Canadian Refugee Procedure/The right to an independent decision-maker
Parties are entitled to an independent decision maker. A key concern with issues of independence is that a decision maker must approach and determine the matters in issue freely and in a sufficiently dispassionate and disinterested way. The Code of Conduct for Members of the Immigration and Refugee Board of Canada stipulates that "Members shall not be influenced by extraneous or improper considerations in their decision-making. Members shall make their decisions free from the improper influence of other persons, institutions, interest groups or the political process." Key issues related to independence include those following.
The right to an independent decision-makerEdit
The requirement that decisions in refugee matters be made (or be reviewable) by an independent decision-maker arises from Canada’s international obligations; the UN Human Rights Committee has found, in Alzery v Sweden, that effective, independent review of the decision to expel prior to expulsion is necessitated by the nature of the non-refoulement obligation under article 7 of the International Covenant on Civil and Political Rights, as read with the right to effective remedies under article 2 of that instrument.
Decision-makers must be insulated from political and bilateral relations considerationsEdit
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.”
Internal discussions between tribunal members on process, law, and policy are encouragedEdit
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. 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.
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.” In the words of the Supreme Court of Canada, the
“criteria for independence are not absence of influence but rather the freedom to decide according to one’s own conscience and opinions”
Discussions of policy in the context of refugee adjudication may, and indeed should, cover consideration of country conditions. As the Federal Court of Appeal notes when distinguishing the type of factual findings at issue in Consolidated Bathurst, supra, factual issues in refugee adjudication can be of a "special nature to the extent that they go beyond the evidence specific to any particular claimant." As the Federal Court noted in Barrantes v. Canada (Minister of Citizenship and Immigration),
“it would not do to have one panel member’s terrorist organization be characterized by another member as a benevolent non-government organization”. As such, in the context of refugee adjudication, discussions between tribunal members on general issues of fact related to a country are not just permissible, but desirable.
Discussions cannot be imposed upon a MemberEdit
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. The rules for such discussions are enumerated in the eponymous case. 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.” 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 findingsEdit
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]
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.
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. 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."
Fettering of discretionEdit
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”. The fettering of discretion doctrine has been used primarily to assess the validity of policy instruments such as guidelines. The fact that a guideline is intended to establish how discretion will normally be exercised is not enough to make it an unlawful fetter, as long as it does not preclude the possibility that the decision maker may deviate from normal practice in the light of particular facts.
The IRB may use "soft law" instruments such as policy statements, guidelines, manual, and handbooksEdit
The Federal Court of Appeal holds that administrative agencies do not require an express grant of statutory authority in order to use
“soft law” such as policy statements, guidelines, manuals and handbooks to structure the exercise of their discretion. The IRPA also provides an express grant of authority to the Chairperson to issue jurisprudential guides. See the discussion of this authority at the commentary on section 159 of the IRPA: Canadian Refugee Procedure/Duties of Chairperson.
Informal discussions between Members are permissible so long as independence is maintainedEdit
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". 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.
This is reinforced in the IRB context by section 13 of the Code of Conduct for Members which provides that "Members have a responsibility to perform their duties in a manner that fosters collegiality among members and with staff and to treat them with courtesy and respect. Members are expected to assist their colleagues through the respectful exchange of views, information and opinions." There is no doubt that the participation of "outsiders" in the decision-making process of an administrative tribunal may sometimes cause problems. 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." 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 assist post-hearing with 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. As well, it is permissible for other tribunal members, even a member's superiors such as the Chairperson and Deputy Chairperson of the tribunal, to comment on a member's draft reasons as noted by the Federal Court of Appeal: "While the Acting Deputy Chairperson reviewed drafts of the member’s decision, under the IRPA, the Chairperson and Deputy Chairperson are also members of the RAD and paragraph 159(1)(h) does not prohibit them from suggesting changes to a draft at a deliberative stage."
The principle of deliberative secrecy prevents disclosure of how and why adjudicative decision-makers make their decisions. The "how and why" of decision-making are kept secret to protect the decision-maker and the decision-making process.
