Canadian Refugee Procedure/Duties of Chairperson

IRPA Section 159: Duties of ChairpersonEdit

Section 159 of the Immigration and Refugee Protection Act reads:

Chairperson

159 (1) The Chairperson is, by virtue of holding that office, a member of each Division of the Board and is the chief executive officer of the Board. In that capacity, the Chairperson
(a) has supervision over and direction of the work and staff of the Board;
(b) may at any time assign a member appointed under paragraph 153(1)(a) to the Refugee Appeal Division or the Immigration Appeal Division;
(c) may at any time, despite paragraph 153(1)(a), assign a member of the Refugee Appeal Division or the Immigration Appeal Division to work in another regional or district office to satisfy operational requirements, but an assignment may not exceed 120 days without the approval of the Governor in Council;
(d) may designate, from among the full-time members appointed under paragraph 153(1)(a), coordinating members for the Refugee Appeal Division or the Immigration Appeal Division;
(e) assigns administrative functions to the members of the Board;
(f) apportions work among the members of the Board and fixes the place, date and time of proceedings;
(g) takes any action that may be necessary to ensure that the members of the Board carry out their duties efficiently and without undue delay;
(h) may issue guidelines in writing to members of the Board and identify decisions of the Board as jurisprudential guides, after consulting with the Deputy Chairpersons, to assist members in carrying out their duties; and
(i) may appoint and, subject to the approval of the Treasury Board, fix the remuneration of experts or persons having special knowledge to assist the Divisions in any matter.

Delegation
(2) The Chairperson may delegate any of his or her powers under this Act to a member of the Board, except that
(a) powers referred to in subsection 161(1) may not be delegated;
(b) powers referred to in paragraphs (1)(a) and (i) may be delegated to the Executive Director of the Board;
(c) powers in relation to the Immigration Appeal Division and the Refugee Appeal Division may only be delegated to the Deputy Chairperson, the Assistant Deputy Chairpersons, or other members, including coordinating members, of either of those Divisions; and
(d) powers in relation to the Immigration Division or the Refugee Protection Division may only be delegated to the Deputy Chairperson, the Assistant Deputy Chairpersons or other members, including coordinating members, of that Division.

159(1)(h) The Chairperson may issue guidelines in writing to members of the Board and identify decisions of the Board as jurisprudential guidesEdit

Section 159(1)(h) of the Act gives the Chairperson two separate powers - 1) to issue guidelines and 2) to identify decisions as jurisprudential guides. These powers were provided to the Chairperson in an amendment to the Immigration Act in 1993[1] and was swiftly used to introduce gender guidelines at the Board: Canadian Refugee Procedure/History of refugee procedure in Canada#Juridification of the refugee system and broader interpretations of the refugee definition. That said, the use of guidelines in the refugee program has a longer history. Under the system that existed prior to the creation of the Immigration and Refugee Board, the Minister had issued guidelines to its officers which reflected internationally accepted standards for refugee status determination. The Plaut report which led to the founding of the IRB recommended that those guidelines, together with the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, be used as a basis for the Board's guidelines.[2] More information on this power is contained in the IRB Policy on the Use of Chairperson's Guidelines and Jurisprudential Guides.[3]

Jurisprudential guides may relate to issues of factEdit

The Federal Court of Appeal holds that it is reasonable to interpret paragraph 159(1)(h) of the IRPA as conferring upon the Chairperson the authority to issue Jurisprudential Guides (JGs) on factual issues.[4] This is consistent with international standards for refugee adjudication; for example, the United Kingdom now has more than 300 country guidance cases relating to asylum seekers from more than 60 countries. They were introduced in the refugee status determination process in the UK in 2002 to help provide consistency in decision-making when considering the same or similar issues and evidence.[5] That said, as noted in the IRB Policy on the Use of Chairperson's Guidelines and Jurisprudential Guides, "country conditions, by their very nature, are bound to change, and the decision to designate a jurisprudential guide which provides guidance on country conditions should be taken with the utmost caution."[3]

