Canadian Refugee Procedure/Board Jurisdiction and Procedure

IRPA Section 162(1) - Board jurisdictionEdit

Section 162(1) of the Immigration and Refugee Protection Act reads:

Sole and exclusive jurisdiction
162 (1) Each Division of the Board has, in respect of proceedings brought before it under this Act, sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction.

This provision of the Act provides the Board's plenary jurisdictionEdit

The above provision of the IRPA provide what can be referred to as the Board's plenary powers to control its process. In the absence of a specific rule, they provide the Board with the authority to act. For example, in Koky v. Canada the Federal Court noted that in the absence of a specific provision in the rules for the Division disjoining claims on its own motion, it could rely on the authority conferred to it by the above provision in the Act.[1]

This provision of the Act has been characterized as a privative clauseEdit

The Supreme Court of Canada has characterized s. 162 of the Act as a privative clause.[2] There is a long history of privative clauses designed to deter judicial intervention in Canadian immigration legislation. The 1910 Immigration Act stated that "no court, and no judge or officer thereof shall have jurisdiction to review, quash, reverse, restrain or otherwise interfere with any proceeding, decision or order of the Minister or of any Board of Inquiry, or officer in charge ... relating to the detention or deportation of any rejected immigrant ... upon any ground whatsoever, unless such person is a Canadian citizen or has Canadian domicile."[3] As Trebilcock and Kelley summarize, courts of the day, on the whole, respected these limitations imposed upon them.[4] That type of strong privative clause is now absent from the Act, having been removed in 1973 following the report of Joseph Sedgwick whose second Report on Immigration recommended that appeals to the Federal Courts be provided for in the legislation, not proscribed.[5]

See also: Canadian Refugee Procedure/History of refugee procedure in Canada#Establishment of the Federal Court and increasing judicial scrutiny of immigration decisions.

IRPA Section 162(2) - Obligation to proceed informally and expeditiouslyEdit

Procedure
(2) Each Division shall deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit.

Each Division shall deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permitEdit

For more details regarding this, see: Canadian Refugee Procedure/Principles for the interpretation of refugee procedure#IRPA Section 3(2)(e) - Fair and efficient procedures that maintain integrity and uphold human rights.

Member workloadEdit

A typical full-time Member of the Refugee Protection Division who is not on a special team is expedited to complete 120 files per year. It is difficult to compare workload among different systems, but many others appear to provide for much less time for decision-making. For example, in the French refugee determination system the rapporteurs who research files for asylum judges participate in two to three full hearing days per month, each of which requires preparation of 13 files, totalling around 350 cases a year. This workload allows approximately half a working day for each file, with little room to deviate for complex cases.[6] That said, it is difficult to compare workloads because of the differences in the nature of each role and the comparatively limited support that RPD Members receive to prepare for hearings.

ReferencesEdit

  1. Koky v. Canada (Citizenship and Immigration), 2015 FC 562 (CanLII), para. 37 <https://www.canlii.org/en/ca/fct/doc/2015/2015fc562/2015fc562.html#par37>
  2. Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12 (CanLII), [2009] 1 SCR 339, par. 55, <https://canlii.ca/t/22mvz#par55>, retrieved on 2021-07-02.
  3. Kelley, Ninette, and Michael J. Trebilcock. The Making of the Mosaic: A History of Canadian Immigration Policy. Toronto: University of Toronto Press, 2010 (Second Edition). Print. Pages 140 and 212.
  4. Kelley, Ninette, and Michael J. Trebilcock. The Making of the Mosaic: A History of Canadian Immigration Policy. Toronto: University of Toronto Press, 2010 (Second Edition). Print. Pages 165, 212-213.
  5. Kelley, Ninette, and Michael J. Trebilcock. The Making of the Mosaic: A History of Canadian Immigration Policy. Toronto: University of Toronto Press, 2010 (Second Edition). Print. Page 370.
  6. Hambly, J. and Gill, N. (2020), Law and Speed: Asylum Appeals and the Techniques and Consequences of Legal Quickening. J. Law Soc., 47: 3-28. doi:10.1111/jols.12220.