Canadian Refugee Procedure/Allowing a Claim Without a Hearing
IRPA Section 170Edit
The relevant portions of s. 170 of the Act read:
Proceedings 170 The Refugee Protection Division, in any proceeding before it, ... (b) must hold a hearing; ... (e) must give the person and the Minister a reasonable opportunity to present evidence, question witnesses and make representations; ... (f) may, despite paragraph (b), allow a claim for refugee protection without a hearing, if the Minister has not notified the Division, within the period set out in the rules of the Board, of the Minister’s intention to intervene;
The Division may allow a claim if the Minister has not notified the Division of an intention to interveneEdit
Section 170(f) provides that the Division may allow a claim for refugee protection without a hearing if the Minister has not notified the Division, within the period set out in the rules of the Board, of the Minister's intention to intervene in the claim. That time period for the Minister to notify the Board of an intention to intervene in a claim is provided in RPD Rule 23.
Rule 23 - Allowing a Claim Without a HearingEdit
The text of the relevant rule reads:
Allowing a Claim Without a Hearing Claim allowed without hearing 23 For the purpose of paragraph 170(f) of the Act, the period during which the Minister must notify the Division of the Minister’s intention to intervene is no later than 10 days after the day on which the Minister receives the Basis of Claim Form.
What is the history of the Board's processes to accept claims without a hearing?Edit
In 1990 the expedited process was introduced at the IRB. This process permitted a Refugee Hearing Officer (RHO) to refer a claim to a single CRDD member for paper review. If the CRDD member found the claim to be established, a positive decision could be issued without the need for an oral hearing. In 1993, between 25 and 30 per cent of all claims were processed through this expedited process. The process was codified in legislation with amendments to the Immigration Act that year. At that point, RHOs were instructed to direct a claim to a member for positive determination without a hearing if, after screening and a preliminary conference, the RHO was of the opinion that a panel would almost certainly find the claimant to be a Convention refugee. Then, prior to the 2012 refugee reforms, a claimant was interviewed by IRB staff, such as a Tribunal Officer, under what was then called the Board's “expedited process”. Currently, there is no interview, and the determination about whether or not to accept a claim this way is made based on a review of the paper record submitted to the Board.
When may a Member decide a claim without having held a hearing?Edit
Paragraph 170(b) of the Act specifies that "The Refugee Protection Division, in any proceeding before it, must hold a hearing". However, paragraph 170(f) serves as an exception to this rule, providing that the Board "may, despite paragraph (b), allow a claim for refugee protection without a hearing, if the Minister has not notified the Division, within the period set out in the rules of the Board, of the Minister’s intention to intervene". The relevant IRB policy is the Instructions governing the streaming of less complex claims at the Refugee Protection Division. It states, as a matter of policy, what the Board should do before accepting a claim without a hearing and the substantive nature of the claims that are appropriate for being accepted this way.
First, the Minister has a legitimate expectation that it will receive notice and an opportunity to object prior to any claim being accepted under the file-review process based on the Board's public statements in this document: "Parties must be given a reasonable opportunity to be heard. Therefore, because a Notice to Appear is not provided when a claim is accepted without a hearing, the Minister will be given notice where a claim is chosen for the file-review process." This relates to the requirement in s. 170(e) of the Act that The Refugee Protection Division must give the Minister a reasonable opportunity to present evidence, question witnesses and make representations.
Furthermore, the instructions state that the RPD will not decide any claim without a hearing in the following circumstances:
- confirmation of front-end security screening has not been received;
- the Minister has filed a Notice of Intervention to intervene in person;
- A Notice has been sent under the RPD Rules notifying the Minister of a possible exclusion, inadmissibility or integrity issue;
- there are issues related to the claimant’s identity which require further examination;
- there are serious credibility issues that arise from the documents in the file;
- the claim is inconsistent with country information; or
- there are complex legal or factual issues that require a hearing to resolve.
Were the IRB to decide a claim that did not meet these criteria, it would err. Canada v. Mukasi is an example of such a case. In that case, a panel of the Board granted the claim without holding a hearing. The Board concluded that Mr. Mukasi had established his identity, did not present any issues that might exclude him from refugee protection, and had shown that his account of events was consistent with documentary evidence on the conditions in Burundi. The Minister applied for judicial review, arguing that the Board erred when it failed to refer the claim for a hearing and by granting his claim in the face of reliable contradictory evidence. The court accepted this argument, noting that there was evidence on the record that the claimant was associated with violence. As the court stated, "This should have alerted the Board to the possibility that Mr. Mukasi might be excluded from the definition of a Convention refugee based on Article 1(F) of the Convention. That provision states, among other things, that the Convention does not apply to persons who have committed a crime against peace, a war crime, a crime against humanity, or acts contrary to the purposes and principles of the United Nations."
In principle, how should the Board decide whether to allow a claim under the file-review process?Edit
As stated in the Board's commentary to the previous version of these rules, "The purpose of the expedited process is to identify cases that appear to be manifestly well founded, based on the factors set out in subsection 19(4) of the Rules." What were those factors? They are the following factors which appeared in the previous version of the rules and are now included in the list of considerations in the Instructions (supra):
Allowing a claim without a hearing
(4) If the refugee protection officer recommends that the claim be allowed without a hearing, the Division may allow the claim if
(a) there are no issues that should be brought to the attention of the Minister;
(b) the claimant’s identity is sufficiently established;
(c) there are no serious credibility issues; and
(d) the information given by the claimant is consistent with information about conditions in their country of nationality or, if they have no country of nationality, their country of former habitual residence, and establishes that the claimant is a Convention refugee or a person in need of protection.