Jurisprudential guides may be distinguished from lead casesEdit

In the words of Sharryn Aiken, et. al., a lead case aims to identify a refugee claim on which to create a full evidential record that the hearing panel can use to make informed findings of fact and provide a complete analysis of the relevant legal issues. While not binding on other panels of the Board, the factual findings on country conditions and legal conclusions in a lead case are intended to guide future panels hearing similar cases and promote consistent, informed, efficient, and expeditious decision-making.[6] A "lead case" is different from a jurisprudential guide (JG) in that a lead case is planned and organized before the case is heard, whereas a decision is identified as a JG after it has been rendered.[7]

Simply referring to or adopting the framework of analysis contained in a revoked jurisprudential guide does not render a decision unreasonableEdit

As noted in the IRB Policy on the Use of Chairperson's Guidelines and Jurisprudential Guides, a jurisprudential guide remains in effect unless the Chairperson revokes it. That policy notes that the decision whether or not to revoke the identification is at the Chairperson's discretion, after consulting with the Deputy Chairpersons, as applicable, and provides examples of situations in which the Chairperson may issue a notice of revocation, namely where a higher court subsequently overturns the underlying decision, country conditions have changed to a point where the reasoning in the jurisprudential guide no longer assists members, or there are other reasons that the jurisprudential guide no longer assists members.[3] The Federal Court has considered the import of a decision having referred to or adopted the framework of analysis contained in a revoked jurisprudential guide, holding that this does not per se render the decision unreasonable.[8]

The Chairperson's guideline‑issuing and rule‑making powers overlapEdit

Section 159 of the IRPA, supra, sets out the Chairperson's guideline-issuing powers. Section 161 of the IRPA concerns the Chairperson's power to make rules: Canadian Refugee Procedure/161 - Functioning of Board and Division Rules. As the IRB Policy on the Use of Chairperson's Guidelines and Jurisprudential Guides notes, "the Chairperson's guideline‑issuing and rule‑making powers overlap."[3] That policy goes on to state that "that the subject of a guideline could have been enacted as a rule of procedure issued under paragraph 161(1)(a) of the IRPA will not normally invalidate it."[9] It cites the Federal Court of Appeal’s reasoning in Thamotharem v. Canada as support for this proposition.[10]

ReferencesEdit

  1. 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.
  2. 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 129.
  3. a b c d Immigration and Refugee Board of Canada, Policy on the Use of Chairperson's Guidelines and Jurisprudential Guides, July 7​, 2022, <https://irb.gc.ca/en/legal-policy/policies/Pages/policy-chairperson-guidelines-jurisprudential-guides.aspx> (Accessed July, 2022).
  4. Canadian Association of Refugee Lawyers v. Canada (Immigration, Refugees and Citizenship), 2020 FCA 196 (CanLII), par. 43, <http://canlii.ca/t/jblsl#par43>, retrieved on 2020-11-17.
  5. Joshi, Makesh D., The use of country guidance case law in refugee recognition outside the UK, Forced Migration Review; Oxford Iss. 65,  (Nov 2020): 32 <https://search.proquest.com/openview/9a7d9d88a5717cee4832caf3a5c5af2a/1?pq-origsite=gscholar&cbl=55113>.
  6. Sharryn Aiken, et al, Immigration and Refugee Law: Cases, Materials, and Commentary (Third Edition), Jan. 1 2020, Emond, ISBN: 1772556319, at page 207.
  7. Canadian Association of Refugee Lawyers v. Canada (Immigration, Refugees and Citizenship), 2020 FCA 196 (CanLII), par. 101, <http://canlii.ca/t/jblsl#par101>, retrieved on 2020-11-17.
  8. Iribhogbe, Benedict Agbator v. M.C.I. (F.C., no. IMM-3267-21), Roussel, April 7, 2022; 2022 FC 501.
  9. Immigration and Refugee Board of Canada, Policy on the Use of Chairperson's Guidelines and Jurisprudential Guides, July 7​, 2022, <https://irb.gc.ca/en/legal-policy/policies/pages/PolJurisGuide.aspx> (Accessed July, 2022).
  10. Thamotharem v. Canada (Minister of Citizenship and Immigration), 2007 FCA 198 (CanLII), [2008] 1 FCR 385, para. 106.