The complainant acted as counsel for a refugee claimant before the Refugee Protection Division (RPD).
The complaint focused on a related decision involving documents which counsel had submitted in support of the refugee claims.
The complaint alleged that the member had some involvement in the issuance of the that decision before hearing the evidence. It alleged that the member did not properly follow the RPD Rules, and this created a reasonable apprehension of bias regarding the member’s ability to determine the claim fairly and impartially. More specifically:
- The member required a submission showing how the documents were relevant, probative and material to the claim, even though it is not necessary under the Rules for the claimant to state why their evidence was material
- The member made a determination about the relevance of the documents prior to hearing all of the evidence. The member should have waited to hear the entire case before questioning whether documents were relevant, probative, or material. The member had already made up their mind about the claim
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.
An allegation that is framed in bias will be accepted for investigation under the complaint process if the allegation concerns member misconduct (for example, an inappropriate comment or action by a member related to discrimination based on gender, race, etc.). In this case, the allegation of bias relates to the interlocutory decision, not to the member’s conduct.
The complaint was dismissed, and the file was closed.