Canadian Refugee Procedure/The right to an impartial decision-maker

Members are expected to approach each case with an open mind and, at all times, must be, and must be seen to be, impartial and objective. A decision of the tribunal is liable to be set aside for bias if a reasonable person, properly informed of the facts and having thought the matter through in a practical manner, would conclude on a balance of probabilities that the decision maker was not impartial. The following are some of the ways that these principles have emerged in refugee decision-making in Canada.

Impartiality

In Valente v. The Queen, Le Dain J. held that the concept of impartiality describes “a state of mind or attitude of the tribunal in relation to the issues and the parties in a particular case”. The Supreme Court of Canada noted in R. v. Généreux that, in a positive sense, "impartiality can be described — perhaps somewhat inexactly — as a state of mind in which the adjudicator is disinterested in the outcome, and is open to persuasion by the evidence and submissions." The Code of Conduct for Members of the Immigration and Refugee Board of Canada provides that "Members shall comply with all procedural fairness and natural justice requirements. Members are expected to approach each case with an open mind and, at all times, must be, and must be seen to be, impartial and objective." IRB members also take an oath of office publicly and formally undertake to carry out their duties impartially. A tribunal’s decision is liable to be set aside for bias if a reasonable person, properly informed of the facts and having thought the matter through in a practical manner, would conclude on a balance of probabilities that the decision maker was not impartial. Members are bound by the Code of Conduct for Members of the IRB which has a section on bias stipulating that "Members shall conduct themselves in a manner that will not cast doubt on their ability to perform their duties objectively." Furthermore, Board Members are required to be alert to any situation in which there may be a reasonable apprehension of bias and must disqualify themselves from sitting on the case in those circumstances; as provided by the Code of Conduct for Members of the Immigration and Refugee Board of Canada, "Members shall disqualify themselves from any proceeding where they know or reasonably should know that, in the making of the decision, they would be in a conflict of interest, or that their participation may create a reasonable apprehension of bias. In such a case, they shall immediately inform their manager and provide the reason for their self-disqualification."

The test for a reasonable apprehension of bias

The Supreme Court in Wewaykum Indian Band v Canada endorsed the following definition of bias:

…a leaning, inclination, bent or predisposition towards one side or another or a particular result. In its application to legal proceedings, it represents a predisposition to decide an issue or cause in a certain way which does not leave the judicial mind perfectly open to conviction. Bias is a condition or state of mind which sways judgment and renders a judicial officer unable to exercise his or her functions impartially in a particular case.

Most cases concerning bias do not involve actual bias being demonstrated (or admitted) but are instead cases where a party alleges that a reasonable apprehension of bias exists on the facts. The test for determining reasonable apprehension of bias is whether an informed person, viewing the matter realistically and practically and having thought the matter through, would conclude that the decision-maker, either consciously or unconsciously, would not decide fairly. This well-established test originates from the case Committee for Justice and Liberty v Canada. As stated by the Supreme Court of Canada in Arsenault-Cameron v. Prince Edward Island, “The test for apprehension of bias takes into account the presumption of impartiality. A real likelihood of bias must be demonstrated.” The Supreme Court reiterated this principle in Wewaykum v. Canada: “The standard refers to an apprehension of bias that rests on serious grounds, in light of the strong presumption of judicial impartiality.” In this way, bias allegations “cannot rest on mere suspicion, pure conjecture, insinuations or mere impressions [of a party or their counsel]”. The burden of proof where an allegation of bias is made is on the party making the allegation and “the threshold to be met is high.” The allegation must be supported by material evidence demonstrating conduct that derogates from the standard. Alleging bias is “a serious step" "that challenges the integrity of the decision-maker" and "should not be undertaken lightly”.

In applying this test and deciding whether a panel’s conduct gives rise to a reasonable apprehension of bias, a holistic view of the proceeding should be taken. As the Ontario Court of Appeal noted in a decision on this issue, it is normally necessary to examine the record in its entirety in order to assess whether a decision-maker’s conduct gave rise to a reasonable apprehension of bias. Factors to assess when considering the record include:

• Any relationship, past or present, between the decision-maker and the party/parties or those who may benefit from the decision;
• Whether or not a full and fair opportunity is provided to present arguments and evidence;
• Whether there is a pattern of decisions that suggests influences other than the applicable law and available evidence;
• Statements or conduct that might indicate a predisposition on the part of the decision-maker;
• The tone and tenor of the decision-maker’s involvement in the hearing; and
• The institutional arrangements that pertain to the freedom and independence of the decision-maker.

