Canadian Refugee Procedure/Print version

This is a book about the legal processes involved in claiming refugee status in Canada, focusing particularly on the Refugee Protection Division Rules of the Immigration and Refugee Board of Canada. Tens of thousands of people file a claim for refugee protection in Canada every year. The ensuing process that they navigate is governed by the set of laws described herein.

PreliminaryEdit

About this textEdit

There are many books about the substance of refugee law, in Canada and internationally. They cover subjects such as what it means to have a well-founded fear of persecution and when a claimant has access to adequate state protection. This is not one of them. This is a book about the legal processes involved in claiming refugee status in Canada, focusing particularly on the Refugee Protection Division Rules of the Immigration and Refugee Board of Canada. Tens of thousands of people file a claim for refugee protection in Canada every year. The ensuing process that they navigate is governed by the set of laws described herein.

Refugee admission is described as an area of immigration law that "remains controversial" and is "difficult to administer".[1] As Clayton Ma notes, refugee procedures in Canada have been characterized by speedy policy changes, often occasioned by "new governments and shifting popular opinions".[2] That said, in recent decades, such policy changes and procedural innovations have taken place against the stable background of Canada's international commitments, particularly the commitments enshrined in the 1951 Refugee Convention. The policy change in this area of law means that rules and processes are regularly under development and in flux. This can be a challenge for claimants and lawyers both - as Jeremy Bentham observed, "miserable is the slavery of that people among whom the law is either unsettled or unknown."[3] This text strives to assist with remedying such a condition, primarily by describing the law as it exists (lex lata) but also by providing descriptions inflected by a conception of the law as it should be (lex ferenda). This discussion strives to include consideration of historical context. In this way, this text is influenced by the observation of Oliver Wendell Holmes, Jr. that "The life of the law has not been logic: it has been experience" and as a result focuses on the history and evolution of the rules in question over time.

ReferencesEdit

  1. Troper, Harold. The Canadian Encyclopedia, s.v. "Immigration in Canada", Last Edited September 19, 2017, https://www.thecanadianencyclopedia.ca/en/article/immigration
  2. Encyclopedia, The Canadian. "Canadian Refugee Policy".  The Canadian Encyclopedia, 10 November 2020, Historica Canada. https://www.thecanadianencyclopedia.ca/en/article/canadian-refugee-policy. Accessed 30 December 2020.
  3. Mindus, P. (2020). Towards a Theory of Arbitrary Law-making in Migration Policy. Etikk I Praksis - Nordic Journal of Applied Ethics, 14(2), 9-33. https://doi.org/10.5324.eip.v14i2.3712

GlossaryEdit

AcronymsEdit

Common acronyms used herein:[1]

  • BOC: Basis of Claim Form
  • CBSA: Canada Border Services Agency
  • CIC: Citizenship and Immigration Canada (the former name for IRCC)
  • COI: Country of Origin Information.[2]
  • DCO: Designated Country of Origin[3]
  • IRCC: Immigration, Refugees and Citizenship Canada
  • DFN: Designated Foreign Nationals
  • IRB: Immigration and Refugee Board of Canada
  • IRPA: Immigration and Refugee Protection Act
  • JG: Jurisprudential Guide[2]
  • NDP: National Documentation Package[2]
  • RAD: Refugee Appeal Division
  • RPD: Refugee Protection Division
  • IRCC: Immigration, Refugees and Citizenship Canada
  • NDP: National Documentation Package
  • PIF: Personal Information Form (Predecessor to the BOC)
  • POE Claim: Port of Entry Claim[3]
  • PRRA: Pre-Removal Risk Assessment
  • UNHCR: United Nations High Commissioner for Refugees

TermsEdit

  • Asylum seeker: individuals whose request for sanctuary has yet to be processed.[4]
  • Country of origin information (COI) is defined as "Information about the situation in a country that is relevant to the refugee determination process and obtained from publicly available sources that are viewed as, whenever possible, reliable and objective" in the Board's Policy on National Documentation Packages in Refugee Determination Proceedings.[2]
  • Identity: for commentary on the meaning of the term "identity" as it is used in the IRPA and the RPD Rules, see: Canadian Refugee Procedure/Information and Documents to be Provided#"Identity" as the term is used in the Act and the Rules refers to personal/national identity.
  • Inland office: Any office of Immigration, Refugees and Citizenship Canada (IRCC) or the Canada Border Services Agency (CBSA) inside Canada.[5]
  • Jurisprudential Guide (JG) is defined as "A decision identified by the Chairperson as a JG pursuant to section 159(1)(h) of the Immigration and Refugee Protection Act (IRPA)" in the Board's Policy on National Documentation Packages in Refugee Determination Proceedings.[2]
  • Landed Immigrant: this is an old term that was used under the previous immigration Act and has been replaced by the term "permanent resident".[6]
  • Member: Decision maker on the RAD or RPD.[3]
  • National Documentation Package (NDP) is defined as "A selection of COI documents on a given country from which refugee claims originate, compiled by the RD based on information that is, whenever possible, accurate, balanced, and corroborated" in the Board's Policy on National Documentation Packages in Refugee Determination Proceedings.[2]
  • Non-refoulement is the legal principle banning expulsion and non-admittance of refugees at the border of States Parties[7] where they would be returned to a country in which they face serious threats to their life or freedom.[8]
  • Permanent resident: The right to live, work, study and remain in Canada under specific residency obligations.

DefinitionsEdit

  • Interpretation refers to the oral transfer of meaning between languages.[9] See, in contrast, translation.
  • Translation refers to the written transfer of meaning between languages.[9] See, in contrast, interpretation.

The Refugee Protection Division Rules themselves include a definitions section, which see: Canadian Refugee Procedure/Definitions. The Act also includes a definitions section, which see: Canadian Refugee Procedure/Definitions, objectives, and application of the IRPA#IRPA Section 2.

ReferencesEdit

  1. Refugee Hearing Preparation: A Guide for Refugee Claimants, 2019, Page 1 <https://refugeeclaim.ca/wp-content/themes/refugeeclaim/library/guide/rhpg-vancouver-en.pdf>
  2. a b c d e f Immigration and Refugee Board of Canada, Policy on National Documentation Packages in Refugee Determination Proceedings, Effective date: June 5, 2019, <https://irb-cisr.gc.ca/en/legal-policy/policies/Pages/national-documentation-packages.aspx> (Accessed August 30, 2020).
  3. a b c Legal Aid Ontario, Refugee Case Law Toolkit <https://www.legalaid.on.ca/wp-content/uploads/Refugee-Case-Law-toolkit-EN.pdf>, page 7 (Accessed January 25, 2020).
  4. United Nations High Commissioner for Refugees, Asylum-Seekers, <https://www.unhcr.org/en- us/asylum-seekers.html> (Accessed May 9, 2020).
  5. Immigration and Refugee Board of Canada, Claimant's Guide (Print version), Version 5 - 2018 <https://irb-cisr.gc.ca/en/refugee-claims/Pages/ClaDemGuide.aspx> (Accessed January 25, 2020).
  6. Woo v. Canada (Citizenship and Immigration), 2007 CanLII 69120 (CA IRB), par. 2, <http://canlii.ca/t/20z95#2>, retrieved on 2020-02-05.
  7. Atle Grahl-Madsen, Commentary on the Refugee Convention 1951, Articles 2–11 (Division of International Protection of the United Nations High Commissioner for Refugees 1997), 13–37.
  8. UN General Assembly, “Convention Relating to the Status of Refugees.”
  9. a b Tess Acton, 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 39 (Accessed January 23, 2020).

The history of refugee procedure in CanadaEdit

Early refugee policiesEdit

(Im)migration and refugee processes have long been present in the territory of Canada. For example, some First Nations would absorb war captives and refugees from neighbouring First Nations, as with the Haudenosaunee (Iroquois) who are said to have pursued an ancient ideal that they “extend the rafters of the longhouse” by absorbing their neighbours into one nation, thereby producing a universal peace.[1] Warfare between First Nations also created what could be called refugees who would flee to new regions, for example, with the coming of the fur trade in the 16th century, the Haudenosaunee embarked on campaigns to subjugate or disperse neighbouring groups and the French-allied Huron-Wendat were dispersed from their homeland after several villages were destroyed in 1649; such dispersal campaigns would also impact the Petun, Neutral and Erie in the following decade.[2] Forced displacement of indigenous persons also resulted from the actions of the colonial regimes that emerged in Canada, for example, with the physical displacement inherent in the reserve system, which abrogated many relationships with traditional territories, as well as related social, cultural, and political displacements.[3] In the words of the section of the final report of the Royal Commission on Aboriginal Peoples on Displacement and Assimilation:

[The impact of colonialism on indigenous populations was profound.] Perhaps the most appropriate term to describe that impact is 'displacement'. Aboriginal peoples were displaced physically — they were denied access to their traditional territories and in many cases actually forced to move to new locations selected for them by colonial authorities. They were also displaced socially and culturally, subject to intensive missionary activity and the establishment of schools — which undermined their ability to pass on traditional values to their children, imposed male-oriented Victorian values, and attacked traditional activities such as significant dances and other ceremonies. In North America they were also displaced politically, forced by colonial laws to abandon or at least disguise traditional governing structures and processes in favour of colonial-style municipal institutions.[4]

Globally, the first record of the term ‘refugee’ is popularly credited in application to French Huguenots who relocated to neighbouring European territories around Louis XIV’s revocation of the Edict of Nantes in 1695.[5] One million Huguenots left France and settled across the European continent. Meanwhile, in the 1700s and 1800s, the British instituted policies to encourage immigration to British North America, including by those who would rightfully be termed refugees today. For example, 50,000 United Empire Loyalists, supporters of the British in the American revolution, migrated north in response to American republicanism.[6] Many of them migrated northward not by choice but by default, either because they did not wish to become citizens of the new American republic or because they feared retribution for their public support of the British during the War of Independence.[7] The retribution meted out to loyalists in the United States included beatings, imprisonment, and other forms of harassment.[8] Among these loyalists who migrated northward were an estimated 2000 members of the aboriginal peoples bordering the Thirteen Colonies who had supported the British cause, believing that an alliance offered the best hope for preserving their independence and protecting their territories from land-hungry colonists.[9] The loyalists also included thousands of free black persons, some of whom had heeded a British proclamation issued early in the war offering freedom to any slave who deserted his (sic) American master during the Revolution and volunteered to serve with the King's forces. Most of the new black arrivals responded to an offer of freedom made late in the conflict that guaranteed that all slaves who made formal claim to protection behind British lines would receive their freedom.[10] Upon arrival, many of these black loyalists faced the scourge of racism and dismal agricultural prospects in Nova Scotia, and, bitterly disappointed, 1,200 sailed for Sierra Leone to start afresh on the west coast of Africa in 1792.[10] Nonetheless, over the next century an estimated 30,000 African Americans came to Canada as the final stop on the underground railroad, seeking protection from slavery in that country.[11]

Overall, from the point of view of western states, before the First World War (WWI) people used to enjoy a certain freedom of movement in the world and, as such, defining a refugee was not a major concern for the reigning powers.[12] In the 19th and early 20th centuries, displaced, persecuted, and poor populations in Europe and North America simply moved to new jobs and opportunities in other regions.[13] Passports, for example, were not generally required for European and North American travel until the First World War.[14] There were also explicit efforts to entice refugees to choose to come to Canada. For example, John Graves Simcoe, the first lieutenant-governor of Upper Canada, issued a proclamation in 1792 inviting Americans to emigrate to Upper Canada. This included a special appeal to the members of pacifist religious communities, including Quakers, Mennonites, and Dunkards, which promised them an exemption from military service.[15] A century later, in the 1870s and 1880s the Canadian government specifically sought to entice Mennonites to settle in western Canada. The Mennonite search for a new home was precipitated by the introduction of a policy of Russification in the schools of the Ukraine, where they lived, and by the implementation of universal conscription, which went against their pacifist beliefs.[16] The Canadian government not only offered them freedom from military service, but also freedom from swearing the oath of allegiance, a requirement which conflicted with their religious beliefs.[16] Other people who immigrated to Canada during this time period included 138,000 Jews who immigrated between 1900 and 1921, many of them refugees fleeing pogroms in Czarist Russia and Eastern Europe,[17] as well as the arrival of Doukhobors from Russia, where they suffered persecution.[17]

Not all migrants, however, were similarly welcomed by Canadian society. Canada's first Immigration Act, passed in 1869, initially reflected the laissez-faire philosophy of the time by saying nothing about which classes of immigrants should be admitted and which categories should be proscribed.[18] Subsequent amendments to the legislation, however, specifically discriminated against people on the grounds of class, race, and disability.[19] Through policies such as the Chinese head tax at the turn of the century, and the internment of Ukrainians,[20] the government selectively excluded certain groups of migrants.[11] As Jan Raska describes it, the Canadian government admitted refugees based on prevailing sociocultural, economic, and political views of the ‘desirable’ immigrant.[21] The government amended the Immigration Act in 1910 to prohibit all "charity cases" who had not received written authority to emigrate to Canada from the superintendent of immigration at Ottawa or the assistant superintendent of emigration for Canada in London. As Valerie Knowles writes, this clause was inspired by the large number of impoverished British immigrants who had arrived in Canada with the assistance of charitable organizations eager to rid Britain of paupers and to provide them with a new start in Canada.[22] Facially neutral legislative provisions were also employed in discriminatory ways; for example, while nothing in the Immigration Act specifically barred black Americans, any immigrant could effectively be denied access to Canada for health reasons under the Act's medical provisions. The government in 1911 instructed immigration inspectors along the American border to reject all black persons as unfit for admission on medical grounds. As Harold Troper notes, "There was no appeal."[7] Canada also turned away ships bearing refugees, such as the 376 passengers, most of whom were Sikhs, on the SS Komagata Maru in 1914, which was not allowed to dock in Vancouver. After a two-month stalemate, the Komagata Maru was forced to turn around and sail back across the Pacific Ocean, only to have some of its passengers massacred by the British Indian police upon arrival in India.[11] For a three-year period starting in 1919, Doukhobors, Mennonites, and Hutterites were specifically prohibited entry into Canada because of, in the words of the relevant order-in-council, "their peculiar customs, habits, modes of life and methods of holding property, and because of their probable inability to become readily assimilated or to assume the duties and responsibilities of Canadian citizenship within a reasonable time after their entry."[23] Canada, like many states at the beginning of the 20th century, also implemented a requirement that travellers to Canada carry passports. As Kaprielian-Churchill writes, the passport requirement appears to have been implemented for the purposes of exclusion.[24]

During this pre-WWII era, Canada refused to endorse key international initiatives aimed at aiding refugees. In 1922, the 'Nansen Passport' for Russian refugees was created.[25] This was an international identity certificate facilitating the movement and resettlement of refugees uprooted by the events of World War I, the Russian revolution, and the Armenian genocide in Turkey. It has also been pinpointed as the beginning of international refugee law.[26] In 1925, the Refugee Service of the International Labor Organization (ILO) took on responsibility for issuing these Nansen Passports. Five years later, the humanitarian aspect of refugee work was entrusted to the International Refugee Office ("Nansen International Office for Refugees").[27] Canada steadfastly refused to recognize the Nansen Passport on the basis that Canada would only accept Nansen Passport bearers if they were returnable to another country in the event that they became criminals or insane, something that Kaprielian-Churchill describes as a smokescreen and means of rejecting refugees.[28] Even once other countries strove to accommodate the Canadian demand for returnability, Canadian officials continued to refuse refugees, finding other grounds for rejection.[29] In 1931, Canadian officials spoke with pride that only "a dozen refugees" had been admitted to Canada on the League of Nations' Nansen Passport.[30] In order to address the fact that the agreements underpinning the Nansen Passport lacked the status of treaty law,[31] an international conference was convened in 1933 which led to the Convention Relating to the International Status of Refugees. Canada neither attended the conference nor subscribed to the agreement.[32]

WWII-era refugee policiesEdit

Irving Abella and Petra Molnar write that “Xenophobia and Anti-Semitism permeated Canada, and there was little public support for, and much opposition to, the admission of refugees... until after the Second World War.”[11] For example, in the 1930s, Canada restricted the admission of European Jews who sought safe haven from antisemitism and the emergence of fascism in Germany, but welcomed Sudeten Germans from Czechoslovakia in search of refuge given that they were considered to be more 'desirable' immigrants.[21] In 1938, the US government brought together 30 countries for a conference on the subject of the worsening refugee situation in Europe. Canada was a reluctant participant, tarrying for months before accepting the US invitation to attend the Evian, France event. Valerie Knowles describes Canada's participation at the summer 1938 conference as having been "minimal" and states that it was to Canada's relief that the delegates at the conference accomplished little more than to produce a statement of lofty principles not actually necessitating more liberal immigration policies.[33] The Intergovernmental Committee on Refugees (ICGR) that was established in the late 1930s, mandated to assist Jews from Germany and Austria, operated without Canadian involvement.[34]

A visible manifestation of the antisemitism that marked Canadian policy was the decision to deny admission to 930 Jewish refugees on the SS St. Louis seeking asylum from Nazi Germany. These refugees were instead sent back to what awaited them in Germany. Later in the war, in 1943, Canada did announce that it intended to admit some Jewish refugees who had made their way to the Iberian peninsula. This is said to have "ignited a storm of protest from anti-refugee interests", with Quebec opposition leader Maurice Duplessis holding rallies to charge that that provincial and federal Liberals were set to allow the "International Zionist Brotherhood" to, in his words, settle 100,000 Jewish refugees in Quebec in return for election financing.[35] Ultimately, Canada admitted 5,000 Jewish refugees during the Second World War. In contrast, the US welcomed 240,000, Britain 85,000, China 25,000, Argentina and Brazil over 25,000 each, and Mexico and Colombia received some 40,000 between them.[11] When Canadian immigration officials were asked how many Jews the country would admit after the war, their famous response was, “None is too many.”[36]

Measures were also employed to exclude "enemy aliens" during the Second World War, such as the internment of Japanese persons.[11] In February 1942 the government ordered the expulsion of some 22,000 Japanese Canadians from a 100-mile swath of the Pacific Coast. The majority were relocated in the interior of British Columbia, often in detention camps in isolated ghost towns. Japanese Canadians were forced to remain in these detention camps until the end of the war. Then, after the conclusion of hostilities, about 4,000 would surrender to pressure and leave Canada for Japan under the federal government's "repatriation" scheme. Of these, more than half were Canadian-born and two-thirds were Canadian citizens.[33] During the war, the British government also transported 2,500 "enemy aliens" to Canada. For the most part, these were German and Austrian nationals, many of them highly educated Jews, who had been living in Great Britain when the war erupted. Valerie Knowles describes their reception in Canada as follows:

The Canadian government agreed to receive these male civilian internees in the belief that it would be assisting hard-pressed Britain by accepting custody of a number of "potentially dangerous enemy aliens". Canadian authorities were therefore astonished to see a large assortment of teenage boys, university students, priests, and rabbis step ashore at Quebec. Despite their misgivings, however, the Canadians proceeded to place all in camps that resembled maximum security prisons. And it was here that scientists, theologians, musicians, teachers, artists, and writers, among others, would be forced to bide their time for months to come.[35]

Knowles notes that, fortunately for these prisoners, the British government soon realized that it had done a possibly grave injustice to many of the internees and initiated steps to have them released. In 1945, Canada reclassified these one-time prisoners as "Interned Refugees (Friendly Aliens) from the United Kingdom" and invited them to become Canadian citizens. 972 chose to do so.[37]

The founding of the UNHCR, negotiation of the Refugee Convention, and growing refugee intakeEdit

After the Second World War, the Canadian government began to receive more pressure both domestically and internationally to fulfill its humanitarian responsibility of hosting displaced persons.[38] There were over a million displaced persons and refugees in crowded shelters maintained by United Nations agencies in Europe. Some of these people were concentration camp survivors, others individuals who had been dispatched to labour camps in Germany and Austria, and still others were those refusing to be repatriated to Communist regimes.[39] Canada started by providing funding to the United Nations Relief and Rehabilitation Administration (UNRRA), which distributed about $4 billion worth of goods, food, medicine, and tools, at a time of severe global shortages, and also assisted displaced persons in returning to their home countries in Europe in 1945-46.[40] In 1946, the Canadian government signed an order-in-council that allowed Canadians to sponsor displaced family members in Europe.[41] In 1947, Canada began to enact additional ad-hoc agreements allowing displaced persons to enter the country in what was called the Displaced Persons Movement, which successfully resettled 186,154 refugees to Canada over the course of six years.[41] Many of these were referred by the International Refugee Organization[42] after its December 1946 creation, and still others were selected by Canadian immigration officers who were deployed overseas for the purposes of selecting from among the displaced persons.[43] When announcing the government's willingness to allow the movement of war survivors to Canada on May 1 1947, Prime Minister Mackenzie King articulated the government's position as follows: "It is not a 'fundamental human right' of any alien to enter Canada. It is a privilege. It is a matter of domestic policy. Immigration is subject to the control of the parliament of Canada."[44] This speech was also notable because it can be seen as the beginning of Canada accommodating the concept of human rights enshrined in the then-new United Nations Charter -- in deference to the UN Charter, Mackenzie King announced that the Chinese Immigration Act of 1923 would be repealed and that Chinese residents of Canada would be able to apply for naturalization.[45]

When the June 1950 termination date for International Refugee Organization arrived, refugees continued to abound in Europe. Indeed, they were increasingly arriving across Western European borders from the Eastern Bloc.[46] As a result, on December 14, 1950, the UN General Assembly formed the United Nations High Commissioner for Refugees (UNHCR) and gave it the mandate to provide for the protection of refugees and forcibly displaced people and assist in their voluntary repatriation, local assimilation, or resettlement to a third country.[47] At this point, the UNHCR was only meant to be temporary, with the UN General Assembly giving the organization a 3-year mandate to address the needs of displaced Europeans from the Second World War.[48]

The next year, the foundational treaty for modern refugee protection, the 1951 United Nations Convention Relating to the Status of Refugees, emerged on July 28, 1951 from negotiations spearheaded by the UNHCR. This treaty sought to deal with situations arising immediately after World War II, and by its terms was limited to persons who became refugees before January 1, 1951.[49] During the drafting of the Convention, Canada was seen to be a leader in its creation: Canada was one of twenty-six countries to send a delegate to participate in the UN Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons which negotiated the Convention,[21] it was a part of the working group vested with the responsibility of drafting the definition of a refugee in Art. 1 of the Convention, and it was the country in the Americas that presented the most proposals during the process of drafting the Convention, voicing comments during discussions that were otherwise dominated by the European States.[50] Canadian chairman Leslie Chance reported “we have been regarded throughout as taking a forward attitude.”[51] As an aside, Chance's statement could be regarded as somewhat self-serving given the shifting positions Canada took at the conference, for example arguing, contra France and the United Kingdom, for the inclusion of temporal and geographical limitations in the Convention, prior to flipping that position and arguing against such restrictions.[52] In any event, Canada did ultimately advocate at the conference "in favour of the widest possible definition" given that, in its words at the time, "The purpose of the Convention was to protect refugees, not States."[53]

In 1951, Canada declined to ratify the resultant Convention. By way of explanation, then Secretary of State for External Affairs Lester B. Pearson announced the government was concerned that the Convention would give the refugee “the right to be represented in the hearing of his appeal against deportation” and, further, that the Convention would “grant rights to communists or to other persons who believed in the destruction of fundamental human rights and freedoms.”[51] Without Canada, the Refugee Convention entered into force on April 22, 1954.[54] Despite not signing the convention, Canada financially supported the UNHCR from its establishment[42] and in 1959, began to sit on the then-new UNHCR Executive Committee, an advisory body of states that gives guidance to the High Commissioner.[55]

In the years following the UNHCR's creation, Canada also allowed for refugee entry on an ad-hoc basis, ranging from small groups, such as when Canada admitted 39 Palestinian families in the wake of the displacement occasioned by the founding of the State of Israel,[56] to larger movements, including the 37,000 Hungarian refugees Canada admitted following the Hungarian Revolution in 1956.[57] By 1962, Canada had also admitted nearly 250,000 displaced persons from Europe,[58] many of whose journeys to Canada had been subsidized by a Canadian government seeking to recruit more workers for a booming economy.[59] That said, Canada's overall immigration laws continued to restrict manner persons for reasons of race, class, and health, and "national security" concerns, related to the fear of communism, were used to reject more than 29,000 applications to enter Canada between 1946 and 1958.[58]

Non-discrimination measures and Canada's ratification of the Refugee ConventionEdit

By the 1960s, values were changing across Canada, and around the world, and Canada’s racially based, Eurocentric approach to immigration and refugee policy was becoming less and less aligned with how the country both viewed itself and wished itself to be seen. Further, this race-based approach clearly contradicted the then-new Canadian Bill of Rights.[60] Canada began to see repeated liberalizations of who it was prepared to admit, for example admitting 325 tubercular refugees and their families around 1960, the first time that Canada had waived its health requirements for refugees.[17] In 1962, Prime Minister Diefenbaker's Immigration Minister tabled new regulations in the House that eliminated racial discrimination as a major feature of Canada's immigration policy. With this revision, historian Valerie Knowles states that the last vestige of discrimination which remained in the regulation was a provision that allowed European immigrations and immigrants from the Americas to sponsor a wider range of relatives, something that was inserted at the last moment because of a fear that there would be an influx of sponsorships by persons from India.[61] Then, in 1966 Lester B. Pearson's government created the Department of Manpower and Immigration and mandated it with the responsibility of processing refugees without “discrimination by race, country or religion”.[51] That department set to work and in 1967 all vestiges of discrimination were removed from the immigration regulations, if not the statutes themselves, and the government implemented its much-vaunted 'points system' in the regulations to guide the selection of many categories of immigrants.[22]

In the late 1960s, negotiations were underway to expand the temporal and geographic scope of the 1951 Refugee Convention. As articulated by the UNHCR, one of the motivations behind this initiative was to ensure that the de facto racial distinctions built into the 1951 Convention yielded to a growing postcolonial zeitgeist:

The Convention had led to an unfortunate discrimination among the different groups of refugees, in particular with regard to the African refugees. Such discrimination conflicted with the Statute of his Office and was contrary to the universal spirit of the Convention itself.[62]

Canada refused to commit to the initiative to negotiate a protocol to the Refugee Convention while it was preparing what it termed its White Paper on Immigration.[63] In 1966, the government released the White Paper in order to, in researcher Clare Glassco's words, "test the waters" for making more fundamental changes to the immigration regime. Among many initiatives, the White Paper committed to the establishment of an immigration admissions policy that was free from discrimination on the grounds of race, religion, or ethnicity. Further, the Paper proposed both the introduction of a refugee determination process within Canada’s borders, as well as the ratification of the 1951 UN Refugee Convention. As immigration official E.P. Beasley noted in 1966, in reference to the need for a clear refugee policy, in his view Canada had “become a country of first asylum,” and, thus, “the time may have come to set forth in legislation machinery and a methodology for determining these individual cases more precisely and more fairly.”[64] The concept of a "first country of asylum" in this context refers to a situation where Canada is the first country that grants protection to an individual, as opposed to resettling individuals who have already found effective protection elsewhere.[65] Canada was increasingly seeing itself as a country of first asylum as Cold War crises caused thousands to seek safe haven in the West.[21]

In 1969 Canada ratified the Convention Relating to the Status of Refugees (signed at Geneva in 1951) as well as the Protocol Relating to the Status of Refugees (signed at New York in 1967),[66] which extended the territorial and temporal scope of the Refugee Convention to cover refugees outside of Europe and those displaced for newly emerging reasons.[67] Despite these ratifications, no statute-based, official refugee policy existed in Canada until the implementation of the 1976 Immigration Act.[68] Instead, Canada issued a “Guideline for Determination of Refugee Status” in 1970 to give immigration officers criteria for selecting refugees overseas.[69] In 1973, the Canadian government established its first formal administrative structure to deal with refugee claimants. An interdepartmental committee comprised of representatives from the Departments of External Affairs and Manpower and Immigration met to assess individual claims and forward their recommendations to the Minister of Manpower and Immigration who had the authority to decide whether a refugee claimant would remain in Canada or be deported.[21] At this point, inland claims occurred at the level of hundreds per year. Individual orders-in-council granted a person status in Canada at the minister’s discretion and were based in part on humanitarian, economic, and political considerations.[21]

Founding of the Immigration Appeal BoardEdit

In 1967, the Immigration Appeal Board Act was passed, giving anyone ordered deported the right to appeal to the Board on grounds of law or compassion.[17] This Board had emerged from what was called the Sedgwick Report, drawn up by Joseph Sedgwick, Q.C., a one-man board of inquiry which had been commissioned by the government to study a series of highly controversial deportations. Chief among the recommendations was the establishment of a completely independent immigration appeal board.[70] Almost immediately, the Board was swamped with a backlog that, at existing case processing rates, it was expected to take more than 20 years to go through.[71] As a result, in 1973 the government amended the Immigration Appeal Board Act to abolish the universal right of appeal for all persons in Canada. In order to clear the backlog, the government also instituted a one-time amnesty program, which more than 39,00 people available themselves of, including a significant number of US draft dodgers.[72]

1976 Immigration ActEdit

The revised Immigration Act introduced into Parliament in 1976, and brought into force two years later, was a watershed moment for Canadian immigration policy. It overhauled the statute for the first time more than two decades, expunged the last vestiges of open discrimination in the statute, for example by lifting a ban prohibiting gay men and women from immigrating,[21] and, after a broad national debate, introduced a series of objectives into the statute which largely remain to this day. It was with the introduction of the 1976 Immigration Act into Parliament that the government reinforced its willingness to assume its international share in refugee resettlement.[30] It was this legislation that also incorporated Canada's Refugee Convention obligations into domestic law.[73] The refugee status determination program that the legislation created for asylum seekers already within or arriving in Canada set up a new process where the claims began to be decided by the Minister of Immigration. The program was very small: it processed only a few hundred claims per year throughout the late 1970s, mostly in the form of paper applications.[74] In the year that the revised Immigration Act came into force, for example, 4,130 refugees were admitted to Canada, all of whom were fleeing communism.[75] The system did include limited appeal rights to the Immigration Appeal Board;[76] under this system, in its last year of operation, about nine percent of claimants determined by the Minister not to be refugees were determined by the Board to be refugees.[77]

