The complainant was a national advocacy organization.
The complaint related to a refugee claim by a claimant, who does not identify as gay, but who feared persecution because he was perceived as being gay since his business served customers who were gay. The member found that the claimant had an internal flight alternative.
The complaint consisted of three allegations relating to the member’s reasons for decision. First, language used in the member’s reasons regarding the claimant’s perceived sexuality relied on homophobic stereotypes. Second, analysis in the decision whereby the member suggested that the claimant could change occupations or avoid serving the LGBTIQ2 community, in order to shield himself from persecution in his country-of-origin perpetuated discrimination and was at odds with Canada’s role as a champion of human rights. Third, the reasoning in the member’s decision was an oversimplification.
The complaint was about the analysis and findings in the decision rendered by the member and was not about the member’s conduct. In particular, the language complained of related to the member’s analysis in support of the finding that the claimant was at risk of persecution because of his business associations and the finding that a viable internal flight alternative existed.
For these reasons, consistent with the recommendation of the Office of the Ombudsperson, the Chairperson decided that this complaint relates to the exercise of adjudicative discretion and not to the member’s conduct. As per section 3 of the
Procedures for Making a Complaint about a Member, complaints related to the exercise of the member’s adjudicative discretion are not investigated. Members are independent decision-makers; therefore, their adjudicative independence must be unfettered. The appropriate forum for concerns about adjudicative discretion is the associated appeals division or the Federal Court.
In the decision letter to the complainant, the Chairperson summarized the important initiatives underway at the IRB to ensure quality adjudication across the IRB’s four divisions in relation to files involving Sexual Orientation, Gender Identity and Expression and Sex Characteristics (SOGIESC) and invited the complainant to contact the Chairperson’s Office to further discuss these initiatives.
The complaint was dismissed, and the file was closed.