Additional comments on each of these factors follow. A reasonable apprehension of bias regarding one member of a panel may be sufficient to disqualify the entire panel, even if the one member did not assume an active role.

Allegations of an apprehension of bias must be raised at the earliest opportunity

A person alleging an apprehension of bias on the part of the decision-maker must raise it at the earliest opportunity to allow the decision-maker to recuse themselves, if necessary. Failure to do so will generally amount to an implied waiver of the right to invoke bias in subsequent proceedings, such as an appeal or an application for judicial review. See also: Canadian Refugee Procedure/The right to be heard and the right to a fair hearing#Concerns about a lack of procedural fairness should be raised at the earliest practical opportunity.

Factors that are commonly assessed when determining whether a reasonable apprehension of bias exists in a given case

Any relationship, past or present, between the decision-maker and the party/parties or those who may benefit from the decision

The fact that the decision-maker has (or has had) a relationship with one of the parties who may benefit from the decision can mean, in appropriate cases, that there is a reasonable apprehension of bias regarding them presiding over the case. The Code of Conduct for Members of the IRB also provides that "Members shall not, during the course of a proceeding, have any social contact with a party, counsel, witness, interpreter or other non-IRB participant, if such social contact may create a reasonable apprehension of bias." Furthermore, it stipulates that Members may only take part in outside activities that are not inconsistent or incompatible with their official duties and responsibilities, or that do not cast doubt on their ability to perform their duties objectively. Members are also bound by the terms of the Conflict of Interest Act.

The predecessor to the RPD at the IRB, the Refugee Status Advisory Committee, used to include members included from the Department of Immigration and the Department of External Affairs. All were part time, while also maintaining regular departmental responsibilities. This arrangement was criticized, and a report was issued in 1982 recommending that those affiliated with a department sever ties therewith during their time serving on the committee. The Minister of Employment and Immigration announced in 1982 that departmental appointees would be required to serve full time and be free of departmental responsibilities during the term of their appointment.

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 automatically 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?" They held that such a member should not 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.

That said, the ultimate holding in that case was that a reasonable apprehension of bias was made out where an appeals officer on temporary leave from the Branch of Citizenship and Immigration Canada that advises the Minister on whether an intervention is appropriate and represents the Minister when the Minister does intervene in IRB proceedings became an IRB member. That employee was obliged to resign from their employment with CIC if they wished to continue working as a decision-maker at the IRB.

Similarly, the fact that a Member had a previous professional connection with the case has been held to give rise to a reasonable apprehension of bias on the part of the decision-maker.

Exposure to political and bilateral relations considerations

Decision-makers in refugee matters must not be beholden to any political or bilateral relations considerations. As Neil Yeates writes in his report on the Board, “decision makers must be able to hear cases in an environment within which their decisions are not seen to be fettered by external considerations, such as the foreign policy positions of the government of the day.” The importance of an independent mechanism for asylum adjudication is illustrated when considering other countries’ systems that are said to be subject to the vicissitudes of politics and hence to “[leave] people seeking protection promised by international treaty to the whims of a politically responsive enforcement agency”. Refugee lawyer David Matas recounts the example of Belgian refugee policy in the 1980s, wherein government authorities apparently had a tacit policy that Zairois were not to be recognized as refugees. He writes about the apparent basis for this policy as follows: “for political and economic reasons, Belgium does not want to incur the anger of the present regime governing Zaire, a former a Belgian colony. There remain substantial economic ties between Belgium and Zaire. The countries are on friendly terms politically. [Hence,] UNHCR representatives in Belgium presumed that Zairois were not bona fide refugees.”