At the same time that Canada incorporated its obligations under these international treaties into domestic law, a series of (ultimately fruitless) international efforts to expand the scope of those treaties were underway. In 1967 the United Nations adopted a Declaration on Territorial Asylum[78] which provided, in Article 3, that no person entitled to invoke Article 14 of the Universal Declaration of Human Rights should be subjected to measures such as rejection at the frontier. A conference was then held in 1977 to embody this and other provisions in a revised convention, a proposed UN Convention on Territorial Asylum,[79] and while a draft was produced,[80] the conference ended in failure.[81]

In the 1970s, most refugees that Canada accepted came via overseas resettlement, not an in-Canada asylum process. In the early 1970s Canada accepted its first non-European refugees by resettling a group of 228 Tibetan refugees and developing a “Tibetan Refugee Program” to host them.[82] Tibetan refugee hosting opened the doorway to other refugee resettlement, as Canada accepted about 7,000 ethnic South Asians expelled from Uganda under the dictatorship of Idi Amin in 1972-73, 7,000 Chilean refugees fleeing Pinochet’s regime in 1973, and about 10,000 Lebanese refugees fleeing the Lebanese Civil War between 1975 and 1978.[83] In the 1970s, the U.S. was the largest source country of immigration, in part because of the large numbers of draft dodgers and deserters unwilling to fight in Vietnam who found refuge in Canada.[17] Historian Valerie Knowles states that it is impossible to arrive at hard numbers for the number of draft resister and deserters who escaped to Canada during the Vietnam War, but estimates range from 30,000-40,000 from the Canadian Council for Refugees to between 80,000-200,000 according to Mark Fruitkin, a "draft resister" and author.[84] Later that decade, from 1978 and 1981, 60,000 refugees from Southeast Asia were accepted - a figure that represents 25 percent of the number of immigrants admitted in these years.[58]

That said, decisions to accept these groups of individuals were ad-hoc and highly political; for example, fearing that most of the Chilean political refugees were too left wing, and not wishing to alienate either the American or new Chilean administrations, the Canadian government restricted the numbers, which is what limited Canada to only accepting about 7,000 Chileans during that 30-year conflict.[11] Similarly, while Canada accepted some Ugandan Asian refugees, there was marked public opposition to the move, with a poll in 1972 indicating that only 45 percent of Canadians approved of the government's decision; some in the government came to view that this initiative cost the government seats in that year's election.[85] To address demands from civil society to have more of a role in refugee sponsorship, and criticism about government refugee sponsorship decisions, in 1978 Canada established a Private Sponsorship Program through which citizens could assist fully or partially in privately sponsoring new refugees.[86]

Founding of the Immigration and Refugee BoardEdit

The background to the creation of the Immigration and Refugee Board of Canada lies in the growing number of refugee claims that were being made during the 1980s. Rebecca Hamlin states that Canada signed the above-noted international treaties making commitments to refugee protection before it began to consider itself to be a country of first asylum and before asylum seekers started coming to its shores in significant numbers.[87] In 1980 Canada received what today looks like a very modest 1,488 refugee claims.[76] By the middle of the 1980s, however, such a large number of people were making in-country asylum claims that the system had become completely overloaded, with 8,260 claims being made in 1985.[76] This increase in Canada mirrored similar increases elsewhere in the world, for example, while in 1976 Western European nations received 20,000 asylum seekers, in 1980 there were 158,000 such applicants and by 1986, more than 200,000 annually.[88]

In response to these growing numbers, as well as concerns about political interests potentially affecting decision-making on claims, in 1982 decision-making was transferred to the newly created Refugee Status Advisory Committee.[89] This system involved only written submissions, assessed by the committee in private, with the committee ultimately making recommendations to the Minister of Immigration,[90] although in 1983 having an oral hearing began as a pilot project in Toronto and Montreal.[21] The government also commissioned a series of major studies, specifically the Robertson Report (1983) entitled Illegal Migrants in Canada, the Ratushny Report (1984) entitled A New Refugee Status Determination Process for Canada, and a report by Rabbi Gunther Plaut (1985) entitled Refugee Determination in Canada, to recommend approaches for a new asylum determination system that would address both the need to be heard, and balance the competing interests of fairness and efficiency.[76] This impetus for change was bolstered by a 1985 decision from the Supreme Court of Canada, Singh, which established that where the credibility of a claimant is at stake, an oral hearing before the then-Immigration Appeal Board must be held. The Singh decision is often seen as a watershed that enforced Canadian Charter of Rights and Freedoms protections for migrants on arrival on Canadian soil, thereby requiring an overhaul of the then-extant refugee determination process to ensure that fair oral hearings started to be offered.[76] At the same time, concerns about the integrity of the then-extant system were being expressed; for example, in their 1988 platform, the Reform Party invoked what has been labelled "inflammatory language" about "immigration abuses, bogus refugees, [and] improper selection of immigrants".[91]

The Canadian government of the day proposed a tribunal model for the new asylum system. The relevant legislation, Bill C-55, or the Refugee Reform Act, was introduced in the House of Commons in 1986. There was lengthy debate about the legislation and it was not passed until 1988.[76] One concern raised by civil society about the bill was with the Safe Third Country Regime that it introduced. In response to public criticism of the Safe Third Country Regime, Barbara McDougall, who as then minister of employment and immigration, came to entertain apprehensions regarding the United States as she was persuaded that the US might send refugee claimants deported from Canada back to Central America where their lives would be in jeopardy. As a result, she announced in December 1988 that she was "prepared to proceed with no country on the safe third country list ... We think the new system will be able to function without it."[92] The Immigration and Refugee Board of Canada was the body that emerged in order to constitute a fresh start for asylum policy-making. It came into existence as an independent administrative tribunal on January 1, 1989 with 115 members.[93] At that time, it consisted of only two divisions: the Convention Refugee Determination Division and the Immigration Appeal Division. Gordon Fairweather, a former Attorney General of New Brunswick and the first Chief Commissioner of the Canadian Human Rights Commission, was appointed the first Chairman of the IRB.[21]

As part of the transition to the new system, the government instituted a one-time expedited review program that amounted to a general amnesty for people with pending asylum applications. While under the previous system, overall, 30% of applicants had been accepted,[94] under the expedited review program, acceptance rates were much higher - approximately 85% of the 28,000 applicants processed in 1986, for example, were accepted. The amnesty was designed to clear the decks and allow for a fresh start in asylum policy-making.[74] It essentially amounted to an amnesty for refugee claimants who had entered Canada before 21 May 1986 where individuals were permitted to stay in Canada and become permanent residents if they were already employed or likely to secure employment in the near future and had no medical, security, or criminal concerns.[21]

Growing numbers of claims and increased resourcesEdit

Increasing numbers of claims and resourcesEdit

Since the Board's 1989 founding, the number of people making refugee claims has increased greatly, both in Canada and internationally. Looking at the numbers globally, during decade of the 1980s, there were 2.3 million applications for asylum lodged worldwide, mostly in western Europe, the United States, and Canada. During the 1990s, this number grew to 6.1 million applications filed, and the list of receiving nations grew to include Australia, New Zealand, Scandinavia, and southern Europe. During the 2000s, there were 5.5 million new applications filed worldwide, and countries such as Ireland, Greece, Poland, and South Africa became popular new destinations.[95] Today, roughly one million individuals apply for asylum globally each year,[96] with those classified as refugees representing 7–8 per cent of the global migrant population.[97] Similarly, in Canada, while the volume of new claims has gone through cycles, volume has trended upwards over time. Since the inception of the IRB in 1989, three notable case decision backlogs have occurred: in 2002 with over 57,000 claims, in 2009 with over 62,000 pending claims,[98] and post-2017, where the Board has 90,000 claims awaiting decision.[99] The resources dedicated worldwide to Refugee Status Determination (RSD) are appropriately described as "immense". For example, although exact figures are difficult to determine, academics note that it is likely that the combined cost of RSD performed by states and UNHCR approaches or exceeds the total cost of direct humanitarian assistance provided to refugees by UNHCR.[100] Hathaway has estimated that the Global North alone spends $10 billion on RSD, a number which is a scale of magnitude larger than UNHCR’s budget and exceeds even total UN expenditures.[101] At the same time as the IRB has been operating, Canada has continued its overseas resettlement programs for refugees and has had the capacity to scale these initiatives up when crisis have occurred, for example when the former Yugoslavia was imploding in 1991-92, Canada fast tracked the admission of more than 25,000 refugees from Bosnia.[102]

Processes at the Board have varied and evolved since the IRB's founding, often in response to claim backlogs and perceived crisis situations. For example, in the late 1980s, Bill C-84, the Refugee Deterrents and Detention Act, came into force.[103] The law emerged when the federal government recalled Parliament for an emergency session to amend the Immigration Act after 174 Sikh persons arrived by lifeboat near the fishing village of Charlesville, Nova Scotia.[21] Bill C-86, passed by the Senate in December 1992, transferred authority previously exercised by Board Members to senior immigration officers who were able to decide if an applicant was eligible to claim refugee status.[104] Also, the Canadian refugee system used to have a screening process designed to eliminate claims with “no credible basis” but it was abandoned in 1993 as an efficiency measure.[105] Another efficiency measure that was implemented at the time of the IRB's founding was that refugee claimants no longer had the ability to appeal a refusal of their claim under this revised system. This aspect of the new process that was much criticized by legal counsel for refugees at the time.[106] That said, during the 1990s, refugee claimants appeared before panels of two decision-makers, only one of whom needed to accept their claim for their application to be successful (a cost-saving initiative announced in March 1995 to move to one-person panels was not implemented until the next decade).[107] Furthermore, unsuccessful refugee claimants were able to apply for post-determination review by an immigration official to evaluate whether removal would result in compelling personal risk. This review assessed "risk to life, inhumane treatment, or extreme sanctions," and could provide protection to persons not covered by the 1951 Convention and Protocol.[108] Approximately 2-3% of such applications were accepted.[109] As discussed below, this process eventually became the foundation for what is now s. 97 of the IRPA.

Broader interpretations of the refugee definitionEdit

Canada's interpretation of the Refugee Convention was marked by an expansive and progressive turn by the newfound Immigration and Refugee Board. In 1991, Canada became one of the first countries in the world to recognize sexual orientation-related persecution as a basis for claiming asylum.[110] Canada then issued guidelines on the handling of gender-based asylum claims in 1993, something that was associated with a growing acceptance of claims related to gender-based persecution.[111] In 1996, the IRB adopted guidelines on child refugee claimants, reportedly the first such policy initiative of its kind adopted by any State system.[112] Much later, in May 2017, the Board, for the first time, implemented guidelines on the adjudication of claims involving Sexual Orientation and Gender Identity and Expression (SOGIE).[113]

Deterrence and Restrictive MeasuresEdit

Bríd Ní Ghráinne writes that as refugee numbers have grown, and have come from further afield, and concomitant RSD costs have increased, states have begun to employ increasingly "creative" means to constrain refugee flows and restrict the number of individuals they recognize as refugees.[114] Such measures have included curtailing the entry of refugees onto their territories through what she terms “relatively invisible—and hence politically expedient—non-entrée measures”[114] such as the following, which have been deployed by Canada to an increasing extent in recent decades:

  • Restrictive Visa Policies: Limited access to visas for entry into Canada restricts access to the asylum process.[113]
  • Carrier sanctions: Carrier sanctions refer to obligations placed on airlines and other transportation services to take care that they not transport anybody without a visa, if they are required to have one.[115]
  • Biometric requirements: In the early 1990s, the Mulroney government introduced a requirement that asylum applicants be fingerprinted.[116]
  • First country of asylum principles: Canadian immigration legislation has permitted the designation of safe countries since 1998.[117] This provision has been used to authorize the safe third country agreement between Canada and the United States.
  • Stricter port-of-entry interviews and security screening: In the early 1990s, the Mulroney government introduced deterrence measures design to push down the number of refugee claims, including stricter port-of-entry interviews.[116] Then, in the wake of the 9/11 attacks, the then Immigration Minister announced that there would be much greater utilization of the strategy of "Front-End Security Screening" (FESS) of refugees as they arrive in Canada.[118]
  • Returning boats at sea: For example, in 1998 Canadian officials arranged for the interception by the Senegalese navy of a boat carrying 192 Tamil persons from Sri Lanka, individuals who were then returned to Colombo.[119]
  • Limitations on appeal: In the early 1990s, the Mulroney government introduced limitations on the ability to appeal decisions.[116] To this day, there are a number of restrictions on the ability to appeal negative decisions, including that claims by designated foreign nationals (DFNs) do not have a right of appeal.[120]
  • Stricter enforcement: CBSA employees called migration integrity officers work overseas, ensuring that individuals who are travelling to Canada have proper travel documentation.[121] Canada's interdiction programs abroad are a component of what is termed its Multiple Borders Strategy (MBS). Under the MBS, liaison officers are tasked with preventing persons who lack Canadian authorization or other required documents from boarding planes or boats bound for Canada.[122] In 2012 the government reported that there were 63 such officers in 49 locations worldwide.[123] Between 2001 and 2014, such liaison officers intercepted over 86,000 persons offshore.[124]
  • Restrictions on employment for claimants: In the early 1990s, the government prevented refugee claimants from working. This was changed later in the 1990s.

Rebecca Hamlin situates the rise of this regime to deter asylum claims in the following way: "the rise of the regime of deterrence is, in part, a story of unintended consequences, because international commitments made by each country in a particular political moment came back to haunt future generations of policymakers. Had these countries' leaders anticipated the financial, security, and political challenges of the present-day situation, they might not have been as willing to make commitments that, at the time, were largely an abstraction."[87]

The 2002 move from the Immigration Act to the IRPAEdit

In the late 1990s, the federal government began a process to overhaul the then-Immigration Act, including with a lengthy public consultation period.[125] It commissioned a report entitled Not just numbers: a Canadian framework for future immigration which set out priorities for the system. The resulting Immigration and Refugee Protection Act (“IRPA”) was an entirely new statute and represented the first complete revision of immigration legislation in Canada since 1978.[126] The shift from the Immigration Act to the IRPA in June 2002 marked a new era of asylum policy in Canada - one that has been described as being focused on relieving administrative burdens. In the drafting and development of the IRPA, considerable public attention had been devoted to the question of whether to have one act governing immigration matters and a separate act governing refugee law. The idea, motivated by concern about the fundamental differences between immigration and refugee law, was ultimately rejected; however, the Act's new title and the establishment of a separate division of the legislation devoted to refugees reflect this concern.[127] Highlights of the new legislative framework include the following:

  • Creation of the RAD: The IRPA created the Refugee Appeal Division (RAD), which would review negative decisions on their merits, though this took ten years to fully implement.[128] Specifically, after the Act was passed, Citizenship and Immigration Canada announced that as a result of “pressures on the system” implementation of the RAD would be delayed.[129]
  • Shift from the CRDD to the RPD: The Convention Refugee Determination Division (CRDD) became the Refugee Protection Division (RPD), to reflect the fact that it now had jurisdiction over the consolidated grounds for refugee protection and, because the IRB backlog was a huge concern, the staff time required to support the RAD was created through a shift from two-member panels to single-member hearings so that half the number of Board members would be required for each case.[130]
  • Consoliated grounds for refugee protection: The IRPA also expanded the categories of persons who are entitled to refugee protection. Under the former immigration legislation, the only category of person who was clearly entitled to protection was a person who fell within the definition of “Convention refugee”. IRPA expanded the scope of coverage to include persons who are at risk of torture and to persons who are at risk of cruel and inhumane treatment upon deportation to their country of nationality or former habitual residence.[131] Canada had ratified the Convention against Torture on June 24, 1987, but did not implement it directly in Canadian domestic law until this point.[132] Rebecca Hamlin writes that there is no evidence to suggest that Parliament considered the introduction of s. 97 to be monumental when it discussed IRPA before voting on it in 2002. When the bill was being debated, Minister of Citizenship and Immigration Elinor Caplan assured members of Parliament the IRPA "gives us the ability to streamline our procedures, so that those who are in genuine need of our protection will be welcomed in Canada more quickly and those who are not in need of protection will be able to be removed more quickly. That streamlining is extremely important."[133] Immediately after IRPA went into force, the IRB Legal Services division produced a lengthy guide for decision makers on how to make Section 97 decisions; the guide states that these decisions were subsumed under the IRB mandate to avoid the "delays and inconsistencies" of the previous "fragmented" and "multilayered approach".[133]
  • PRRA: The IRPA transitioned from the Post-Determination Refugee Claimants in Canada Class (PDRCC) to the Pre-Removal Risk Assessment (PRRA) process.[134] When the government announced the creation of CBSA in 2003, originally the plan was to transfer PRRA responsibility to them, but in the wake of pressure from NGOs, PRRA responsibility remained with Citizenship and Immigration Canada.[135]
  • Increased security provisions: Sharryn Aiken, et. al., write that the most significant shift signalled by the IRPA is that it demonstrates a marked security turn in Canadian immigration law. They note that "this is hardly surprising in legislation that was passed in the immediate aftermath of the September 11, 2001 attacks in the United States.[125]

Over the next decade, there were several attempts by some members of Parliament to pass another act forcing the implementation of the RAD, including a very near success in summer 2008.[136]

Safe Third Country AgreementEdit

A provision for safe third country agreements was included in Canada's Immigration Act in the 1980s. Canada attempted to negotiate such an agreement with the United States in the decades following, and it was only in the wake of 9/11 that Canada was able to successfully conclude such an agreement.[137] Specifically, on December 5, 2002, Canada signed its Safe Third Country Agreement (STCA) with the United States.[138] That agreement came into effect on December 29, 2004 when the hitherto dormant safe third country regime in Canada's immigration legislation was first utilized.[139] The immediate impact of the STCA was to significantly lower the number of inland refugee claims in Canada; there was a 40 percent drp in claims made at the Canada-US border after the agreement came into effect. This trend, however, did not last.[140]

2010 and 2012 refugee reformEdit

Two pieces of legislation made significant changes to the refugee system in 2010 and 212, the Balanced Refugee Reform Act (2010) and the Protecting Canada’s Immigration System Act (2012). As Neil Yeates describes it, the thrust of these reforms was for faster processing of claims, with a view that bona fide claimants would be more quickly approved, and failed claimants, after access to the new Refugee Appeal Division (RAD) of the IRB, would be more quickly removed from Canada.[141] Various changes were made to assist this, including:

  • Legislated timelines for hearings.
  • Implementation of the Refugee Appeal Division (RAD). As part of this reform, the RAD came into being on December 15, 2012.[142]
  • Public servant decision-makers: Shifting from Governor-in-Council appointees to public servants as first-level decision makers at the IRB’s Refugee Protection Division. The shift away from Governor-in-Council appointees reflected a key recommendation from the government's own immigration-law advisory committee, namely that qualified public servants should be named to the Immigration and Refugee Board, not political appointees.[143]
  • Creating a list of Designated Countries of Origin (DCOs), countries that were not generally considered to be refugee-producing, and where claimants therefrom consequently received an expedited hearing.[144] The Designated Country of Origin list was introduced in 2012 by the Conservative government as part of the Protecting Canada’s Immigration System Act. The implications for asylum seekers coming from DCOs included an expedited Immigration and Refugee Board (IRB) hearing process with shortened timelines, no access to the Refugee Appeal Division, no automatic stay of removal for failed claimants, and no eligibility for a work permit or associated benefits while awaiting a decision on their claim. Designation as a safe country was dependent on a combination of qualitative observations about countries’ levels of democratic process and human rights records and two quantitative thresholds, including when 75 percent or more of previous claims by nationals of a country had been rejected by the IRB or 60 percent or more of previous claims by nationals of a country had been withdrawn. The initial DCO list included 25 countries and was eventually expanded to include 42 countries.[145]
  • The IRB doing PRRA: The Balanced Refugee Reform Act also transferred authority over the PRRA from the Minister to the IRB, although this transfer has never actually been brought into force.[146]
  • Limitations on the Interim Federal Health Program: A strategy to create disincentives for refugee claimants to come to Canada was a 2012 policy decision to cut access to health care for some categories of claimants.[147] This policy was declared unconstitutional by the Federal Court in 2015, with the court concluding that the resultant regime amounted to "cruel and unusual treatment" prohibited by the Canadian Charter of Rights and Freedoms.[59]

The current version of the Refugee Protection Division rules came into force on October 26, 2012 following the coming-into-force of this legislation.[148] The Immigration and Refugee Board, in its public comments, emphasized these rules and the importance of decisions being guided by them. This aligned with comments at the time from the Immigration Minister Jason Kenney of this sort: "I think most Canadians intuitively understand that broad public support for immigration, and, frankly, diversity in our society is contingent on having a well-managed, rules-based, fair immigration system. I think they understand that we all have a stake in maintaining such a system".[91]

Irregular Border Crossing ControversyEdit

The number of asylum claims worldwide has grown in recent years; as of 2018 there were 3.5 million asylum seekers in the world.[149] Canada launched a program to resettle more than 25,000 Syrian refugees in 2015. The issue of persons crossing irregularly from the United States into Canada later became a significant political issue starting around 2017 and has continued in years subsequent.[91] Such crossings occurred primarily at Roxham Road on the Quebec-New York border and Emerson, Manitoba. Since 2017 more than 59,000 people have crossed the Canada-US border in an irregular manner and claimed asylum in Canada,[150] including 20,593 claimants in 2017, 19,419 claimants in 2018, and then 16,077 claimants in 2019.[150] In their 2019 platform, the Conservative Party of Canada reiterated a commitment to prioritizing "economic migration" and favouring those facing "true persecution" over "bogus" refugee claimants.[91]

Elimination of Designated Countries of Origin (DCO) ListEdit

On May 17, 2019, following a Federal Court ruling in which specific provisions of the DCO policy were struck down for not complying with the Canadian Charter of Rights and Freedoms, the Government of Canada announced that it would remove all countries from the DCO list.[145]

Eligibility for claimants who have claimed in other "Five Eyes" countriesEdit

In April 2019, amendments were made to the Immigration and Refugee Protection Act in Bill C-97, the Budget Implementation Act. These changes introduced new grounds of ineligibility for refugee claimants where a person is ineligible to make a refugee claim in Canada if they have previously requested asylum in a country with which Canada has an information-sharing agreement or arrangement. In practice this means that if they made a previous claim in the United States, United Kingdom, Australia, or New Zealand they are ineligible to claim refugee status in Canada via the Immigration and Refugee Board. Idil Atak describes this omnibus Bill as having been "adopted hastily in the lead-up to the 2019 federal election" as part of the government's measures to respond to the irregular border crossing controversy.[151] Those found to be ineligible to make a claim to the IRB submit applications for a pre-removal risk assessment instead.[152]

Covid-19Edit

In 2020, and in response to the Covid-19 virus, the Canadian government announced that all claimants arriving outside ports of entry would be screened for the virus and then quarantined if the test results were positive. The Canadian government changed its position days later, announcing that all claimants would be deflected back into the United States.[153] As part of this, the two countries reached a temporary agreement which allows Canada to send back to the US individuals entering Canada from the US to make an asylum claim.[154] The agreement applies between official ports of entry along the land border and at air and marine ports of entry. The Refugee Protection Division also shut down all hearings for several months as a result of the pandemic.

ReferencesEdit

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  23. Valerie Knowles, Strangers at Our Gates: Canadian Immigration and Immigration Policy, 1540-2015, March 2016, ISBN 978-1-45973-285-8, Dundurn Press: Toronto, p. 135.
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  27. Kaprielian-Churchill, I. (1994). Rejecting “Misfits:” Canada and the Nansen Passport. International Migration Review, 28(2), 281–306. https://doi.org/10.1177/019791839402800203 at page 284.
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  151. Idil Atak, Zainab Abu Alrob, Claire Ellis, Expanding refugee ineligibility: Canada’s response to secondary refugee movements, Journal of Refugee Studies, 14 December 2020, https://doi-org.ezproxy.library.yorku.ca/10.1093/jrs/feaa103 at page 2.
  152. Chantel Spade & Tearney McDermott, ‘Safe’ countries and ‘fraudulent’ refugees: Tools for narrowing access to Canada’s refugee system, Spotlight on Migration No. 2020/4, August 2020, Ryerson Centre for Immigration and Settlement (RCIS), <https://www.ryerson.ca/content/dam/centre-for-immigration-and-settlement/RCIS/publications/spotlightonmigration/2020_4_Spade_Chantel_McDermott_Tearney_Safe_countries_and_fraudulent_refugees_Tools_for_narrowing_access_to_Canada’s_refugee_system.pdf> (Accessed September 13, 2020), page 4 of PDF.
  153. Sharryn Aiken, et al, Immigration and Refugee Law: Cases, Materials, and Commentary (Third Edition), Jan. 1 2020, Emond, ISBN: 1772556319, at page 913.
  154. Idil Atak, Zainab Abu Alrob, Claire Ellis, Expanding refugee ineligibility: Canada’s response to secondary refugee movements, Journal of Refugee Studies, 14 December 2020, https://doi-org.ezproxy.library.yorku.ca/10.1093/jrs/feaa103 at page 7.

Procedural Fairness and Natural JusticeEdit

Principles for the interpretation of refugee procedureEdit

Fundamental justice requires that a tribunal which adjudicates upon rights must act fairly, in good faith, without bias and in a judicial temper, and must give the opportunity for parties to adequately state their case.[1] The standards of conduct for the Board are fundamentally based on and recognize two principles: (i) that public confidence and trust in the integrity, objectivity and impartiality of the IRB must be conserved and enhanced; and (ii) that independence in decision-making is required.[2] This section of the book will explore the principles that have been used when interpreting these requirements in the refugee context.

Procedural fairness interpretation principles as derived from caselawEdit

The following are some of the principal principles regarding the interpretation and application of procedural fairness as they have emerged in the refugee context caselaw:

Principles about the expectations that one reasonably has of the BoardEdit

  • A high duty of procedural fairness is owed in the refugee context. The court has stated that “The independence of the Board, its adjudicative procedure and functions, and the fact that its decisions affect the Charter rights of claimants, indicate that the content of the duty of fairness owed by the Board, including the duty of impartiality, falls at the high end of the continuum of procedural fairness.”[3] This obligation arises not only from Canada’s domestic administrative law, but also from Canada’s international commitments and obligations; in Agiza v. Sweden, the UN Committee against Torture found that article 3 of the CAT carries with it an implicit right to an ‘effective, independent and impartial review of a decision to expel’.[4] The Board's duty of fairness is also said to be heightened when it is dealing with self-represented claimants: Canadian Refugee Procedure/Counsel of Record#The Board has a heightened duty of procedural fairness when dealing with self-represented claimants.
  • The tribunal and its procedures should be as accessible as possible.[5]
  • The Board’s procedures should be predictable. The basic principles of equal protection and due process reflected in the American Declaration of the Rights and Duties of Man require predictable procedures.[6] Canada’s position is that it implements the relevant parts of the American Declaration using the standards and procedures of the IRPA.[7] Similarly, UNHCR states in its Procedural Standards for Refugee Status Determination that "RSD applications must be processed pursuant to transparent and fair procedures".[8]
  • It is not the Board's role to provide legal advice to claimants. In Sundaram v. Canada the Federal Court stated that it was "not prepared to read into the immigration scheme an obligation on officials to give advice on practice and procedures. The situation of giving advice is markedly different from those Court decisions which have held that officials must provide prospective applicants with the necessary forms. People are entitled to government forms; they are not entitled to receive free legal advice from RPD officials."[9] Put another way, "it is not the obligation of the Board to 'teach' the Applicant the law on a particular matter involving his or her claim".[10]
  • The Board must not fault parties for its own deficiencies. For example, in Huseen v. Canada, the government pointed out that the IRB Office in Toronto only received a venue change request one day before the abandonment hearing. The court commented "this speaks to the internal communications between regional offices at the IRB, as the Calgary IRB office was handed the change of venue request, in person, about three weeks prior. It would be unfair to fault the Applicants for the Board’s delay in internal communications, over which the Applicants had no control or influence."[11]
  • Decision-makers should prepare thoroughly. The Code of Conduct for Members of the Immigration and Refugee Board of Canada provides that "Members shall make each decision on the merits of the case, based on thorough preparation, the assessment of evidence properly before the member and the application of the relevant law."[12]
  • Decision-makers should consider all of the evidence before them. There exists a presumption in Canadian refugee law that decision-makers have considered all of the evidence before them.[13] The more important the information, particularly where it contradicts a finding being made, the more the requirement that it explicitly be referred to and distinguished in the reasons provided. This requires time. Asylum cases are said to be ‘highly fact intensive and depend upon presentation and consideration of numerous details and documents which can take no small amount of time.[14] Evidence from previous social psychology studies of judging suggests a relationship between time taken and accuracy. Judges with higher caseloads have been found to be more likely to make inaccurate decisions, as they rely less on deliberative reasoning and careful processing of information and more on their gut feeling and intuition.[15] But see: Canadian Refugee Procedure/The Board's inquisitorial mandate#The Board should consider the most up-to-date country conditions evidence.

