The complainant appeared before the member as counsel for a refugee claimant at a Refugee Protection Division (RPD) hearing.
The complaint alleged that the member’s analysis in her decision was selective, and that the member treated falsehoods as facts, drew negative inferences from misinformation, and manipulated testimony and evidence. The complaint further alleged that the member was not competent to perform a fair and impartial analysis, and that there was no due process because of the member’s selective and late disclosure of evidence. The complainant submitted that, in light of statements made during the hearing, the member should not be hearing refugee cases.
The Office of Integrity forwarded the complaint to the Chairperson for a decision on whether some of the allegations were 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, the Chairperson explained that the complaint process is not meant to address a member’s decision or related adjudicative matters.
The Chairperson concluded that most of the allegations in the complaint were clearly about the member’s decision, the exercise of adjudicative discretion, the member’s reasons for decision, and professional competency. Thus, those allegations fell outside the scope of the Complaints Procedures.
While the complaint referred to statements allegedly made by the member, it did not provide any details regarding the statements. The Office of Integrity afforded the complainant an opportunity to provide such details. The complainant’s submissions in that regard reiterated the allegations originally set out in the complaint. The submissions listed many examples of the ways in which the complainant believed the member distorted the facts of the refugee claim, demonstrated professional incompetence, failed to comply with procedural fairness, made judgments based on incorrect assessments of the merits of the case, and failed to assess evidence. It included an allegation that the member’s conduct, competence, and demeanour during and after the hearing did not comply with the Code of Conduct for Members of the IRB (Code of Conduct). No specific details were provided with respect to the member’s conduct.
The Chairperson therefore concluded that no statements, conduct or demeanour could be identified, in either the complaint or complainant’s submissions, which could form the basis of a complaint relating to member conduct.
The complaint was dismissed under paragraph 5.5(a) of the Complaints Procedures because the allegations were not within the scope of the Complaints Procedures.
The file was closed.
Note – In this case, the complainant alleged that the member failed to properly consider the evidence, was not competent to conduct an impartial analysis, and did not afford the claimant due process. These types of allegations relate to the member’s decision and the exercise of the member’s discretion, and are not accepted for investigation. The proper remedy to address such allegations 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.