Whether or not a full and fair opportunity is provided to present arguments and evidence

Questions about impartiality tend to come into play where a reviewing body is persuaded that the decision-maker has mistakenly come to a conclusion without giving due regard to the possibility that a full consideration of the evidence might lead to a different result, for example where a matter is pre-judged. Where parties are not provided a full and fair opportunity to present arguments and evidence, this may point towards a conclusion that the matter was pre-judged, and hence that there is a reasonable apprehension that the decision-maker did not approach the case impartially. The opposite is also true - evidence which indicates that the parties had such a full and fair opportunity to present evidence and provide submissions tends to indicate that the matter was not pre-judged and that it is not reasonable to apprehend bias in the circumstances. For example, where over-intrusive questioning by a Board member, including "constant interruptions", amounts to a “hijacking” of the case and grossly interferes with the orderly presentation of a claimant's case, the panel may have interfered with a claimant's right to be heard and it may be concluded that the panel did not approach the case impartially. For further discussion of this, see: Canadian Refugee Procedure/The right to a hearing and the right to be heard#Where a witness is interrupted while providing testimony, this may establish that their right to present oral testimony was interfered with.

Whether there is a pattern of decisions that suggests influences other than the applicable law and available evidence

A pattern of decisions that suggests influence other than the applicable law and available evidence may serve to establish a reasonable apprehension of bias in a particular case. Furthermore, a decision maker simply making adverse findings against a party—even adverse findings that are not justified on the record—does not mean they are biased against them, though an accumulation of unsubstantiated findings might be indicative of bias. That said, this is but one factor that should be assessed along with the totality of the evidence and caution is appropriate in drawing any conclusions of this sort. The corollary of this principle is that complying with legal obligations, for example those imposed by the Access to Information Act, does not constitute evidence of bias or a reasonable apprehension of bias.

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

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 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. However, sitting on appeals from one’s own decisions has been found to be improper.

Statistics about a member's past refusal rate do not in and of themselves establish a reasonable apprehension of bias

No claimant (or, indeed, Minister's representative) has succeeded on bias motions based on statistics alone. 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. 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". The comments of Justice Zinn in Turoczi v. Canada are illustrative of the judicial approach to such applications:

Although the statistical data presented by the applicants may raise an eyebrow for some, the informed reasonable person, thinking the matter through, would demand to know much more, including:

• Were all of the figures, including, importantly, the weighted country origin averages, properly compiled?

• Did the RPD randomly assign cases within each country of origin?  If not, how did the RPD assign cases?

• Can factors affecting the randomness of case assignment be reliably adjusted for statistically?

• If so, what are the adjusted statistics, and what is their significance?

• If the RPD did randomly assign cases, what is the statistical significance of the Member’s rejection rate?

• Beyond the Member’s relative performance within the RPD, is there anything objective impugning the Member’s decisions (i.e. that suggests they are wrongly decided)?

• Accounting for appropriate factors (if that is possible), are the Member’s decisions more frequently quashed on judicial review than would be expected?

• Has the Member made recurring errors of a certain type, e.g. on credibility, state protection, etc., that bear a semblance to the impugned decision?

In short, the informed reasonable person, thinking the matter through, would demand a statistical analysis of this data by an expert based upon and having taken into consideration all of the various factors and circumstances that are unique to and impact on determinations of refugee claims before he or she would think it more likely than not that the decision-maker would not render a fair decision.

In Arrachch v. Canada, the court dismissed such an argument as follows: "Counsel in this matter was clearly seeking not just a fair and impartial tribunal but one that would more likely be favourable to his clients as measured on a statistical basis. This was blatant forum shopping." That said, in that decision the court went on to allow consel's argument that there was a reasonable apprehension of bias for other reasons related to how the Member had responded to counsel's application.

Statements or conduct that might indicate a predisposition on the part of the decision-maker

A Board member must approach each case impartially. The Code of Conduct for Members of the Immigration and Refugee Board of Canada provides that "Members shall comply with all procedural fairness and natural justice requirements. Members are expected to approach each case with an open mind and, at all times, must be, and must be seen to be, impartial and objective." Statements or conduct that might indicate a predisposition on the part of the decision-maker may point towards a conclusion that there is a reasonable apprehension of bias in a particular case.

Opening comments might give rise to an apprehension of bias. In De Freitas v. Canada, the chairperson of an Immigration Appeal Board panel began a refugee determination hearing by indicating that he had read the file twice and that after 20 years on the bench, he found the claim to be so frivolous that he wondered about the abuse of the system. The Federal Court was of the view that these intemperate comments created a reasonable apprehension of bias and the Court sent the case back for rehearing by a differently constituted IAB panel.

Similarly, in Hernandez v Canada the court held that the Member seemed to have "a preconceived idea of the outcome of the case, ... cutting Ms. Hernandez's explanations short." The court concluded that the member had aggressively dismissed justified objections from counsel regarding the member's questions and errors in the translation. Similarly, issues can arise where a decision-maker has previously expressed strong views regarding a matter on which they must decide.

