The complainant appeared before the member as counsel for a refugee appellant at the Refugee Appeal Division.
The complainant alleged that the member made offensive remarks in their decision which implied that the complainant was racist. The complaint also stated that the member may not have properly assessed the evidence and may not have made proper findings.
After reviewing the complaint, and consistent with the recommendation of the Ombudsperson, the Chairperson decided to refer some of the allegations for investigation by the Ombudsperson under the
Procedures for Making a Complaint about a Member.
The allegations pertaining to how the member assessed the evidence and the argument upon which their decision was made, were dismissed as they were adjudicative in nature and related to the member’s decision, 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 Federal Court.
In the investigation report, the Ombudsperson concluded that there was no breach of the
Code of Conduct for Members of the IRB (the Code) for the following reasons:
- It is the duty of the member to assess the quality of the arguments put forth by the appellant and their counsel to determine if they are persuasive enough to overturn an RPD decision
- In their written decision, the member’s use of the words that were alleged by the complainant to be racist were an indication of their rejection of the complainant’s argument and not directed at the complainant themselves
- In this case, the member was refuting the argument made by counsel as being unpersuasive
The investigation report was provided to the Chairperson. He was satisfied that the investigation was thorough and fair. The Chairperson accepted the conclusions in the report and found that there was no breach of the Code.
The complaint was dismissed, and the file was closed.