Access to information rights under the Privacy Act do not apply to a Board Member's notesEdit
The issue of how the principle of deliberative secrecy intersects with access to information rights under the federal Privacy Act was considered in Tunian v. Chairman of the Immigration and Refugee Board. The Tunian family were refused refugee status. They applied pursuant to section 41 of the Privacy Act to receive the draft reasons and notes prepared by the member of the Refugee Protection Division of the IRB who made the decision determining that they were not Convention refugees. Section 41 of the Privacy Act gives the Court the jurisdiction to review instances in which an individual has been refused access to personal information. The Privacy Act provides individuals with a right of access to information about them where it is either in a "personal information bank" or under the "control" of a government institution. Access to the Member's notes was refused in this case on the basis that notes made by quasi-judicial decision-makers in the course of carrying out an independent adjudicative function are not in the control of the administrative tribunal but, rather, are in the control of the member themself. In this case, the court affirmed the decision Privacy Commissioner v. Labour Relations Board and held that the principles discussed therein apply to the Immigration and Refugee Board, particularly:
It is the duty and role of courts to ensure that administrative tribunals make their decisions in accordance with the rules of natural justice. ... As such, courts are called upon to warrant the fairness of the process. To do so the Court must ensure that the tribunal possesses the freedom to decide matters independently, as it sees fit, without interference from anyone at any time. In my view, regulated and systematic intrusions by outsiders into the thought process of a decision maker as it stands to be revealed by the hearing notes would impact negatively on the integrity of the decision-making process.
Board Members are neither competent nor compellable witnesses as a result of the principle of deliberative secrecyEdit
The rule protecting deliberative secrecy is an exclusionary rule. The rule operates to prohibit compelled testimony from judges about their deliberations. It also provides that judges are not competent to testify about their deliberations. That is because the purpose of the rule is not to protect judges’ personal interests, but rather “to ensure public confidence in an impartial and independent judicial system”: Kosko c. Bijimine. Gascon J. stated in Laval v. Syndicat de l’enseignement de la région de Laval that “[j]udges cannot of course choose to lift deliberative secrecy to explain the reasoning behind their conclusions whenever it suits them to do so.” Among the broader rationales that have been offered for expanding the operation of the rule in this way is to prevent judges themselves from subsequently augmenting or qualifying their reasons, which offends the need for finality in judicial decision-making and undermines public confidence in the administration of justice.
The applicability of this rule to Members of the Immigration and Refugee Board was considered in Ermina v. Canada. In that case, the applicant’s refugee status had been vacated by a panel of the Board. At the hearing before the Board, the applicant had sought to elicit testimony from the chair of the panel that had originally granted her that status. The Board refused to hear such testimony, relying on the rule protecting deliberative secrecy. The applicant then tried to adduce an affidavit sworn by the former chair and containing the same information. The Board refused to receive that as well. On the ensuing application for judicial review, Tremblay-Lamer J. upheld the Board’s decisions in that regard, finding that the former chair was neither a compellable nor a competent witness. In that decision, justice Tremblay-Lamer explained that “[d]ecisions must be final and subject only to review in the ordinary channels.” In reaching that conclusion, she relied heavily on Agnew v. Ontario Association of Architects, in which the Court elaborated on the rationale for extending the rule to administrative decision-makers:
The authorities do not make it clear whether this general rule applies equally to members of administrative tribunals. In logic, there is no reason why it should not. The mischief of penetrating the decision process of a tribunal member is exactly the same as the mischief of penetrating the decision process of a judge.
Apart from the practical consideration that tribunal members and judges would spend more time testifying about their decisions than making them, their compellability would be inconsistent with any system of finality of decisions. No decision and a fortiori no record, would be really final until the judge or tribunal member had been cross-examined about his decision. Instead of review by appeal or extraordinary remedy, a system would grow up of review by cross-examination.
In the case of a specialized tribunal representing different interests the mischief would be even greater because the process of discussion and compromise among different points of view would not work if stripped of its confidentiality.
It is not necessary to catalogue all the different forms of mischief that might result from the compellability of judges and tribunal members to testify about their decisions. It is sufficient to say that there is no reason in logic to distinguish between a judge and a member of the statutory tribunal under consideration here.
Board management cannot read a Member's emails without good reasonEdit
The IRB has stated that it supports the principle that access to an employee's e-mail without consent is justified only in extreme situations, for example in situations involving a criminal or security infraction, and only after proper authorization from senior management. As a result, a Member's emails will ordinarily be private and not readable by managers or others in the organization, absent exceptional circumstances and good reason to do so. The federal Privacy Commissioner chastised the IRB when it departed from this standard in one case.
- Bourbonnais v. Canada (Attorney General), 2004 FC 1754,  4 F.C.R. 529 at paras. 49-57, 267 F.T.R. 169.
- Immigration and Refugee Board of Canada, Code of Conduct for Members of the Immigration and Refugee Board of Canada, Effective Date: April 9, 2019, <https://irb-cisr.gc.ca/en/members/Pages/MemComCode.aspx> (Accessed May 3, 2020), at section 34.
- UN doc CCPR/C/88/D/1416/2005 (10 November 2006).