Principles about the expectations that one reasonably has of claimants and counselEdit

  • Parties are responsible for their own files. The Federal Court has noted that there exists "[abundant case law] to the effect that the applicants are responsible for their files and cannot use their own wrongdoing as a means to justify fatal omissions, procedural though they may be."[16] While "a failure to comply with procedural obligations does not automatically disqualify a claimant from relief on fairness grounds, [] at some point a claimant will be considered the author of their own misfortune."[17]
  • Claimants may be expected to submit asylum claims promptly. Article 31 of the Refugee Convention provides that states shall not impose penalties on asylum seekers, but only if they present themselves to authorities without delay: "The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence."[18] Similarly, Canada's Federal Court has noted that claimants may be expected to submit asylum claims promptly: "refugees and asylum-seekers have duties and obligations to respect national laws and measures to maintain public order, including obligations to cooperate with the asylum process, which may include presenting themselves to authorities and submitting asylum claims promptly".[19]
  • Parties should be aware of the information on file. The Board Policy on National Documentation Packages in Refugee Determination Proceedings states that "the RPD provides the parties with information as to where the [National Documentation Package] can be found on the Board's website, and it is the parties' responsibility to check the IRB website for the newest version of the relevant NDP(s) prior to their hearing."[20] This is also stated in the Important Instructions claimants receive when they make their claim: “You should also check the IRB website for the newest version of the NDP prior to your hearing” and is stated in similar terms in the Claimants’ Guide.
  • Parties will cooperate with the asylum process and supply all pertinent information. The Federal Court holds that a person whose safety is threatened in his or her country of origin and who is seeking the protection of a country of refuge is necessarily keen to comply with the legal framework that has been established for that purpose.[21] The legally non-binding refugees handbook issued by UNHCR stipulates that the applicant should assist the examiner to the full in establishing the facts of their case and supply all pertinent information concerning themself and their past experience.[22] The Federal Court states that "refugees and asylum-seekers have duties and obligations to respect national laws and measures to maintain public order, including obligations to cooperate with the asylum process, which may include presenting themselves to authorities and submitting asylum claims promptly, or complying with procedures to regularize their stay."[19] For details about how this principle takes shape in the RPD Rules, see: Canadian Refugee Procedure/Documents#What documents does a party need to provide when?.
  • Claimants will comply with the law and be honest. The Federal Court has held that in immigration matters, "the jurisprudence is clear that applicants have to provide complete and accurate information.... There is a duty on an applicant to ensure that their submissions are complete and correct".[23] This obligation stems from, among other things, the 1951 Convention Related to the Status of Refugees Art. 2, which provides that, “Every refugee has duties to the country in which he finds himself, which require in particular that he conform to its laws and regulations as well as to measures taken for the maintenance of public order.”[22] Similarly, the legally non-binding refugees handbook issued by UNHCR stipulates that the applicant should tell the truth.[22] The Federal Court has stated that "refugees and asylum-seekers have duties and obligations to respect national laws and measures to maintain public order".[19] In Canada, such legal obligations require that a claimant answer truthfully all questions put to them in the refugee claim process.[24]
  • Deficiencies in counsel's conduct are properly attributed to their clients. The Federal Court has held that in immigration matters, "the jurisprudence is clear that applicants have to provide complete and accurate information and are bound by the submissions made by those who represent them in the process".[23] The general rule is that you do not separate counsel's conduct from the client. Counsel is acting as agent for the client and, as harsh as it may be, the client must bear the consequences of having hired poor counsel.[25] This principle is reflected in the instructions in the Basis of Claim form that every claimant receives as part of the claimant process, which note that "If you have counsel, you are responsible for making sure that your counsel meets the deadlines."[26] That said, there are exceptions to this principle where counsel’s conduct falls sufficiently below the standard expected of competent counsel: Canadian Refugee Procedure/Counsel of Record#In what contexts will counsel incompetence render a hearing unfair?.
  • Concerns about defects of procedural fairness should be raised by parties at the earliest opportunity. The general rule is that a party should raise allegations about procedural fairness at the earliest possible opportunity.[27]

Principles about the manner in which the Board is to exercise its discretionEdit

The Code of Conduct for Members of the Immigration and Refugee Board of Canada is based on the IRB's dedication to the following values - honesty, good faith, fairness, accountability, dignity, respect, transparency, openness, discretion, cultural sensitivity and loyalty.[28] These values should be evinced by all of the Board's conduct and decisions. In particular:

  • Justice must be seen to be done. The Board has an institutional responsibility to ensure that the tribunal's adjudication is both actually performed at an optimum level of competency, fairness and objectivity and is perceived to have been so performed.[5] A tension exists between the imperative to be efficient and work rapidly through multiple cases on the one hand, and the imperative to be considered, deliberative, and just on the other (and to be seen to be so).[29] The first set considerations must not undermine respect for the second sort. For example, in one hearing where the Refugee Protection Division had double-booked a Member, who then tried to complete two hearings in the time ordinarily allotted to one, the court commented as follows: "while I find it commendable from an efficiency standpoint that the Member was prepared to deal with both matters, the aura of urgency that pervaded the hearing undermined the process. A reading of the transcript suggests some sense of impatience and concern on the part of the Member about being able to complete the hearing."[30]
  • Administrative convenience should not override fundamental justice, which includes procedural fairness.[31] Asylum adjudication is situated within administrative law structures, where tensions between values such as efficiency and economy are precariously balanced with fairness and justice.[32] As noted by Lord Dyson in his 2015 decision condemning the so‐called Detained Fast Track (DFT) in the United Kingdom, "justice and fairness should not be sacrificed on the altar of speed and efficiency".[33] Instead, as Canada's Federal Court holds, the Board “… is required to strike a balance between expeditious proceedings on the one hand and procedural fairness or natural justice on the other.”[34]
  • The rules should not be interpreted in a way that is overly rigid. In interpreting these rules, the courts have held that one must "avoid the mire of procedural dogma"[35] as "procedure should be the servant of justice, not its mistress".[36] The Federal Court has stated that "the door should not slam shut on all those who fail to meet ordinary procedural requirements. Such a restrictive reading would undermine Canada’s commitment to its refugee system and underlying international obligations".[37] The court has gone on to note that "the opportunity to free a family from the scourge of persecution should not rest on an overly rigid application of procedural requirements."[38] The tenor of the Rules is that flexibility is needed to guard against form trumping substance and the interests of justice and to guard against decisions not being made on their merits.[39] Refugee applications may be allowed to proceed, despite procedural defects, to ensure that the requirements of natural justice are fulfilled.[40] This applies with special force during the period of the Covid-19 pandemic; the principle set out in the Refugee Protection Division: Practice Notice on the resumption of in-person hearings is that the Board will apply the rules flexibly in light of Covid-19.[41]
  • Claimants are entitled to representation and rules should be relaxed for unrepresented litigants. The representation of refugee claimants is described as “an expression of a fundamental constitutional and common law value: that individuals facing complicated legal proceedings with serious consequences should be allowed to be represented so as to ensure that there is a full and fair hearing.”[42] The court has stated that an unrepresented party “is entitled to every possible and reasonable leeway to present a case in its entirety and that strict and technical rules should be relaxed for unrepresented litigants”.[43]
  • The Board's procedures should not be restricted to the judicial paradigm. The courts have recognized that administrative agencies such as the IRB "are often required to be procedurally innovative in order to handle a heavy caseload effectively and to make the most efficient use of scarce resources."[44] The Board’s procedure "should not be confined in a model of due process that draws exclusively on the judicial paradigm and discourages innovation. Nonetheless, procedures designed to increase quality and consistency cannot be adopted at the expense of the duty of each panel to afford to the claimant before it a high degree of impartiality and independence."[45] For example, the court has held that "A hearing held by the Board should not be turned into a trial. The consequences that attach to these hearings are serious and the measure of procedural fairness must be commensurate. However, it does not reach the level of disclosure found in criminal law, for instance."[46]
  • Members should exercise their discretion with a spirit of justice and sensitivity. The Board states in its Guideline 8 that all persons appearing before the IRB need to be treated with sensitivity and respect.[47] Caselaw from the Federal Court also states that the member must at all times be attentive and sensitive to claimants.[48] The UNHCR Handbook is considered highly influential in how refugee adjudication should be approached, even if its clauses are not, in and of themselves, law in Canada.[49] The following comment about how the task of refugee status determination should be approached is instructive: "Since the examiner’s conclusion on the facts of the case and his personal impression of the applicant will lead to a decision that affects human lives, he must apply the criteria in a spirit of justice and understanding and his judgement should not, of course, be influenced by the personal consideration that the applicant may be an ‘undeserving case’."[50]
  • Claimants should be given the benefit of the doubt in appropriate circumstances.[51] The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status provides that the benefit of the doubt should be granted to the claimant in certain circumstances: "After the applicant has made a genuine effort to substantiate his story there may still be a lack of evidence for some of his statements. As explained above (paragraph 196), it is hardly possible for a refugee to "prove" every part of his case and, indeed, if this were a requirement the majority of refugees would not be recognized. It is therefore frequently necessary to give the applicant the benefit of the doubt." However, as per the Supreme Court of Canada, it is not appropriate to apply the benefit of the doubt where the claimant's allegations run contrary to generally known facts, and the available evidence.[52] The UNHCR Handbook states: "The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts."[53]
  • The Board should have strong reasons before attributing dishonesty or malicious intent to a claimant. The Federal Court has held that "attributing dishonesty or malicious intent to an applicant is subject to a very high threshold".[54]
  • Parties can expect consistency and the Board should decide like cases in the same manner. For more details, see: Canadian Refugee Procedure/The right to be heard and the right to a fair hearing#Decision-making should be consistent across the Board.

IRPA ss. 3(2) and 3(3): Interpretation principles as derived from the ActEdit

This section will set out the objectives and application provisions in the Act and then provide commentary on some specific ones. In the words of Sharryn Aiken, et. al., one of the enduring features of Canadian immigration law since the 1976 Immigration Act has been "a complex and contradictory set of objectives".[55] Those objectives, in so far as they concern refugees, read as follows in the current IRPA:

Objectives — refugees
3...
(2) The objectives of this Act with respect to refugees are
(a) to recognize that the refugee program is in the first instance about saving lives and offering protection to the displaced and persecuted;
(b) to fulfil Canada’s international legal obligations with respect to refugees and affirm Canada’s commitment to international efforts to provide assistance to those in need of resettlement;
(c) to grant, as a fundamental expression of Canada’s humanitarian ideals, fair consideration to those who come to Canada claiming persecution;
(d) to offer safe haven to persons with a well-founded fear of persecution based on race, religion, nationality, political opinion or membership in a particular social group, as well as those at risk of torture or cruel and unusual treatment or punishment;
(e) to establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system, while upholding Canada’s respect for the human rights and fundamental freedoms of all human beings;
(f) to support the self-sufficiency and the social and economic well-being of refugees by facilitating reunification with their family members in Canada;
(g) to protect the health and safety of Canadians and to maintain the security of Canadian society; and
(h) to promote international justice and security by denying access to Canadian territory to persons, including refugee claimants, who are security risks or serious criminals.

Application
(3) This Act is to be construed and applied in a manner that
(a) furthers the domestic and international interests of Canada;
(b) promotes accountability and transparency by enhancing public awareness of immigration and refugee programs;
(c) facilitates cooperation between the Government of Canada, provincial governments, foreign states, international organizations and non-governmental organizations;
(d) ensures that decisions taken under this Act are consistent with the Canadian Charter of Rights and Freedoms, including its principles of equality and freedom from discrimination and of the equality of English and French as the official languages of Canada;
(e) supports the commitment of the Government of Canada to enhance the vitality of the English and French linguistic minority communities in Canada; and
(f) complies with international human rights instruments to which Canada is signatory.

There is a statutory interpretation convention to the effect that statements of objectives in legislation serve to constrain executive discretion in implementing the law. In the words of Sharryn Aiken, et. al., however, the objectives of the IRPA "are so plentiful and far-ranging that they arguably serve to support any potential discretionary implementation choice."[56] The above objectives can be compared to the section of the IRPA that sets out objectives for the immigration (as opposed to humanitarian or refugee) streams:

Objectives — immigration

3 (1) The objectives of this Act with respect to immigration are (a) to permit Canada to pursue the maximum social, cultural and economic benefits of immigration; (b) to enrich and strengthen the social and cultural fabric of Canadian society, while respecting the federal, bilingual and multicultural character of Canada; (b.1) to support and assist the development of minority official languages communities in Canada; (c) to support the development of a strong and prosperous Canadian economy, in which the benefits of immigration are shared across all regions of Canada; (d) to see that families are reunited in Canada; (e) to promote the successful integration of permanent residents into Canada, while recognizing that integration involves mutual obligations for new immigrants and Canadian society; (f) to support, by means of consistent standards and prompt processing, the attainment of immigration goals established by the Government of Canada in consultation with the provinces; (f.1) to maintain, through the establishment of fair and efficient procedures, the integrity of the Canadian immigration system; (g) to facilitate the entry of visitors, students and temporary workers for purposes such as trade, commerce, tourism, international understanding and cultural, educational and scientific activities; (h) to protect public health and safety and to maintain the security of Canadian society; (i) to promote international justice and security by fostering respect for human rights and by denying access to Canadian territory to persons who are criminals or security risks; and

(j) to work in cooperation with the provinces to secure better recognition of the foreign credentials of permanent residents and their more rapid integration into society.

IRPA Section 3(2)(a) - The refugee program is about saving lives and offering protectionEdit

Objectives — refugees
(2) The objectives of this Act with respect to refugees are
(a) to recognize that the refugee program is in the first instance about saving lives and offering protection to the displaced and persecuted;

This has been a long-standing provision in the ActEdit

This reflects one of the objectives that was inserted into the 1976 Immigration Act, which was “to fulfill Canada’s international legal obligations with respect to refugees and to uphold its humanitarian tradition with respect to the displaced and persecuted.”[57]

The refugee program aims to offer protection, including the legal rights specified in the Refugee ConventionEdit

Section 3(2)(a) of the IRPA provides that the objectives of this Act with respect to refugees are, inter alia, to recognize that the refugee program is in the first instance about saving lives and offering protection to the displaced and persecuted. The protection envisaged is arguably not just protection from refoulement, but also the suite of affirmative rights enumerated in the Refugee Convention. The academic Alleweldt writes that the first and foremost objective of the 1951 Refugee Convention was to prevent refugees from becoming legal non-persons.[58] After the First World War, he states, the typical problem of refugees was the lack of any legal status in the State of refuge, which deprived them automatically of many rights and opportunities. Accordingly, the parties to the Refugee Convention envisaged, for humanitarian reasons as well as for practical reasons of cooperation, providing refugees with a status which would comprise a key set of their human rights and freedoms.

IRPA Section 3(2)(b) - Fulfilling Canada’s international legal obligations with respect to refugeesEdit

Objectives — refugees
(2) The objectives of this Act with respect to refugees are
(b) to fulfil Canada’s international legal obligations with respect to refugees and affirm Canada’s commitment to international efforts to provide assistance to those in need of resettlement;

This has been a long-standing provision in the ActEdit

This reflects one of the objectives that was inserted into the 1976 Immigration Act, which was “to fulfill Canada’s international legal obligations with respect to refugees and to uphold its humanitarian tradition with respect to the displaced and persecuted.”[57]

The IRPA should be interpreted in a way that ensures Canada fulfills its international legal obligations with respect to refugeesEdit

Section 3(2)(b) of the Act specifies that the objectives of the IRPA with respect to refugees are, among other things, to fulfill Canada's international legal obligations with respect to refugees. There is a well-established presumption that, where possible, Canada’s domestic legislation should be interpreted to conform to international law.[59] The Supreme Court of Canada holds that the provisions of the IRPA "cannot be considered in isolation from the international norms which they reflect".[60] Section 3(2)(b) of the Act reinforces that, where possible, the provisions of the IRPA should be interpreted in a way that fulfills Canada's obligations pursuant to, inter alia, the Refugee Convention.

The Vienna Convention on the Law of Treaties codifies public international law rules of treaty interpretation applicable to the interpretation of the Refugee ConventionEdit

The rules of treaty interpretation for discerning the content of Canada's international legal obligations with respect to refugees were codified in the Vienna Convention on the Law of Treaties. Art. 31 of the Vienna Convention on the Law of Treaties provides that:[61]

1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:
(a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty;
(b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.

3. There shall be taken into account, together with the context:
(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;
(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;
(c) any relevant rules of international law applicable in the relations between the parties.

4. A special meaning shall be given to a term if it is established that the parties so intended.

Art. 32 of the Vienna Convention in turn provides that “recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable”.[61]

This said, the Vienna Convention does not in and of itself apply to the Refugee Convention, given that the Vienna Convention applies only to treaties which are concluded by states after the Vienna Convention entered into force on January 27, 1980 (per Article 4 of that Convention).[62] As such, the Vienna Convention does not in and of itself apply to the Refugee Convention of 1951 or the Protocol to the Convention of 1967. That said, as Hathaway notes,[63] the Vienna Convention approach has been recognized by the International Court of Justice as embodying customary norms of treaty interpretation.[64] Those rules are generally regarded as a codification of the public international law rules of treaty interpretation as a matter of general (or customary) international law.[65] As such, Articles 31 to 33 of the Vienna Convention constitute a general expression of the principles of customary international law relating to treaty interpretation.[66] In this way, the norms of treaty interpretation embodied in the Vienna Convention are properly considered when interpreting the Refugee Convention, even if its articles do not sensu stricto apply to the Refugee Convention. For such reasons, in the context of the Refugee Convention, domestic courts in New Zealand,[67] the UK,[68] and Canada[69] have seen fit to apply Arts. 31 and 32 of the VCLT when interpreting the Refugee Convention.

Canada must perform its international legal obligations with respect to refugees in good faithEdit

Section 3(2)(b) of the Act specifies that the objectives of the IRPA with respect to refugees are, among other things, to fulfill Canada's international legal obligations with respect to refugees. These obligations must be interpreted in good faith.[70] This is consistent with Art. 31 of the Vienna Convention, supra, which states that "a treat shall be interpreted in good faith". It is also consistent with Article 26 of the Vienna Convention, which requires States to perform their international treaty obligations in good faith. In international law, the concept of good faith, or bona fides, is taken to include duties of honesty, loyalty, and reasonableness.[71] That said, in Britain Lord Bingham has concluded that "there is no want of good faith if a state interprets a treaty as meaning what it says and declines to do anything significantly greater than or different from what it agreed to do."[72] Relatedly, Canada's Federal Court has held that "an unduly textual and restrictive interpretation [of the IRPA]" that "would impose a result that is inconsistent with and contrary to the objectives of the IRPA" must be avoided.[73]

The Refugee Convention should be interpreted in good faith in light of its object and purposeEdit

Under Art. 31 of the Vienna Convention on the Law of the Treaties, “a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose”.[74] This raises the question of what the object and purpose of the Refugee Convention are. The principal answer that emerges in the jurisprudence relates to the Convention's humanitarian purposes. The UK House of Lords has held that a ‘good faith’ interpretation of the Refugee Convention is one that works to bolster the effectiveness of its protection purpose, and thus seeks a construction consistent with humanitarian aims and not simply a literal linguistic approach.[75] These humanitarian aims are underscored in the IRPA with the statement at s. 3(2)(d) that "the objectives of this Act with respect to refugees are to grant, as a fundamental expression of Canada’s humanitarian ideals, fair consideration to those who come to Canada claiming persecution". The academic Michelle Foster writes that "one perspective is that the aim of the Refugee Convention is fundamentally to pursue a social and human rights inspired purpose, namely to provide for the international protection of those individuals falling within the refugee definition."[76] The Supreme Court of Canada has noted the human rights purpose of the Refugee Convention, for example remarking upon its "obvious human rights purpose" in Németh v. Canada.[77] Similarly, Ezokola v Canada refers to the "overarching and clear human rights object and purpose [of the Refugee Convention]".[78] This is articulated as follows by the Supreme Court of Canada in Ward: the underlying objective of the 1951 Convention is "the international community's commitment to the assurance of basic human rights without discrimination."[79]

That said, the following words of caution from the Australian courts are apposite: "the demands of language and context should not be departed from by invoking the humanitarian objectives of the Convention, without an appreciation of the limits placed by the Convention upon achievement of such objectives."[80] Indeed, Lord Bingham in the Uk has emphasized that the 1951 Convention was "a compromise between competing interests, in this case between the need to ensure humane treatment of the victims of oppression on the one hand and the wish of sovereign states to maintain control over those seeking entry to their territory on the other."[72] Foster suggests that it is possible to reconcile these two approaches by emphasizing that the 1951 Convention's focus is on "the need for co-operation in order adequately to deal with the humanitarian problem".[81] Drawing on Klabbers' view that if a treaty's substantive provisions deal with a particular topic, then it may be surmised that that topic is the treaty's object and purpose, Foster argues that the 1951 Convention's overwhelming purpose is a human rights one. In essence the treaty provides for refugees' rights and entitlements under international law.[81]

The Refugee Convention does not explicitly prescribe any particular Refugee Status Determination procedureEdit

The objectives of this Act include fulfilling Canada's international legal obligations with respect to refugees. How does that relate to refugee procedure? Canada's refugee status determination process reflects Canada's international obligations, including those stemming from the Convention Relating to the Status of Refugees of 1951. The challenge of refugee status determination is determining who is a “refugee” and, conversely, who is not. As to the process by which this task should be accomplished, neither the treaty nor the statute is of much direct assistance: there are 46 articles in the Refugee Convention and 22 paragraphs in the Statute of the Office of the United Nations High Commissioner for Refugees, none of which address the issue of Refugee Status Determination (RSD).[82] In the words of the UNHCR’s Handbook on Procedures and Criteria, “the Convention does not indicate what type of procedures are to be adopted for the determination of refugee status.”[83]

The procedures used by Canada must ensure the effectiveness of the substantive provisions in the Refugee ConventionEdit

Section 3(2)(b) of the Act specifies that the objectives of the IRPA with respect to refugees include fulfilling Canada's international legal obligations with respect to refugees. In ratifying the Refugee Convention, Canada has made a number of commitments, the most important of which is arguably the principle of non-refoulement enshrined in Article 33 of the Refugee Convention. How do such commitments relate to the procedures Canada selects for Refugee Status Determination? Hofmann and Löhr write that, with respect to the 1951 Convention, it might be stated that the Convention does not necessitate (or prohibit) any specific procedure as such, but obliges states not to introduce procedures which would result in applicants for asylum being returned or otherwise handed over - in violation of the principle of non-refoulement - to foreign authorities. This flows from the foundational principle of international law pacta sunt servanda, the rule that agreements must be kept,[84] in this case Canada's agreement to abide by the principle of non-refoulement. With respect to procedures, international courts have established the principle that a state's procedural rules must ensure the effectiveness of the substantive provisions of its international commitments. This has been held by, among others, the International Court of Justice in the LaGrand (Germany v. United States of America) case, where it ruled that the duty incumbent on states to ensure that their international obligations be fully respected implies that domestic procedural law must be construed in such a way as to give full effect to the purposes for which the substantive rights accorded in an international treaty are intended.[85] If a state uses deficient procedures, which lead to prohibited refoulement, the introduction of such procedures constitutes per se a violation of Article 33 of the Refugee Convention and its prohibition on non-refoulement.[86] This has implications for the procedures that a state selects; for example, UNHCR states that a consequence of a state’s non-refoulement obligation is a ‘duty of independent inquiry’.[87] Such a duty requires states to identify individuals in need of protection before returning or transferring them to a third country.[88]

The Refugee Convention should be regarded as a living instrument that evolves to meet contemporary needsEdit

The UK House of Lords has concluded that "It is clear that the signatory states intended that the Convention should afford continuing protection for refugees in the changing circumstances of the present and the future world. In our view the Convention has to be regarded as a living instrument."[89] The Canadian Supreme Court has stated that "international conventions must be interpreted in light of current conditions".[90] The Vienna Convention on the Law of Treaties delierately does not constrain the meaning of terms in a treat to their meaning at the time of the treaty's conclusion. A limitation to this effect was deleted from Art. 31, para. 3(c) on the basis that this could restrict the evolution of the law and that, in any event, the correct meaning of the provision would be derived from an 'interpretation of the term "in good faith"'.[91]

There can only be one true interpretation of the Refugee ConventionEdit

See below: Canadian Refugee Procedure/Principles for the interpretation of refugee procedure#The Act should be interpreted in a way that is coherent with interpretations by other states party to the Convention.

IRPA Section 3(2)(c) - Fair consideration is to be granted to those who come to Canada claiming persecutionEdit

Objectives — refugees
(2) The objectives of this Act with respect to refugees are
(c) to grant, as a fundamental expression of Canada’s humanitarian ideals, fair consideration to those who come to Canada claiming persecution;

The importance of Board procedures being fair to the public perception of the refugee programEdit

In addition to ensuring overall fairness and facilitating the giving of evidence, procedural fairness is also about maintaining the integrity of the refugee determination process in the eyes of the public. For example, stakeholders may come to question the integrity of the system if they observe unfair, biased, stereotyped, arbitrary, or otherwise inappropriate processes that do not provide fair consideration to those who come to Canada and file a claim. As the legal philosopher Patricia Mindus argues, arbitrariness undermines legitimacy and erodes trust in the law in a deep way that is not easy to remedy.[92] Ensuring procedural fairness is in this way integral to maintaining the reliability of the hearing and refugee determination process and public support therefor.

This provision relates to the Canadian Bill of RightsEdit

Section 2(e) of the Canadian Bill of Rights states that no law of Canada shall be construed or applied so as to

abrogate, abridge or infringe or to authorize the abrogation, abridgement or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to ... (e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations.[93]

IRPA Section 3(2)(d) - Offering save havenEdit

Objectives — refugees
(2) The objectives of this Act with respect to refugees are
(d) to offer safe haven to persons with a well-founded fear of persecution based on race, religion, nationality, political opinion or membership in a particular social group, as well as those at risk of torture or cruel and unusual treatment or punishment;

The objective of this Act is to offer safe haven to specified persons and this is an enduring commitment unless an asylee's status ceasesEdit

The objectives of this Act with respect to refugees include offering safe haven to persons with a well-founded fear of persecution for a Convention reason, as well as those at risk of torture or cruel and unusual treatment of punishment. This obligation, which partly tracks the criteria of the Refugee Convention, reflects the fact that the 1951 Convention can be viewed as a third party agreement; a treaty whereby the contracting States take on obligations towards each other for the benefit of refugees who are by the same token provided with refugee rights.[94]

The "safe haven" that is to be offered to refugees is independent of other types of immigration status in Canada such as permanent residence. An applicant’s asylum status is not affected because their permanent residence status was lost or because their application for permanent residence in the country of asylum was refused.[95] Even where a refugee moves onward from a state which has granted international protection, that state bears ongoing obligations towards the individual, unless their status has ceased.[96] Indeed, even those who are granted status as protected persons by the IRB may not meet the criteria to become permanent residents or citizens in Canada: Canadian Refugee Procedure/Exclusion, Integrity Issues, Inadmissibility and Ineligibility#Other grounds of inadmissibility in the IRPA do not render claimants ineligible for a refugee hearing, but may nonetheless have consequences even where a claim is accepted. That said, once a refugee obtains a durable solution such as citizenship in Canada then there 'refugeehood' can rightfully be regarded as having ceased.

IRPA Section 3(2)(e) - Fair and efficient procedures that maintain integrity and uphold human rightsEdit

Objectives — refugees
(2) The objectives of this Act with respect to refugees are
(e) to establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system, while upholding Canada’s respect for the human rights and fundamental freedoms of all human beings;

Removal of non-credible refugee claimants is the law’s cornerstoneEdit

Section 3(2)(e) of the IRPA provides that the objectives of the Act with respect to refugees include the establishment of fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system. As Harold Troper notes, a concern that the refugee program must seek to address is the worry that "many of the refugee claimants, including some who successfully made it through the determination process, were not really legitimate refugees but individuals looking for a way around tough Canadian immigration regulations."[97] When the IRB came into existence, the government-stated programme delivery strategy stated that the removal of non-credible refugee claimants is the law’s cornerstone.[98]

The Act seeks to ensure that the system has both flexibility and rigourEdit

Section 3(2)(e) of the IRPA provides that the objectives of the Act with respect to refugees include the establishment of fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system. This necessarily involves a balancing, one which Jennifer Bond and David Wiseman discuss when they write that the procedural framework governing Canada's asylum system contains a number of mechanisms aimed at enabling both flexibility and rigour.[99]

Amendments to the IRPA have emphasized giving decision-makers greater control over proceedings to increase efficiencyEdit

To increase the efficiency of hearings, procedures were amended following passage of the Balanced Refugee Reform Act (2010) and the Protecting Canada's Immigration System Act (2012) to give decision makers greater control over refugee protection proceedings.[100]

The objectives of this Act with respect to refugees are to establish efficient proceduresEdit

The Refugee Appeal Division, when considering issues of efficiency, has observed that an interpretation of the Act which would reduce duplication of work and having an additional, unnecessary, hearing is to be preferred.[101] This is also consistent with the introduction of the current version of s. 97 of the Act with the transition from the Immigration Act to the IRPA. IRPA expanded the scope of coverage to include persons who are at risk of torture and to persons who are at risk of cruel and inhumane treatment upon deportation to their country of nationality or former habitual residence. Rebecca Hamlin writes that there is no evidence to suggest that Parliament considered the introduction of s. 97 to be monumental when it discussed IRPA before voting on it in 2002. When the bill was being debated, Minister of Citizenship and Immigration Elinor Caplan assured members of Parliament the IRPA "gives us the ability to streamline our procedures, so that those who are in genuine need of our protection will be welcomed in Canada more quickly and those who are not in need of protection will be able to be removed more quickly. That streamlining is extremely important." Immediately after IRPA went into force, the IRB Legal Services division produced a lengthy guide for decision makers on how to make Section 97 decisions; the guide states that these decisions were subsumed under the IRB mandate to avoid the "delays and inconsistencies" of the previous "fragmented" and "multilayered approach". Section 162(2) of the IRPA provides that 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; for further discussion of this, see: Canadian Refugee Procedure/Board Jurisdiction and Procedure#IRPA Section 162(2) - Obligation to proceed informally and expeditiously.