That said, the inquisitorial nature of refugee hearings must be considered when interpreting this type of requirement. The Board's procedures should not be restricted to the judicial paradigm. Refugee hearings are not adversarial; instead, the generally involve a panel of the Board appropriately investigating a particular case. In an inquisitorial proceeding, it is the role of the Member to investigate and/or probe factual matters. This means that a member of the Board will have a more active role in the hearing than is common in other judicial contexts. As the Federal Court held in Gebreyesus v. Canada, raising or renewing the consideration of a potential issue based on evidence that arises during a hearing, without more, is simply an indicator that a panel is performing this appointed function, not that the panel is biased. For a more fulsome discussion of this, see: Canadian Refugee Procedure/The Board's inquisitorial mandate. Similarly, as the court concluded in Habimana v. Canada, the fact that a tribunal member evidently became frustrated with a claimant's manner of presenting their testimony does not mean that they have prejudged the outcome before hearing all of the evidence.

A Member considering prior testimony during a redetermination of a claim is not, in itself, indicative of bias

An RPD panel is not required to have regard to the transcript from a prior hearing on reconsideration: Huang v. Canada. However, its choice to do so is not generally indicative of bias or of having pre-judged a matter. See: Canadian Refugee Procedure/Reopening a Claim or Application#Once reopened, is a claim to be heard de novo or as a redetermination based on the previous record?.

A Member rendering an oral decision at the end of the hearing is not, in and of itself, indicative of bias

A Member should approach a case impartially and not with an open mind. This does not mean that the Member is required to reserve their decision after a hearing and consider the case for days afterwards. In fact, Rule 10(8) provides that a Division member must render an oral decision and reasons for the decision at the hearing unless it is not practicable to do so. In Pajarillo v. Canada, the claimant argued that the RPD was biased against her because the member made up her mind to reject the Applicant’s claim prior to hearing. The sole basis for making this allegation against the member was that the member returned after a lunch break and proceeded to render a lengthy oral decision. The court rejected this argument, noting that the claimant had failed to establish that the facts or issues in the case were so substantial or complex it was not reasonably practicable to comply with Rule 10(8) of the RPD Rules. The court stated: "The mere fact that the RPD was able to draft a decision and render it orally shortly 50 minutes after the conclusion of the hearing does not prove bias. A review of the transcript of the hearing discloses that the RPD member took into account the Applicant’s testimony and counsel’s arguments in reaching her decision." For more details about this rule, see Canadian Refugee Procedure/Information and Documents to be Provided#Rule 10 - Order of questioning in hearings, oral representations, oral decisions, limiting questioning.

A Member's past employment with a government that a claim is against does not per se raise a reasonable apprehension of bias

The Federal Court has cautioned against categorical findings of bias based solely on a decision maker’s past employment, without any other evidence. For example, in Chan v. Canada, the RPD Member had previously worked for the government of Hong Kong SAR, which the refugee protection claim was against. The Federal Court declined to find that the Member’s previous employment per se raised a reasonable apprehension of bias, noting that "RPD members are presumed to be impartial and are required to swear an oath of impartiality. This presumption applies regardless of the members’ prior employment." The court went on to note that in this case the employment had ended more than 6 years prior to the hearing in question, and that the conclusion could have been different if the employment history was more recent or was with an entity more directly related to the specific agent of alleged persecution in the claim.

A Member's ethnicity, religion, or other protected factors are not relevant to an assessment of bias

The Federal Court has held that "the Board, like a corporation, acts through its members. They are flesh and blood. [The Member] may be a man of religion, an agnostic or an atheist. He may be Sunni Muslim, Shia Muslim, Jewish, Roman Catholic, Orthodox Christian, Protestant, Hindu, Sikh, Buddhist or an adherent of any other number of religions. The Court does not know. It is irrelevant."

The tone and tenor of the decision-maker’s involvement in the hearing

The tone and tenor of the decision-maker’s involvement in the hearing may be considered as part of a holistic assessment of whether there is a reasonable apprehension of bias in any particular case. As a starting point, the role of RPD is an inquisitorial one, and Members have to ask the “hard questions” that may be inappropriate for a judge to ask. This is expanded upon in the text Judicial Review of Administrative Action in Canada, which notes that particular latitude is 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.

