Case No. 19-002

The complainant appeared as Minister’s counsel in two detention reviews before the Immigration Division.

The allegations in the complaint relate to the member’s line of questioning, carriage of the hearings and correspondence with Minister’s counsel. It is alleged that there was a reasonable apprehension of bias. The complainant also alleged that the member failed to consider the submissions made and evidence provided by the Minister’s counsel and the member continued to question the Minister’s counsel on matters that had previously been addressed and decided in earlier detention reviews by previous members.

Among other things, the complainant alleged that:

“the member continued this vein of obvious disagreement with the danger finding on December 28th. When the Minister’s counsel attempted to address the previous decisions regarding danger, the member advised that she was aware of the decisions. However, she very quickly asked the Minister’s counsel numerous questions that had clearly been addressed previously...”.

The complainant submitted that the member’s failure to consider the submissions made and evidence provided by the Minister’s counsel indicated a prejudgment and bias against the Minister’s counsel. The complainant also alleged that the member did not approach the hearing with an open mind, and as such, was not impartial or objective.

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 (Complaints Procedures).

Both parties were informed about the resolution of the complaint. In his decision letter of February 19, 2019, the Chairperson explained that the complaint process is not meant to address a member’s decision nor other related adjudicative matters.

The Chairperson concluded that the basis of the complaint and the allegations were about an apprehension of bias and a lack of impartiality on the part of the member and not about the member’s conduct. Thus, the complaint fell outside the scope of the Complaints Procedures.

The complaint was screened out and the file was closed.

Note - In this case, the complainant alleged that the member failed to consider the evidence and had prejudged the case. 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.