Canadian Refugee Procedure/Procedural Fairness: Bias and Independence

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A key concern with issues of bias and independence is that a decision maker must approach and determine the matters in issue in a sufficiently dispassionate and disinterested way. Courts have indicated frequently that they are more concerned with the appearance of bias than with the actual existence of bias.[1] Key issues of bias and independence include:

The right to an independent decision-maker[edit]

Internal discussions between tribunal members on process, law, and policy encouraged[edit]

A key issue that arises with respect to independence is the extent of permitted discussions amongst members of the tribunal about a case that is under consideration. The leading case on this subject is the Supreme Court of Canada decision in I.W.A. v. Consolidated Bathurst Packaging Ltd.[2] The rules on this subject allow for a broad latitude for internal discussions, within an atmosphere that has been referred to as “assertive collegiality”, provided that the final decision-maker is unencumbered in freely making their own decision. The principles are well captured by this passage from the paper Consistency in Tribunal Decision Making from the Canadian Institute for the Administration of Justice:

This culture of ongoing discussion can be described as a system of “assertive collegiality”—where there can be vigorous debate internally within the complement of adjudicators, but once the discussion is complete, the person hearing the case is free to make their own decision. Discussions also occur regularly between tribunal Chairs and individual adjudicators at any stage in the hearing process. For example, particular types of cases which raise significant or novel issues may be flagged at the intake stage. Once identified, they are brought to the attention of the Chair who will then choose a particular adjudicator to deal with the case. The Chair may have a discussion with the adjudicator before the assignment is made in order to canvass the procedural, law and policy issues that might be presented in the case. During the course of the hearing, the adjudicator and the Chair may continue the discussion, so that the adjudicator understands the issues in the context of the tribunal’s institutional views. Once the hearing is completed, the Chair and the adjudicator may then continue their discussion throughout the decision writing process.[3]

It is entirely permissible, and even desirable for reasons of training and consistency, for members to be encouraged to distribute draft decisions amongst each other for comment: “Most tribunals schedule regular meetings for more formal discussions and it is not unusual where adjudicators are primarily full time and based in one location for there to be weekly or in some cases, daily meetings where drafts are exchanged and where issues of process, law and policy are discussed.”[3]

Discussions cannot be imposed upon a Member[edit]

Consolidated-Bathurst involved discussions by members of an administrative tribunal after hearing cases but before reaching final decisions. For the majority, Gonthier J. okayed the practice, but imposed important limitations. In short, discussions could not be coercive and could not delve into the facts of particular cases.[4] The rules for such discussions are enumerated in the eponymous case.[5] The Supreme Court of Canada affirmed this conclusion in Tremblay v. Quebec: “In my view, the mere fact that the president can of his own motion refer a matter for plenary discussion may in itself be a constraint on decision makers. In such circumstances, they may not feel free to refuse to submit a question to the "consensus table" when the president suggests this. Further, the statute clearly provides that it is the decision makers who must decide a matter. Accordingly, it is those decision makers who must retain the right to initiate consultation; imposing it on them amounts to an act of compulsion towards them and a denial of the choice expressly made by the legislature.”[6] As such, where a Member does not wish to consult, either with other members, a supervisor, or legal services, it must be truly free to do so (aside from during special circumstances such as during an initial probationary training period).

Legal services review of decisions may discuss issues of fact in the reasons but should not attempt to influence factual findings[edit]

Gonthier J. of the Supreme Court of Canada made the following comment (in dissent) in Consolidated-Bathurst:

The determination and assessment of facts are delicate tasks which turn on the credibility of the witness and an overall evaluation of the relevancy of all the information presented as evidence. As a general rule, these tasks cannot be properly performed by persons who have not heard all the evidence and the rules of natural justice do not allow such persons to vote on the result. Their participation in discussions dealing with such factual issues is less problematic when there is no participation in the final decision. However, I am of the view that generally such discussions constitute a breach of the rules of natural justice because they allow persons other than the parties to make representations on factual issues when they have not heard the evidence [emphasis added][5]

The applicability of this comment to the refugee context was considered by the Federal Court of Appeal in Bovbel v. Canada. Specifically, in that case, the court considered whether having legal advisors have access to the files of refugee claimants when providing legal advice to Members, the above principle could be offended. The court rejected this concern as follows:

A fair reading of the documents on the record shows, in our view, that the legal advisors were not expected to discuss the findings of facts made by the members but merely, if there was a factual inconsistency in the reasons, to look at the file in order to determine, if possible, how the inconsistency could be resolved. True, there was always the possibility that the legal advisors might, since they were in possession of the file, exceed their mandate and try to influence the factual findings of the Board. However, as mentioned by Mahoney J.A. in Weerasinge, any policy is susceptible of abuse.[7]