The procedures established should uphold Canada's respect for the human rights and fundamental freedoms of all human beingsEdit

Section 3(2)(e) of the IRPA provides that the objectives of the Act with respect to refugees are to establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system, while upholding Canada's respect for the human rights and fundamental freedoms of all human beings. This reflects the preamble to the Refugee Convention, which reads:

The High Contracting parties, ... considering that the Charter of the United Nations and the Universal Declaration of Human Rights approved on 10 December 1948 by the General Assembly have affirmed the principle that human beings shall enjoy fundamental rights and freedoms without discrimination ... have agreed as follows: ...[102]

IRPA Section 3(2)(g) - Protecting the health and safety of Canadians and maintaining the security of Canadian societyEdit

Objectives - refugees
(2) The objectives of this Act with respect to refugees are ...
(g) to protect the health and safety of Canadians and to maintain the security of Canadian society; and

This is worded identically to s. 3(1)(h) of the ActEdit

Section 3(1)(h) of the IRPA is worded identically, stating that "the objectives of this Act with respect to immigration are (h) to protect the health and safety of Canadians and to maintain the security of Canadian society". That provision was considered in Medovarski v Canada, in which the Supreme Court of Canada noted that "the objectives as expressed in the IRPA indicate an intent to prioritize security":

The objectives as expressed in the IRPA indicate an intent to prioritize security. This objective is given effect by preventing the entry of applicants with criminal records, by removing applicants with such records from Canada, and by emphasizing the obligation of permanent residents to behave lawfully while in Canada. This marks a change from the focus in the predecessor statute, which emphasized the successful integration of applicants more than security: e.g., see s. 3(1)(i) of the IRPA versus s. 3(j) of the former Act; s. 3(1)(e) of the IRPA versus s. 3(d) of the former Act; s. 3(1)(h) of the IRPA versus s. 3(i) of the former Act.  Viewed collectively, the objectives of the IRPA and its provisions concerning permanent residents, communicate a strong desire to treat criminals and security threats less leniently than under the former Act.[103]

This objective is implemented through the grounds of inadmissibility found in ss. 34-42 of the IRPA.[104]

IRPA Section 3(3)(b) - This Act is to be applied in a manner that promotes accountability and transparency by enhancing public awareness of immigration and refugee programsEdit

Application
(3) This Act is to be construed and applied in a manner that
(b) promotes accountability and transparency by enhancing public awareness of immigration and refugee programs;

It is important that the public perceive the determinations made under the Act as being legitimateEdit

Section 3(3)(b) of the Act provides that that it is to be construed and applied in a manner that enhances public awareness of immigration and refugee programs. Refugee lawyer David Matas speaks to a policy concern related to this when he states that if the public lacks confidence in the refugee determination system “people will eventually give up all hope in the system. ... [T]hose concerned with protecting refugees will adopt extra-legal rather than legal strategies - a Canadian sanctuary movement is possible”.[105]

IRPA Section 3(3)(c) - This Act is to be applied in a manner that facilitates cooperation between the Government of Canada, provincial governments, foreign states, international organizations, and non-governmental organizationsEdit

Application
(3) This Act is to be construed and applied in a manner that
(c) facilitates cooperation between the Government of Canada, provincial governments, foreign states, international organizations and non-governmental organizations;

Canada has an obligation to cooperate with the UNHCR and the IRPA should be construed and applied in a manner that facilitates and respects this obligationEdit

Section 3(3)(c) of the Act provides that it is to be construed and applied in a manner that facilitates cooperation between the Government of Canada and international organizations. This provision of the Act relates to Canada's international obligations. Opinions and interpretations by the UNHCR are of particular interest because of Article 35 of the Refugee Convention, which provides that member states have an obligation to facilitate the duty of UNHCR in supervising the application of the provisions of the Convention. Article 2(1) of the 1967 Protocol similarly stipulates that “[t]he States Parties to the present Protocol undertake to co-operate with the Office of the United Nations High Commissioner for Refugees [...] in the exercise of its functions, and shall in particular facilitate its duty of supervising the application of the provisions of the present Protocol”.[106] Furthermore, the preamble to the Refugee Convention reads:

The High Contracting parties, ... noting that the United Nations High Commissioner for Refugees is charged with the task of supervising international conventions providing for the protection of refugees, and recognizing that the effective co-ordination of measures taken to deal with this problem will depend upon the co-operation of States with the High Commissioner, ... have agreed as follows: ...[102]

That said, there are evident limits to the UNHCR's supervisory role which does not include a mandate to provide an authoritative interpretation of the Refugee Convention.[107] Accordingly, the UNHCR can only issue guidance on the 1951 Convention's interpretation. Similarly, while Executive Committee Conclusions may be instructive on interpretation and applying the 1951 Convention, they are not binding on States.[107] The Federal Court of Appeal recognized this in Jayasekara v Canada in which Justice Letourneau stated that "the [UNHCR] handbook cannot override the functions of the Court in determining the words of the Convention."[108]

"Burden sharing" between states is a fundamental principle of the Refugee ConventionEdit

Section 3(3)(c) of the Act provides that this statute is to be construed and applied in a manner that facilitates cooperation between the Government of Canada and foreign states. This provision reflects the importance of "burden sharing" in the refugee regime. It is said that the Refugee Convention is based on two principles: non-refoulement, the rule that asylum seekers cannot be turned away or forced to return to their countries of origin; and responsibility-sharing, the idea that member nations should share the costs, labor, and risks of refugee aid.[109] While the first principle is explicitly outlined in the Convention; the second is implicit in the preamble to the Refugee Convention, which reads:[110]

The High Contracting parties, ... considering that the grant of asylum may place unduly heavy burdens on certain countries, and that a satisfactory solution of a problem of which the United Nations has recognized the international scope and nature cannot therefore be achieved without international co-operation, ... have agreed as follows: ...[102]

James Hathaway writes in The Law of Refugee Status that burden sharing was historically one of the core motivations for the Refugee Convention:

... the majority of the states that drafted the Convention sought to create a rights regime conducive to the redistribution of the post-war refugee burden from European shoulders. The Europeans complained that they had been forced to cope with the bulk of the human displacement caused by the Second World War, and that the time had come for all members of the United Nations to contribute to the resettlement of both the remaining war refugees and the influx of refugees from the Soviet bloc. Refugees would be more inclined to move beyond Europe if there were guarantees that their traditional expectations in terms of rights and benefits would be respected abroad. The Convention, then, was designed to create secure conditions such as would facilitate the sharing of the European refugee burden.[111]

Today, most refugees reside not in Europe, but in low-income states; the world’s six richest countries host under 10% of the world’s refugee population, while the majority are situated in low-income states, which face significant resource and governance challenges of their own.[112] 80% of the world’s refugee population are living in countries neighbouring their own.[113] As an example, Canada has welcomed 1,088,015 refugees since 1980,[114] including through the resettlement (325,000[115]) and in-Canada asylum processes. This represents about 3% of the current Canadian population, in comparison to Jordan today which hosts refugees equivalent to 9% of its current population and Lebanon which hosts refugees equivalent to more than 20% of its current population, all with substantially fewer financial resources than has Canada.[116]

The principle of burden sharing has a number of implications. First, it is to this end that the UNHCR Executive Committee has encouraged States and UNHCR to continue to promote, where relevant, regional initiatives for refugee protection and durable solutions.[117] The Federal Court has noted that "in principle, international refugee law does not confer upon refugees the right to choose their country of asylum".[118] The Federal Court has noted that international refugee law also "does not authorize their irregular movement between successive countries solely in order to benefit from more favourable conditions."[19] The Federal Court has also cited with approval the UNHCR document Guidance on Responding to Irregular Onward Movement of Refugees and Asylum-seekers (2019) which includes a related discussion.[19] One manifestation of this principle in the IRPA is through the responsibility-sharing arrangement between the "Five Eyes" countries established by s. 101(c.1) of the Act: Canadian Refugee Procedure/100-102 - Examination of Eligibility to Refer Claim. All this said, it should be noted that under international law refugees are under no obligation to apply for asylum in particular states at any specific stage of their flight from danger.[119] Indeed, the 1951 Convention at the time of its adoption was seen as an instrument of burden sharing and binding obligations upon States were considered a requirement for effective international cooperation as well as more equal commitments and sharing of responsibility with regard to refugee problems.[120]

States should do everything in their power to prevent the problem of refugees from becoming a cause of tension between statesEdit

Section 3(3)(c) of the Act provides that it is to be construed and applied in a manner that facilitates cooperation between the Government of Canada and foreign states. This provision reflects the preamble to the Refugee Convention, which reads:

The High Contracting parties, ... expressing the wish that all States, recognizing the social and humanitarian nature of the problem of refugees, will do everything within their power to prevent this problem from becoming a cause of tension between States, ... have agreed as follows: ...[102]

Relatedly, in 1967, the UN General Assembly adopted a Declaration on Territorial Asylum directed toward States. The Declaration states that granting asylum is a peaceful and humanitarian act that cannot be regarded as unfriendly by any other State.[121]

The Act should be interpreted in a way that prevents the possibility of “refugees in orbit”Edit

Section 3(3)(c) of the Act provides that this statute is to be construed and applied in a manner that facilitates cooperation between the Government of Canada and foreign states. Canada’s Senate, in amending relevant bills, has been said to have tried to ensure that the safe third country provisions in the IRPA do not result in “refugees in orbit”, refugees forced to travel from country to country in search of protection.[122] A “refugee in orbit” situation is constituted when:

country A designates country B as a safe third country, thereby entitling country A to refuse to adjudicate the claim of an asylum seeker who arrived in country A via country B. However, in the absence of a readmission agreement, country B may refuse to re-admit the asylum seeker, and send the person to country C, who may in turn bounce the person concerned to country D, and so on.[123]

For more details, see Canadian Refugee Procedure/Safe Third Countries, and in particular Article 3 of the Safe Third Country Agreement, which exists to prevent this.

The Act should be interpreted in a way that is coherent with interpretations by other states party to the ConventionEdit

Section 3(3)(c) of the Act provides that this statute is to be construed and applied in a manner that facilitates cooperation between the Government of Canada and foreign states. In this way, the IRPA should be interpreted in a way that avoids fragmentary jurisprudence which undermines the coherence of the international protection system.[124] Courts in the UK have phrase this obligation thusly: "in principle there can only be one true interpretation of a treaty".[125] As such, decisions from the UK frequently stress that each State "must search, untrammelled by notions of its national legal culture, for the true autonomous and international meaning of the treaty".[125] For the same reason, decisions in Canada frequently canvass jurisprudence from other countries when interpreting the meaning of the Refugee Convention and the IRPA.[126] See also: Canadian Refugee Procedure/The right to be heard and the right to a fair hearing#Decision-making should be predictable and consistent across the Board.

IRPA Section 3(3)(d) - The Act is to be applied in a manner that complies with the Charter of Rights and FreedomsEdit

Application
(3) This Act is to be construed and applied in a manner that
(d) ensures that decisions taken under this Act are consistent with the Canadian Charter of Rights and Freedoms, including its principles of equality and freedom from discrimination and of the equality of English and French as the official languages of Canada;

The fact that Charter rights are at play in Board proceedings means that the extent of procedural fairness owed to claimants is highEdit

The court has stated that “The independence of the Board, its adjudicative procedure and functions, and the fact that its decisions affect the Charter rights of claimants, indicate that the content of the duty of fairness owed by the Board, including the duty of impartiality, falls at the high end of the continuum of procedural fairness.”[3]

Charter issues should generally be raised before the DivisionEdit

Under most circumstances in the immigration context an applicant is required to raise Charter issues before the relevant administrative tribunal within the respective proceeding. In the present context, for example, the IRB is competent to address Charter issues. If unsuccessful, the claimant would then be able seek leave for judicial review of that decision before the Federal Court.[127] For further discussion on this, see: Canadian Refugee Procedure/Notice of Constitutional Question.

Decisions taken under this Act are to be consistent with the principles of equality and freedom from discriminationEdit

Section 3(3)(d) of the IRPA provides that the Act is to be construed and applied in a manner that ensures that decisions taken under this Act are consistent with the Canadian Charter of Rights and Freedoms, including its principles of equality and freedom from discrimination. Indeed, this tracks the transformation that has been seen over the past century in the nature of international migration and its increasingly multiethnic and global character. When the 1951 Refugee Convention was being negotiated, it had a primarily European orientation, the prospect of refugees coming in significant numbers from further afield was thought to be nil; for example, in the words of the UK delegate to the conference of plenipotentiaries that negotiated the 1951 Convention, "[the risk of European states facing] a vast influx of Arab refugees was too small to be worth taking into account."[128] This thinking about the makeup and source of refugees seeking asylum has shifted dramatically to the point where today it is recognized that most refugees are in low income countries and individuals claim asylum in Canada against countries throughout the world. See also: Canadian Refugee Procedure/The right to an unbiased decision-maker#Where a member pursues questioning with a discriminatory attitude.

Decisions taken under this Act are to be consistent with the equality of English and French as the official languages of CanadaEdit

Section 3(3)(d) of the Act states that it is to be construed and applied in a manner that ensures that decisions taken under this Act are consistent with the Canadian Chart of Rights and Freedoms, including its principle of the equality of English ad French as the official languages of Canada. For a discussion of this, see: Canadian Refugee Procedure/The right to be heard and the right to a fair hearing#Language of proceedings.

IRPA Section 3(3)(f) - The Act is to be applied in a manner that complies with international human rights instruments Canada has signedEdit

Application
(3) This Act is to be construed and applied in a manner that
(f) complies with international human rights instruments to which Canada is signatory.

In general, in Canada legislation should be presumed to conform to international lawEdit

It is a well-established principle of statutory interpretation that legislation will be presumed to conform to international law.[129] The presumption of conformity is based on the rule of judicial policy that, as a matter of law, courts will strive to avoid constructions of domestic law pursuant to which the state would be in violation of its international obligations, unless the wording of the statute clearly compels that result.[130] The Supreme Court of Canada articulated this rule in Baker v. Canada when it adopted the following statement from Driedger on the Construction of Statutes:

[T]he legislature is presumed to respect the values and principles enshrined in international law, both customary and conventional.  These constitute a part of the legal context in which legislation is enacted and read.  In so far as possible, therefore, interpretations that reflect these values and principles are preferred.[131]

This provision was added to the IRPA and was not present in the former Immigration ActEdit

Sharryn Aiken, et. al., write in Immigration and Refugee Law: Cases, Materials, and Commentary that there was considerable excitement in migrant advocacy circles regarding para 3(3)(f) of the IRPA stating that the Act is to be construed in a manner that "complies with international human rights instruments to which Canada is signatory." They note that this provision seemed to provide a potential shortcut for direct access to international human rights principles.[132] However, on the basis of the Federal Court of Appeal's decision de Guzman v. Canada those authors conclude that "The de Guzman decision ensured that para 3(3)(f) is understood to reflect existing Canadian law with respect to international obligations and therefore to be essentially meaningless window dressing that adds nothing new to the interpretive framework for Canadian immigration law."[133]

International human rights instruments are determinative of the meaning of IRPA, in the absence of a clear legislative intent to the contrary  Edit

Section 3(3)(f) of the IRPA goes beyond the general principle of statutory interpretation described above. When interpreting any provision of IRPA, account must be had of Canada’s international human rights obligations and provisions should be interpreted in a manner consistent with Canada’s international obligations, where possible. In De Guzman v. Canada the court commented that the words “shall be construed and applied in a manner that complies with …” are mandatory and appear to direct courts to give the international human rights instruments in question more than persuasive or contextual significance in the interpretation of IRPA. By providing that IRPA “is to be” interpreted and applied in a manner that complies with the prescribed instruments, paragraph 3(3)(f), if interpreted literally, makes them determinative of the meaning of IRPA, in the absence of a clear legislative intent to the contrary.[134] As Bastarache J of the Canadian Supreme Court held in Pushpanathan, the "overarching and clear human rights object and purpose is the background against which interpretation of individual provisions must take place".[135] That said, unambiguous provisions of the IRPA must be given effect even if they are contrary to Canada’s international obligations or international law.[136]

Regard should be had to international human rights instruments that Canada has signed, whether or not Canada has ratified themEdit

In de Guzman v. Canada the court commented that the sources of international law described in paragraph 3(3)(f) comprise some that are binding on Canada in international law, and some that are not. The paragraph applies to instruments to which Canada is signatory. An international instrument is not legally binding on a signatory State until it has also ratified it, unless the instrument provides that it is binding when signed. Signature normally evinces an intention to be bound in the future, although it may also impose an immediate obligation on the signatory not to take measures to undermine the agreement.[137]

What are the international human rights instruments to which Canada is a signatory?Edit

As the Federal Court of Appeal has noted, the IRPA "does not list, let alone set out the text of, the measures to which paragraph 3(3)(f) applies."[138] It went on to note that the phrase "international human rights instruments to which Canada is signatory" is "far from self-defining".[138] The Department of Justice provides the following list, International Human Rights Treaties to which Canada is a Party, which may serve as a starting-point for such an analysis:[139]

  • Convention on the Prevention and Punishment of the Crime of Genocide (1952)
  • International Convention on the Elimination of All Forms of Racial Discrimination (1970)
  • International Covenant on Economic, Social and Cultural Rights (1976)
  • International Covenant on Civil and Political Rights (ICCPR) (1976)
    • Optional Protocol to the ICCPR (complaint mechanism) (1976)
    • Second Optional Protocol to the ICCPR, aiming at the abolition of the death penalty (2005)
  • Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) (1981)
    • Optional Protocol to CEDAW (complaint mechanism) (2002)
  • Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1987)
  • Convention on the Rights of the Child (CRC) (1991)
    • Optional Protocol to the CRC on the Involvement of Children in armed conflict (2000)
    • Optional Protocol to the CRC on the Sale of Children, Child Prostitution and Child Pornography (2005)
  • Convention on the Rights of Persons with Disabilities (2010)
    • Optional Protocol to the Convention on the Rights of Persons with Disabilities (2018)

This provision does not apply to international humanitarian law instruments, purely regional instruments, and texts which are not signedEdit

Section 3(3)(f) of the IRPA provides that it is to be construed and applied in a manner that complies with international human rights instruments to which Canada is signatory. This arguably excludes a number of types of instruments, including:

  • Instruments that are not human rights instruments, but are instead humanitarian law instruments: The Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1949), which at Art. 45, para. 4 prohibits transferring a protected person "to a country where he or she may have reason to fear persecution for his or her political opinions or religious beliefs.".[140] This instrument forms part of international humanitarian law, not international human rights law, and thus does not fall within the ambit of IRPA s. 3(3)(f).
  • Instruments that are not international instruments, but are instead regional ones: Canada is not a party to the American Convention on Human Rights. Nevertheless, as a member of the Organization of American States, it is bound by the terms of the American Declaration of the Rights and Duties of Man (“American Declaration”).[141] This instrument specifies the fundamental rights to which each person is entitled, and which each member State of the Organization of American States (OAS), like Canada, is bound to uphold. The OAS Charter and the American Declaration provide the source of legal obligations applicable to Canada.[142] That said, this instrument is arguably not relevant to s. 3(3)(f) of the IRPA given that it provides that the Act “is to be construed and applied in a manner that complies with international human rights instruments to which Canada is signatory”, and the American Declaration, rather than being an international instrument is rather a regional one. Even so, such instruments would nonetheless be relevant to the interpretation of this statute pursuant to general rules of statutory interpretation which involve considering Canada's international legal obligations when conducting statutory interpretation.
  • Instruments that are not signed: For example, the 1948 Universal Declaration of Human Rights is not a treaty, but instead a non-binding (yet aspirational) declaration that was voted upon by Member States of the United Nations. By its terms the Universal Declaration of Human Rights was not designed to describe binging obligations by only a 'common standard of achievement', as stated in the preamble to the declaration.[143] As such, given that this document was not signed, and as such countries cannot be said to be signatories to this declaration, it should not be regarded as one of the instruments contemplated by s. 3(3)(f) of the IRPA.

The refugee system is inextricably linked with the concept of human rightsEdit

Section 3(3)(f) of the Act provides that it is to be construed and applied in a manner that complies with international human rights instruments to which Canada is signatory. This should be read in conjunction with Section 3(2)(e) of the IRPA, which provides that the objectives of this Act with respect to refugees are to, among other things, uphold Canada’s respect for the human rights and fundamental freedoms of all human beings. These legislative provisions speak to the way that the plight of refugees is inextricably linked with human rights violations. As refugee lawyer David Matas writes, “the plight of refugees and human rights violations are not two problems, but different facets of the same problem. Human rights violations are at the root cause of mass exoduses.”[144]

There is a debate about whether the Refugee Convention itself should be considered a “human rights instrument”, within the meaning of s. 3(3)(f) of the Act. Prominent refugee law academics such as McAdam, author of the leading text The Refugee in International Law, argue that refugee law is a specialized area within human rights law.[145] UNHCR is said to have adopted this approach and has pronounced that “the human rights base of the Convention roots it quite directly in the broader framework of human rights instruments of which it is an integral part.”[146] The preamble to the Convention itself notes that "The High Contracting parties, considering that the United Nations has, on various occasions, manifested its profound concern for refugees and endeavoured to assure refugees the widest possible exercise of these fundamental rights and freedoms, ... have agreed as follows:".[102] Brennan CJ of the High Court of Australia relied on the Preamble when making the following comment about the Refugee Convention: "the preamble places the Convention among the international instruments that have as their object and purpose the protection of the equal enjoyment by every person of fundamental rights and freedoms."[147]

Given section 3(2)(b) of this legislation, which specifically provides that the objectives of this Act with respect to refugees are “to fulfil Canada’s international legal obligations with respect to refugees”, it has not been necessary to resolve the question of whether the Refugee Convention is one of the instruments contemplated by s. 3(3)(f) of the Act, since it is clear that the IRPA should be construed and applied in a manner that complies with the Refugee Convention whenever possible.

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  133. Sharryn Aiken, et al, Immigration and Refugee Law: Cases, Materials, and Commentary (Third Edition), Jan. 1 2020, Emond, ISBN: 1772556319, at page 309.
  134. De Guzman v. Canada (Minister of Citizenship & Immigration), [2005] F.C.J. No. 2119 at para. 75 (F.C.A.).
  135. Pushpanathan v Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982 (Supreme Court of Canada).
  136. Németh v. Canada (Justice), 2010 SCC 56, [2010] 3 S.C.R. 281 at para. 35.
  137. De Guzman v. Canada (Minister of Citizenship & Immigration), [2005] F.C.J. No. 2119 at para. 76 (F.C.A.).
  138. a b de Guzman v. Canada (Minister of Citizenship and Immigration), 2005 FCA 436 (CanLII), [2006] 3 FCR 655, par. 58, <http://canlii.ca/t/1m8q8#par58>, retrieved on 2020-12-22.
  139. Government of Canada Department of Justice, International Human Rights Treaties to which Canada is a Party, Date modified: 2019-07-30, <https://www.justice.gc.ca/eng/abt-apd/icg-gci/ihrl-didp/tcp.html> (Accessed April 17, 2020).
  140. UNHCR, Refugee Protection: A Guide to International Refugee Law, <https://www.academia.edu/36070452/REFUGEE_PROTECTION_A_Guide_to_International_Refugee_Law?email_work_card=view-paper> (Accessed December 13, 2020), page 14.
  141. Sharryn Aiken, et al, Immigration and Refugee Law: Cases, Materials, and Commentary (Third Edition), Jan. 1 2020, Emond, ISBN: 1772556319, at page 320.
  142. IACtHR, Advisory Opinion OC-10/89 of July 14, 1989, "Interpretation of the American Declaration of the Rights and Duties of Man within the Framework of Article 64 of the American Convention on Human Rights," Ser. A No. 10, paras. 45-46.
  143. The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary. Edited by Andreas Zimmermann. Oxford University Press, 2011, 1799 pp. ISBN 978-0-19-954251-2, Preamble 1951 Convention, by Alleweldt, at p. 232 (para. 28).
  144. David Matas with Ilana Simon, Closing the Doors: The Failure of Refugee Protection, Summerhill Press Ltd., Toronto, 1989, ISBN 0-920197-81-7, page 274.
  145. McAdam, J. 2010. Status anxiety: Complementary protection and the rights of non-convention refugees. University of New South Wales Faculty of Law Research Series, working paper 1, University of New South Wales, Sydney.
  146. Hamlin, Rebecca. Let Me Be a Refugee: Administrative Justice and the Politics of Asylum in the United States, Canada, and Australia. New York: Oxford University Press,  2014. Print.
  147. Applicant A v Minister for Immigration and Ethnic Affairs (n 86) 231–232 (per Brennan CJ).

The Board's inquisitorial mandateEdit

Refugee Status Determination is said to be among the most difficult forms of adjudication, involving as it does fact-finding in regard to foreign conditions, cross-cultural and interpreted examination of witnesses, ever-present evidentiary voids, and a duty to prognosticate potential risks rather than simply to declare the more plausible account of past events.[1] Within this context, the process for Refugee Status Determination adopted in Canada is one where the Board has an inquisitorial mandate. The following are some of the contours of that mandate.

The Refugee Protection Division has an inquisitorial mandateEdit

The Board generally uses an inquisitorial, as opposed to adversarial, approach to decision-making. Rebecca Hamlin describes the contrast between these two decision-making approaches this way:

The adversarial style takes the shape of a triad: two disputants arguing their respective cases before a passive judge, who must resolve the dispute by deciding which case is more persuasive. In an adversarial process, justice is based on the premise that an impartial judge decides between competing versions of this story after hearing both sides argued forcefully. Unlike this courtroom-like setting, inquisitorial hearings are designed to be non-adversarial and non-legalistic, taking the form of a dyad between the person whose fate is to be decided and the person deciding it. The inquisitorial decision-maker is engaged in a conversation with the parties, and the facts must be discovered through a collaborative process of research and questioning. Justice is demonstrated through the decision-maker's commitment to an active investigatory process.[2]

The Refugee Protection Division has an inquisitorial mandate. The Board's Chairperson Guideline 7 describes a Member's inquisitorial mandate this way:

A member's role is different from the role of a judge. A judge's primary role is to consider the evidence and arguments that the opposing parties choose to present; it is not to tell parties how to present their cases. Case law has clearly established that the RPD has control of its own procedures. The RPD decides and gives directions as to how a hearing is to proceed. The members have to be actively involved to make the RPD's inquiry process work properly.[3]

A Member's role is inquisitorial since they not only hear whatever evidence comes before them, but, ultimately, must inform themselves sufficiently to "determine whether or not the [claimant] is a Convention refugee."[4]

Refugee Status Determination is declaratory, not constitutiveEdit

Recognizing someone as a refugee does not make the person a refugee. This is because refugee status determination is a declaratory, not constitutive act. As refugee lawyer David Matas writes, “a declaratory act recognizes someone to be what he is or always was. A constitutive act makes a person something he was not before. An asylum government cannot constitute someone to be a refugee, because he already is one.”[5] In this way, a decision-maker errs when they fail to recognize a genuine refugee as such, and a decision-maker also errs when they do the converse by wrongly recognizing someone who is not a refugee as such. While, in principle, a state may grant asylum to anyone that it may so choose, regardless of whether or not they meet the criteria enshrined in the Refugee Convention, or any other international treaty,[6] such a wide-ranging power has not been delegated to Immigration and Refugee Board Members, who are restricted to recognizing cases where the applicable criteria in either s. 96 or s. 97 of the IRPA have been met. This modern conception of the refugee regime stands in contrast to pre-20th century views of asylum, where diplomatic and territorial asylum were considered to be constitutive acts such that it was the decision that made the person asking for asylum an asylee.[7]

A hearing becomes adversarial where the Minister is involvedEdit

While the Division's mandate is primarily conceived of as inquisitorial, in some cases the Minister intervenes in a claim and the process becomes an adversarial one. This properly constrains the Member's role. Madam Justice Tremblay-Lamer observed in Rivas v. Canada that in some situations, such as where exclusion is at issue, “it may be problematic for the tribunal to proceed without the Minister since the Minister usually has the burden of proof. As the applicant argues, it is a situation that can force the member to [translation] ‘descend into the arena’.”[8] As Lorne Waldman states in his looseleaf: “… Since the burden of proof falls squarely on the Minister, it is certainly arguable that it is not appropriate for tribunal members themselves to engage in an investigation with respect to the exclusion matters. For the tribunal members to do so would result in their becoming prosecutors seeking to establish if the claimant falls within the exclusion clauses.”[9] Despite all of this, the jurisprudence recognizes that the Board may make a decision on the issue of exclusion without the Minister’s participation,[10] and indeed that it may have an obligation to do so even where the Minister does not participate in a case. But once the Minister becomes involved, the hearing is seen to become an adversarial process, with both the Minister’s Hearings Officer and the refugee claimant presenting evidence to establish or rebut the allegation of exclusion.[11] This may entail some limits on the Member's proper role, and this relates to the requirement in the RPD Rules that the hearing be suspended immediately upon notification to the Minister of possible exclusion (which see: Canadian Refugee Procedure/Exclusion, Integrity Issues, Inadmissibility and Ineligibility).

The Member has wide latitude to question claimants in an inquisitorial processEdit

The text Judicial Review of Administrative Action in Canada provides that particular latitude will be given to tribunals to question where the matter is not adversarial, as with most refugee proceedings:

Extensive and "energetic" questioning alone by tribunal members will not in itself give rise to a reasonable apprehension of bias. And particular latitude is likely to be given to tribunals operating in a non-adversarial setting, such as refugee determination hearings, where there is no one appearing to oppose the claim.[12]

The nature of the mandate that decision-makers have in inquisitorial RSD processes is summarized by Rebecca Hamlin as follows:

The inquisitorial form requires much more active decision makers. Instead of placing the responsibility for the collection of evidence and the presentation of arguments on the disputing parties themselves, the inquisitorial process combines the role of investigator and decision-maker into one. RSD is inquisitorial if the asylum seeker goes before a decision maker who both researches and decides the claim.[13]

That said, there are limits on appropriate questioning where a Member approaches questioning with a discriminatory or hostile attitude: Canadian Refugee Procedure/The right to an unbiased decision-maker#The tone and tenor of the decision-maker’s involvement in the hearing.