For example, where a Member's use of profanity during a break in the hearing was recorded on a recording device that was left on, this did not in itself establish a reasonable apprehension of bias.

However, there are limits on this latitude, including in the types of circumstances that follow. Where there are allegations that the RPD member’s manner of questioning gave rise to a reasonable apprehension of bias, a decision-maker, for example the RAD, is generally expected to listen to the recording of the RPD hearing, not just a transcript of the proceeding (setting aside situations where the application about bias is made to the Member who presided over the hearing). This is so only if such a review could reveal whether the RPD member’s manner of speaking, as opposed to their specific words, disclosed a reasonable apprehension of bias.

Where a member pursues questioning with a discriminatory attitude

The Code of Conduct for Members of the Immigration and Refugee Board of Canada provides that "Members shall exercise their duties without discrimination." The Federal Court affirms that a member may not pursue questioning derived from a discriminatory attitude. Members must exhibit appropriate sensitivity and the Federal Court holds that the member must at all times be attentive and sensitive to claimants. UNHCR writes in their document on Procedural Standards for Refugee Status Determination that "RSD applications must be processed on a non-discriminatory basis". In Baker v. Canada, for example, an apprehension of bias was found to have arisen from the stereotypical assumptions about persons suffering from mental illness in the officer's notes. In Yusuf v. Canada, the Federal Court of Appeal set aside a decision because of the Member's discriminatory comments: "In my opinion, these sexist, unwarranted and highly irrelevant observations by a member of the Refugee Division are capable of giving the impression that their originator was biased."

Relatedly, the Federal Court holds that it is an error for IRB adjudicators to make inferences based on stereotypes. For additional commentary on this, see: Canadian Refugee Procedure/Principles for the interpretation of refugee procedure#IRPA Section 3(2)(c) - Fair consideration is to be granted to those who come to Canada claiming persecution.

Where a member pursues questioning with a hostile or antagonistic attitude, or where the member takes on the role of a prosecutor

As the Federal Court stated in Aloulou v Canada, "the inquisitorial process [can] give rise to sometimes extensive and energetic questioning, expressions of momentary impatience or loss of equanimity, even sarcastic or harsh language, without leading to a reasonable apprehension of bias”. However, the Federal Court holds that a member crosses the line into impermissible conduct where they pursue questioning in a manner that is inconsistent with their proper role. For example, as Waldman puts it in his text Canadian Immigration & Refugee Law Practice, if, during the course of the hearing, the tribunal “descends into the arena” to such an extent that the decision-maker assumes the role of a prosecutor, they risk of losing their impartiality. The Refugee Appeal Division has held that "constant interruption" and "flagrant intervention in the presentation of a claimant’s case" can amount to procedural unfairness. This may also occur where questioning is derived from an actually hostile attitude. The Federal Court overturned a decision of the RPD where “from the outset…the member was not at all interested in hearing the applicant's testimony”, where the hearing “was more like a police interrogation than a hearing before a tribunal” and where the Member went on “long tirades … on peripheral aspects having no real relevance (except that they eloquently demonstrated the member's prejudices and biases)”.

That said, as stated in Mahmoud v Canada, "intrusive and intimidating interventions by a Board member may be found to interfere with an applicant's ability to present his case. However, if the interruptions are made for the purpose of clarifying testimony or an issue, they will not raise a reasonable apprehension of bias, even if the manner of questioning or interruption is 'energetic'." Furthermore, the court has held that the fact that counsel created a confrontational atmosphere at the hearing does not call into question the impartiality of the member.

International standards recommend that state officials adopt a collaborative, non-adversarial approach in investigating a person’s claim. Furthermore, social science research notes that where hearings are hostile or confrontational, claimants may be discouraged from providing information that may be crucial to their claim. That said, the lack of this will not necessarily establish unfairness or bias: in Fadhili v. Canada, the RPD admonished the Applicants for their misrepresentation during the hearing and in the decision, but the court held that this did not rise to the level of unfairness or bias. For additional detail about the appropriate limits of a Board member's questioning in this inquisitorial process, see Canadian Refugee Procedure/The Board's inquisitorial mandate and also the following discussion of limits on questions that the Board may pose: Canadian Refugee Procedure/The right to be heard and the right to a fair hearing#Members are expected to act honestly and in good faith and are precluded from "setting traps" for claimants.