As such, discussions, whether with the Board's legal services team, or otherwise, should not aim to influence the factual findings of Members, but need not eschew all discussion of facts, for example where a Member has made inconsistent factual findings in a decision and that concern should be resolved. Procedural fairness does not demand that Members of the Board never discuss the facts of a file. That said, it is plain that a mandatory policy of legal review in which legal services members attempted to influence or pressure Members to make certain factual findings regarding a hearing that they had never observed would offend principles of independence. Finally, there appears to be a real lack of clarity on exactly how to interpret the statements of Gonthier J. in Consolidated-Bathurst.[5] For example, David Mullan writes in his text Administrative Law that "on the mater of discussion of the evidence, the Court itself is not totally unequivocal even in the context of discussions with colleagues who have not heard the evidence. Where staff have been present at giving of the relevant testimony or where the evidence is written rather than given orally, the constraint on discussion may not have quite the same force."[8]

Fettering of Discretion[edit]

Attention paid exclusively to policy statements and other extraneous materials for the purpose of exercising one’s discretion may be an error. This sometimes is called “fettering discretion”.[9] The fettering of discretion doctrine has been used primarily to assess the validity of policy instruments such as guidelines.[10]

Informal discussions between Members permissible so long as independence is maintained[edit]

A question can arise about the permissible limits of voluntary and informal discussions amongst Members of a tribunal about the issues raised in their files. As Mullan notes in his text, "the case law on the subject is surprisingly far from comprehensive".[8] The Ontario Court of Appeal held that there is no bar on a tribunal member consulting and being influenced by those internal consultations in Khan v. College of Physicians & Surgeons of Ontario:

The volume and complexity of modern decision-making all but necessitates resort to "outside" sources during the drafting process. Contemporary reason-writing is very much a consultive process during which the writer of the reasons resorts to many sources, including persons not charged with the responsibility of deciding the matter, in formulating his or her reasons. It is inevitable that the author of the reasons will be influenced by some of these sources. To hold that any "outside" influence vitiates the validity of the proceedings or the decision reached is to insist on a degree of isolation which is not only totally unrealistic, but also destructive of effective reason-writing.

There is no doubt that the participation of "outsiders" in the decision-making process of an administrative tribunal may sometimes cause problem. The decisions of the tribunal must, indeed, be rendered by those on whom Parliament has conferred power to decide and their decisions must, unless the relevant legislation impliedly or expressly provides otherwise, meet the requirements of natural justice. However, the court has held that "when the practice followed by members of an administrative tribunal does not violate natural justice and does not infringe on their ability to decide according to their opinion, even though it may influence that opinion, it cannot be criticized."[7] As such, there is no issue with the Board, for example, hiring mentors for new members who may work with those new members in order to assist with preparing for hearings and then post-hearing reaching factual findings about the evidence heard. There is indeed a body of literature on such mentoring for adjudicators and its permissibility so long as it is carried out in a way that maintains the mentee's independence.[11]

Bias, or a reasonable apprehension thereof[edit]

A tribunal’s decision is liable to be set aside for bias if a reasonable person, who was reasonably informed of the facts and had thought the matter through in a practical manner, would conclude on a balance of probabilities that the decision maker was not impartial.[12]

Bias and the Member's Inquisitorial Role[edit]

Judicial Review of Administrative Action in Canada provides that particular latitude will be given to tribunals to question where the matter is not adversarial, as with most refugee proceedings:

Extensive and "energetic" questioning alone by tribunal members will not in itself give rise to a reasonable apprehension of bias. And particular latitude is likely to be given to tribunals operating in a non-adversarial setting, such as refugee determination hearings, where there is no one appearing to oppose the claim. Nor will an expression of momentary impatience or loss of equanimity by a tribunal member result in disqualification, particularly where it was merely an attempt to control the manner of proceeding. Similarly, a sarcastic comment when a party refused to give evidence, or an ill-chosen and insensitive phrase, will not, without more, lead to disqualification.[13]

Legal review of Members' decisions, in and of itself, does not create a reasonable apprehension of bias[edit]

In Weerasinge v. Canada the Federal Court of Appeal considered whether Members of the Board having their reasons reviewed by a legal advisor created a reasonable apprehension of bias. The court rejected this argument, commenting as follows:

The Refugee Division consists of such number of full and part-time members as the Governor in Council may decide. They are appointed for terms of up to seven years. A minimum of one-tenth are required to be barristers or advocates of at least five years' standing. It would be pure coincidence if either member of a panel hearing a particular claim were legally qualified.