A claimant has an onus to show that they meet the criteria to be recognized as a refugeeEdit

The Federal Court affirms that the burden of proof rests on a claimant to show that they meet the definition of a Convention Refugee or 'person in need of protection' in the Act.[14] The Irwin Law text Refugee Law notes that this burden flows from the general proposition in international law that an individual seeking admission to a state must justify their admission.[15] The UNHCR is of the view that this principle properly applies in the refugee context, stating that "the burden of proof in principle rests on the applicant".[16] The burden of proof was previously allocated differently in Canadian refugee law, but in 1988 Canada's legislature modified the immigration legislation to shift the burden of proof for making a claim onto the asylum seeker.[17]

The UNHCR Handbook provides that those examining a refugee claim should "ensure that the applicant presents his case as fully as possible and with all available evidence."[16] This does not mean that the Board member is obliged to undertake a freestanding inquiry into a claim; the Refugee Appeal Division has held that the following principles apply in the refugee determination context: "a decision-maker [is] entitled to proper notice as to what exactly [is] being advanced. It is not up to the decision-maker to ferret out points which might possibly assist an applicant."[18] One of the reasons for this is about judicial economy; indeed, it is said that “states have a right to a fair and efficient asylum procedure”.[19]

Finally, in the Canadian system there exist legal issues where the burden of proof does not fall on the claimant, for example the Minister (or the Board, if the Minister is not participating in a hearing) bears the onus to establish a refugee claimant comes within one of the Convention's exclusion clauses.[20]

There is a shared duty of fact-finding in refugee mattersEdit

The United Nations High Commissioner for Refugees states in their handbook that there is a shared duty of fact-finding between a claimant and the examiner: "In most cases a person fleeing from persecution will have arrived with the barest necessities and very frequently even without personal documents. Thus, while the burden of proof in principle rests on the applicant, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner."[21] States must consider persons exercising their right to asylum honestly and with due diligence so as to not violate their obligation of non-refoulement.[22]

One of the ways that this principle is implemented in practice is through packages of information that states compile on the countries of origin against which claimants are filing claims. It is an international norm that states ensure that precise and up-to-date information from various sources, such as the UNHCR and knowledgeable NGOs, is made available to the personnel responsible for examining applications and taking decisions.[23] This information will concern the general situation prevailing in the countries of origin against which applications of asylum are being made. That said, it is generally expected that a claimant will bring the passages that they are relying on to the attention of the decision maker; the Federal Court has held that the RPD "is not obliged to comb through every document listed in the National Document Package in the hope of finding passages that may support the claim and specifically address why they do not, in fact, support the claim".[24]

Another way that Canada fulfills this obligation is through claimant-specific research; the Board has committed to using the following process when engaging in such research: Canadian Refugee Procedure/The right to a fair hearing#Disclosure rights and obligations for the Board.

The Board must ensure that certain claimants are assisted to make their casesEdit

The United Nations High Commissioner for Refugees states in their handbook that the scope of the shared duty of fact-finding between a claimant and the examiner will vary depending on the nature of the case: "While the burden of proof in principle rests on the applicant, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner. Indeed, in some cases, it may be for the examiner to use all the means at [their] disposal to produce the necessary evidence in support of the application."[21] What are those cases in which an examiner is to go to greater lengths to produce such evidence?

There is recognition that certain types of claimants may be particularly prejudiced in presenting their cases and that in such circumstances this may affect the onus that is placed on the claimant to provide corroboration of their claim. Indeed, the Code of Conduct for Members of the Immigration and Refugee Board of Canada provides that "Members must take reasonable measures to accommodate all participants in a proceeding so that they may participate effectively."[25] The UNHCR stipulates that "procedures should be in place to identify and assist asylum seekers with specific needs."[26]

Minors and the mentally incompetentEdit

One such category of claimants is those whose ability to appreciate the nature of the proceedings is severely impaired, either because they are incompetent or a minor. The failure to appoint a designated representative in a refugee protection proceeding, when one is required by the rules, is a violation of procedural fairness. As the court stated in Kurija v. Canada, “I place the proper representation of young immigrant claimants in refugee proceedings on the same plane as concerns over bias of a decision-maker. By this I mean that it is a ‘knock-out’ issue requiring the decision to be set aside, and furthermore an issue on which new evidence is admissible after the fact for the purpose of determining the partiality of the decision-maker, or in this case, the age of the claimant.”[27] For further discussion of this, see: Canadian Refugee Procedure/Designated Representatives.

Furthermore, the UNHCR states that determining the claim of a minor "may call for a liberal application of the benefit-of-the-doubt principle".[28]

Claimants in detentionEdit

Another category of claimant which may require special assistance is those who are in detention at the time that they are preparing for, or attending, their refugee hearing. There are particular access to justice issues for claimants in detention, who have consistently been identified as being among those who have the greatest difficulty accessing legal counsel.[29] The UN Committee Against Torture, in its General Comment on non-refoulement, has listed this as one situation in which the burden of proof should reverse, and it should fall on the state to rebut the claimant's assertions where the author of the complaint has faced difficulties in obtaining evidence to substantiate their claim:[30]

[W]hen the complainant is in a situation where he/she cannot elaborate on his/her case, for instance, when the complainant has demonstrated that he/she has no possibility of obtaining documentation relating to his/her allegation of torture or is deprived of his/her liberty, the burden of proof is reversed and it is up to the State party concerned to investigate the allegations and verify the information on which the communication is based.[31]

For further discussion of this, see: Canadian Refugee Procedure/Claimant or Protected Person in Custody.

Evidence is primarily presented in written form in the Canadian processEdit

The purpose of an oral hearing before the Division is not for a claimant to repeat everything that is in their Basis of Claim form. The form is already to include "everything important for [their] claim" (as stated on the form) and as per the Chairperson Guidelines 7: Concerning Preparation and Conduct of a Hearing in the Refugee Protection Division, "questions that are answered by the claimant just repeating what is written in the BOC Form do not help the Member."[32] Instead, if the information on the form reliably establishes that the claimant meets the criteria to receive protection, then an oral hearing need not be held (See Rule 23: Canadian Refugee Procedure/Allowing a Claim Without a Hearing). The purpose of an oral hearing is to test the evidence presented, or lack thereof, where it is necessary to do so. This is in contrast to the practice in some other jurisdictions; for example, in Finland the practice is to have a portion of their asylum interviews in which the claimant is expected to state the grounds for claiming asylum and disclose evidence to support that claim through free narration.[33]

The Board should consider the most up-to-date country conditions evidenceEdit

Where a new National Documentation Package is released by the Board's research unit prior to a panel rendering a decision, the panel should consider it. In Zhao v. Canada, the court held that the Board should consider the most recent information on country conditions. The parties should have an opportunity to present submissions and evidence on the new documents if they include material new information.[34] As the Federal Court held in that case, "as a matter of procedural fairness, the [Board] simply had a duty to disclose the most recent NDP and to give the Applicants an opportunity to respond and make submissions on this matter."[35] That said, the RPD is not generally required to look for evidence on its own in these documents to support either the claimant's or Minister's arguments and propositions.[24] For an additional discussion of this issue, see: Canadian Refugee Procedure/Documents#The panel should consider the most recent National Documentation Package.

ReferencesEdit

  1. Hathaway, James C., Rebuilding trust: a report of the Review of Fundamental Justice in Information Gathering and Dissemination at the Immigration and Refugee Board of Canada, Refugee Studies Centre, Publisher: Osgoode Hall Law School, 01/12/1993 <http://repository.forcedmigration.org/show_metadata.jsp?pid=fmo:1136> (Accessed April 14, 2020), page 6.
  2. Let Me Be a Refugee: Administrative Justice and the Politics of Asylum in the United States, Canada, and Australia. By Hamlin, Rebecca. New York: Oxford University Press,  2014, p. 18.
  3. Immigration and Refugee Board of Canada, Chairperson Guidelines 7: Concerning Preparation and Conduct of a Hearing in the Refugee Protection Division, Amended December 15, 2012 <https://irb-cisr.gc.ca/en/legal-policy/policies/Pages/GuideDir07.aspx#FailureA4> (Accessed January 26, 2020), section 2.2.
  4. Hathaway, James C., Rebuilding trust: a report of the Review of Fundamental Justice in Information Gathering and Dissemination at the Immigration and Refugee Board of Canada, Refugee Studies Centre, Publisher: Osgoode Hall Law School, 01/12/1993 <http://repository.forcedmigration.org/show_metadata.jsp?pid=fmo:1136> (Accessed April 14, 2020), page 5.
  5. David Matas with Ilana Simon, Closing the Doors: The Failure of Refugee Protection, Summerhill Press Ltd., Toronto, 1989, ISBN 0-920197-81-7, page 196.
  6. Roman Boed, The State of the Right of Aslyum in International Law, Duke Journal of Comparative & International Law, 5, 1-34 (1994), <https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1342&context=djcil>, page 4.
  7. Andreas Zimmermann (editor), The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary. Oxford University Press, 2011, 1799 pp, ISBN 978-0-19-954251-2, Regional Developments: Americas, written by Piovesan and Jubilut, at p. 213 (para. 29).
  8. Reyes Rivas v. Canada (Citizenship and Immigration), 2007 FC 317 (CanLII), para. 39.
  9. Immigration Law and Practice, Vol. 1, looseleaf (Markham, Ont.: Butterworths, 1992), at paragraph 8.511.
  10. Reyes Rivas v. Canada (Citizenship and Immigration), 2007 FC 317 (CanLII), para. 40.
  11. Jennifer Bond, Nathan Benson, Jared Porter, Guilt by Association: Ezokola’s Unfinished Business in Canadian Refugee Law, Refugee Survey Quarterly, hdz019, https://doi-org.ezproxy.library.yorku.ca/10.1093/rsq/hdz019, footnote 35.
  12. Judicial Review of Administrative Action in Canada (Brown and Evans, Toronto : Canvasback Publishing, 1998) at pages 11-31 and 11-32.
  13. Let Me Be a Refugee: Administrative Justice and the Politics of Asylum in the United States, Canada, and Australia. By Hamlin, Rebecca. New York: Oxford University Press,  2014, p. 19.
  14. Lugunda v. Canada (Minister of Citizenship and Immigration), 2005 FC 467 (CanLII), par. 17, <http://canlii.ca/t/1k43l#par17>, retrieved on 2020-04-15.
  15. Lassa Oppenheim, Oppenheim's International Law, 7th ed by Hersch Lauterpacht (London: Longmans Green, 1952) at 616, as cited in Martin David Jones and Sasha Baglay. Refugee Law (Second Edition). Irwin Law, 2017, page 144.
  16. a b UN High Commissioner for Refugees (UNHCR), Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, April 2019, HCR/1P/4/ENG/REV. 4, available at: https://www.refworld.org/docid/5cb474b27.html [accessed 26 January 2020], page 45.
  17. Hamlin, Rebecca. Let Me Be a Refugee: Administrative Justice and the Politics of Asylum in the United States, Canada, and Australia. New York: Oxford University Press, 2014. Print. Page 49.
  18. X (Re), 2016 CanLII 107938 (CA IRB), para. 28.
  19. Uçaryılmaz, Talya. (2020). The Principle of Good Faith in Public International Law (El principio de buena fe en el Derecho internacional público). Estudios de Deusto. 68.43.10.18543/ed-68(1)-2020pp43-59 <https://dialnet.unirioja.es/servlet/articulo?codigo=7483935> (Accessed July 25, 2020), page 14 of the article.
  20. Ramirez v. Canada (Minister of Employment and Immigration), 1992 CanLII 8540 (FCA), [1992] 2 F.C. 306 (C.A.).
  21. a b United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status 47 (1992).
  22. Kipras Adomaitis, The Right to Liberty in the Context of Migration, Masters Thesis, Mykolas Romeris Law School, <https://vb.mruni.eu/object/elaba:64888610/64888610.pdf> (Accessed July 19, 2020), page 21.
  23. Andreas Zimmermann (editor), The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary. Oxford University Press, 2011, 1799 pp, ISBN 978-0-19-954251-2, Introduction to Chapter V, written by Hofmann & Löhr, at p. 1119 (para. 101).
  24. a b Giraldo v. Canada (Citizenship and Immigration), 2020 FC 1052, para. 19.
  25. Immigration and Refugee Board of Canada, Code of Conduct for Members of the Immigration and Refugee Board of Canada, Effective Date: April 9, 2019, <https://irb-cisr.gc.ca/en/members/Pages/MemComCode.aspx> (Accessed May 3, 2020), at section 10.
  26. UN High Commissioner for Refugees (UNHCR), Procedural Standards for Refugee Status Determination Under UNHCR's Mandate, 26 August 2020, available at: https://www.refworld.org/docid/5e870b254.html [accessed 5 September 2020], page 15.
  27. Kurija v. Canada (Citizenship and Immigration), 2013 FC 1158 (CanLII), par. 23, <http://canlii.ca/t/g1tm3#par23>, retrieved on 2020-03-15.
  28. UNHCR and Inter-Parliamentary Union, Refugee Protection: A Guide to International Refugee Law, <https://www.academia.edu/36070452/REFUGEE_PROTECTION_A_Guide_to_International_Refugee_Law?email_work_card=view-paper> (Accessed December 13, 2020).
  29. BC Public Interest Advocacy Centre, Refugee Reform Paper, <https://bcpiac.com/wp-content/uploads/2015/09/LFBC-Refugee-Reform-Paper-Final-July-30-2015-2.pdf>, page 3.
  30. Çalı, B., Costello, C., & Cunningham, S., Hard Protection through Soft Courts? Non-Refoulement before the United Nations Treaty Bodies, German Law Journal, 21(3) (2020), 355-384. doi:10.1017/glj.2020.28 (Accessed April 11, 2020), page 375.
  31. CAT, General Comment No. 4 (2017) on the Implementation of Article 3 of the Convention in the Context of Article 22, Paragraphs 15 and 16, U.N. Doc. CAT/C/GC/4 (Sep. 4, 2018), at para. 38.
  32. Immigration and Refugee Board of Canada, Chairperson Guidelines 7: Concerning Preparation and Conduct of a Hearing in the Refugee Protection Division, Amended December 15, 2012 <https://irb-cisr.gc.ca/en/legal-policy/policies/Pages/GuideDir07.aspx#FailureA4> (Accessed January 26, 2020), section 5.7.
  33. Eeva Puumala, Riitta Ylikomi & Hanna-Leena Ristimäki, Giving an account of persecution: The dynamic formation of asylum narratives, Journal of Refugee Studies 31(2), pp. 197-215 (2018) <https://s3.amazonaws.com/academia.edu.documents/61879698/Refugee_Studies_Puumala__Ylikomi_and_Ristimaki_accepted_version.pdf> (Accessed February 10, 2020), at page 7.
  34. Zhao v. Canada (Citizenship and Immigration), 2019 FC 1593 (CanLII), par. 12, <http://canlii.ca/t/j48rf#par12>, retrieved on 2020-04-01.
  35. Zhao v. Canada (Citizenship and Immigration), 2019 FC 1593 (CanLII), par. 31, <http://canlii.ca/t/j48rf#par31>, retrieved on 2020-04-01.

The right to be heard and the right to a fair hearingEdit

The Supreme Court of Canada states that the principle that the individual or individuals affected by a decision should have the opportunity to present their case fully and fairly underlies the duty of procedural fairness and is rooted in the right to be heard.[1] In short, parties are entitled to an oral hearing and such hearings must be conducted fairly. The fair hearing requirement means that the people affected are given a reasonable opportunity to present their point of view and to respond to facts presented by others, and that the decision-maker will genuinely consider what each person has told them when making the decision. There is also notice requirement which means that the people affected by a decision must be told about the important issues and be given enough information to be able to participate meaningfully in the decision-making process.[2] In considering whether a hearing was fair, the question is whether each party was able to fully and fairly present their case.[3] The following are some of the considerations that emerge in this respect.

The Board must provide the parties with the opportunity to be heardEdit

Parties are entitled to the opportunity to attend an oral hearingEdit

Section 170(e) of the Act states that the Refugee Protection Division, in any proceeding before it, must give the person and the Minister a reasonable opportunity to present evidence, question witnesses and make representations. This provision relates to the right that parties have to be heard. The Supreme Court of Canada has held that fundamental justice requires an oral hearing when issues of credibility are being determined in the refugee context.[4] This hearing process must ensure that parties have an opportunity to present and respond to evidence and to make representations. This is consistent with guidance from the UNHCR that "applicants undergoing individual RSD procedures must have the opportunity to present their claims in person".[5]

Where, for example, the Board prevents a party from speaking on multiple occasions during a hearing,[6] denies a party a reasonable opportunity to cross-examine a witness,[7] refuses to receive evidence,[8] or prevents a party from calling witnesses,[9] this may amount to a denial of the right to be heard and to a breach of natural justice. However, regard must be had to the relevant rules on, say, calling witnesses and submitting documents and the discretion that the Board has in certain circumstances to refuse such evidence. For more detail on fairness considerations related to the manner of conducting the hearing, see: Canadian Refugee Procedure/The right to be heard and the right to a fair hearing#Fairness considerations related to the manner of conducting the hearing.

Furthermore, it must be recognized that the principles of procedural fairness do not provide an untrammeled right to be heard, but the right to a reasonable opportunity to be heard. Where a party does not take advantage of that opportunity, or their actions or omissions result in them being unable to do so, procedural fairness does not automatically give them the right to another opportunity to be heard.[10]

A party is entitled to a hearing without unreasonable delay that causes serious prejudiceEdit

The UNHCR core standards for due process in Refugee Status Determination prescribe that "RSD applications must be processed in the most timely and efficient manner possible".[11] The uncertainty inherent in the asylum process is reported to be a source of significant stress and anxiety for many claimants.[12] Fundamental justice may be violated when there is an unreasonable delay that causes serious prejudice to the person concerned.[13] That said, asylum systems around the world are plagued by significant delays; for example, in the United States, on average, affirmative asylum seekers who receive asylum relief waited more than 1,000 days to be granted asylum.[14]

The Board must notify the Minister where the Board's rules require it and this protects the Minister's right to be heardEdit

Rule 26(1) of the RPD Rules stipulate that "If the Division believes, before a hearing begins, that there is a possibility that section E or F of Article 1 of the Refugee Convention applies to the claim, the Division must without delay notify the Minister in writing and provide any relevant information to the Minister." Similarly, Rule 27(1) stipulates that "If the Division believes, before a hearing begins, that there is a possibility that issues relating to the integrity of the Canadian refugee protection system may arise from the claim ... the Division must without delay notify the Minister in writing and provide any relevant information to the Minister." The failure on the part of the RPD to inform the Minister results in an unfair hearing as the Minister has a right to be involved and as a result of the Minister’s involvement the outcome of the claim could have been different if an exclusion issue is fully canvassed.[15] See Canadian Refugee Procedure/Exclusion, Integrity Issues, Inadmissibility and Ineligibility for a more fulsome discussion of this issue.

Language of proceedingsEdit

A claimant has a right to proceedings in the official language of Canada of their choiceEdit

The IRB Policy Statement on Official Languages and the Principle of the Substantive Equality of English and French provides that the language rights of parties are substantive rights that are distinct from their right to procedural fairness. Both the Official Languages Act and the Canadian Charter of Rights and Freedoms establish official languages rights for parties as well as for individuals who are otherwise involved in IRB proceedings, such as witnesses and Counsel. Consequently, any issue or request concerning the use of either official language will be examined by the IRB independently of considerations of procedural fairness, although the language skills of the parties may nonetheless be considered when examining procedural fairness issues.[16] For more details about this right see: Canadian Refugee Procedure/Documents#Claimants need not provide documents in the language of the proceeding, only in English or French.

A claimant has a right to interpretation where it is necessaryEdit

The right to an interpreter in a proceeding in another language is enshrined in section 14 of the Canadian Charter of Rights and Freedoms, and this right has been held to be generally applicable to a proceeding before the RPD. Interpretation should be continuous, precise, impartial, competent and contemporaneous. For a discussion of this, see the commentary to RPD Rule 19: Canadian Refugee Procedure/Interpreters#Legal standard for interpretation. A failure to provide an interpreter at all, or to provide one that offers adequate interpretation, will mean that the process was not fair: Kovacs v. Canada.[17]

Providing information about the status determination process in a range of languagesEdit

Academics have observed that it is a best practice that state authorities widely disseminate information on eligibility criteria, the determination procedure, and the rights associated with recognition in a range of languages.[18] While this may be a best practice for states, to the knowledge of this author, it does not translate into a legal entitlement for claimants under Canadian law. For more details, see: Canadian Refugee Procedure/Counsel of Record#The fact that a claimant lacks counsel does not, in and of itself, mean that their hearing is unfair.

Fairness considerations related to providing complete disclosure of informationEdit

Disclosure rights and obligations for the ClaimantEdit

The RPD is mandated by the common law and the IRPA to respect principles of natural justice and procedural fairness. The right to be heard is a fundamental principle of natural justice. An essential component of the right to be heard is to be able to put relevant evidence before the decision-maker.[19] For more details on this, see: Canadian Refugee Procedure/The right to a hearing and the right to be heard#The Board must provide the parties with the opportunity to be heard.

The information that a claimant provides in their Basis of Claim form must be complete: Canadian Refugee Procedure/Information and Documents to be Provided#Rule 6 - Basis of Claim Form. The documents that parties are obliged to provide to the Board are specified in rules 7 and 34: Canadian Refugee Procedure/Documents#What documents does a party need to provide when?.

Disclosure rights and obligations for the MinisterEdit

While the Minister has no obligation to become a party to a proceeding, once it does so its disclosure must be "complete" and cannot be selective. The documents that parties are obliged to provide to the Board are specified in rules 7 and 34: Canadian Refugee Procedure/Documents#What documents does a party need to provide when?.

Disclosure rights and obligations for the BoardEdit

Fundamental justice will require the the Board provide complete disclosure so as to allow parties to know and meet the case against themselves. In this way, the Board must provide disclosure of documents that it relies upon and provide parties with an opportunity to reply.[20] See Rule 33: Canadian Refugee Procedure/Documents#Rule 33 - Disclosure and use of documents by the Division. The UNHCR affirms that a fair asylum system is one where parties will have access to the complete record that is before the decision-maker.[21]

Furthermore, in any research it conducts, the RPD is to follow the Instructions for Gathering and Disclosing Information for Refugee Protection Division Proceedings.[22] The Instructions note that while RPD members are responsible for identifying information needed for the adjudication of a claim and may gather information, the Research Directorate is primarily responsible for gathering information. The Instructions set out general principles related to the gathering and disclosing of information, as well as specific instructions.[23] These principles apply to how to Board has committed to collecting information regarding a claim, including that:

  1. Responsibility to present supporting evidence rests with the parties. This responsibility remains even when the RPD decides to obtain information other than that provided by the parties.
  2. To ensure a fair determination of a refugee claim, the assigned member requires all the relevant evidence whether such evidence may be favourable or prejudicial to any party.
  3. The RPD will gather information through a transparent and standard process to ensure fairness in decision-making.
  4. The assigned members will request claimant specific information and use such information only where they complete a risk assessment and are satisfied that there is no serious possibility that gathering the information would endanger the life, liberty or security of the claimant or any other person.
  5. ...
  6. The information will be sought by the RPD only in instances where the information is deemed relevant to a determinative issue in the claim, can be obtained in a timely manner, and is likely to result in obtaining new or conclusive information. ...[22]

That said, not every situation where a decision-maker does their own research and fails to disclose it will be considered a breach of procedural fairness. In Dubow-Noor v. Canada, the court held that information obtained independently by the Board (a Google Maps search) was not extrinsic evidence because it was publicly available and not novel.[24]

Fairness considerations related to providing notice of what is at issue in a hearingEdit

Claimants have an expectation that a claim will only be rejected on the basis of a legal issue that a panel has identified as being at issueEdit

To ensure that proceedings are accessible and comprehensible it is expected that a panel will identify the issues that are at stake in a claim and if the panel does not identify a particular issue as being at issue, the panel would err if it subsequently rejected the claim on that basis. As such, where a panel did not advise a claimant that state protection was at issue in a claim, and then rejected the claim on the basis that they had not rebutted the presumption of the availability of state protection, the panel acted unfairly.[25] Similarly, where a panel listed a series of issues that were of concern, but did not list the objective basis of the claim as of concern, the panel erred when it rejected the claim on the basis that the claimant had not established the objective basis of the claim.[26] An exception to this is that some issues are said to always be at issue in every claim, and need not be identified as a distinct issue, including credibility,[27] identity,[28] and the objective basis of the claim.[29] That said, the court nonetheless holds that where relevant, the claimant should be advised that identity is an issue, and of the need to provide specific documents or other corroborative evidence.[30]

Claimants should have a fair opportunity to respond to a panel's concernsEdit

Procedural fairness entitles to those who are to be subjected to a decision affecting their rights, privileges, or interests to know the case against them.[31] This requires that they "know what evidence has been given and what statements have been made" affecting them and that they be given "a fair opportunity to correct or contradict them."[32] Parties should have a fair opportunity to respond to a panel's credibility concerns. Where a panel may reach an adverse credibility finding, a party should have notice and an opportunity to respond.[33] This rule was articulated as follows by the Federal Court of Appeal in 1989: The claimant should be given an opportunity at the hearing to clarify the evidence and to explain apparent contradictions in their testimony.[34] That said, there are limits to how far this proposition extends and a panel need not advert a claimant's attention to all possible credibility concerns, such as potential inconsistencies between their evidence and the objective country condition documents.

Parties should also have a fair opportunity to respond to other concerns that a panel has regarding issues other than credibility. For example, in Conde v. Canada, the claimant had been designated a vulnerable person by a previous panel of the Board. The claim was returned to the Board for redetermination after the original decision was overturned by the Federal Court. On redetermination, the Member de-designated the claimant as a vulnerable person. On judicial review, the court concluded that this had been done in a procedurally unfair manner as "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".[35] In that case, the Federal Court concluded "clearly, this was procedurally unfair."[36]

Ministerial Notification rules ensure that a claimant will have advance notice of particular types of issuesEdit

Rule 26(1) of the RPD Rules stipulate that "If the Division believes, before a hearing begins, that there is a possibility that section E or F of Article 1 of the Refugee Convention applies to the claim, the Division must without delay notify the Minister in writing and provide any relevant information to the Minister." The obligation to inform the Minister in writing where there is a “possibility” of exclusion, integrity issues, or other other types of issues that require such notice not only ensures that the Minister is heard where they desire to intervene, but it also ensures that a claimant will have adequate notice of the issues at the hearing, including time to prepare for a hearing that may involve a new issue or that may have become more complicated. The court commented on this aspect of the notice requirement in Canada v. Louis, indicating that procedural unfairness that arises from the failure to provide such notice may be relied upon by either a claimant or the Minister: "Even though in [Kanya v. Canada] the breach of the rules of procedural fairness was relied on to the benefit of the refugee claimant, there is no reason that a breach of the obligations provided for in subsection 23(1) of the Rules cannot be relied on in the same way by the Minister who, according to the wording of this provision, is the true beneficiary of the said obligation."[37]

Similarly, a claimant is entitled to 10 days of advance notice where the Minister will be intervening in person and/or of the purpose of any Ministerial intervention: Canadian Refugee Procedure/Intervention by the Minister#Rule 29(2)(a) requirement that the notice state the purpose for which the Minister will intervene.

The Board is bound by its own undertakings where it indicates that something is not at issue or that particular evidence is unnecessaryEdit

The court has held that the Board is bound by its own undertakings and that, once an undertaking is given by a Board Member or a representation is made, failure to comply with it will constitute a breach of natural justice.[38] For example, in Isik v. Canada the Court concluded that the Board had acted unfairly where it indicated that it was not necessary to call a witness and then made adverse credibility findings on the point that the witness may have testified about:  

That said, the Court strongly believes that the RPD should refrain from taking a position on the necessity of presenting a witness unless it knows exactly what facts the witness will testify about and in what specific respect this evidence is meant to corroborate a claimant’s testimony or story. If a counsel simply inquires about the advisability of presenting a witness, the RPD can always refuse to take a position on the basis that it has yet to complete its evaluation of the evidence. If it chooses to take a stand, it must be fully aware that its decision will have consequences. In this particular case, the Court finds that the RPD ought to have known that its comment that the evidence was not necessary would clearly impact on the legal representatives acting in this case and it is clear that it did so without knowing the full extent of the facts on which the proposed witness was meant to testify.[39]

Similarly, in Okwagbe v. Canada the tribunal advised that its only concern was delay but then rejected the claim based on the availability of an IFA. The Court held that this conduct constituted a breach of natural justice.[40]

Fairness considerations related to the manner of conducting the hearingEdit

Section 170(e) of the Act states that the Refugee Protection Division, in any proceeding before it, must give the person and the Minister a reasonable opportunity to present evidence, question witnesses and make representations. The Supreme Court of Canada has held that fundamental justice requires an oral hearing when issues of credibility are being determined in the refugee context.[4] This hearing process must ensure that parties have an opportunity to present and respond to evidence and to make representations. Where, for example, the Board prevents a party from speaking on multiple occasions during a hearing,[6] denies a party a reasonable opportunity to cross-examine a witness,[7] refuses to receive evidence,[8] or prevents a party from calling witnesses,[9] this may amount to a denial of the right to be heard and to a breach of natural justice. However, regard must be had to the relevant rules on, say, calling witnesses and submitting documents and the discretion that the Board has in certain circumstances to refuse such evidence.

Claimants have a right to counselEdit

For considerations of the right to counsel and incompetence of counsel, see the commentary to s. 167 of the Act: Canadian Refugee Procedure/Counsel of Record#IRPA s. 167 on the Right to Counsel.

Hearings shall normally be conducted privatelyEdit

See the commentary on section 166 of the Act: Canadian Refugee Procedure/Proceedings must be held in the absence of the public.

