Canadian Refugee Procedure/Guideline 8 - Concerning Procedures with Respect to Vulnerable Persons Appearing Before the Immigration and Refugee Board of Canada

The Guideline

The text of the Guideline is available on the IRB website. Commentary on it follows.

2. Definition of vulnerable persons

2.1 For the purposes of this guideline, vulnerable persons are individuals whose ability to present their cases before the IRB is severely impaired. Such persons may include, but would not be limited to, the mentally ill, minors, the elderly, victims of torture, survivors of genocide and crimes against humanity, women who have suffered gender-related persecution, and individuals who have been victims of persecution based on sexual orientation and gender identity.

2.2 The definition of vulnerable persons may apply to persons presenting a case before the IRB, namely, to refugee protection claimants (in the RPD), appellants (in the IAD and in the RAD), and persons concerned (in the ID). In certain circumstances, close family members of the vulnerable person who are also presenting their cases before the IRB may qualify as vulnerable persons because of the way in which they have been affected by their loved one's condition.

2.3 Persons who appear before the IRB frequently find the process difficult for various reasons, including language and cultural barriers and because they may have suffered traumatic experiences that resulted in some degree of vulnerability. IRB proceedings have been designed to recognize the very nature of the IRB's mandate, which inherently involves persons who may have some vulnerabilities. In all cases, the IRB takes steps to ensure the fairness of the proceedings. This guideline addresses difficulties that go beyond those that are common to most persons appearing before the IRB. It is intended to apply to individuals who face particular difficulty and who require special consideration in the procedural handling of their cases. It applies to the more severe cases of vulnerability.

2.4 Wherever it is reasonably possible, the vulnerability must be supported by independent credible evidence filed with the IRB Registry.

The Practice Notice on Covid-19 does not explicitly speak to the provision of medical evidence for vulnerable person applications

Section 2.4 of the guideline provides that whenever it is reasonably possible, the vulnerability must be supported by independent credible evidence filed with the IRB Registry. This will normally take the form of expert evidence of the sort discussed at section 8 of the guideline (below). During the Covid-19 period, the Board has issued a practice notice entitled Refugee Protection Division: Practice Notice on the resumption of in-person hearings. Section 3.2 of that practice notice is entitled "Waiver (removal) of requirement to file a medical certificate" and it reads "Until further notice, where the RPD Rules contain a requirement to provide a medical certificate, this requirement as well as the requirement to explain why there is no medical certificate, is waived. [emphasis added]". Footnote 6 of that practice notice lists what Rules it applies to, none of which relate to vulnerable persons:

This applies to applications to extend the time to provide the BOC Form (RPD Rules 8(3), (4) and (5)); applications to change the date or time of a hearing (RPD Rules 54 (6), (7), and (8)); and a certificate provided in support of explanations given at a special hearing on abandonment (RPD Rules 65(5), (6); and (7)).

Vulnerable persons are discussed in the RPD Rules, but they are not discussed in any of the aforementioned rules, instead they are discussed at Rules 1 (Canadian Refugee Procedure/Definitions) and 53 (Canadian Refugee Procedure/Changing the Location of a Proceeding), among others. As such, the practice notice removing the requirement to file medical evidence during the Covid-19 period does not in and of itself modify Guideline 8. That said, as set out in the IRB’s Practice Notice – Special Measures Due to Covid-19, the RPD commits to apply its rules flexibly where the parties have difficulty complying with them due to the COVID-19 pandemic.

2.3: This guideline applies to the more severe cases of vulnerability

Section 2.3 of the guideline states that "This guideline addresses difficulties that go beyond those that are common to most persons appearing before the IRB. It is intended to apply to individuals who face particular difficulty and who require special consideration in the procedural handling of their cases. It applies to the more severe cases of vulnerability." In Conde v. Canada, the claimant submitted a psychological assessment which diagnosed him with post-traumatic stress disorder (PTSD). The Member concluded that this fact alone, together with the details of the psychological assessment provided, did not indicate difficulties that go beyond what is common for those appearing before the RPD:

I find that neither of these psychological assessments indicate difficulties that go beyond what is common for those appearing before the RPD. Dr. Devins diagnosed the principal claimant with post-traumatic stress disorder (PTSD): however, this type of diagnosis is extremely common for people who appear before the RPD, as most claimants, if not all, have experienced trauma. In any event. Dr. Devins’ assessments do not indicate a severe impairment. Dr. Devins indicates that the principal claimant responded directly to questions during the assessment and cooperated fully.

The court rejected this reasoning, stating "There is no indication of what qualifications the Member has to make this kind of assessment and decide that the PA’s psychological trauma is the same as other applicants." This was in a context in which the court accepted that the claimant had experienced "severe trauma", including having been shot, trauma which the court found had a "continuing impact upon his psychological health." As such, Conde v. Canada emphasizes that when determining whether a given claimant faces "particular difficulty", one should not place undue emphasis on the fact that many persons appearing before the Board have PTSD diagnoses and should instead focus on the totality of their circumstances.

5. General principles

5.1 A person may be identified as vulnerable, and procedural accommodations made, so that the person is not disadvantaged in the presentation of their case. The identification of vulnerability will usually be made at an early stage, before the IRB has considered all the evidence in the case and before an assessment of the person's credibility has been made.

