The complaint related to four RPD decisions which were issued by the member between 2014 and 2018.
The complaint was filed on March 20, 2020. The complainant acted as counsel for three of the four claimants in the claims mentioned above.
The complainant alleged in the complaint that the member’s decisions on credibility had been repeatedly found by the RAD and the Federal Court to be unreasonable. More specifically, it was alleged that:
- The RAD and Federal Court decisions related to the four claims show an ongoing pattern of unreasonable and unfair findings that a refugee claimant is not credible. The member’s credibility findings were impugned in each of these decisions;
- The member has not adjusted her credibility assessment techniques in any way and this is unfair to all the refugee claimants who appear before her;
- The member improperly “treated each of the claimants as being a liar”. Many claimants are vulnerable and traumatized and it is one thing to be refused for state protection or internal flight alternative or a lack of serious risk of persecution. It is another thing entirely to be told they are a liar, where they are not. This is re-traumatizing and highly negatively impactful assertion where it is improperly made; and
- In each of the hearings, the member’s tone and failure to properly listen to what the claimants were saying, her failure to properly assess the evidence before her, her failure to take into account social and cultural differences, her failure to keep herself apprised of the law on how to make a fair and reasonable credibility determination and her failure to maintain a high level of competence and expertise required to fulfill her duties and responsibilities, resulted in the unreasonable findings.
The complainant asked that the member be required to undertake retraining on the manner in which credibility decisions are conducted. She requested that the Office of Integrity monitor whether her decisions continue to be overturned and found to be unreasonable and if so, further action should be taken.
After receiving a copy of the complaint, the member sent submissions to the Director of Integrity to the effect that this complaint was outside the scope of the complaints process because it was not about the member’s conduct but rather about her decisions. She stated that she was unaware of any instances where she called claimants liars or where she was not respectful towards claimants or the complainant.
The Office of Integrity forwarded the complaint to the Chairperson for a decision on whether the complaint was within the scope of the complaints process under paragraph 5.5 of the Procedures for Making a Complaint About a Member (Complaints Procedures).
Both parties were informed about the resolution of the complaint. The Chairperson sent a decision letter dated June 2, 2020, to the complainant, with a copy to the member.
The Chairperson decided that the allegations in the complaint related to the member’s decisions, not to her conduct. As such, the allegations in the complaint fell outside the scope of the Complaint Procedures.
The Chairperson’s letter explained that a complaint cannot be used to challenge alleged errors in a member’s decisions. The letter acknowledged, however, that it is often difficult to distinguish between allegations which relate to member conduct and allegations which challenge a member’s decisions.
Allegations that a member told a claimant they are a liar and allegations about behaviour which re-traumatizes a refugee claimant would typically be characterized as related to conduct. However, it is clear from the complaint that the complainant was referring to the member’s negative credibility findings which she contrasted with negative findings on other issues such as state protection and internal flight alternative. When read in context, the Chairperson interpreted the allegation that the member treats claimants as liars and retraumatizes claimants to mean that the member did not believe the testimony and evidence of the claimants. In other words, the allegation relates to the credibility decisions of the member and not to her conduct.
Similarly, an allegation that a member failed to take into account social and cultural differences would typically be treated as relating to conduct. However, the complainant did not substantiate this allegation other than to state that the RAD and Federal Court overturned the member’s credibility assessments in the four claims. Considering the allegation in the context of the complaint as a whole, the Chairperson interpreted this allegation too to mean that the member did not believe the testimony and evidence of the claimants and this resulted in unreasonable findings.
As well, where a member’s tone of voice in a hearing is alleged to result in intimidation, trauma, fear, etc. this will be characterized as conduct. However, the complainant merely asserted that the member’s tone resulted in unreasonable findings without indicating in any way how the member’s tone amounted to improper conduct.
Finally, the allegation that the member failed to keep herself apprised of the law and maintain a high level of competence and expertise, resulting in unreasonable findings, did not relate to the member’s conduct. Conduct refers to a member’s behaviour, not to their professional competency.
Therefore, the Chairperson was satisfied that this complaint related to the member’s decisions, to the exercise of her judicial discretion and professional competency, and not to the conduct of the member.
The complainant submitted that the member should undertake retraining. In the Chairperson’s decision letter to the complainant, it was noted that senior management of the Refugee Protection Division had been copied on the decision letter. Senior management were thereby notified of the complainant’s concerns and were asked to follow up with the member, as appropriate. The Division implemented remedial actions including a professional development action plan which the member was required to follow.
The complaint was dismissed under paragraph 5.5(a) of the Complaints Procedures because none of the allegations were within the scope of the Complaint Procedures.
The file was closed.
Note - In this case, the complainant alleged that the member’s decisions related to the credibility of the claimants had been repeatedly overturned by the RAD and the Federal Court. Section 3.3 of the Procedures for Making a Complaint About a Member states that “A complaint must be about the conduct of a member which is believed to the contrary to the Code of Conduct. A complaint cannot be about a member’s decision”. Complaints about a member’s decisions are not accepted for investigation. This approach is based in the legal requirement that members’ adjudicative independence cannot be fettered.