The Refugee Division is a lay tribunal required to decide claims which, as I have observed, involve the life, liberty and security of the person. It must do so within the framework of extensive, confusing, and sometimes confused, jurisprudence. It is required to give written reasons for decision not favourable to claimants. The desirability of legal review of those reasons is manifest. Having come to a decision on what is essentially a question of fact: whether the claimant has a well-founded fear of persecution for a reason that engages the Convention refugee definition, a tribunal does not, in my opinion, offend any tenet of natural justice by taking advice as to legal matters contained in its reasons.

While the reasons review process, both in the more limited format described in the memorandum and the full review format suggested, could be abused and result in the reviewing lawyers influencing the decisions to which the reasons relate, there is, in my opinion, simply no foundation for a conclusion that it has been, in fact, abused, either in the case before us or generally. Any consultation by a decision maker before publishing a decision, including consultation by a judge with a law clerk, could be abused. As to whether there is an appearance offensive to our notions of natural justice, it seems to me that the question to be asked is, as in dealing with an assertion of a reasonable apprehension of bias, namely, whether an informed person, viewing the matter realistically and practically and having thought it through, would think it more likely than not that the tribunal's decision that a claimant was, or was not, a Convention refugee had been influenced by the review of its reasons by its staff lawyers. In my opinion, that person would not think it likely.[14]

Furthermore, there are no concerns with legal advisors having access to the facts and files of the claims in question. To the extent that members of the tribunal receive legal advice, legal advisors are not to attempt to influence the factual findings, but may offer advice in relation to them: Bovbel v. Canada.[7] That said, the interpretation of these questions is fraught and the relevant principles are, in the mind of this author, far from clear. This is illustrated by the fact that in Bovbel v. Canada the Federal Court had initially found that the IRB process was problematic,[15] only for this conclusion to be overturned on appeal to the Federal Court of Appeal.

Deciding against a claimant on an interlocutory matter does not, in and of itself, create a reasonable apprehension of bias[edit]

Niyonkuru v. Canada was a case in which the panel provided notice to the Minister that the claimant was possibly excluded from refugee protection. The claimant argued that, by adjourning the hearing to allow the Minister to intervene and present his arguments regarding the applicant's possible exclusion, the panel had demonstrated bias and loss of impartiality. The court rejected this argument, stating that it is well settled that the mere fact that in an earlier proceeding a decision-maker rendered judgment against the party does not compromise his or her ability to be impartial.[16]

Statistics about a Member's past refusal rate do not in and of themselves create a reasonable apprehension of bias[edit]

Fenanir v. Canada was a case in which the claimant noted that the average number of refugee claim refusals by the member hearing his matter (99%) was higher than the average of 45% for all of the other members.[17] The claimant submitted that there was a reasonable apprehension of bias on this basis. The court held that the data filed did not in itself support a finding of bias. It noted that the data can be "explained by a certain number of factors which are unrelated to any bias".[18]

A Member's Past Work and Business Relationships[edit]

The fact that a Member of the Board previously worked for a party, whether it be a law firm appearing before the Board, CBSA, or IRCC does not mean that the Member should not sit on cases where that organization is a party. In Ahumada v. Canada the Federal Court of Appeal considered this question. Specifically, they considered the following certified question: "would a reasonable apprehension of bias be created by the fact that a member of the Convention Refugee Determination Division (CRDD) of the Immigration and Refugee Board is an employee on leave of absence from a position as an immigration officer in the Enforcement Branch of CIC?" The held that such a Member should be restricted from sitting on cases where the Minister intervenes:

The Minister's role in the refugee determination process is primarily oriented towards detecting and opposing claims that the Minister or her officials believe should not be allowed. Accordingly, cases holding that an employment relationship between a member of an adjudicative tribunal and a party may give rise to a reasonable apprehension of bias were in principle relevant. The suggestion that an employee of CIC would only be disqualified from sitting on a CRDD panel when the Minister intervened would enable the Minister to ensure the exclusion of the employee from the panel by exercising the power to intervene. To enable the Minister to so influence the composition of a panel would clearly compromise the CRDD's independence from CIC in a manner inconsistent with the scheme of the Act.[19]

What is institutional bias?[edit]

Decisions are liable to be set aside for bias if a reasonable person would conclude, based on a balance of probabilities, that the decision-maker was not impartial.[20] Institutional bias is found if such a reasonable apprehension exists in a substantial number of cases.[21]

The tone and behaviour of a Member[edit]

It is common for asylum officers, those in the position of IRB Members, to have a passive and distanced countenance during hearings. For example, in one empirical study of Finish asylum officers, the researchers note that the officers did not detectably react to the claimants’ narration. The researchers state that although an officer may think that a passive and distanced position guarantees neutrality, from a claimant’s perspective it can be interpreted as negative feedback. They argue that:

Traumatised individuals are prone to feel threatened and perceive the other’s intentions as intimidating, unless they receive clear and constant messages of the safety of a situation. A successful narration of traumatic events, for instance, is known to require a safe atmosphere characterized by a feeling of being connected to another person. [citations omitted][22]

The Member may consider this advice in order to have an appropriately trauma-informed approach to hearings. Conversely, the fact that a Member is engaged and may be encouraging a claimant's testimony should not be taken as the Member having accepted the credibility of that testimony, lest it leave Members with the impression that only a detached demeanour is permissible.

