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) 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 IRPA provides that the Chairperson may issue guidelines in writing to members of the Board. This power was provided to the Chairperson in an amendment to the Immigration Act in 1993 and was swiftly used to introduce gender guidelines at the Board: Canadian Refugee Procedure/History of refugee procedure in Canada#International human rights law and broader interpretations of the refugee definition.
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. 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.
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 hearings similar cases and promote consistent, informed, efficient, and expeditious decision-making. 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.
- 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.
- 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.
- 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>.
- Sharryn Aiken, et al, Immigration and Refugee Law: Cases, Materials, and Commentary (Third Edition), Jan. 1 2020, Emond, ISBN: 1772556319, at page 207.
- 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.