Canadian Refugee Procedure/Decisions and Reasons

Section 169 of the IRPAEdit

The legislative provision reads:

Decisions and reasons
169 In the case of a decision of a Division, other than an interlocutory decision:

…

(d) if the Refugee Protection Division rejects a claim, written reasons must be provided to the claimant and the Minister;

CommentaryEdit

Must the Board provide written reasons for its determination that a claim has been abandoned?Edit

In Parveen v. Canada, the Board provided an oral decision that the claim in question had been abandoned. The court noted that in that case, the RPD’s decision was rendered orally and in the presence of the claimant, her counsel and an interpreter. The court stated that the reasons were "detailed and comprehensive, setting out not only the findings but also the reasons they were made." The claimant had obtained a copy of the transcript of the hearing. The claimant argued on judicial review that the RPD’s failure to provide written reasons amounted to a breach of procedural fairness. The court noted that "it could be argued that the determination that a proceeding has been abandoned is a final decision which entails the rejection of the refugee claim, and that the RPD has an obligation to provide reasons in written form, as per paragraph 169(d) of the IRPA":

Decisions and reasons
169 In the case of a decision of a Division, other than an interlocutory decision: 
…
(d) if the Refugee Protection Division rejects a claim, written reasons must be provided to the claimant and the Minister;

The court then went on to note that "on the other hand, it can be said that a determination that a claim has been abandoned is not a decision under section 169 of the IRPA, because it does not decide the merits of a claim, but the more circumscribed question of whether an applicant has abandoned his or her claim. This abandonment of a proceeding is rather dealt with in subsection 168(1) of the IRPA" (quoted above). In that case, the court accepted that "the letter of the law may impose a duty to provide written reasons". The court went on not to grant the judicial review on the basis that the claimant had not been sufficiently prejudiced, but the case does appear to indicate that the law imposes the same obligation to provide written reasons in the case of an abandonment as it does in the case of a rejection of a claim.[1]

ReferencesEdit

  1. Parveen v. Canada (Citizenship and Immigration), 2019 FC 155 (CanLII), para. 21.