Canadian Refugee Procedure/Presence of parties and use of telecommunications for hearings
The IRB has successfully used videoconferencing and teleconferencing at hearings since the early 1990s. This section discusses the provision of the Act that relates most directly to this practice.
IRPA Section 164Edit
The relevant provision of the Immigration and Refugee Protection Act reads:
Presence of parties 164 Where a hearing is held by a Division, it may, in the Division’s discretion, be conducted in the presence of, or by a means of live telecommunication with, the person who is the subject of the proceedings.
History of the provision and its contentEdit
The repealed Immigration Act, which preceded the IRPA, contained no direct analogue to section 164. Section 164 was introduced, along with the rest of the IRPA, in 2001. The section came into force on June 28, 2002 and has not been amended.
An earlier version of the IRPA, which had been introduced as a bill in the previous session of Parliament, but died on the order paper, did not contain a direct analogue to s. 164. Instead, Bill C-31 had stated that, "subject to the other provisions of this section, proceedings must be held in public and, as far as possible, in the presence of the interested parties [emphasis added]". Furthermore, that bill had also stated that in all proceedings the RPD "must conduct a hearing in the presence of the foreign national concerned".
This section of the Act is frequently considered in applications to change the location of a proceedingEdit
One of the ways that this section of the Act is frequently considered and relied upon is with applications to change the location of a proceeding where the Board elects to allow a claimant to appear by video from the place that they have moved to, rather than transferring the file to a different office in its entirety. See the commentary to RPD Rule 53(4)(g): Canadian Refugee Procedure/Changing the Location of a Proceeding.
Procedural fairness issues and best practices regarding videoconferencingEdit
The use of videoconferencing is not per se unfairEdit
Videoconferencing is widely used in refugee status determination procedures around the world, including Australia and the United States. Section 164 of the Act provides that the Board may conduct a hearing via live telecommunication here in Canada. The Board has a policy entitled Use of Videoconferencing in Proceedings before the Immigration and Refugee Board of Canada which sets out that it is the IRB's position that provided that it is carried out in accordance with appropriate technological and procedural standards, videoconferencing does not affect the quality of the hearing or decision-making and respects the principles of natural justice and procedural fairness.
Board policy specifies that videoconferencing is inappropriate for certain types of claims and claimantsEdit
It may be noted that many counsel do not like videoconferencing and academic commentators have called on the Board to "limit this practice as much as possible". The 2004 RPD Policy on the Transfer of Files for Hearings by Videoconference states at Section 5.5 that counsel may bring matters to the attention of the RPD that are inappropriate for videoconferencing, by making an application.
In what circumstances may issues with videoconferencing arise?
- Disability issues: In Al-Gumer v. Canada the appellant was hearing impaired and required the assistance of sign language interpreter at his hearing and, further, his counsel required a captionist or an ASL interpreter. In the circumstances, it was determined that it was not practical to conduct that hearing remotely given the technology available. This decision of the Immigration Appeal Division should be persuasive for the Refugee Protection Division.
- Parties should have 'feedback screens': The Board commissioned an external review of the use of videoconferencing at the IRB which recommended the the Board "install feedback screens in all of the claimant's rooms in the system." The report went on to state that "Fairness and effectiveness both require that both the claimants and their counsel be aware at all times of the picture of their room transmitted to the screen in the member's room." IRB management accepted this recommendation, stating that it is their policy that "All offices with videoconferencing equipment currently have feedback screens: either picture-in-picture or a separate television screen. The Board, through the designated employee, will ensure that participants are using this technology correctly."
- Awareness of effects of video on the assessment of demeanour: Subtle lags inherent in the technology can affect perceptions of credibility according to psychological research. Board Members should be aware of this and consider this when thinking about their subjective assessment of witness credibility.
- Confidentiality: As per s. 166(c) of the IRPA, the Division, in all of its proceedings, must respect the confidential nature of refugee proceedings. If this would be compromised by proceeding virtually, then the Division should not require it.
A party may waive the right to be present at the hearingEdit
The right to be present at the hearing can be waived if there is an express waiver by the claimant.
- RSC 1985, c 1-2.
- Bill C-11, An Act respecting immigration to Canada and the granting of refugee protection to persons who are displaced, persecuted or in danger, 1st Sess, 37th Parl, 2001 (assented to 1 November 2001), SC 2001, c 27.
- Bill C-31, An Act respecting immigration to Canada and the granting of refugee protection to persons who are displaced, persecuted or in danger, 2nd Sess, 36th Parl, 2000 (first reading 6 April 2000).
- Ibid at cl 161(1)(a) [emphasis added].
- Ibid at cl 165(b).
- Mark Federman, “On the Media Effects of Immigration and Refugee Board Hearings via Videoconference” (2006) 19(4) J of Refugee Studies 433 at 434.
- Immigration and Refugee Board of Canada, Use of Videoconferencing in Proceedings before the Immigration and Refugee Board of Canada, Policy dated 15 December 2010, Accessed January 2, 2019, <https://irb-cisr.gc.ca/en/legal-policy/procedures/Pages/Videoconf.aspx>.
- Acton, Tess, Understanding Refugee Stories: Lawyers, Interpreters, and Refugee Claims in Canada, 2015, Master of Laws Thesis, <https://dspace.library.uvic.ca/bitstream/handle/1828/6213/Acton_Tess_LLM_2015.pdf>, page 130 (Accessed January 25, 2020).
- Nazer Jassim Al-Gumer v. Canada (M.C.I.) TA4-1257, Neron, November 2005.
- 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).
- Immigration and Refugee Board of Canada, Immigration and Refugee Board Response to the Report on Videoconferencing in Refugee Hearings, Date modified listed on webpage: 2018-06-26, <https://irb-cisr.gc.ca/en/transparency/reviews-audit-evaluations/Pages/VideoRespRep.aspx> (Accessed January 26, 2020).
- Mark Federman, “On the Media Effects of Immigration and Refugee Board Hearings via Videoconference” (2006) 19(4) J of Refugee Studies 433 at 442.
- Rodriguez-Moreno v. Canada (Minister of Employment & Immigration),  F.C.J. No. 1297, 70 F.T.R. 298 (F.C.T.D.).