- Neil Yeates, Report of the Independent Review of the Immigration and Refugee Board, Government of Canada, April 10, 2018, <https://www.canada.ca/content/dam/ircc/migration/ircc/english/pdf/pub/irb-report-en.pdf> (Accessed April 27, 2020), page 25.
- Sweeney, Maureen. (2019). “Enforcing/Protection: The Danger of Chevron in Refugee Act Cases.” Administrative Law Review, Volume 71, Issue 1, Page 127.
- David Matas with Ilana Simon, Closing the Doors: The Failure of Refugee Protection, Summerhill Press Ltd., Toronto, 1989, ISBN 0-920197-81-7, page 246.
- I.W.A. v. Consolidated Bathurst Packaging Ltd.,  1 S.C.R. 282.
- 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).
- Iwa v. Consolidated-Bathurst Packaging Ltd., 1990 CanLII 132 (SCC),  1 SCR 282, para. 84.
- Canadian Association of Refugee Lawyers v. Canada (Immigration, Refugees and Citizenship), 2020 FCA 196 (CanLII), par. 75, <http://canlii.ca/t/jblsl#par75>, retrieved on 2020-11-17.
- Barrantes v. Canada (Minister of Citizenship and Immigration), 2005 FC 518.
- 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).
- Iwa v. Consolidated-Bathurst Packaging Ltd., 1990 CanLII 132 (SCC),  1 SCR 282.
- Tremblay v. Quebec (Commission des affaires sociales), 1992 CanLII 1135 (SCC),  1 S.C.R. 952
- Bovbel v. Canada (Minister of Employment and Immigration), 1994 CanLII 3465 (FCA),  2 FC 563
- Mullan, David, Administrative Law (Irwin Law), page 301.
- Stemijon Investments Ltd. v. Canada (Attorney General), 2011 FCA 299.
- 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.
- Thamotharem v. Canada (Minister of Citizenship and Immigration), 2007 FCA 198 (CanLII),  1 FCR 385, par. 78, <http://canlii.ca/t/1rmr4#par78>, retrieved on 2020-12-23.
- Canadian Association of Refugee Lawyers v. Canada (Immigration, Refugees and Citizenship), 2020 FCA 196 (CanLII), par. 45, <http://canlii.ca/t/jblsl#par45>, retrieved on 2020-11-17.
- Immigration and Refugee Board of Canada, Code of Conduct for Members of the Immigration and Refugee Board of Canada, Effective Date: April 9, 2019, <https://irb-cisr.gc.ca/en/members/Pages/MemComCode.aspx> (Accessed May 3, 2020), at section 13.
- 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).
- Canadian Association of Refugee Lawyers v. Canada (Immigration, Refugees and Citizenship), 2020 FCA 196 (CanLII), par. 98, <http://canlii.ca/t/jblsl#par98>, retrieved on 2020-11-17.
- Summitt Energy Management Inc. v. Ontario Energy Board, 2012 ONSC 2753 (CanLII), as discussed in Cass, Fred D,; Thoms, Zoe, Deliberative Secrecy in the Context of Decision-Making by Administrative Tribunals, Advocates' Quarterly 44 Advoc. Q. (2015) <https://heinonline.org/HOL/P?h=hein.journals/aqrty44&i=177>, page 169 (Accessed January 18, 2020).
- Tunian v. Chairman of the Immigration and Refugee Board, 2004 FC 849 (CanLII).
- Canada (Privacy Commissioner v. Canada (Labour Relations Board) (2000), 257 N.R. 66 (F.C.A.),  F.C.J. No. 617 (C.A.) (QL)).
- Kosko c. Bijimine, 2006 QCCA 671 at para. 40.
- Commission scolaire de Laval v. Syndicat de l’enseignement de la région de Laval, 2016 SCC 8, at para. 64.
- West Moberly First Nations v British Columbia, 2018 BCSC 1835 (CanLII), para. 159.
- Ermina v. Canada (Citizenship and Immigration) (1998), 1998 CanLII 8969 (FC), 167 D.L.R. (4th) 764 (F.C.).
- Agnew v. Ontario Association of Architects (1987), 1987 CanLII 4030 (ON SC), 64 O.R. (2d) 8 (Div. Ct.) at 14.
- Office of the Privacy Commissioner of Canada, Inappropriate monitoring of employees' e-mail accounts, Date modified: 2003-01-29, <https://www.priv.gc.ca/en/opc-actions-and-decisions/investigations/investigations-into-federal-institutions/2001-02/pa_200102_05/> (Accessed August 16, 2020).