The right to present evidenceEdit

Where a witness is interrupted while providing testimony, this may establish that their right to present oral testimony was interfered withEdit

Where the Board prevents a party from speaking on multiple occasions during a hearing, this may amount to a denial of the right to be heard and to a breach of justice.[6] However, redirecting a witness is not in and of itself problematic; the court concluded in Wysozki v. Canada that seeking to have an applicant respond to the question asked rather than provide other irrelevant information is not a breach of procedural fairness.[41] That said, where a panel interrupts a witness' testimony in a manner that could be described as "constant interruptions or gross interference", this may establish that the process was not fair.[42]

Where a panel or opposing counsel acts in an intimidating way, this may establish that the right to present oral testimony was interfered withEdit

The Code of Conduct for Members of the Immigration and Refugee Board of Canada provides that "Members shall conduct hearings in a courteous and respectful manner while ensuring that the proceedings are fair, orderly and efficient."[43] Intrusive and intimidating interventions by a Board member may be found to interfere with an applicant's ability to present his case.[44] If the interruptions are made for the purpose of clarifying testimony or an issue, they will not raise a reasonable apprehension of bias, even if the manner of questioning or interruption is "energetic".[45] However, there will be cases where conduct crosses the line. For example, in Kumar, the Federal Court of Appeal found that the decision-maker’s conduct of the hearing, which included statements such as [t]his is one of the most ridiculous cases I have ever heard in my life and, in response to a summary of the applicant’s political views, Who cares?, was intrusive and that the intimidating character of the interventions interfered significantly with the applicant’s presentation of his case by his counsel.[46] This concern is related to issues of bias and prejudgment of the evidence: Canadian Refugee Procedure/The right to an unbiased decision-maker#Bias and the Member's Inquisitorial Role.

Evidence may only be admitted where it is credible and trustworthyEdit

Just as the refusal to admit relevant evidence may breach procedural fairness, so can a decision to admit and rely on evidence which may not be reliable, credible, or trustworthy or, in the case of hearsay evidence, in circumstances where a party is unable to correct or contradict any statement prejudicial to its view, including by means of cross-examination.[47] For further discussion of this, see: Canadian Refugee Procedure/IRPA Section 170 - Proceedings#IRPA Section 170(h) - May receive evidence considered credible or trustworthy.

Members are expected to act honestly and in good faith and are precluded from "setting traps" for claimantsEdit

The Code of Conduct for Members of the Immigration and Refugee Board of Canada provides that "Members are expected to act honestly and in good faith, in a professional and ethical manner."[48] Additionally, Parliament's objective with the IRPA is to fulfill Canada's international legal obligations with respect to refugees, including Canada's obligations pursuant to the Refugee Convention, obligations which must be interpreted and performed in good faith.[49] In international law, the concept of good faith, or bona fides, is taken to include duties of honesty, loyalty, and reasonableness.[50] As such, this requirement will preclude outright dishonesty, such as falsely indicating that a claimant made a statement that they did not make, something that has been an issue in other countries' refugee status determination systems.[51] This will also preclude more subtle actions that do not demonstrate good faith, such as "setting traps" for claimants.[52] By way of example, the Board must not mislead a claimant by putting a false premise to them. This has been held to be a "clear breach of procedural fairness".[53] In Yahaya v. Canada, the court concluded that the panel had breached procedural fairness as follows: "It is important because the RPD member’s questioning on this issue added to the confusion, as it resulted from the initial misinterpretation of the Applicant’s statement. At the hearing, the RPD member put a false premise to the Applicant, i.e., that the police visit took place on December 21, 2016, and then took note of how the Applicant reacted to what the Applicant had never understood as being a discrepancy. In effect, the Applicant was asked to explain away a discrepancy that never existed."[54] That conduct was held to have been procedurally unfair, and the matter was remitted to the IRB for redetermination. Similarly, in Reveron v. Canada the Federal Court noted that "The panel seems to have imposed a false premise on Mr. Chace Reveron and asked him to prove it" and concluded that this was a procedural fairness violation.[55]

A panel can establish principled rules regarding the manner in which a witness testifiesEdit

The right to make one’s case is subject to reasonable limitations, but those limitations, when they are the result of the exercise of discretion, are to be made and applied in a principled way.[56] For example, a Member of the Board does not normally err by asking a witness to put away notes before giving testimony. One option for a panel in such circumstances is to offer to the party that they may admit the notes in question as an exhibit, something that was offered in Wysozki v. Canada.[57] Another example of the right of a Board to establish principled limitations on the testimony that may be adduced in a proceeding was where a Member required a proposed overseas witness to attend at the Canadian embassy abroad for identification before the panel would hear their testimony by telephone, a limitation that was upheld by the Federal Court on judicial review: Canadian Refugee Procedure/Witnesses#44(1)(f): If a party wants to call a witness, the party must provide information on whether the parts wants the witness to testify by means of live telecommunication.

A hearing should be conducted with sufficient inter-cultural understandingEdit

Members should be taught the inter-cultural skills required to conduct interviews in a non-discriminatory and meaningful manner.[58] Furthermore, gender should be appropriately considered when assigning adjudicators to claims, as one academic has argued: "This will help to ensure respect for people whose culture does not allow for a woman to be seen alone with a man who is not her husband, and ensure that women are able to discuss their protection concerns freely with caseworkers."[59] The Federal Court has held that a Member's findings must be "duly sensitive to cultural differences".[60]

A hearing should be conducted in a trauma-informed mannerEdit

Refugee Status Determination processes can have negative psychological effects on asylum-seekers. For claimants who remain in the refugee status determination system for a lengthy period, what have been termed "the toxic effects of refugee determination, uncertainty of situation, producing documentary evidence, demonstrating past trauma, and refugee racism"[61] have all been identified contributors to a condition labelled Prolonged Asylum Seeker Syndrome, a condition characterized by powerlessness, depression, and identity crises.[62] A study conducted by Katrin Schock, an expert in clinical psychology, and colleagues, examined the psychological impact of asylum interviews. The participants were examined 10 days prior and 16 days after their asylum interview and the results clearly showed an “increase in post-traumatic intrusions and a significant decrease in post-traumatic avoidance and hyper-arousal symptoms,” meaning that the findings confirm the stressful impact asylum interviews have.[63] A fair hearing process is one that takes these concerns into account and seeks to minimize them. For additional discussion of this, see: Canadian Refugee Procedure/The right to an unbiased decision-maker#A passive or distant countenance is not required of Board members. This is especially the case for children, where care must be taken to ensure that questions are asked in a manner appropriate to the claimant's age, maturity, and level of understanding, as discussed in the relevant Chairperson's Guideline.

Videoconferencing is not per se unfair, but may be inappropriate in certain circumstancesEdit

Section 164 of the Act provides that the Board may conduct a hearing via live telecommunication. For a discussion of the fairness implications of such technology, see: Canadian Refugee Procedure/Presence of parties and use of telecommunications for hearings#IRPA Section 164.

The Board is not obliged to record hearings, but a lack of such a recording may constitute grounds for setting aside the decisionEdit

There is no statutory right to a recording or transcript of RPD proceedings. A lack of a recording is not by itself a ground for allowing an appeal of a decision. However, it could raise an issue of natural justice, and a reviewing body must consider whether the applicant has been deprived of his or her grounds of appeal given the absence of a recording of the impugned hearing. If the decision facing the RAD or Court could be made on the basis of evidence established through other means, the principles of natural justice would not be infringed. But if the appellant raises an issue that can only be determined through a record of what was said at the hearing, and the absence of, or gaps in, such a record prevents the appeal body from addressing the issue properly, this would normally constitute a ground for allowing the appeal (or review, in the case of a judicial review).[64]

Fairness considerations related to decisionsEdit

Decision-making should be predictable and consistent across the BoardEdit

As the Federal Court of Appeal holds, one of Parliament's intentions with the IRPA was to promote the consistency of decisions.[65] Persons affected by administrative decisions are entitled to expect that like cases will generally be treated alike, and that outcomes will not depend merely on the identity of the individual decision-maker.[66] The Code of Conduct for Members of the Immigration and Refugee Board of Canada provides that "Members, in their decision-making, have a responsibility to support the institutional interest of the IRB in ensuring the consistency of its decisions, while recognizing that no improper influence may be brought to bear upon their adjudicative independence."[67] In short, in the context of this decision-making scheme, it is important that like cases be treated alike, and that this be seen to be done.[68] As Neil Yeates writes in his report on the Board‘s operations, "fairness is undermined when decision making is not perceived as consistent".[69] In the pithy words of the philosopher Patricia Mindus, "Arbitrariness is detrimental to the legitimacy of any rule in a deep and decisive way".[70] Furthermore, in the evocative words of refugee lawyer David Matas, consistency and accuracy in the system’s determinations is important, lest, “real refugees seeking protection in Canada [] evade authorities rather than submit themselves to a deadly game of Russian roulette.”[71]

Achieving consistency is a challenge for any judicial system; for example, in the context of the American asylum system, it has been said that “in many cases, the most important moment in an asylum case is the instant in which a clerk randomly assigns an application to a particular asylum officer or immigration judge”.[72] Scholarship from Europe notes a relationship where the number of xenophobic attacks in a region leads to lower recognition rates in the following year, suggesting that for case officers the “preferences and moods that prevail in their land guide their decisions.”[73] In Canada, academic studies point to variations in refugee claim approvals and rejections by individual decision-makers at the RPD for cases that have similar facts and relate to the same country of origin.[74] Professor Sean Rehaag states that there is an extent to which inconsistency is a necessary corollary of independence, writing that "while the independence of Board members offers important protections against inappropriate government interference in refugee adjudication, this independence sometimes makes it difficult for the IRB to achieve another key policy objective: consistency across refugee determinations made by different Board members".[74] Yet, that said, research by scholars focused on variation within RSD regimes confirms that the Canadian RSD regime has lower levels of variation by individual decision makers than other regimes.[75]

That said, the importance of consistency does not mean that the courts will intervene in the Board’s operations for this reason alone; the general rule is that unlike judges, tribunal members are free, as far as the law is concerned, not to follow previous decisions of their tribunal colleagues even if the previous decisions cannot be distinguished.[76] This was recognized in the Supreme Court of Canada’s 1993 decision Domtar v. Québec, where it held that the fact that two tribunal decisions are in direct conflict with one another does not render either one of them necessarily reviewable by the courts.[77] That said, in order for their decision to be reasonable, it may be incumbent upon a Member to show that they have turned their mind to any other decisions that have been brought to their attention. As the Supreme Court of Canada articulated in Canada v. Vavilov, to promote “general consistency”, any administrative body that departs from its own past decisions typically “bears the justificatory burden of explaining that departure in its reasons”.[78] In choosing to follow, or distinguish, another decision, a Board Member may consider factors such as whether the decisions materially differ in the facts, a different question was asked in the other decision, the other decision is clearly wrong, or the application of the other decision would create an injustice.[79]

Decision-making assigned to a Member must be done by the Member and shall not be delegatedEdit

The principle that delegata potestas non potest delegari applies to matters at the RPD. In short, no delegated powers can be further delegated. Alternatively, this administrative law principle can be stated delegatus non potest delegare ("one to whom power is delegated cannot himself further delegate that power"). This is affirmed in the Code of Conduct for Members of the Immigration and Refugee Board of Canada which stipulates that "decision-making responsibility shall not be delegated."[80]

Parties are entitled to reasoned decisionsEdit

Parties are entitled to reasoned decisions on applications they make to the Board.[81] Whether or not those decisions must be in writing or may be made orally is governed by specific provisions of the IRPA; see the commentary to section 169 of the Act: Canadian Refugee Procedure/Decisions and Reasons. The requirement to provide reasons when an application is made applies equally to refugee claims, applications by the Minister, as well as to preliminary matters that raised by either party. This requirement has several implications:

  • Parties are entitled to responses to applications that they make: This principle was illustrated by Goodman v. Canada, in which Mr. Goodman asked that his PRRA application be held in abeyance pending the determination of his outstanding application for Ministerial relief. Counsel asked the Officer to respond to the request for a deferral and, if it was refused, to allow an additional 30 days from the date of the CIC’s response in order to provide updated submissions and materials. The Officer never responded to these requests and then went on to render a negative decision. The court held that this was an error and that a response to the application should have been provided.[82] Similarly, in Naeem v. Canada, the court concluded that the applicant was denied fairness by not receiving a decision in response to a deferral request.[83]
  • The Board's reasons should show that the panel meaningfully grappled with the key elements of the case: The Board should provide explicit findings and meaningful justifications of its decision regarding the central issues and concerns raised by the parties in a transparent and intelligible manner. See Gomes v. Canada for a discussion of this principle.[84] The Board Member must especially engage with evidence that, on its face, appears to contradict their key findings about the case.[85] In this way, the Board’s decision-makers do not generally have the freedom to be arbitrary but must provide reasons that are justified and intelligible.
  • Each claim should be considered individually where there are multiple joined claimants: Every application should be considered individually and where multiple persons make a claim and the claims are joined, each claimant is entitled to have their unique circumstances considered in the decision that ultimately ensues.
  • Reasons should be sufficiently clear: Reasons should be sufficiently clear on key points. For example, credibility determinations should be made in “clear and unmistakable terms”.[86]
  • The Board's findings of fact should accurately reflect the evidence: Misapprehending evidence that may have impacted the outcome of a decision constitutes a reviewable error.[87] For an example of where this was not done, in Varga v. Canada the Federal Court concluded that "The RPD seriously misstates Ms. Varga’s evidence"[88] and overturned the decision on this basis as follows: "the RPD's serious misstatement of the evidence on a matter central to its Decision vitiates its whole credibility finding with regard to Ms. Varga".[89]

Parties are entitled to timely decisions and reasons thereforEdit

The Code of Conduct for Members of the Immigration and Refugee Board of Canada stipulates that "Members are expected to render their reasons in accordance with any standards that may be established by the IRB regarding quality decision-making and timeliness."[90] Ordinarily, decisions are to be provided orally at the end of the hearing: Canadian Refugee Procedure/Information and Documents to be Provided#Rule 10 - Order of questioning in hearings, oral representations, oral decisions, limiting questioning. See also: Canadian Refugee Procedure/The right to a hearing and the right to be heard#A party is entitled to a hearing without unreasonable delay that causes serious prejudice.

The Board must consider the evidence submitted to itEdit

The Board has a duty to receive and consider evidence submitted by the parties at any time until a decision is rendered (Rule 43).[91] If the Board fails to do so, for example where evidence is submitted but does not reach the panel deciding the case, then the procedure cannot be said to have been fair. That said, a decision-maker is entitled to limit repetitive testimony and to not allow testimony that is not central to the claim.[92] Furthermore, while there may be valid grounds for a panel to refuse to admit evidence, see: Canadian Refugee Procedure/Documents#The Board has jurisdiction to refuse to admit documents for reasons that are broader than the Rule 35 criteria, a panel cannot refuse to consider evidence without such valid grounds. Indeed, the Board Member must consider the entirety of the evidence in the record before making any determinations.[93] The Board Policy on National Documentation Packages in Refugee Determination Proceedings commits that "The RPD and RAD will consider the most recent NDP(s) in support of assessing forward-looking risk."[94] See also: Canadian Refugee Procedure/Documents#The panel should consider the most recent National Documentation Package. That said, it is generally expected that a claimant will bring the passages that they are relying on to the attention of the decision maker; the Federal Court has held that the RPD "is not obliged to comb through every document listed in the National Document Package in the hope of finding passages that may support the claim and specifically address why they do not, in fact, support the claim". For more detail on this, see: Canadian Refugee Procedure/The Board's inquisitorial mandate#There is a shared duty of fact-finding in refugee matters.

A panel may only make a decision based on evidence on the record or evidence that is otherwise available to themEdit

A panel of the Refugee Protection Division may only base a decision on evidence on the record, or evidence that is otherwise properly available to the Member, for example through their specialized knowledge, or because the evidence may be judicially noticed or is otherwise a generally recognized fact. Where a Member “fills in the gaps” in a refugee's account by making false assumptions, they err.[95] For a discussion of the rules and law related to specialized knowledge at the RPD, see the commentary to Rule 22: Canadian Refugee Procedure/Specialized Knowledge.

Decisions must follow the law, provide a rational chain of reasoning, and be non-discriminatoryEdit

Decisions must not be illegal, irrational, or discriminatory.[96] For more detail, see: Canadian Refugee Procedure/Guideline 4 - Women Refugee Claimants Fearing Gender-Related Persecution and Canadian Refugee Procedure/Principles for the interpretation of refugee procedure#Principles about the manner in which the Board is to exercise its discretion.

ReferencesEdit

  1. Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para 127.
  2. Ombudsman for Banking Services and Investments, Natural justice and procedural fairness at OBSI, <https://www.obsi.ca/en/how-we-work/resources/Documents/Principles-of-Natural-Justice-in-Ombudsmanship.pdf> (Accessed April 27, 2020).
  3. Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para 127.
  4. a b Singh v. Canada (Minister of Employment & Immigration), [1985] S.C.J. No. 11, [1985] 1 S.C.R. 177, 14 C.R.R. 13 (S.C.C.).
  5. UN High Commissioner for Refugees (UNHCR), Procedural Standards for Refugee Status Determination Under UNHCR's Mandate, 26 August 2020, available at: https://www.refworld.org/docid/5e870b254.html [accessed 5 September 2020], page 15.
  6. a b c Siba v. Canada (Minister of Citizenship & Immigration), [2001] F.C.J. No. 1890, 229 F.T.R. 161 (F.C.T.D.).
  7. a b Cheung v. Canada (Minister of Employment & Immigration), [1981] F.C.J. No. 43, 122 D.L.R. (3d) 41 (F.C.A.).
  8. a b Gonzalez v. Canada (Minister of Employment & Immigration), [1991] F.C.J. No. 408, 14 Imm. L.R. (2d) 51 (F.C.A.).
  9. a b Konadu c. Canada (Minister of Employment & Immigration), [1991] A.C.F. No. 330 (C.F.A.).
  10. Perez v. Canada (Citizenship and Immigration), 2020 FC 1171, <https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/490416/1/document.do>, para. 22.
  11. UN High Commissioner for Refugees (UNHCR), Procedural Standards for Refugee Status Determination Under UNHCR's Mandate, 26 August 2020, available at: https://www.refworld.org/docid/5e870b254.html [accessed 5 September 2020], page 15.
  12. Maestri, G., & Monforte, P. (2020). Who Deserves Compassion? The Moral and Emotional Dilemmas of Volunteering in the ‘Refugee Crisis.’ Sociology. https://doi.org/10.1177/0038038520928199 <https://publications.aston.ac.uk/id/eprint/41657/1/Maestri_Monforte_Who_deserves_compassion.pdf> (Accessed July 4, 2020), at page 8.
  13. Canada (Minister of Citizenship and Immigration) v. Parekh, [2010] F.C.J. No. 856, 2010 FC 692 (F.C.).
  14. Lauren Lee, Sanctuary, Safe Harbor and Aylum, But Is it Available for Domestic Violence Victims? The Analysis of Domestic Violence Asylum Seekers in the United States and Internationally, 21 San Diego Int'l L.J. 495 (2020). Available at: https://digital.sandiego.edu/ilj/vol21/iss2/4 (Accessed July 25, 2020), page 500.
  15. X (Re), 2014 CanLII 96668 (CA IRB).
  16. Immigration and Refugee Board of Canada, Policy Statement on Official Languages and the Principle of the Substantive Equality of English and French, Date modified: 2018-07-03 <https://irb-cisr.gc.ca/en/legal-policy/policies/Pages/pnnpollo.aspx> (Accessed January 22, 2020).
  17. Kovacs v. Canada (Minister of Citizenship & Immigration), [2003] F.C.J. No. 250, 36 Imm. L.R. (3d) 59 (F.C.T.D.).
  18. Momoh, S., van Eijken, H., & Ryngaert, C. (2020). Statelessness Determination Procedures. The Statelessness and Citizenship Review, 2(1), 86–111. Retrieved from https://statelessnessandcitizenshipreview.com/index.php/journal/article/view/137 at page 94.
  19. Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9 (CanLII), at para. 50.
  20. For a general statement of this principle from a non-immigration context, see: May v Ferndale Institution, 2005 SCC 82 at para 92.
  21. UN High Commissioner for Refugees (UNHCR), Fair and Efficient Asylum Procedures: A Non-Exhaustive Overview of Applicable International Standards, 2 September 2005, available at: https://www.refworld.org/docid/432ae9204.html [accessed 4 May 2020].
  22. a b Instructions for Gathering and Disclosing Information for Refugee Protection Division Proceedings, Instructions issued by the Chairperson pursuant to section 159(1)(a) of the Immigration and Refugee Protection Act, amended December, 2012 <https://irb-cisr.gc.ca/en/legal-policy/policies/Pages/InstructInfo.aspx>.
  23. X (Re), 2015 CanLII 39898 (CA IRB), par. 143, <http://canlii.ca/t/gk23z#par143>, retrieved on 2020-08-16.
  24. Dubow-Noor v. Canada, 2017 FC 35, paras. 16-18.
  25. Gomes v. Canada (Minister of Citizenship & Immigration), [2006] F.C.J. No. 520, 52 Imm. L.R. (3d) 28 (F.C.).
  26. Zhang v. Canada (Minister of Citizenship and Immigration), [2015] F.C.J. No. 1031, 2015 FC 1031 (F.C.).
  27. El Haddad c. Canada (Citoyenneté et Immigration), 2020 CF 487 (CanLII), par. 24, <http://canlii.ca/t/j6fqr#par24>, consulté le 2020-04-20.
  28. Immigration and Refugee Board of Canada, Second Annual Report on Complaints, April 2020, <https://irb-cisr.gc.ca/en/transparency/member-conduct/Documents/Second-Annual-Report-on-Complaints-April-2020-English.pdf> (Accessed May 1, 2020), at page 18.
  29. Akinyemi-Oguntunde v. M.C.I. (F.C. IMM-5160-19), Ahmed, June 3, 2020, 2020 FC 666, para. 20.
  30. Abubakar v. Canada (Minister of Citizenship and Immigration) (1998), 45 Imm. L.R. (2d) 186 (F.C.T.D.).
  31. Sharryn Aiken, et al, Immigration and Refugee Law: Cases, Materials, and Commentary (Third Edition), Jan. 1 2020, Emond, ISBN: 1772556319, at page 181.
  32. Kane v Board of Governors of UBC, [1980] 1 SCR 1105 at 1114.
  33. Dalirani v. Canada (Citizenship and Immigration), 2020 FC 258 (CanLII), par. 28, <http://canlii.ca/t/j59ds#par28>, retrieved on 2020-04-22.
  34. Gracielome v Canada (MEI), [1989] FCJ No. 463 (CA).
  35. Losada Conde v. Canada (Citizenship and Immigration), 2020 FC 626 (CanLII), par. 96, <http://canlii.ca/t/j8863#par96>, retrieved on 2020-08-31.
  36. Losada Conde v. Canada (Citizenship and Immigration), 2020 FC 626 (CanLII), par. 97, <http://canlii.ca/t/j8863#par97>, retrieved on 2020-08-31.
  37. Canada (Citizenship and Immigration) v. Louis, 2009 FC 674 (CanLII), para. 23.
  38. Waldman, Lorne, Canadian Immigration & Refugee Law Practice, Markham, Ont.: LexisNexis Butterworths, 2018, ISBN 9780433478928, ISSN 1912-0311, <https://search.library.utoronto.ca/details?5022478> (Accessed April 1, 2020) at page 1740 of the PDF.
  39. Isik v. Canada (Minister of Citizenship & Immigration), [2011] F.C.J. No. 906, 2011 FC 718 (F.C.), paras. 14-15.
  40. Okwagbe v. Canada (Minister of Citizenship & Immigration), [2012] F.C.J. No. 816, 2012 FC 792 (F.C.).
  41. Wysozki v. Canada (Public Safety and Emergency Preparedness) (F.C., No. IMM-4958-19), Strickland, March 31, 2020; 2020 FC 458, para. 38.
  42. Lawal v Canada (Citizenship and Immigration), 2008 FC 861 at para 36.
  43. Immigration and Refugee Board of Canada, Code of Conduct for Members of the Immigration and Refugee Board of Canada, Effective Date: April 9, 2019, <https://irb-cisr.gc.ca/en/members/Pages/MemComCode.aspx> (Accessed May 3, 2020), at section 9.
  44. Kumar v. Canada (Minister of Employment and Immigration), [1988] 2 F.C. 14.
  45. Ithibu v. Canada (Minister of Citizenship and Immigration, 2001 FCT 288 (CanLII), [2001] F.C.J. No. 499.
  46. Kumar v. Canada (Minister of Employment and Immigration), [1988] 2 F.C. 14, paras. 4 and 8.
  47. David J Mullan, Administrative Law (Toronto: Irwin Law, 2001), at 3 as cited in Sharryn Aiken, et al, Immigration and Refugee Law: Cases, Materials, and Commentary (Third Edition), Jan. 1 2020, Emond, ISBN: 1772556319, at page 192.
  48. Immigration and Refugee Board of Canada, Code of Conduct for Members of the Immigration and Refugee Board of Canada, Effective Date: April 9, 2019, <https://irb-cisr.gc.ca/en/members/Pages/MemComCode.aspx> (Accessed May 3, 2020), at section 11.
  49. The terms of the Refugee Convention are to be interpreted pursuant to the principles set out at arts 31–32 of the Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331, Can TS 1980 No 37 as noted in Joshua Blum, When Law Forgets: Coherence and Memory in the Determination of Stateless Palestinian Refugee Claims in Canada, International Journal of Refugee Law, eeaa019, https://doi-org.peacepalace.idm.oclc.org/10.1093/ijrl/eeaa019. For a discussion of the relationship between this Vienna Convention and the Refugee Convention, see: Canadian Refugee Procedure/Principles for the interpretation of refugee procedure#The Vienna Convention on the Law of Treaties codifies public international law rules of treaty interpretation applicable to the interpretation of the Refugee Convention.
  50. Uçaryılmaz, Talya. (2020). The Principle of Good Faith in Public International Law (El principio de buena fe en el Derecho internacional público). Estudios de Deusto. 68.43.10.18543/ed-68(1)-2020pp43-59 <https://dialnet.unirioja.es/servlet/articulo?codigo=7483935> (Accessed July 25, 2020), page 15 of the article.
  51. Hankyoreh, S. Korean Justice Ministry offers 2nd chance to refugee applicants who were victims of false interview accounts, Apr. 21, 2020, <http://english.hani.co.kr/arti/english_edition/e_national/941396.html> (Accessed June 12, 2020).
  52. Sivaguru, [1992] 2 FC 374.
  53. Yahaya v. Canada (Citizenship and Immigration), 2019 FC 1570 (CanLII), para. 37.
  54. Yahaya v. Canada (Citizenship and Immigration), 2019 FC 1570 (CanLII), paras. 33-34.
  55. Chace Reveron v. Canada (Citizenship and Immigration), 2020 FC 1114 (CanLII), par. 34, <http://canlii.ca/t/jc7vh#par34>, retrieved on 2020-12-22.
  56. Kotelenets v Canada (Citizenship and Immigration), 2015 FC 209 at para 30.
  57. Wysozki v. Canada (Public Safety and Emergency Preparedness) (F.C., No. IMM-4958-19), Strickland, March 31, 2020; 2020 FC 458, para. 25.
  58. Andreas Zimmermann (editor), The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary. Oxford University Press, 2011, 1799 pp, ISBN 978-0-19-954251-2, Introduction to Chapter V, written by Hofmann & Löhr, at p. 1119 (para. 103).
  59. Momoh, S., van Eijken, H., & Ryngaert, C. (2020). Statelessness Determination Procedures. The Statelessness and Citizenship Review, 2(1), 86–111. Retrieved from https://statelessnessandcitizenshipreview.com/index.php/journal/article/view/137 at page 94.
  60. Rahal v Canada (Minister of Citizenship and Immigration), 2012 FC 319, para. 44.
  61. Morris, Julia (2020) "Refugee Extractivism: Law and the Mining of a Human Commodity in the Republic of Nauru," Saint Louis University Law Journal: Vol. 64 : No. 1 , Article 5. Available at: <https://scholarship.law.slu.edu/lj/vol64/iss1/5> (Accessed May 16, 2020), at page 84.
  62. Linda Hunt, Psychiatrists Identify ‘Asylum Seeker Syndrome’, WKLY. BULL. NO. 16 (Mental Health Council of Austl.), 2012, at 8, https://mhaustralia.org/sites/default/files/imported/+component/rsfiles/mhca-bulletin/2012/MHCA_Bulletin_16.pdf.
  63. Katrin Schock, Rita Rosner, and Christine Knaevelsrud, "Impact of Asylum Interviews on the Mental Health of Traumatized Asylum Seekers," European Journal of Psychotraumatology 6, no. 1 (2015).
  64. Jeon v. Canada (Citizenship and Immigration), 2019 FC 1429 (CanLII), <http://canlii.ca/t/j3pd4>, retrieved on 2020-05-30
  65. Canadian Association of Refugee Lawyers v. Canada (Immigration, Refugees and Citizenship), 2020 FCA 196 (CanLII), par. 47, <http://canlii.ca/t/jblsl#par47>, retrieved on 2020-11-17.
  66. Domtar Inc. v. Quebec (Commission d'appel en matière de lésions professionnelles), 1993 CanLII 106 (SCC), [1993] 2 S.C.R. 756 at p. 800.
  67. Immigration and Refugee Board of Canada, Code of Conduct for Members of the Immigration and Refugee Board of Canada, Effective Date: April 9, 2019, <https://irb-cisr.gc.ca/en/members/Pages/MemComCode.aspx> (Accessed May 3, 2020), at section 22.
  68. John R Campbell, Examining Procedural Unfairness and Credibility Findings in the UK Asylum System, Refugee Survey Quarterly, Volume 39, Issue 1, March 2020, Pages 56–75, https://doi-org.peacepalace.idm.oclc.org/10.1093/rsq/hdz017, page 73.
  69. Neil Yeates, Report of the Independent Review of the Immigration and Refugee Board, Government of Canada, April 10, 2018, <https://www.canada.ca/content/dam/ircc/migration/ircc/english/pdf/pub/irb-report-en.pdf> (Accessed April 27, 2020), page 25.
  70. Mindus, P. (2020). Towards a Theory of Arbitrary Law-making in Migration Policy. Etikk I Praksis - Nordic Journal of Applied Ethics, 14(2), 9-33. https://doi.org/10.5324.eip.v14i2.3712
  71. David Matas, Closing the Doors: The Failure of Refugee Protection, Summerhill Press Ltd., Toronto, 1989, ISBN 0-920197-81-7, page 146.
  72. Former US Attorney General Robert Jackson during a speech in the US Congress in 1940, quoted in J. Ramji- Nogales, A. Schoenholtz, & P. G. Schrag, Refugee Roulette: Disparities in Asylum Adjudication, 60 Stanford Law Review 295 (2007)
  73. Lisa Riedel & Gerald Schneider, “The Asylum Lottery: Recognition Rates Vary Strongly within Germany” (9 June 2017), online (blog): EU Immigration and Asylum Law and Policy <eumigrationlawblog.eu> [perma.cc/3UKQ-GW72].
  74. a b Sean Rehaag of York University/Osgoode Hall writes on outcomes at the RPD and RAD suggesting divergent decision-making among individual decision makers. See, e.g., Rehaag, Sean. "Troubling Patterns in Canadian Refugee Adjudication." Ottawa Law Review 39.2 (2008): 335-365.
  75. Hamlin, Rebecca. Let Me Be a Refugee: Administrative Justice and the Politics of Asylum in the United States, Canada, and Australia. New York: Oxford University Press, 2014. Print. Page 184.
  76. S. Ronald Ellis, The Corporate Responsibility of Tribunal Members, Canadian Journal of Administrative Law & Practice, February 2009, 22 Can. J. Admin. L. & Prac. 1, <http://www.ccat-ctac.org/CMFiles/Ron%20Ellis/21.TheCorporateResponsibilityofTribunalMembers.pdf#page15> (Accessed July 25, 2020), page 8.
  77. Domtar Inc. v. Québec (Commission d'appel en matière de lésions professionnelles), [1993] 2 S.C.R. 756 (S.C.C.) at para. 93.
  78. Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (CanLII), paras. 129-131, <http://canlii.ca/t/j46kb#par129>, retrieved on 2020-08-08.
  79. Alyafi v Canada (Citizenship and Immigration), 2014 FC 952 at para 45.
  80. Immigration and Refugee Board of Canada, Code of Conduct for Members of the Immigration and Refugee Board of Canada, Effective Date: April 9, 2019, <https://irb-cisr.gc.ca/en/members/Pages/MemComCode.aspx> (Accessed May 3, 2020), at section 33.
  81. Andreas Zimmermann (editor), The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary. Oxford University Press, 2011, 1799 pp, ISBN 978-0-19-954251-2, Introduction to Chapter V, written by Hofmann & Löhr, at p. 1120 (para. 108).
  82. Goodman, Joseph John v. M.P.S.E.P. (F.C. nos. IMM-686-16, IMM-1508-18, IMM-1633-15, IMM-4246-16), Barnes, December 9, 2019; 2019 FC 1569.
  83. Naeem v Canada (Citizenship and Immigration), 2016 FC 1073, ACWS (3d) 382.
  84. Gomes, Eloi Biquer Silva Rosa v. M.C.I. (F.C., no. IMM-2283-19), Pamel, April 9, 2020; 2020 FC 506.
  85. Cepeda-Gutierrez v Canada (Minister of Citizenship and Immigration), 157 FTR 35, [1998] FCJ No 1425 (FC).
  86. Hilo v Canada (Minister of Employment and Immigration), [1991] FCJ No 228 (CA).
  87. Tamayo Valencia v Canada, 2018 FC 1013.
  88. Varga v. Canada (Citizenship and Immigration), 2020 FC 102 (CanLII), par. 81, <http://canlii.ca/t/j4tz1#par81>, retrieved on 2020-12-22.
  89. Varga v. Canada (Citizenship and Immigration), 2020 FC 102 (CanLII), par. 82, <http://canlii.ca/t/j4tz1#par82>, retrieved on 2020-12-22.
  90. Immigration and Refugee Board of Canada, Code of Conduct for Members of the Immigration and Refugee Board of Canada, Effective Date: April 9, 2019, <https://irb-cisr.gc.ca/en/members/Pages/MemComCode.aspx> (Accessed May 3, 2020), at section 35.
  91. Mannan v. Canada (Citizenship and Immigration), 2015 FC 144 (CanLII), para. 45.
  92. Almoqaiad, Saosan Khalil I., v. M.C.I. (F.C., no. IMM-684-19), Favel, January 29, 2020; 2020 FC 160.
  93. Tung v Canada (Minister of Employment and Immigration), [1991] FCJ No 292, 124 NR 388 (FCA).
  94. Immigration and Refugee Board of Canada, Policy on National Documentation Packages in Refugee Determination Proceedings, Effective date: June 5, 2019, <https://irb-cisr.gc.ca/en/legal-policy/policies/Pages/national-documentation-packages.aspx> (Accessed August 30, 2020).
  95. E. Dowd, J. Hunter, B. Liddell, J. McAdam, A. Nickerson & R. Bryant, “Filling Gaps and Verifying Facts: Assumptions and Credibility Assessment in the Australian Refugee Review Tribunal”, International Journal of Refugee Law, 30(1), 2018, 71–103.
  96. This point draws on the work of Mindus, P. (2020). Towards a Theory of Arbitrary Law-making in Migration Policy. Etikk I Praksis - Nordic Journal of Applied Ethics, 14(2), 9-33. https://doi.org/10.5324.eip.v14i2.3712 at page 17.

