperson concluded that the allegation related to a perceived apprehension of bias and was not related to the conduct of the member and therefore fell outside the scope of the Complaints Procedures.
The complaint was screened out and the ﬁle was closed.
Note - In this case, the complainant alleged that the member was not an impartial decision-maker. The appropriate recourse to address this type of allegation is through the appeals process or judicial review at the Federal Court, as the case may be. This approach is based in the legal requirement that members’ adjudicative independence cannot be fettered.