Canadian Refugee Procedure/Decorum
Decorum is defined as "behavior in keeping with good taste and propriety." What is proper decorum in the context of Refugee Protection Division hearings? A number of issues arise:
Terminology for the MemberEdit
The Member may be referred to as such, but is not, properly speaking, a judge, and should not be referred to with the appellation "your honour".
The claimant should be received and introduced to the hearing room by a Board staff memberEdit
Claimants should be properly received at the beginning of the hearing. The IRB commissioned a report on its use of videoconference and the resultant report stated that "From a justice system perspective, it seems to me wrong that claimants attending a hearing in which their future is to be decided by an adjudicator in what is effectively a judicial proceeding, should not be received in the hearing room at the outset by a real person with official status, who can address the claimants by name, confirm that they are in the right place, introduce them to the equipment, explain what to expect, and so on."[1] That report, which is published on the Board's website, identifies this as an important step in the creation of a receptive and comfortable hearing environment.
The Member should foster the appropriate climate for the hearingEdit
Persons who are designated to act as members or as refugee claims officers represent Canada to claimants. They must therefore behave in such a way as to preclude any suggestion that Canada is not willing to accept refugees, even though it reserves the right to make sure that they are acting in good faith.[2] The following has been held to be applicable to Members of the IRB: the judge will ensure the climate necessary for the operation of justice by his moderation, his discipline and his courtesy in his relations with counsel, the parties and the witnesses.[3]
Proceedings will be recordedEdit
Audio of refugee proceedings before the Board will, as a matter of course, be recorded. Indeed, there is some legal risk where the Board does not record the hearing: Canadian Refugee Procedure/Print version#The Board is not obliged to record hearings, but a lack of such a recording may constitute grounds for setting aside the decision. International law regarding refugee determination provides that States may record a refugee claimant's oral statements, but the claimant should be given due notice that this may be required.[4] Such notice is a common way to begin proceedings at the RPD, where the member will, as part of an introductory spiel, inform the claimant that they are now "on the record".
Proceedings are a mix of formal and informalEdit
Section 162(2) provides that each Division must deal with proceedings as informally and quickly as circumstances permit, taking into account the requirements of fairness and natural justice. This provision implies that the Division is not bound by formal rules of procedure that would apply in a court or more formal quasi-judicial tribunal.[5] This accords with the recommendations of Rabbi Plaut, whose report led to the foundation of the Immigration and Refugee Board. In his report Refugee determination in Canada, he stated "The atmosphere [of the refugee hearing] should be relaxed and informal and every effort should be made to put the claimant at ease".[6]
The Irwin Law text Refugee Law notes that "despite the Board's own description of its hearing process as 'informal,' the reality for claimants is that it is decidedly formal."[7] Similarly, the Law Reform Commission of Canada, in its report The Determination of Refugee Status in Canada: A Review of the Procedure states that "Hearings are conducted...in a fairly formal atmosphere, in a quasi-judicial context which many claimants appeared to find intimidating. This formality flows from both the setting and the behaviour of the participants. The hearing room is laid out like a court room, with a raised desk and high-back chairs for Members. The style of proceedings is typical of that for a quasi-judicial tribunal."[8]
In operation, a refugee hearing is not dissimilar to any other administrative hearing: the parties are present, witnesses are examined, and submissions are made.[7] Some of the expectations for conduct at such hearings follow:
The parties should stand whenever the Board Member enters or leaves the hearing roomEdit
The parties should stand whenever the Board Member enters or leaves the hearing room.[9]
Witnesses will swear or affirm to tell the truth and should put away notes while testifyingEdit
Evidence is typically presented in viva voce form at the hearing. Witnesses are sworn or affirmed and then questioned.[10] It is expected that witnesses, including claimants, will not have notes, their BOC form, or other paperwork in front of them while testifying. Such an expectation has generally been held to be compatible with a fair procedure.[11]
Attire appropriate for a formal hearingEdit
The Board states that "attire should be appropriate for a formal hearing and in keeping with the atmosphere of the hearing room."[12]
ReferencesEdit
- ↑ S. Ronald Ellis, Q.C., Videoconferencing in Refugee Hearings, Published by Immigration and Refugee Board of Canada, Date October 21, 2004 <https://irb-cisr.gc.ca/en/transparency/reviews-audit-evaluations/Pages/Video.aspx> (Accessed January 26, 2020).
- ↑ De Leon v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 852 (F.C.T.D.) (QL), IMM-6251-98, Pelletier J., para. 20.
- ↑ Guermache v. Canada (Minister of Citizenship and Immigration), 2004 FC 870 (CanLII), at para 5, <https://canlii.ca/t/1j2dt#par5>, retrieved on 2022-10-20.
- ↑ Andreas Zimmermann (editor), The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary. Oxford University Press, 2011, ISBN 978-0-19-954251-2, Introduction to Chapter V, written by Hofmann & Löhr, at p. 1119 (para. 102).
- ↑ Waldman, Lorne, Canadian Immigration & Refugee Law Practice, Markham, Ont.: LexisNexis Butterworths, 2018, ISBN 9780433478928, ISSN 1912-0311, <https://search.library.utoronto.ca/details?5022478> (Accessed April 1, 2020) at page 201 of the PDF.
- ↑ W. Gunther Plaut, Refugee determination in Canada: A report to the Honourable Flora MacDonald, Minister of Employment and Immigration, April 1985, Government of Canada publication, page 123.
- ↑ a b Martin David Jones and Sasha Baglay. Refugee law (Second Edition). Irwin Law, 2017, page 297.
- ↑ 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 73.
- ↑ University of Ottawa Refugee Assistance Project, UORAP Hearing Preparation Kit, Guide 3: Preparing Evidence for your Hearing <https://www.fcjrefugeecentre.org/wp-content/uploads/2020/09/hearing_preparation_kit.pdff> (Accessed May 3, 2022), page 21.
- ↑ Martin David Jones and Sasha Baglay. Refugee law (Second Edition). Irwin Law, 2017, page 302.
- ↑ Wysozki v. Canada (Public Safety and Emergency Preparedness) (F.C., No. IMM-4958-19), Strickland, March 31, 2020; 2020 FC 458.
- ↑ Immigration and Refugee Board of Canada, Interpreter Handbook, December 2012, Government of Canada, online: Immigration and Refugee Board <https://irb-cisr.gc.ca/en/interpreters/Pages/Interpret.aspx> (Accessed May 30, 2020).