The general principle in asylum adjudication was well summarized by the European Court of Human Rights when they stated that "a rigorous scrutiny must necessarily be conducted of an individual's claim that his or her deportation to a third country will expose that individual to treatment prohibited by Article 3 [of that European human rights instrument]". The use of the file-review process is consistent with this principle in that it is only manifestly well-founded cases that will be accepted under this process.
Applications to separate claims so that some claimants may be eligible for the file-review processEdit
As stated in the Board's commentary to the previous version of these rules, "Members of the same family will normally be treated as a unit and their claims processed jointly." At times claimants will apply to separate the claims of some family members so that others will be eligible for this file-review process. For example, parents with US-born children would not meet the criteria to have the US-born child's claim accepted under this policy. For the considerations that apply to such applications to separate the claims of family members, see the commentary to Rules 55 and 56: Canadian Refugee Procedure/Joining or Separating Claims or Applications#Application of factors in Rule 56(5).
Claimants have no right to a decision about whether a claim is eligible under the file-review processEdit
The Federal Court has held that Parliament never intended section 170(f) of the IRPA to provide a mechanism by which refugee claimants could claim the right to obtain refugee status without a hearing:
It would never have been Parliament’s intention to allow a refugee claimant to proclaim a right pursuant to section 170(f) to require the RPD to exercise its discretion in their favour without a hearing. Forcing the RPD to provide a decision pursuant to section 170(f), would result in yet another decision, with yet another judicial review application for its review, and yet more delay in processing the refugee application.
The Board's commentary to the previous version of these rules stated that "Counsel may suggest that a claim be dealt with under the expedited process, but the decision to select suitable claims rests solely with the Division." It continues to be the case that the Board has discretion to entertain applications to have a claim processed through the file-review process, but it is "[not required to] consider a request from a refugee claimant pursuant to section 170(f) of the IRPA to grant refugee status without a hearing."
Allowing a claim is the same as accepting a claimEdit
The fact that allowing a claim for refugee protection is a synonym for accepting the claim was stated in the Board's commentary to the previous version of these rules: "Subsection 170(f) of the Immigration and Refugee Protection Act provides that the Division may allow (i.e., accept) a claim for refugee protection without a hearing, unless the Minister has notified the Division of the Minister's intention to intervene."
How often does the Board use this file-review process?Edit
According to a 2019 Auditor General audit of Board processes, it expedited only a quarter of eligible claims. The other three quarters proceeded to regular hearings, and 87% of them received positive decisions.
- Kelley, Ninette, and Michael J. Trebilcock. The Making of the Mosaic: A History of Canadian Immigration Policy. Toronto: University of Toronto Press, 2010 (Second Edition). Print. Page 407.
- David Vinokur, 30 Years of Changes at the Immigration and Refugee Board of Canada, CIHS Bulletin, Issue #88, March 2019, <https://senate-gro.ca/wp-content/uploads/2019/03/Bulletin-88-Final.pdf> (Accessed May 13, 2021), page 8.
- Hathaway, James C., Rebuilding trust: A Report of the Review of Fundamental Justice in Information Gathering and Dissemination at the Immigration and Refugee Board of Canada, Refugee Studies Centre, Publisher: Osgoode Hall Law School, York University, December 1993, page 17.
- Inter-American Commission on Human Rights (IACHR), Report on the Situation of Human Rights of Asylum Seekers Within the Canadian Refugee Determination System, 2000, Inter-Am. C.H.R., OEA/Ser.L/V/II.106, Doc. 40 rev. (2000), available at: https://www.refworld.org/docid/50ceedc72.html [accessed 18 August 2020], page 15 of the print report.
- Immigration and Refugee Board of Canada, Instructions governing the streaming of less complex claims at the Refugee Protection Division, Dated January 29, 2019 <https://irb-cisr.gc.ca/en/legal-policy/policies/Pages/instructions-less-complex-claims.aspx> (Accessed January 19, 2020).
- Canada (Citizenship and Immigration) v. Mukasi, 2008 FC 347 (CanLII), para. 8.
- Refugee Protection Division Rules, SOR/2002-228, Rule 19(4).
- ECtHR, Jabari v. Turkey, RJD 2000-VIII, pp. 149-163, 159 (para. 39).
- Immigration and Refugee Board of Canada, Commentaries to the Refugee Protection Division Rules, Date Modified: 2009-05-22 <https://web.archive.org/web/20100704062357/http://www.irb-cisr.gc.ca/eng/brdcom/references/aclo/pages/rpdcomment.aspx> (Accessed January 28, 2020).
- Bernataviciute v. Canada (Citizenship and Immigration), 2019 FC 953 (CanLII), par. 23, <https://canlii.ca/t/j1nf0#par23>, retrieved on 2021-07-14.
- Bernataviciute v. Canada (Citizenship and Immigration), 2019 FC 953 (CanLII), par. 26, <https://canlii.ca/t/j1nf0#par26>, retrieved on 2021-07-14.
- Office of the Auditor General of Canada, Processing of Asylum Claims, Spring 2019 <https://www.oag-bvg.gc.ca/internet/English/parl_oag_201905_02_e_43339.html> (Accessed January 19, 2020).