A passive or distant countenance is not required of Board members

The Board states that Members’ questions must be posed in a moderate tone. It may be noted that it is common for government officials conducting asylum interviews to have a passive and distanced countenance during hearings. For example, in one empirical study of Finish asylum officers, the researchers noted that the officers did not detectably react to the claimants’ narrations of events. The researchers stated that although an officer may think that a passive and distanced attitude 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]

Indeed, the legal academic Hathaway has gone as far as to say that “the maintenance of 'judicial distance' is for some members a convenient way of concealing a tendency to cynicism and negativism.”

As such international guidelines, such as those from the EU, prescribe that asylum interviews should be marked by trust, respect, and empathy. The Member may consider this advice in order to have an appropriately trauma-informed approach to hearings. Indeed, the Refugee Appeal Division has held that "insensitivity to the claimant’s particular situation and disinterest in the claim" can constitute procedural unfairness. The IRB's gender guidelines provide that Members should respond to the individual’s verbal cues and body language in a way that creates a safe space to facilitate the giving of testimony. They state that a calm and sensitive approach can enhance the flow of communication, build trust, and assist in the recollection of details. See: Canadian Refugee Procedure/Chairperson Guidelines.

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. Additionally, while Members should adopt a trauma-informed approach marked by trust, respect, and empathy, they must also maintain the proper role of a tribunal. For example, referring to a claimant by their first name in a decision has been held to be "inappropriate" and an indicia of lack of respect for the claimant.

The institutional arrangements that pertain to the freedom and independence of the decision-maker

Institutional bias

Decisions are liable to be set aside for bias if a reasonable person would conclude, a balance of probabilities, that the decision-maker was not impartial. Such partiality can occur either because of factors specific to a particular decision-maker of the sort discussed above (e.g. statements they have made or their past actions or relationships) or for institutional reasons. Specifically, the test for institutional bias, introduced in R v Lippé, asks whether a well-informed person would have a reasonable apprehension of bias in a substantial number of cases. The test for institutional (im)partiality is generally stated as follows:

The determination of institutional bias presupposes that a well‑informed person, viewing the matter realistically and practically—and having thought the matter through—would have a reasonable apprehension of bias in a substantial number of cases. In this regard, all factors must be considered, but the guarantees provided for in the legislation to counter the prejudicial effects of certain institutional characteristics must be given special attention.

Institutional bias will be found where a well‑informed person would have a reasonable apprehension in a substantial number of cases. Failing that, allegations of an apprehension of bias cannot be brought on an institutional level but must be dealt with on a case‑by‑case basis.

In and of itself, legal review of members' decisions does not create a reasonable apprehension of bias

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.

Furthermore, to the extent that members of the tribunal receive legal advice, legal advisors are not to attempt to influence the factual findings, but may have access to the facts and files of the claims in question and offer legal advice in relation to them: Bovbel v. Canada. 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, only for this conclusion to be overturned on appeal to the Federal Court of Appeal. For further discussion of legal review, see: Canadian Refugee Procedure/The right to an independent decision-maker#Legal services review of decisions may discuss issues of fact in the reasons but should not attempt to influence factual findings.

Cabinet members are prohibited from attempting to influence the outcomes of tribunal decisions except as permitted by statute

Ministers and Parliamentary Secretaries may not, under any circumstances, attempt to intervene in the decision-making process of an administrative tribunal on behalf of any constituent or expedite the processing of an application as such contact may be considered an attempt to influence a decision, which is contrary to section 9 of the Conflict of Interest Act. The role of parliamentary secretaries and the principle of non-intervention in quasi-judicial decisions are also outlined in the Prime Minister's Open and Accountable Government guideline. Although much of the guideline is directed to ministers, I believe that the advice applies equally to parliamentary secretaries, in light of their role in supporting the government agenda. The guideline notes specifically that broadcasting decisions are “considered sensitive and vulnerable to political interference." Accordingly, the guideline advises that members of the executive branch “must not intervene, or appear to intervene, with tribunals on any matter requiring a decision in their quasi-judicial capacity, except as permitted by statute." For greater certainty, the guideline adds that “it is inappropriate to attempt to influence the outcome of a specific decision of a quasi-judicial nature."

Bias issues may be cured on appeal to the RAD

The Refugee Appeal Division may cure bias arising in a previous decision in a matter.