5.2 A person may be identified as vulnerable based, in part, on alleged underlying facts that are also central to the ultimate determination of their case before the IRB. An identification of vulnerability does not indicate the IRB's acceptance of the alleged underlying facts. It is made for the purpose of procedural accommodation only. Thus, the identification of a person as vulnerable does not predispose a member to make a particular determination of the case on its merits. Rather, a determination of the merits of the case will be made on the basis of an assessment of all the evidence.

5.3 Similarly, evidence initially used to identify a vulnerable person and to make procedural accommodations may not have been tested through credibility assessments or other means. If such evidence is then used to adjudicate the merits of the case, the member should ensure that the parties are given an opportunity to address this evidence as it relates to the merits of the case. This means that submissions may be made about the relevance of the evidence, and the evidence may be tested through such means as questioning by the parties and the member, and other methods. The credibility and probative value of the evidence may then be assessed by the member, even though the IRB previously accepted the evidence, for the purpose of identifying vulnerability and making procedural accommodations.

An identification of vulnerability will generally continue to apply to a redetermination of a claim

Section 5.1 of the Guideline notes that the identification of vulnerability will usually be made at an early stage in the process. In Conde v. Canada, the court considered a case where a claimant was designated as a vulnerable person, the Board's decision was overturned on judicial review, and at the redetermination of their claim, the panel considered whether they should continue to be recognized as vulnerable. In that case, the court noted that the Board "revoked" the claimant's vulnerable person status at the commencement of the new hearing redetermining the claim, implying that the fact that the claimant had been accepted as a vulnerable person at previous hearings meant that he should presumptively continue to be recognized as such at this new hearing. In this way, the effect of a vulnerable person designation appears to mirror the Board's rules for appointing a designated representative for a claimant, which also continue to apply to subsequent proceedings before the institution: Canadian Refugee Procedure/Designated Representatives#RPD Rule 20(6) - What proceedings the designation applies to.

8. Expert evidence

8.1 A medical, psychiatric, psychological, or other expert report regarding the vulnerable person is an important piece of evidence that must be considered. Expert evidence can be of great assistance to the IRB in applying this guideline if it addresses the person's particular difficulty in coping with the hearing process, including the person's ability to give coherent testimony.

8.2 The IRB may suggest that an expert report be submitted but will not order or pay for it.

8.3 Generally, experts' reports should contain the following information:

# the particular qualifications and experience of the professional that demonstrate an expertise that pertains to the person's particular condition;
# the questions that were posed to the expert by the person who requested the expert report;
# the factual foundation underlying the expert's opinion;
# the methodology used by the expert in assessing the person, including whether an interview was conducted, the number and length of interviews, whether tests were administered, and, if so, what those tests were and the significance of the results;
# whether the person is receiving treatment and, if so, the nature of the treatment and whether the treatment is controlling the condition;
# whether the assessing expert was also treating the person at the time of producing the report; and
# the expert's opinion about the person's condition and ability to participate in the hearing process, including any suggested procedural accommodations and why particular procedural accommodations are recommended.

8.4 Experts should not offer opinions on issues within the exclusive jurisdiction of the decision-maker, such as the merits of the person's case.

8.5 An expert's opinion is not in itself proof of the truthfulness of the information upon which it is based. The weight given to the report will depend, among other things, on the credibility of the underlying facts in support of the allegation of vulnerability.

8.6 The absence of expert evidence does not necessarily lead to a negative inference about whether the person is in fact vulnerable. The IRB will consider whether it was reasonably possible to obtain such evidence.

While expert evidence is helpful to the Board, it is not necessary and the Board may identify any individual as vulnerable even in the absence of expert evidence on point

Although an expert report or other independent credible evidence is the preferred way to prove vulnerability, it is not obligatory. The absence of expert evidence will not necessarily lead to a negative inference concerning vulnerability; the Board must consider whether it was “reasonably possible” to obtain such evidence, per para. 8.6 of the guidelines. As Janet Cleveland notes in an article on point, in several cases the IRB has concluded that a person was vulnerable based on a letter from counsel describing behaviour consistent with mental health problems. She states that there have also been cases in which the Board recognized the person as vulnerable and ordered an early hearing on its own initiative based simply on the claimant’s BOC form as well as behaviour observed by Board staff.

The Board should not expect revised or updated expert evidence without reason

In Conde v. Canada, the claimant had submitted two medical reports, dated one and six years prior to the hearing. The claimant had been designated as a vulnerable person by a previous panel of the Board. The Board's previous decision had been overturned on judicial review and remitted to the Board for redetermination. On redetermination, the RPD revoked the claimant's vulnerable person status, stating "I considered both the psychological assessment of Dr. Devins dated October 9, 2013 and the updated psychological assessment dated January l1, 2018. The RPD was not provided with more up to date psychological assessment for this second re-determination." The court stated that, with respect to the panel's decision, "there was no reason, given the previous psychological evidence and the acceptance of the [applicant] as a vulnerable person at previous hearings, to expect that he needed to provide more psychological evidence without notice. Clearly, this was procedurally unfair." As such, if a panel comments on a psychological report being dated, the panel should provide a reason as to why the passage of time reduces the weight that is properly attributed to the report.