The right to an unbiased decision-makerEdit

The Code of Conduct for Members of the Immigration and Refugee Board of Canada provides that "Members shall comply with all procedural fairness and natural justice requirements. Members are expected to approach each case with an open mind and, at all times, must be, and must be seen to be, impartial and objective."[1] IRB members also take an oath of office publicly and formally undertake to carry out their duties impartially.[2] A tribunal’s decision is liable to be set aside for bias if a reasonable person, properly informed of the facts and having thought the matter through in a practical manner, would conclude on a balance of probabilities that the decision maker was not impartial.[3] Furthermore, Board Members are required to be alert to any situation in which there may be a reasonable apprehension of bias and must disqualify themselves from sitting on the case in those circumstances; as provided by the Code of Conduct for Members of the Immigration and Refugee Board of Canada, "Members shall disqualify themselves from any proceeding where they know or reasonably should know that, in the making of the decision, they would be in a conflict of interest, or that their participation may create a reasonable apprehension of bias. In such a case, they shall immediately inform their manager and provide the reason for their self-disqualification."[4] The following are some of the ways that this principle has emerged in refugee decision-making in Canada.

Allegations of an apprehension of bias must be raised at the earliest opportunityEdit

A person alleging an apprehension of bias on the part of the decision-maker must raise it at the earliest opportunity to allow the decision-maker to recuse themselves, if necessary.[5] Failure to do so will generally amount to an implied waiver of the right to invoke bias in subsequent proceedings, such as an appeal or an application for judicial review.[5]

The test for a reasonable apprehension of biasEdit

Members are bound by the Code of Conduct for Members of the IRB which has a section on bias stipulating that "Members shall conduct themselves in a manner that will not cast doubt on their ability to perform their duties objectively."[6] Most cases concerning bias relate do not involve actual bias being demonstrated (or admitted) but are instead cases where a party alleges that a reasonable apprehension of bias exists on the facts. The test for determining reasonable apprehension of bias is whether an informed person, viewing the matter realistically and practically and having thought the matter through, would conclude that the decision-maker, either consciously or unconsciously, would not decide fairly. This well-established test originates from the case Committee for Justice and Liberty v Canada.[7] As stated by the Supreme Court of Canada in Arsenault-Cameron v. Prince Edward Island, “The test for apprehension of bias takes into account the presumption of impartiality. A real likelihood of bias must be demonstrated.”[8] The Supreme Court reiterated this principle in Wewaykum v. Canada: “The standard refers to an apprehension of bias that rests on serious grounds, in light of the strong presumption of judicial impartiality.”[9] The burden of proof where an allegation of bias is made is on the party making the allegation and “the threshold to be met is high.”[10]

In applying this test and deciding whether a panel’s conduct gives rise to a reasonable apprehension of bias, a holistic view of the proceeding should be taken. As the Ontario Court of Appeal noted in a decision on this issue, it is normally necessary to examine the record in its entirety in order to assess whether a decision-maker’s conduct gave rise to a reasonable apprehension of bias.[11] Factors to assess when considering the record include:

  • Any relationship, past or present, between the decision-maker and the party/parties or those who may benefit from the decision;[12]
  • Whether or not a full and fair opportunity is provided to present arguments and evidence;[13]
  • Whether there is a pattern of decisions that suggests influences other than the applicable law and available evidence;
  • Statements or conduct that might indicate a predisposition on the part of the decision-maker;[14]
  • The tone and tenor of the decision-maker’s involvement in the hearing;[15] and
  • The institutional arrangements that pertain to the freedom and independence of the decision-maker.

Additional comment on each of these factors follows.

Factors that are commonly assessed when determining whether a reasonable apprehension of bias exists in a given caseEdit

Any relationship, past or present, between the decision-maker and the party/parties or those who may benefit from the decisionEdit

The fact that the decision-maker has (or has had) a relationship with one of the parties who may benefit from the decision can mean, in appropriate cases, that there is a reasonable apprehension of bias regarding them presiding over the case.[12] The Code of Conduct for Members of the IRB also provides that "Members shall not, during the course of a proceeding, have any social contact with a party, counsel, witness, interpreter or other non-IRB participant, if such social contact may create a reasonable apprehension of bias." Furthermore, it stipulates that Members may only take part in outside activities that are not inconsistent or incompatible with their official duties and responsibilities, or that do not cast doubt on their ability to perform their duties objectively.[6] Members are also bound by the terms of the Conflict of Interest Act.[16]

That said, the fact that a member of the Board previously worked for a party, whether it be a law firm appearing before the Board, CBSA, or IRCC does not automatically mean that the Member should not sit on cases where that organization is a party. In Ahumada v. Canada the Federal Court of Appeal considered this question. Specifically, they considered the following certified question: "would a reasonable apprehension of bias be created by the fact that a member of the Convention Refugee Determination Division (CRDD) of the Immigration and Refugee Board is an employee on leave of absence from a position as an immigration officer in the Enforcement Branch of CIC?" They held that such a member should not be restricted from sitting on cases where the Minister intervenes:

The Minister's role in the refugee determination process is primarily oriented towards detecting and opposing claims that the Minister or her officials believe should not be allowed. Accordingly, cases holding that an employment relationship between a member of an adjudicative tribunal and a party may give rise to a reasonable apprehension of bias were in principle relevant. The suggestion that an employee of CIC would only be disqualified from sitting on a CRDD panel when the Minister intervened would enable the Minister to ensure the exclusion of the employee from the panel by exercising the power to intervene. To enable the Minister to so influence the composition of a panel would clearly compromise the CRDD's independence from CIC in a manner inconsistent with the scheme of the Act.[17]

That said, the ultimate holding in that case was that a reasonable apprehension of bias was made out where an appeals officer on temporary leave from the Branch of Citizenship and Immigration Canada that advises the Minister on whether an intervention is appropriate and represents the Minister when the Minister does intervene in IRB proceedings became an IRB member.[17] That employee was obliged to resign from their employment with CIC if they wished to continue working as a decision-maker at the IRB.

Whether or not a full and fair opportunity is provided to present arguments and evidenceEdit

Questions about impartiality tend to come into play where a reviewing body is persuaded that the decision-maker has mistakenly come to a conclusion without giving due regard to the possibility that a full consideration of the evidence might lead to a different result, for example where a matter is pre-judged. Where parties are not provided a full and fair opportunity to present arguments and evidence, this may point towards a conclusion that the matter was pre-judged, and hence that there is a reasonable apprehension that the decision-maker did not approach the case impartially. The opposite is also true - evidence which indicates that the parties had such a full and fair opportunity to present evidence and provide submissions tends to indicate that the matter was not pre-judged and that it is not reasonable to apprehend bias in the circumstances.[13] For example, where over-intrusive questioning by a Board member, including "constant interruptions", amounts to a “hijacking” of the case and grossly interferes with the orderly presentation of a claimant's case, the panel may have interfered with a claimant's right to be heard and it may be concluded that the panel did not approach the case impartially.[18] For further discussion of this, see: Canadian Refugee Procedure/The right to a hearing and the right to be heard#Where a witness is interrupted while providing testimony, this may establish that their right to present oral testimony was interfered with.

Whether there is a pattern of decisions that suggests influences other than the applicable law and available evidenceEdit

A pattern of decisions that suggests influence other than the applicable law and available evidence may serve to establish a reasonable apprehension of bias in a particular case. That said, this is but one factor that should be assessed along with the totality of the evidence and caution is appropriate in drawing any conclusions of this sort:

Deciding against a claimant on an interlocutory matter does not, in and of itself, create a reasonable apprehension of biasEdit

Niyonkuru v. Canada was a case in which the panel provided notice to the Minister that the claimant was possibly excluded from refugee protection. The claimant argued that, by adjourning the hearing to allow the Minister to intervene and present arguments regarding the applicant's possible exclusion, the panel had demonstrated bias and loss of impartiality. The court rejected this argument, stating that it is well settled that the mere fact that in an earlier proceeding a decision-maker rendered judgment against the party does not compromise his or her ability to be impartial.[19]

Statistics about a member's past refusal rate do not in and of themselves establish a reasonable apprehension of biasEdit

No claimant (or, indeed, Minister's representative) has succeeded on bias motions based on statistics alone.[20] Fenanir v. Canada was a case in which the claimant noted that the average number of refugee claim refusals by the member hearing his matter (99%) was higher than the average of 45% for all of the other members.[21] The claimant submitted that there was a reasonable apprehension of bias on this basis. The court held that the data filed did not in itself support a finding of bias. It noted that the data can be "explained by a certain number of factors which are unrelated to any bias".[22] The comments of Justice Zinn in Turoczi v. Canada are illustrative of the judicial approach to such applications:

Although the statistical data presented by the applicants may raise an eyebrow for some, the informed reasonable person, thinking the matter through, would demand to know much more, including:

•                     Were all of the figures, including, importantly, the weighted country origin averages, properly compiled?

•                     Did the RPD randomly assign cases within each country of origin?  If not, how did the RPD assign cases?

•                     Can factors affecting the randomness of case assignment be reliably adjusted for statistically?

•                     If so, what are the adjusted statistics, and what is their significance?

•                     If the RPD did randomly assign cases, what is the statistical significance of the Member’s rejection rate?

•                     Beyond the Member’s relative performance within the RPD, is there anything objective impugning the Member’s decisions (i.e. that suggests they are wrongly decided)?

•                     Accounting for appropriate factors (if that is possible), are the Member’s decisions more frequently quashed on judicial review than would be expected?

•                     Has the Member made recurring errors of a certain type, e.g. on credibility, state protection, etc., that bear a semblance to the impugned decision?

In short, the informed reasonable person, thinking the matter through, would demand a statistical analysis of this data by an expert based upon and having taken into consideration all of the various factors and circumstances that are unique to and impact on determinations of refugee claims before he or she would think it more likely than not that the decision-maker would not render a fair decision.[23]

Statements or conduct that might indicate a predisposition on the part of the decision-makerEdit

A Board member must approach each case impartially. The Code of Conduct for Members of the Immigration and Refugee Board of Canada provides that "Members shall comply with all procedural fairness and natural justice requirements. Members are expected to approach each case with an open mind and, at all times, must be, and must be seen to be, impartial and objective."[24] Statements or conduct that might indicate a predisposition on the part of the decision-maker may point towards a conclusion that there is a reasonable apprehension of bias in a particular case.[14] For example, in Hernandez v Canada (Citizenship and Immigration) the court held that the Member seemed to have "a preconceived idea of the outcome of the case, ... cutting Ms. Hernandez's explanations short." The court concluded that counsel had aggressively dismissed justified objections from counsel regarding the member's questions and errors in the translation.[25] Similarly, issues can arise where a decision-maker has previously expressed strong views regarding a matter on which they must decide.[26]

That said, the inquisitorial nature of refugee hearings must be considered when interpreting this type of requirement. The Board's procedures should not be restricted to the judicial paradigm.[27] Refugee hearings are not adversarial; instead, the generally involve a panel of the Board appropriately investigating a particular case. In an inquisitorial proceeding, it is the role of the Member to investigate and/or probe factual matters.[28] This means that a member of the Board will have a more active role in the hearing than is common in other judicial contexts. As the Federal Court held in Gebreyesus v. Canada, raising or renewing the consideration of a potential issue based on evidence that arises during a hearing, without more, is simply an indicator that a panel is performing this appointed function, not that the panel is biased.[29] For a more fulsome discussion of this, see: Canadian Refugee Procedure/The Board's inquisitorial mandate.

A Member rendering an oral decision at the end of the hearing is not, in and of itself, indicative of biasEdit

A Member should approach a case impartially and not with an open mind. This does not mean that the Member is required to reserve their decision after a hearing and consider the case for days afterwards. In fact, Rule 10(8) provides that a Division member must render an oral decision and reasons for the decision at the hearing unless it is not practicable to do so. In Pajarillo v. Canada, the claimant argued that the RPD was biased against her because the member made up her mind to reject the Applicant’s claim prior to hearing. The sole basis for making this allegation against the member was that the member returned after a lunch break and proceeded to render a lengthy oral decision. The court rejected this argument, noting that the claimant had failed to establish that the facts or issues in the case were so substantial or complex it was not reasonably practicable to comply with Rule 10(8) of the RPD Rules. The court stated: "The mere fact that the RPD was able to draft a decision and render it orally shortly 50 minutes after the conclusion of the hearing does not prove bias. A review of the transcript of the hearing discloses that the RPD member took into account the Applicant’s testimony and counsel’s arguments in reaching her decision."[30] For more details about this rule, see Canadian Refugee Procedure/Information and Documents to be Provided#Rule 10 - Order of questioning in hearings, oral representations, oral decisions, limiting questioning.

The tone and tenor of the decision-maker’s involvement in the hearingEdit

The tone and tenor of the decision-maker’s involvement in the hearing may be considered as part of a holistic assessment of whether there is a reasonable apprehension of bias in any particular case. A starting point, as noted in the text Judicial Review of Administrative Action in Canada, is that particular latitude is given to tribunals to question where the matter is not adversarial, as with most refugee proceedings:

Extensive and "energetic" questioning alone by tribunal members will not in itself give rise to a reasonable apprehension of bias. And particular latitude is likely to be given to tribunals operating in a non-adversarial setting, such as refugee determination hearings, where there is no one appearing to oppose the claim. Nor will an expression of momentary impatience or loss of equanimity by a tribunal member result in disqualification, particularly where it was merely an attempt to control the manner of proceeding. Similarly, a sarcastic comment when a party refused to give evidence, or an ill-chosen and insensitive phrase, will not, without more, lead to disqualification.[31]

A summary of the law on this point may be found in Mahmoud v Canada:

… intrusive and intimidating interventions by a Board member may be found to interfere with an applicant's ability to present his case. However, if the interruptions are made for the purpose of clarifying testimony or an issue, they will not raise a reasonable apprehension of bias, even if the manner of questioning or interruption is "energetic".[32]

However, there are limits on this latitude, including in the types of circumstances that follow.

Where a member pursues questioning with a discriminatory attitudeEdit

The Code of Conduct for Members of the Immigration and Refugee Board of Canada provides that "Members shall exercise their duties without discrimination."[33] The Federal Court affirms that a member may not pursue questioning derived from a discriminatory attitude.[34] Members must exhibit appropriate sensitivity and the Federal Court holds that the member must at all times be attentive and sensitive to claimants.[35] UNHCR writes in their document on Procedural Standards for Refugee Status Determination that "RSD applications must be processed on a non-discriminatory basis".[36] In Baker v. Canada, for example, an apprehension of bias was found to have arisen from the stereotypical assumptions about persons suffering from mental illness in the officer's notes.[37] For additional commentary on this, see: Canadian Refugee Procedure/The objectives and purposes of the refugee regime and how they relate to refugee procedure#IRPA Section 2(c) - Fair consideration is to be granted to those who come to Canada claiming persecution.

Where a member pursues questioning with a hostile or antagonistic attitude, or where the member takes on the role of a prosecutorEdit

The Refugee Appeal Division has held that "constant interruption" and "flagrant intervention in the presentation of a claimant’s case" can amount to procedural unfairness.[38] International standards recommend that state officials adopt a collaborative, non-adversarial approach in investigating a person’s claim.[39] The Federal Court has held that a member may not pursue questioning derived from a hostile attitude.[34] For example, as Waldman puts it in his text Canadian Immigration & Refugee Law Practice, if, during the course of the hearing, the tribunal “descends into the arena” to such an extent that the decision-maker assumes the role of a prosecutor, they risk of losing their impartiality.[15] Furthermore, where hearings are hostile or confrontational, claimants may be discouraged from providing information that may be crucial to their claim.[40] For additional detail about the appropriate limits of a Board member's questioning in this inquisitorial process, see Canadian Refugee Procedure/The Board's inquisitorial mandate and also the following discussion of limits on questions that the Board may pose: Canadian Refugee Procedure/The right to a fair hearing#Members are expected to act in good faith and are precluded from "setting traps" for claimants.

A passive or distant countenance is not required of Board membersEdit

It may be noted that it is common for government officials conducting asylum interviews to have a passive and distanced countenance during hearings. For example, in one empirical study of Finish asylum officers, the researchers noted that the officers did not detectably react to the claimants’ narrations of events. The researchers stated that although an officer may think that a passive and distanced attitude guarantees neutrality, from a claimant’s perspective it can be interpreted as negative feedback. They argue that:

Traumatised individuals are prone to feel threatened and perceive the other’s intentions as intimidating, unless they receive clear and constant messages of the safety of a situation. A successful narration of traumatic events, for instance, is known to require a safe atmosphere characterized by a feeling of being connected to another person. [citations omitted][41]

Indeed, the legal academic Hathaway has gone as far as to say that “the maintenance of 'judicial distance' is for some members a convenient way of concealing a tendency to cynicism and negativism.”[42] As such international guidelines, such as those from the EU, prescribe that asylum interviews should be marked by trust, respect, and empathy.[43] The Member may consider this advice in order to have an appropriately trauma-informed approach to hearings. Indeed, the Refugee Appeal Division has held that "insensitivity to the claimant’s particular situation and disinterest in the claim" can constitute procedural unfairness.[38] Conversely, the fact that a Member is engaged and may be encouraging a claimant's testimony should not be taken as the Member having accepted the credibility of that testimony, lest it leave Members with the impression that only a detached demeanour is permissible.

The institutional arrangements that pertain to the freedom and independence of the decision-makerEdit

Institutional biasEdit

Decisions are liable to be set aside for bias if a reasonable person would conclude, a balance of probabilities, that the decision-maker was not impartial.[44] Institutional bias is found if such a reasonable apprehension exists in a substantial number of cases.[45]

In and of itself, legal review of members' decisions does not create a reasonable apprehension of biasEdit

In Weerasinge v. Canada the Federal Court of Appeal considered whether Members of the Board having their reasons reviewed by a legal advisor created a reasonable apprehension of bias. The court rejected this argument, commenting as follows:

The Refugee Division consists of such number of full and part-time members as the Governor in Council may decide. They are appointed for terms of up to seven years. A minimum of one-tenth are required to be barristers or advocates of at least five years' standing. It would be pure coincidence if either member of a panel hearing a particular claim were legally qualified.

The Refugee Division is a lay tribunal required to decide claims which, as I have observed, involve the life, liberty and security of the person. It must do so within the framework of extensive, confusing, and sometimes confused, jurisprudence. It is required to give written reasons for decision not favourable to claimants. The desirability of legal review of those reasons is manifest. Having come to a decision on what is essentially a question of fact: whether the claimant has a well-founded fear of persecution for a reason that engages the Convention refugee definition, a tribunal does not, in my opinion, offend any tenet of natural justice by taking advice as to legal matters contained in its reasons.

While the reasons review process, both in the more limited format described in the memorandum and the full review format suggested, could be abused and result in the reviewing lawyers influencing the decisions to which the reasons relate, there is, in my opinion, simply no foundation for a conclusion that it has been, in fact, abused, either in the case before us or generally. Any consultation by a decision maker before publishing a decision, including consultation by a judge with a law clerk, could be abused. As to whether there is an appearance offensive to our notions of natural justice, it seems to me that the question to be asked is, as in dealing with an assertion of a reasonable apprehension of bias, namely, whether an informed person, viewing the matter realistically and practically and having thought it through, would think it more likely than not that the tribunal's decision that a claimant was, or was not, a Convention refugee had been influenced by the review of its reasons by its staff lawyers. In my opinion, that person would not think it likely.[46]

Furthermore, to the extent that members of the tribunal receive legal advice, legal advisors are not to attempt to influence the factual findings, but may have access to the facts and files of the claims in question and offer legal advice in relation to them: Bovbel v. Canada.[47] That said, the interpretation of these questions is fraught and the relevant principles are, in the mind of this author, far from clear. This is illustrated by the fact that in Bovbel v. Canada the Federal Court had initially found that the IRB process was problematic,[48] only for this conclusion to be overturned on appeal to the Federal Court of Appeal. For further discussion of legal review, see: Canadian Refugee Procedure/The right to an independent decision-maker#Legal services review of decisions may discuss issues of fact in the reasons but should not attempt to influence factual findings.

ReferencesEdit

  1. Immigration and Refugee Board of Canada, Code of Conduct for Members of the Immigration and Refugee Board of Canada, Effective Date: April 9, 2019, <https://irb-cisr.gc.ca/en/members/Pages/MemComCode.aspx> (Accessed May 3, 2020), at section 29.
  2. Oath or Solemn Affirmation of Office Rules (Immigration and Refugee Board of Canada), s. 1.
  3. Committee for Justice and Liberty et al. v. National Energy Board et al., 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, at page 394.
  4. Immigration and Refugee Board of Canada, Code of Conduct for Members of the Immigration and Refugee Board of Canada, Effective Date: April 9, 2019, <https://irb-cisr.gc.ca/en/members/Pages/MemComCode.aspx> (Accessed May 3, 2020), at section 30.
  5. a b Keita v Canada (Citizenship and Immigration), 2015 FC 1115 at para 29, as cited in Sharryn Aiken, et al, Immigration and Refugee Law: Cases, Materials, and Commentary (Third Edition), Jan. 1 2020, Emond, ISBN: 1772556319, at page 196.
  6. a b Immigration and Refugee Board of Canada, Code of Conduct for Members of the Immigration and Refugee Board of Canada, Effective Date: April 9, 2019 <https://irb-cisr.gc.ca/en/members/Pages/MemComCode.aspx> (Accessed April 22, 2020).
  7. Committee for Justice and Liberty v Canada (National Energy Board), 1976 CanLII 2 (SCC), [1978] 1 SCR 369.
  8. Arsenault-Cameron v. Prince Edward Island, 1999 CanLII 641 (SCC), [1999] 3 S.C.R. 851 at para. 2.
  9. Wewaykum Indian Band v. Canada, 2003 SCC 45 (CanLII), [2003] 2 S.C.R. 259 at para. 76.
  10. Alcina Rodriguez v. Canada (Citizenship and Immigration), 2018 FC  995 (CanLII), para. 35.
  11. Hazelton Lanes Inc. v. 1707590 Ontario Limited, 2014 ONCA 793, 326 OAC 301.
  12. a b Langstaff v. Marson, 2014 ONCA 510.
  13. a b Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25.
  14. a b Hughes, J., & Bryden, P. (2017). Implications of Case Management and Active Adjudication for Judicial Disqualification. Alberta Law Review, 54(4). https://doi.org/10.29173/alr780 at page 855.
  15. a b Waldman, Lorne, Canadian Immigration and Refugee Law Practice (2018), page 59.
  16. Conflict of Interest Act, S.C. 2006, c. 9, s. 2.
  17. a b Ahumada v. Canada (Minister of Citizenship and Immigration), 2001 FCA 97 (CanLII), [2001] 3 FC 605.
  18. Reginald v. Canada (Minister of Citizenship & Immigration), [2002] F.C.J. No. 741, 22 Imm. L.R. (3d) 60 (F.C.T.D.).
  19. Niyonkuru v. Canada (Minister of Citizenship and Immigration), 2005 FC 174 (CanLII), para. 19.
  20. Sharryn Aiken, et al, Immigration and Refugee Law: Cases, Materials, and Commentary (Third Edition), Jan. 1 2020, Emond, ISBN: 1772556319, at page 927.
  21. Fenanir v. Canada (Minister of Citizenship and Immigration), 2005 FC 150 (CanLII), par. 9, <http://canlii.ca/t/1mrgt#par9>, retrieved on 2020-02-08.
  22. Fenanir v. Canada (Minister of Citizenship and Immigration), 2005 FC 150 (CanLII), par. 17, <http://canlii.ca/t/1mrgt#par17>, retrieved on 2020-02-08.
  23. Turoczi v. Canada (Citizenship and Immigration), 2012 FC 1423 (CanLII), par. 15, <http://canlii.ca/t/fvb4c#par15>, retrieved on 2020-12-19.
  24. Immigration and Refugee Board of Canada, Code of Conduct for Members of the Immigration and Refugee Board of Canada, Effective Date: April 9, 2019, <https://irb-cisr.gc.ca/en/members/Pages/MemComCode.aspx> (Accessed May 3, 2020), at section 29.
  25. Hernandez v Canada (Citizenship and Immigration), 2010 FC 179, as cited in Sharryn Aiken, et al, Immigration and Refugee Law: Cases, Materials, and Commentary (Third Edition), Jan. 1 2020, Emond, ISBN: 1772556319, at page 197.
  26. Sharryn Aiken, et al, Immigration and Refugee Law: Cases, Materials, and Commentary (Third Edition), Jan. 1 2020, Emond, ISBN: 1772556319, at page 198.
  27. Kozak v. Canada (Minister of Citizenship and Immigration), 2006 FCA 124 (CanLII), [2006] 4 FCR 377, para. 56.
  28. Cheon v Altern Properties Inc, 2015 SKQB 23, 468 Sask R 13 at para 31.
  29. Gebreyesus v. Canada (Citizenship and Immigration), 2018 FC 966 (CanLII), paras. 22-23.
  30. Pajarillo, Donna Parcasio v. M.C.I. (F.C., no. IMM-3740-19), Lafreniere, December 20, 2019; 2019 FC 1654.
  31. Judicial Review of Administrative Action in Canada (Brown and Evans, Toronto : Canvasback Publishing, 1998) at pages 11-31 and 11-32.
  32. Mahmoud v Canada (Minister of Citizenship and Immigration), 2005 FC 1308 at para 10.
  33. Immigration and Refugee Board of Canada, Code of Conduct for Members of the Immigration and Refugee Board of Canada, Effective Date: April 9, 2019, <https://irb-cisr.gc.ca/en/members/Pages/MemComCode.aspx> (Accessed May 3, 2020), at section 10.
  34. a b Mahendran, (1991) 14 Imm. LR (2d) 30.
  35. Hernandez v. Canada (Minister of Citizenship & Immigration), [2010] F.C.J. No. 199, 2010 FC 179 (F.C.), para. 54.
  36. UN High Commissioner for Refugees (UNHCR), Procedural Standards for Refugee Status Determination Under UNHCR's Mandate, 26 August 2020, available at: https://www.refworld.org/docid/5e870b254.html [accessed 5 September 2020], page 15.
  37. Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 as cited in Sharryn Aiken, et al, Immigration and Refugee Law: Cases, Materials, and Commentary (Third Edition), Jan. 1 2020, Emond, ISBN: 1772556319, at page 196.
  38. a b X (Re), 2020 CanLII 101262 (CA IRB), par. 17, <http://canlii.ca/t/jc75m#par17>, retrieved on 2020-12-21.
  39. Mariana Olaizola Rosenblat et al, Good Practices in Nationality Laws for the Prevention and Reduction of Statelessness: Handbook for Parliamentarians No 29 (Inter-Parliamentary Union and UNHCR 2018) 21.
  40. H. Crawley, “‘No One Gives You a Chance to Say What You Are Thinking’: Finding Space for Children’s Agency in the UK Asylum System”, Area, 42(2), 2010, 162–169.
  41. Eeva Puumala, Riitta Ylikomi & Hanna-Leena Ristimäki, Giving an account of persecution: The dynamic formation of asylum narratives, Journal of Refugee Studies 31(2), pp. 197-215 (2018) <https://academic.oup.com/jrs/article-abstract/31/2/197/4158632> (Accessed February 10, 2020), at page 18.
  42. Hathaway, James C., Rebuilding trust: a report of the Review of Fundamental Justice in Information Gathering and Dissemination at the Immigration and Refugee Board of Canada, Refugee Studies Centre, Publisher: Osgoode Hall Law School, 01/12/1993 <http://repository.forcedmigration.org/show_metadata.jsp?pid=fmo:1136> (Accessed April 14, 2020), page 20 of the printed report.
  43. Jessy Carton, Beyond Persecution: Exploring alternative refugee narratives in Jenny Erpenbeck, DiGeSt Journal of Diversity and Gender Studies, Volume 7, Issue 1, <https://www.digest.ugent.be/article/download/16509/13986> (Accessed June 20, 2020), page 25.
  44. Restrepo Benitez v Canada (Minister of Citizenship and Immigration), 2006 FC 461 at para 6.
  45. R v Lippé, 1990 CanLII 18 (SCC), [1991] 2 SCR 114.
  46. Weerasinge v. Canada (Minister of Employment and Immigration), 1993 CanLII 2996 (FCA), [1994] 1 FC 330.
  47. Bovbel v. Canada (Minister of Employment and Immigration), 1994 CanLII 3465 (FCA), [1994] 2 FC 563
  48. Bovbel v. Canada (Minister of Employment and Immigration), 1993 CanLII 3016 (FCA), [1994] 1 FC 340.

