Case No. 21-012

​​The complainant was a refugee claimant whose claim, along with those of their immediate family members, was jointly heard by the Refugee Protection Division.

The complaint made a number of allegations. For instance, they alleged that:

  • The member made errors in their decision and failed to consider the claimants’ testimony and evidence, which called into question the member’s competence, professionalism, and honesty
  • The member prejudged the claim
  • The hearing was unfair. The member did not wait for the claimants to finish answering a question before asking the next question
  • The member was incompetent, demonstrating little expertise and knowledge about the laws and conditions relating to family planning in China. By finding that the claimants were not refugees, the member ignored the risks of family planning and the risks to Christians in China
  • The member’s findings failed to respect human rights and to consider the best interests of the complainant’s children​

The complaint also alleged that the member prejudged the claim and that the hearing was unfair. An allegation that is framed in bias or breach of fairness would 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.; or a member interrupting a claimant in a discourteous manner). The complainant did not allege that the member failed to act respectfully. The bias and fairness-related allegations in this case fell outside the scope of the complaints process because they did not relate to member conduct but rather, to how the member exercised their adjudicative discretion.

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.

The complaint was dismissed, and the file was closed.