The complainant appeared as Minister’s counsel in a detention review before the member in the Immigration Division.
The complainant alleged that:
The member directed the complainant to create a new disclosure package for the application and, after submissions and arguments were already made by the parties, explained that she did not have jurisdiction to assess the initial arrest, rendering the application moot. The complainant stated this was a needless exercise of authority and could have been avoided.
The complainant alleged that the member “began the review by conducting a Voir Dire application to quash the detention on the grounds that the initial arrest was unlawful…”.
The complainant further alleged that the member counselled the detainee on a potential avenue to frustrate removal and asked questions which were irrelevant to the proceedings in an attempt to cast the Minister’s counsel in a negative light, thus failing to maintain impartiality.
The complainant alleged that the member speculated about proceedings that the detained person was not eligible for and suggested proceedings that would beneﬁt the detainee. The complainant alleged that these speculations and suggestions needlessly complicated the detention review process and gave the appearance that the member was advocating for the detainee and working against the Minister’s counsel.
The Oﬃce of Integrity forwarded the complaint to the Chairperson for a decision on whether the complaint was outside the scope of the complaints process under paragraph 5.5 of the Procedures for Making a Complaint about a Member
Both parties were informed about the resolution of the complaint. The Chairperson stated in his decision letter of April 10, 2019, that the complaint process is intended to address a member’s conduct and not their decisions. Adjudicative matters are to be addressed and decided by the Immigration Appeal Division or the Federal Court, as applicable.
The Chairperson concluded that the ﬁrst allegation related to the conduct of the hearing and noted that members have broad powers to conduct hearings in the manner they see ﬁt. The Chairperson found that although the member concluded that she did not have jurisdiction to rule on a particular issue this does not mean that time spent looking into the issue was inefficient. This was a legal question which related to the member’s judicial functions and authority.
With respect to the second allegation, the Chairperson concluded that it related to a question of perceived bias on the part of the member which also fell outside the scope of the Complaints Procedures.
The complaint was screened out and the ﬁle was closed.
Note - This complaint related to alleged misconduct in respect of the member’s directions on disclosure, complication of the proceedings, asking irrelevant questions and a perception that the member advocated for the detained person and failed to maintain impartiality. These types of allegations relate to 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.