Canadian Refugee Procedure/Decorum

All refugee proceedings have ritual, ceremony, and behaviour that is considered to be proper decorum. A ritual is a frequently performed action conducted in a predetermined order. The ritualized activities during hearings help decision-makers uphold authority in the process and bring a sense of solemnity to the situation.[1] Decorum is "behavior in keeping with good taste and propriety." What is proper decorum in the context of refugee hearings at the Immigration and Refugee Board of Canada?

The Member should foster the appropriate climate for the hearing edit

Persons who are designated to act as Members represent Canada to claimants. They are seen to represent Canadian society and its core values.[2] 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.[3] 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.[4] Because the claimant is not "on trial" and is merely seeking recognition of the claimant’s status as a Convention refugee, the panel has to try to put the claimant at ease as much as possible.[5] The Member and IRB registry staff can be expected to treat the hearing participants with respect.[6] This also has implications for the conduct of parties, counsel, and witnesses; a panel should not allow any participant to use abusive or threatening language, for example.[5]

The claimant should be received and introduced to the hearing room by a Board staff member edit

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."[7] 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. There is also an aspect to which the order in which the participants arrive at the hearing signals hierarchy and status: the Member usually enters last, something that requires the other participants to wait for the decision-maker to arrive.[8]

Proceedings will be recorded edit

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/The right to be heard and the right to a fair hearing#The Board is not obliged to record hearings, but a lack of such a recording may constitute grounds for setting aside the decision. International norms 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.[9] 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 informal edit

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.[10] 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".[11] The Member is not, properly speaking, a judge, and should not be referred to with the appellation "your honour". It is generally recommended that the Member be addressed as “Sir” or “Madam”,[12] although the non-gendered “Member” followed by the person’s last name is also common.

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."[13] 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."[14] The Board has stated that panels have to ensure that a certain degree of decorum is maintained in the hearing room. It states that decorum is necessary (1) so that the claimant will appreciate that the panel is taking the process very seriously, and (2) so that the claimant and other witnesses will appreciate that the hearing is not a just casual interview, but rather is a serious "judicial" type of proceeding, at which every statement must be made as carefully and accurately as possible.[5]

In operation, a refugee hearing is not dissimilar to any other administrative hearing: the parties are present, witnesses are examined, and submissions are made.[13] Some of the expectations for conduct at such hearings follow:

Parties will wear attire appropriate for a formal hearing edit

The Board states that "attire should be appropriate for a formal hearing and in keeping with the atmosphere of the hearing room."[15] Similarly, the guide for designated representatives provides that "In-person hearings are often held in a formal hearing room. Participants are expected to dress professionally."[16]

The parties should stand whenever the Board Member enters or leaves the hearing room edit

The parties should stand whenever the Board Member enters or leaves the hearing room.[17]

Witnesses will swear or affirm to tell the truth edit

A refugee claimant is required to appear and testify under oath.[18] Evidence is typically presented in viva voce form at the hearing. Witnesses are sworn or affirmed and then questioned.[19]

The panel will use accessible language to explain the procedure edit

The Member should put the issues in colloquial or plain language for the claimant, especially where the claimant is unrepresented by counsel or seems unsure of what is going on.[5] See also: Canadian Refugee Procedure/Principles for the interpretation of refugee procedure#Principles about the manner in which the Board is to exercise its discretion. The fact that the Member turns to the claimant at the beginning of the hearing to explain what will unfold is something done with the ambition of making the asylum claimant feel comfortable. It is observed that by doing so, this this attempt to set the claimants at ease may reinforce the separation of the frequent participants and the asylum claimant, the “insiders” of the rituals from the “outsiders”, as only the outsiders require an explanation of the ritual activities.[8]

Witnesses will put away notes while testifying edit

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.[20]

Counsel will act consistently with their role and professional obligations edit

Counsel and independent designated representatives representing a party should adopt a professional and respectful approach.[21] As noted above, counsel should comply with their professional obligations, something which has implications for comportment and conduct during the hearing. The Board has stated that this would enjoin the use abusive or threatening language, for example.[5] Furthermore, the Board's guidelines for proceedings before the IRB involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics provide that questioning should be done in a sensitive, non-confrontational manner. This would appear to apply equally to counsel for the claimant, Minister, and any other participant, as it would to the Member.[22]

Lawyers are - among other things - officers of the courts and have a duty to promote the interests of the state and maintain the authority and dignity of the courts.[23] This arguably has implications for lawyers appearing before tribunals, not just courts. For example, the Code of Professional Conduct for British Columbia of the Law Society of British Columbia provides that lawyers should take care not to weaken or destroy public confidence in legal institutions or authorities by irresponsible allegations. Lawyers have a right and, arguably, a duty to criticize tribunals in some circumstances but such criticism must be measured against the public’s reasonable expectations of the lawyer’s professionalism.[24] See also: Canadian Refugee Procedure/RPD Rules 14-16 - Counsel of Record#1) Incompetence.