References[edit]

  1. David Mullan, Administrative Law (Irwin Law, 2001), page 322.
  2. I.W.A. v. Consolidated Bathurst Packaging Ltd., [1990] 1 S.C.R. 282.
  3. a b Whitaker, Kevin, Consistency in Tribunal Decision Making: What Really Goes On Behind Closed Doors..., Essays in Adminitrative and Justice (2001-2007) <https://ciaj-icaj.ca/wp-content/uploads/documents/2016/09/pub2007-8.pdf?id=7973&1577812348> (Accessed January 18, 2020).
  4. Daly, Paul, Judges Talking to other Judges: Judicious Consultation?, Administrative Law Matters Blog <https://www.administrativelawmatters.com/blog/2015/05/22/judges-talking-to-other-judges-judicious-consultation/> (Accessed January 19, 2020).
  5. a b c Iwa v. Consolidated-Bathurst Packaging Ltd., 1990 CanLII 132 (SCC), [1990] 1 SCR 282.
  6. Tremblay v. Quebec (Commission des affaires sociales), 1992 CanLII 1135 (SCC), [1992] 1 S.C.R. 952
  7. a b c Bovbel v. Canada (Minister of Employment and Immigration), 1994 CanLII 3465 (FCA), [1994] 2 FC 563
  8. a b Mullan, David, Administrative Law (Irwin Law), page 301.
  9. Stemijon Investments Ltd. v. Canada (Attorney General), 2011 FCA 299.
  10. Houle, F. (2008). Thamotharem and Guideline 7 of the IRB: Rethinking the Scope of the Fettering of Discretion Doctrine. Refuge: Canada’s Journal on Refugees, 25(2), 103-118. Retrieved from https://refuge.journals.yorku.ca/index.php/refuge/article/view/26034, page 105.
  11. Mackenzie, Ian, Mentoring for Adjudicators: The Need for Guidelines, Slaw: Canada's online legal magazine, July 6 2016, <http://www.slaw.ca/2016/07/06/mentoring-for-adjudicators-the-need-for-guidelines/> (accessed January 18, 2020).
  12. Committee for Justice and Liberty et al. v. National Energy Board et al., 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, at page 394.
  13. Judicial Review of Administrative Action in Canada (Brown and Evans, Toronto : Canvasback Publishing, 1998) at pages 11-31 and 11-32.
  14. Weerasinge v. Canada (Minister of Employment and Immigration), 1993 CanLII 2996 (FCA), [1994] 1 FC 330.
  15. Bovbel v. Canada (Minister of Employment and Immigration), 1993 CanLII 3016 (FCA), [1994] 1 FC 340.
  16. Niyonkuru v. Canada (Minister of Citizenship and Immigration), 2005 FC 174 (CanLII), para. 19.
  17. Fenanir v. Canada (Minister of Citizenship and Immigration), 2005 FC 150 (CanLII), par. 9, <http://canlii.ca/t/1mrgt#par9>, retrieved on 2020-02-08.
  18. Fenanir v. Canada (Minister of Citizenship and Immigration), 2005 FC 150 (CanLII), par. 17, <http://canlii.ca/t/1mrgt#par17>, retrieved on 2020-02-08.
  19. Ahumada v. Canada (Minister of Citizenship and Immigration), 2001 FCA 97 (CanLII), [2001] 3 FC 605.
  20. Restrepo Benitez v Canada (Minister of Citizenship and Immigration), 2006 FC 461 at para 6.
  21. R v Lippé, 1990 CanLII 18 (SCC), [1991] 2 SCR 114.
  22. Eeva Puumala, Riitta Ylikomi & Hanna-Leena Ristimäki, Giving an account of persecution: The dynamic formation of asylum narratives, Journal of Refugee Studies 31(2), pp. 197-215 (2018) <https://s3.amazonaws.com/academia.edu.documents/61879698/Refugee_Studies_Puumala__Ylikomi_and_Ristimaki_accepted_version.pdf> (Accessed February 10, 2020), at page 18.