This also has implications for the arguments that counsel advances. In Naqvi v. Canada, the Refugee Appeal Division concluded that counsel had advanced "callous arguments [that] attempt to normalize, justify, and condone domestic violence" in a case about whether the appellant was excluded from the refugee regime by reason of his past domestic violence, and it labelled such arguments both "concerning and inappropriate".[25] In Awonuga v. Canada, the court commented that caution should be exercised by parties and decision-makers alike to avoid casting a broad, disparaging light on countries in the global south by suggesting that their peoples and institutions somehow lack the competence to produce documents in a professional manner.[26] Counsel's role is to exercise judgement regarding a file and not to advance any argument that their client requests. See: Canadian Refugee Procedure/RPD Rules 14-16 - Counsel of Record#Counsel's role is to exercise judgement regarding a file and not to advance any argument that their client requests.

Decisions edit

The Refugee Protection Division rules provide 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: Canadian Refugee Procedure/RPD Rules 3-13 - Information and Documents to be Provided#RPD Rule 10 - Order of questioning in hearings, oral representations, oral decisions, limiting questioning. In practice, most positive decisions are provided orally and most negative decisions are reserved and provided at a later point in writing. Either way, following the hearing the parties will receive a written confirmation of the decision, along with a copy of the reasons for it in almost all cases: Canadian Refugee Procedure/RPD Rules 67-68 - Decisions#Section 169 of the IRPA specify circumstances in which written reasons must be provided, circumstances which do not include interlocutory decisions.

It is typical for the decisions themselves to use language that implies some distance from the parties, for example referring to the refugee claimant as "the claimant" or "the appellant", and not by name.

References edit

  1. Johannesson, L. The Symbolic Life of Courts: How Judicial Language, Actions, and Objects Legitimize Credibility Assessments of Asylum Appeals. Int. Migration & Integration 24 (Suppl 4), 791–809 (2023). https://doi.org/10.1007/s12134-022-00989-4, page 801.
  2. Gold, Marina. 2019. ‘Liminality and the Asylum Process in Switzerland’. Anthropology Today 35 (3): 16–19. https://doi.org/10.1111/1467-8322.12506.
  3. 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.
  4. 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.
  5. a b c d e Immigration and Refugee Board of Canada. CRDD Handbook, Dated March 31, 1999, online <https://web.archive.org/web/20080331073416/https://www.irb-cisr.gc.ca/en/references/legal/rpd/handbook/hb01_e.htm> (Accessed November 9, 2023).
  6. Immigration and Refugee Board of Canada, Designated representative guide, Date modified: 2022-12-06 <https://irb.gc.ca/en/designated-representant/Pages/designated-representative-guide.aspx>, at section 4.
  7. 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).
  8. a b Johannesson, L. The Symbolic Life of Courts: How Judicial Language, Actions, and Objects Legitimize Credibility Assessments of Asylum Appeals. Int. Migration & Integration 24 (Suppl 4), 791–809 (2023). https://doi.org/10.1007/s12134-022-00989-4, page 802.
  9. 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).
  10. 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.
  11. 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.
  12. CLEO, Your Refugee Hearing Publication, 2024 <http://refugeehearing.cleo.on.ca/on-the-day-of-your-hearing/>.
  13. a b Martin David Jones and Sasha Baglay. Refugee law (Second Edition). Irwin Law, 2017, page 297.
  14. 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.
  15. 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).
  16. Immigration and Refugee Board of Canada, Designated representative guide, Date modified: 2022-12-06 <https://irb.gc.ca/en/designated-representant/Pages/designated-representative-guide.aspx#toc354> (Accessed August 3, 2023).
  17. 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.
  18. Jaballah (Re), 2010 FC 224 (CanLII), [2011] 3 FCR 155, at para 97, <https://canlii.ca/t/28cx7#par97>, retrieved on 2023-11-09.
  19. Martin David Jones and Sasha Baglay. Refugee law (Second Edition). Irwin Law, 2017, page 302.
  20. Wysozki v. Canada (Public Safety and Emergency Preparedness) (F.C., No. IMM-4958-19), Strickland, March 31, 2020; 2020 FC 458.
  21. Immigration and Refugee Board of Canada, Designated representative guide, Date modified: 2022-12-06 <https://irb.gc.ca/en/designated-representant/Pages/designated-representative-guide.aspx>, at 3.5.
  22. Immigration and Refugee Board of Canada, Guideline 9: Proceedings Before the IRB Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics, Revised: December 17, 2021, <https://irb-cisr.gc.ca/en/legal-policy/policies/Pages/GuideDir09.aspx#a73> (Accessed January 30, 2024), at section 7.3 ("Questioning an individual").
  23. See, for example, Code of Professional Conduct for British Columbia, Law Society of British Columbia.
  24. Law Society of British Columbia, Code of Professional Conduct for British Columbia, Code of Professional Conduct for British Columbia (the BC Code), Annotations to Chapter 2 – Standards of the Legal Profession, Annotations to rule 2.1-2  To courts and tribunals, <https://www.lawsociety.bc.ca/for-lawyers/act-rules-and-code/code-of-professional-conduct/annotations-to-chapter-2/> (Accessed May 14, 2024).
  25. Naqvi v. Canada (Immigration, Refugees, and Citizenship), 2024 FC 144 (CanLII), at para 7, <https://canlii.ca/t/k2h2k#par7>, retrieved on 2024-01-30.
  26. Awonuga v. Canada (Citizenship and Immigration), 2024 FC 27 (CanLII), at para 20, <https://canlii.ca/t/k23w1#par20>, retrieved on 2024-04-05.