The right to an independent decision-makerEdit

Parties are entitled to an independent decision maker.[1] A key concern with issues of independence is that a decision maker must approach and determine the matters in issue freely and in a sufficiently dispassionate and disinterested way. The Code of Conduct for Members of the Immigration and Refugee Board of Canada stipulates that "Members shall not be influenced by extraneous or improper considerations in their decision-making. Members shall make their decisions free from the improper influence of other persons, institutions, interest groups or the political process."[2] Key issues related to independence include those following.

The right to an independent decision-makerEdit

The requirement that decisions in refugee matters be made (or be reviewable) by an independent decision-maker arises from Canada’s international obligations; the UN Human Rights Committee has found, in Alzery v Sweden, that effective, independent review of the decision to expel prior to expulsion is necessitated by the nature of the non-refoulement obligation under article 7 of the International Covenant on Civil and Political Rights, as read with the right to effective remedies under article 2 of that instrument.[3]

Decision-makers must be insulated from political and bilateral relations considerationsEdit

Decision-makers in refugee matters must not be beholden to any political or bilateral relations considerations. As Neil Yeates writes in his report on the Board, “decision makers must be able to hear cases in an environment within which their decisions are not seen to be fettered by external considerations, such as the foreign policy positions of the government of the day.”[4] The importance of an independent mechanism for asylum adjudication is illustrated when considering other countries’ systems that are said to be subject to the vicissitudes of politics and hence to “[leave] people seeking protection promised by international treaty to the whims of a politically responsive enforcement agency”.[5] Refugee lawyer David Matas recounts the example of Belgian refugee policy in the 1980s, wherein government authorities apparently had a tacit policy that Zairois were not to be recognized as refugees. He writes about the apparent basis for this policy as follows: “for political and economic reasons, Belgium does not want to incur the anger of the present regime governing Zaire, a former a Belgian colony. There remain substantial economic ties between Belgium and Zaire. The countries are on friendly terms politically. [Hence,] UNHCR representatives in Belgium presumed that Zairois were not bona fide refugees.”[6]

Internal discussions between tribunal members on process, law, and policy are encouragedEdit

A key issue that arises with respect to independence is the extent of permitted discussions amongst members of the tribunal about a case that is under consideration. The leading case on this subject is the Supreme Court of Canada decision in I.W.A. v. Consolidated Bathurst Packaging Ltd.[7] The rules on this subject allow for a broad latitude for internal discussions, within an atmosphere that has been referred to as “assertive collegiality”, provided that the final decision-maker is unencumbered in freely making their own decision. The principles are well captured by this passage from the paper Consistency in Tribunal Decision Making from the Canadian Institute for the Administration of Justice:

This culture of ongoing discussion can be described as a system of “assertive collegiality”—where there can be vigorous debate internally within the complement of adjudicators, but once the discussion is complete, the person hearing the case is free to make their own decision. Discussions also occur regularly between tribunal Chairs and individual adjudicators at any stage in the hearing process. For example, particular types of cases which raise significant or novel issues may be flagged at the intake stage. Once identified, they are brought to the attention of the Chair who will then choose a particular adjudicator to deal with the case. The Chair may have a discussion with the adjudicator before the assignment is made in order to canvass the procedural, law and policy issues that might be presented in the case. During the course of the hearing, the adjudicator and the Chair may continue the discussion, so that the adjudicator understands the issues in the context of the tribunal’s institutional views. Once the hearing is completed, the Chair and the adjudicator may then continue their discussion throughout the decision writing process.[8]

It is entirely permissible, and even desirable for reasons of training and consistency, for members to be encouraged to distribute draft decisions amongst each other for comment: “Most tribunals schedule regular meetings for more formal discussions and it is not unusual where adjudicators are primarily full time and based in one location for there to be weekly or in some cases, daily meetings where drafts are exchanged and where issues of process, law and policy are discussed.”[8] In the words of the Supreme Court of Canada, the “criteria for independence are not absence of influence but rather the freedom to decide according to one’s own conscience and opinions”[9]

Discussions of policy in the context of refugee adjudication may, and indeed should, cover consideration of country conditions. As the Federal Court of Appeal notes when distinguishing the type of factual findings at issue in Consolidated Bathurst, supra, factual issues in refugee adjudication can be of a "special nature to the extent that they go beyond the evidence specific to any particular claimant."[10] As the Federal Court noted in Barrantes v. Canada (Minister of Citizenship and Immigration), “it would not do to have one panel member’s terrorist organization be characterized by another member as a benevolent non-government organization”.[11] As such, in the context of refugee adjudication, discussions between tribunal members on general issues of fact related to a country are not just permissible, but desirable.

Discussions cannot be imposed upon a MemberEdit

Consolidated-Bathurst involved discussions by members of an administrative tribunal after hearing cases but before reaching final decisions. For the majority, Gonthier J. okayed the practice, but imposed important limitations. In short, discussions could not be coercive and could not delve into the facts of particular cases.[12] The rules for such discussions are enumerated in the eponymous case.[13] The Supreme Court of Canada affirmed this conclusion in Tremblay v. Quebec: “In my view, the mere fact that the president can of his own motion refer a matter for plenary discussion may in itself be a constraint on decision makers. In such circumstances, they may not feel free to refuse to submit a question to the "consensus table" when the president suggests this. Further, the statute clearly provides that it is the decision makers who must decide a matter. Accordingly, it is those decision makers who must retain the right to initiate consultation; imposing it on them amounts to an act of compulsion towards them and a denial of the choice expressly made by the legislature.”[14] As such, where a Member does not wish to consult, either with other members, a supervisor, or legal services, it must be truly free to do so (aside from during special circumstances such as during an initial probationary training period).

Legal services review of decisions may discuss issues of fact in the reasons but should not attempt to influence factual findingsEdit

Gonthier J. of the Supreme Court of Canada made the following comment (in dissent) in Consolidated-Bathurst:

The determination and assessment of facts are delicate tasks which turn on the credibility of the witness and an overall evaluation of the relevancy of all the information presented as evidence. As a general rule, these tasks cannot be properly performed by persons who have not heard all the evidence and the rules of natural justice do not allow such persons to vote on the result. Their participation in discussions dealing with such factual issues is less problematic when there is no participation in the final decision. However, I am of the view that generally such discussions constitute a breach of the rules of natural justice because they allow persons other than the parties to make representations on factual issues when they have not heard the evidence [emphasis added][13]

The applicability of this comment to the refugee context was considered by the Federal Court of Appeal in Bovbel v. Canada. Specifically, in that case, the court considered whether having legal advisors have access to the files of refugee claimants when providing legal advice to Members, the above principle could be offended. The court rejected this concern as follows:

A fair reading of the documents on the record shows, in our view, that the legal advisors were not expected to discuss the findings of facts made by the members but merely, if there was a factual inconsistency in the reasons, to look at the file in order to determine, if possible, how the inconsistency could be resolved. True, there was always the possibility that the legal advisors might, since they were in possession of the file, exceed their mandate and try to influence the factual findings of the Board. However, as mentioned by Mahoney J.A. in Weerasinge, any policy is susceptible of abuse.[15]

As such, discussions, whether with the Board's legal services team, or otherwise, should not aim to influence the factual findings of Members, but need not eschew all discussion of facts, for example where a Member has made inconsistent factual findings in a decision and that concern should be resolved. Procedural fairness does not demand that Members of the Board never discuss the facts of a file. That said, it is plain that a mandatory policy of legal review in which legal services members attempted to influence or pressure Members to make certain factual findings regarding a hearing that they had never observed would offend principles of independence. Finally, there appears to be a real lack of clarity on exactly how to interpret the statements of Gonthier J. in Consolidated-Bathurst.[13] For example, David Mullan writes in his text Administrative Law that "on the mater of discussion of the evidence, the Court itself is not totally unequivocal even in the context of discussions with colleagues who have not heard the evidence. Where staff have been present at giving of the relevant testimony or where the evidence is written rather than given orally, the constraint on discussion may not have quite the same force."[16]

Fettering of discretionEdit

Attention paid exclusively to policy statements and other extraneous materials for the purpose of exercising one’s discretion may be an error. This sometimes is called “fettering discretion”.[17] The fettering of discretion doctrine has been used primarily to assess the validity of policy instruments such as guidelines.[18] The fact that a guideline is intended to establish how discretion will normally be exercised is not enough to make it an unlawful fetter, as long as it does not preclude the possibility that the decision maker may deviate from normal practice in the light of particular facts.[19]

The IRB may use "soft law" instruments such as policy statements, guidelines, manual, and handbooksEdit

The Federal Court of Appeal holds that administrative agencies do not require an express grant of statutory authority in order to use “soft law” such as policy statements, guidelines, manuals and handbooks to structure the exercise of their discretion.[20] The IRPA also provides an express grant of authority to the Chairperson to issue jurisprudential guides. See the discussion of this authority at the commentary on section 159 of the IRPA: Canadian Refugee Procedure/Duties of Chairperson.

Informal discussions between Members are permissible so long as independence is maintainedEdit

A question can arise about the permissible limits of voluntary and informal discussions amongst Members of a tribunal about the issues raised in their files. As Mullan notes in his text, "the case law on the subject is surprisingly far from comprehensive".[16] The Ontario Court of Appeal held that there is no bar on a tribunal member consulting and being influenced by those internal consultations in Khan v. College of Physicians & Surgeons of Ontario:

The volume and complexity of modern decision-making all but necessitates resort to "outside" sources during the drafting process. Contemporary reason-writing is very much a consultive process during which the writer of the reasons resorts to many sources, including persons not charged with the responsibility of deciding the matter, in formulating his or her reasons. It is inevitable that the author of the reasons will be influenced by some of these sources. To hold that any "outside" influence vitiates the validity of the proceedings or the decision reached is to insist on a degree of isolation which is not only totally unrealistic, but also destructive of effective reason-writing.

This is reinforced in the IRB context by section 13 of the Code of Conduct for Members which provides that "Members have a responsibility to perform their duties in a manner that fosters collegiality among members and with staff and to treat them with courtesy and respect. Members are expected to assist their colleagues through the respectful exchange of views, information and opinions."[21] There is no doubt that the participation of "outsiders" in the decision-making process of an administrative tribunal may sometimes cause problems. The decisions of the tribunal must, indeed, be rendered by those on whom Parliament has conferred power to decide and their decisions must, unless the relevant legislation impliedly or expressly provides otherwise, meet the requirements of natural justice. However, the court has held that "when the practice followed by members of an administrative tribunal does not violate natural justice and does not infringe on their ability to decide according to their opinion, even though it may influence that opinion, it cannot be criticized."[15] As such, there is no issue with the Board, for example, hiring mentors for new members who may work with those new members in order to assist with preparing for hearings and then assist post-hearing with reaching factual findings about the evidence heard. There is indeed a body of literature on such mentoring for adjudicators and its permissibility so long as it is carried out in a way that maintains the mentee's independence.[22] As well, it is permissible for other tribunal members, even a member's superiors such as the Chairperson and Deputy Chairperson of the tribunal, to comment on a member's draft reasons as noted by the Federal Court of Appeal: "While the Acting Deputy Chairperson reviewed drafts of the member’s decision, under the IRPA, the Chairperson and Deputy Chairperson are also members of the RAD and paragraph 159(1)(h) does not prohibit them from suggesting changes to a draft at a deliberative stage."[23]

Deliberative SecrecyEdit

The principle of deliberative secrecy prevents disclosure of how and why adjudicative decision-makers make their decisions. The "how and why" of decision-making are kept secret to protect the decision-maker and the decision-making process.[24]

Access to information rights under the Privacy Act do not apply to a Board Member's notesEdit

The issue of how the principle of deliberative secrecy intersects with access to information rights under the federal Privacy Act was considered in Tunian v. Chairman of the Immigration and Refugee Board.[25] The Tunian family were refused refugee status. They applied pursuant to section 41 of the Privacy Act to receive the draft reasons and notes prepared by the member of the Refugee Protection Division of the IRB who made the decision determining that they were not Convention refugees. Section 41 of the Privacy Act gives the Court the jurisdiction to review instances in which an individual has been refused access to personal information. The Privacy Act provides individuals with a right of access to information about them where it is either in a "personal information bank" or under the "control" of a government institution. Access to the Member's notes was refused in this case on the basis that notes made by quasi-judicial decision-makers in the course of carrying out an independent adjudicative function are not in the control of the administrative tribunal but, rather, are in the control of the member themself. In this case, the court affirmed the decision Privacy Commissioner v. Labour Relations Board and held that the principles discussed therein apply to the Immigration and Refugee Board, particularly:

It is the duty and role of courts to ensure that administrative tribunals make their decisions in accordance with the rules of natural justice. ... As such, courts are called upon to warrant the fairness of the process. To do so the Court must ensure that the tribunal possesses the freedom to decide matters independently, as it sees fit, without interference from anyone at any time. In my view, regulated and systematic intrusions by outsiders into the thought process of a decision maker as it stands to be revealed by the hearing notes would impact negatively on the integrity of the decision-making process.[26]

Board Members are neither competent nor compellable witnesses as a result of the principle of deliberative secrecyEdit

The rule protecting deliberative secrecy is an exclusionary rule. The rule operates to prohibit compelled testimony from judges about their deliberations. It also provides that judges are not competent to testify about their deliberations. That is because the purpose of the rule is not to protect judges’ personal interests, but rather “to ensure public confidence in an impartial and independent judicial system”: Kosko c. Bijimine.[27] Gascon J. stated in Laval v. Syndicat de l’enseignement de la région de Laval that “[j]udges cannot of course choose to lift deliberative secrecy to explain the reasoning behind their conclusions whenever it suits them to do so.”[28] Among the broader rationales that have been offered for expanding the operation of the rule in this way is to prevent judges themselves from subsequently augmenting or qualifying their reasons, which offends the need for finality in judicial decision-making and undermines public confidence in the administration of justice.[29]

The applicability of this rule to Members of the Immigration and Refugee Board was considered in Ermina v. Canada.[30] In that case, the applicant’s refugee status had been vacated by a panel of the Board. At the hearing before the Board, the applicant had sought to elicit testimony from the chair of the panel that had originally granted her that status. The Board refused to hear such testimony, relying on the rule protecting deliberative secrecy. The applicant then tried to adduce an affidavit sworn by the former chair and containing the same information. The Board refused to receive that as well. On the ensuing application for judicial review, Tremblay-Lamer J. upheld the Board’s decisions in that regard, finding that the former chair was neither a compellable nor a competent witness. In that decision, justice Tremblay-Lamer explained that “[d]ecisions must be final and subject only to review in the ordinary channels.” In reaching that conclusion, she relied heavily on Agnew v. Ontario Association of Architects,[31] in which the Court elaborated on the rationale for extending the rule to administrative decision-makers:

The authorities do not make it clear whether this general rule applies equally to members of administrative tribunals. In logic, there is no reason why it should not. The mischief of penetrating the decision process of a tribunal member is exactly the same as the mischief of penetrating the decision process of a judge.

Apart from the practical consideration that tribunal members and judges would spend more time testifying about their decisions than making them, their compellability would be inconsistent with any system of finality of decisions. No decision and a fortiori no record, would be really final until the judge or tribunal member had been cross-examined about his decision. Instead of review by appeal or extraordinary remedy, a system would grow up of review by cross-examination.

In the case of a specialized tribunal representing different interests the mischief would be even greater because the process of discussion and compromise among different points of view would not work if stripped of its confidentiality.

It is not necessary to catalogue all the different forms of mischief that might result from the compellability of judges and tribunal members to testify about their decisions. It is sufficient to say that there is no reason in logic to distinguish between a judge and a member of the statutory tribunal under consideration here.

Board management cannot read a Member's emails without good reasonEdit

The IRB has stated that it supports the principle that access to an employee's e-mail without consent is justified only in extreme situations, for example in situations involving a criminal or security infraction, and only after proper authorization from senior management. As a result, a Member's emails will ordinarily be private and not readable by managers or others in the organization, absent exceptional circumstances and good reason to do so. The federal Privacy Commissioner chastised the IRB when it departed from this standard in one case.[32]

ReferencesEdit

  1. Bourbonnais v. Canada (Attorney General), 2004 FC 1754, [2005] 4 F.C.R. 529 at paras. 49-57, 267 F.T.R. 169.
  2. Immigration and Refugee Board of Canada, Code of Conduct for Members of the Immigration and Refugee Board of Canada, Effective Date: April 9, 2019, <https://irb-cisr.gc.ca/en/members/Pages/MemComCode.aspx> (Accessed May 3, 2020), at section 34.
  3. UN doc CCPR/C/88/D/1416/2005 (10 November 2006).
  4. Neil Yeates, Report of the Independent Review of the Immigration and Refugee Board, Government of Canada, April 10, 2018, <https://www.canada.ca/content/dam/ircc/migration/ircc/english/pdf/pub/irb-report-en.pdf> (Accessed April 27, 2020), page 25.
  5. Sweeney, Maureen. (2019). “Enforcing/Protection: The Danger of Chevron in Refugee Act Cases.” Administrative Law Review, Volume 71, Issue 1, Page 127.
  6. David Matas with Ilana Simon, Closing the Doors: The Failure of Refugee Protection, Summerhill Press Ltd., Toronto, 1989, ISBN 0-920197-81-7, page 246.
  7. I.W.A. v. Consolidated Bathurst Packaging Ltd., [1990] 1 S.C.R. 282.
  8. a b Whitaker, Kevin, Consistency in Tribunal Decision Making: What Really Goes On Behind Closed Doors..., Essays in Adminitrative and Justice (2001-2007) <https://ciaj-icaj.ca/wp-content/uploads/documents/2016/09/pub2007-8.pdf?id=7973&1577812348> (Accessed January 18, 2020).
  9. Iwa v. Consolidated-Bathurst Packaging Ltd., 1990 CanLII 132 (SCC), [1990] 1 SCR 282, para. 84.
  10. Canadian Association of Refugee Lawyers v. Canada (Immigration, Refugees and Citizenship), 2020 FCA 196 (CanLII), par. 75, <http://canlii.ca/t/jblsl#par75>, retrieved on 2020-11-17.
  11. Barrantes v. Canada (Minister of Citizenship and Immigration), 2005 FC 518.
  12. Daly, Paul, Judges Talking to other Judges: Judicious Consultation?, Administrative Law Matters Blog <https://www.administrativelawmatters.com/blog/2015/05/22/judges-talking-to-other-judges-judicious-consultation/> (Accessed January 19, 2020).
  13. a b c Iwa v. Consolidated-Bathurst Packaging Ltd., 1990 CanLII 132 (SCC), [1990] 1 SCR 282.
  14. Tremblay v. Quebec (Commission des affaires sociales), 1992 CanLII 1135 (SCC), [1992] 1 S.C.R. 952
  15. a b Bovbel v. Canada (Minister of Employment and Immigration), 1994 CanLII 3465 (FCA), [1994] 2 FC 563
  16. a b Mullan, David, Administrative Law (Irwin Law), page 301.
  17. Stemijon Investments Ltd. v. Canada (Attorney General), 2011 FCA 299.
  18. Houle, F. (2008). Thamotharem and Guideline 7 of the IRB: Rethinking the Scope of the Fettering of Discretion Doctrine. Refuge: Canada’s Journal on Refugees, 25(2), 103-118. Retrieved from https://refuge.journals.yorku.ca/index.php/refuge/article/view/26034, page 105.
  19. Thamotharem v. Canada (Minister of Citizenship and Immigration), 2007 FCA 198 (CanLII), [2008] 1 FCR 385, par. 78, <http://canlii.ca/t/1rmr4#par78>, retrieved on 2020-12-23.
  20. Canadian Association of Refugee Lawyers v. Canada (Immigration, Refugees and Citizenship), 2020 FCA 196 (CanLII), par. 45, <http://canlii.ca/t/jblsl#par45>, retrieved on 2020-11-17.
  21. Immigration and Refugee Board of Canada, Code of Conduct for Members of the Immigration and Refugee Board of Canada, Effective Date: April 9, 2019, <https://irb-cisr.gc.ca/en/members/Pages/MemComCode.aspx> (Accessed May 3, 2020), at section 13.
  22. Mackenzie, Ian, Mentoring for Adjudicators: The Need for Guidelines, Slaw: Canada's online legal magazine, July 6, 2016, <http://www.slaw.ca/2016/07/06/mentoring-for-adjudicators-the-need-for-guidelines/> (accessed January 18, 2020).
  23. Canadian Association of Refugee Lawyers v. Canada (Immigration, Refugees and Citizenship), 2020 FCA 196 (CanLII), par. 98, <http://canlii.ca/t/jblsl#par98>, retrieved on 2020-11-17.
  24. Summitt Energy Management Inc. v. Ontario Energy Board, 2012 ONSC 2753 (CanLII), as discussed in Cass, Fred D,; Thoms, Zoe, Deliberative Secrecy in the Context of Decision-Making by Administrative Tribunals, Advocates' Quarterly 44 Advoc. Q. (2015) <https://heinonline.org/HOL/P?h=hein.journals/aqrty44&i=177>, page 169 (Accessed January 18, 2020).
  25. Tunian v. Chairman of the Immigration and Refugee Board, 2004 FC 849 (CanLII).
  26. Canada (Privacy Commissioner v. Canada (Labour Relations Board) (2000), 257 N.R. 66 (F.C.A.), [2000] F.C.J. No. 617 (C.A.) (QL)).
  27. Kosko c. Bijimine, 2006 QCCA 671 at para. 40.
  28. Commission scolaire de Laval v. Syndicat de l’enseignement de la région de Laval, 2016 SCC 8, at para. 64.
  29. West Moberly First Nations v British Columbia, 2018 BCSC 1835 (CanLII), para. 159.
  30. Ermina v. Canada (Citizenship and Immigration) (1998), 1998 CanLII 8969 (FC), 167 D.L.R. (4th) 764 (F.C.).
  31. Agnew v. Ontario Association of Architects (1987), 1987 CanLII 4030 (ON SC), 64 O.R. (2d) 8 (Div. Ct.) at 14.
  32. Office of the Privacy Commissioner of Canada, Inappropriate monitoring of employees' e-mail accounts, Date modified: 2003-01-29, <https://www.priv.gc.ca/en/opc-actions-and-decisions/investigations/investigations-into-federal-institutions/2001-02/pa_200102_05/> (Accessed August 16, 2020).

Appropriate decorum and propriety at a refugee hearingEdit

Decorum is defined as "behavior in keeping with good taste and propriety." What is proper decorum in the context of Refugee Protection Division hearings? A number of issues arise:

The claimant should be received and introduced to the hearing room by a Board staff memberEdit

Claimants should be properly received at the beginning of the hearing. The IRB commissioned a report on its use of videoconference and the resultant report stated that "From a justice system perspective, it seems to me wrong that claimants attending a hearing in which their future is to be decided by an adjudicator in what is effectively a judicial proceeding, should not be received in the hearing room at the outset by a real person with official status, who can address the claimants by name, confirm that they are in the right place, introduce them to the equipment, explain what to expect, and so on."[1] That report, which is published on the Board's website, identifies this as an important step in the creation of a receptive and comfortable hearing environment.

Proceedings will be recordedEdit

Audio of refugee proceedings before the Board will, as a matter of course, be recorded. Indeed, there is some legal risk where the Board does not record the hearing: Canadian Refugee Procedure/Print version#The Board is not obliged to record hearings, but a lack of such a recording may constitute grounds for setting aside the decision. International law regarding refugee determination provides that States may record a refugee claimant's oral statements, but the claimant should be given due notice that this may be required.[2] Such notice is a common way to begin proceedings at the RPD, where the member will, as part of an introductory spiel, inform the claimant that they are now "on the record".

Proceedings are a mix of formal and informalEdit

Section 162(2) provides that each Division must deal with proceedings as informally and quickly as circumstances permit, taking into account the requirements of fairness and natural justice. This provision implies that the Division is not bound by formal rules of procedure that would apply in a court or more formal quasi-judicial tribunal.[3] The Irwin Law text Refugee Law notes that "despite the Board's own description of its hearing process as 'informal,' the reality for claimants is that it is decidedly formal."[4] Similarly, the Law Reform Commission of Canada, in its report The Determination of Refugee Status in Canada: A Review of the Procedure states that "Hearings are conducted...in a fairly formal atmosphere, in a quasi-judicial context which many claimants appeared to find intimidating. This formality flows from both the setting and the behaviour of the participants. The hearing room is laid out like a court room, with a raised desk and high-back chairs for Members. The style of proceedings is typical of that for a quasi-judicial tribunal."[5]

In operation, a refugee hearing is not dissimilar to any other administrative hearing: the parties are present, witnesses are examined, and submissions are made.[4] Some of the expectations for conduct at such hearings follow:

The parties should stand whenever the Board Member enters or leaves the hearing roomEdit

The parties should stand whenever the Board Member enters or leaves the hearing room.[6]

Witnesses will swear or affirm to tell the truth and should put away notes while testifyingEdit

Evidence is typically presented in viva voce form at the hearing. Witnesses are sworn or affirmed and then questioned.[7] It is expected that witnesses, including claimants, will not have notes, their BOC form, or other paperwork in front of them while testifying. Such an expectation has generally been held to be compatible with a fair procedure.[8]

Attire appropriate for a formal hearingEdit

The Board states that "attire should be appropriate for a formal hearing and in keeping with the atmosphere of the hearing room."[9]

ReferencesEdit

  1. 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).
  2. Andreas Zimmermann (editor), The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary. Oxford University Press, 2011, ISBN 978-0-19-954251-2, Introduction to Chapter V, written by Hofmann & Löhr, at p. 1119 (para. 102).
  3. Waldman, Lorne, Canadian Immigration & Refugee Law Practice, Markham, Ont.: LexisNexis Butterworths, 2018, ISBN 9780433478928, ISSN 1912-0311, <https://search.library.utoronto.ca/details?5022478> (Accessed April 1, 2020) at page 201 of the PDF.
  4. a b Martin David Jones and Sasha Baglay. Refugee law (Second Edition). Irwin Law, 2017, page 297.
  5. Hathaway, James C., Rebuilding trust: A Report of the Review of Fundamental Justice in Information Gathering and Dissemination at the Immigration and Refugee Board of Canada, Refugee Studies Centre, Publisher: Osgoode Hall Law School, York University, December 1993, page 73.
  6. University of Ottawa Refugee Assistance Project, UORAP Hearing Preparation Kit, Guide 3: Preparing Evidence for your Hearing <https://ccrweb.ca/sites/ccrweb.ca/files/hearing_preparation_kit.pdf>, page 21.
  7. Martin David Jones and Sasha Baglay. Refugee law (Second Edition). Irwin Law, 2017, page 302.
  8. Wysozki v. Canada (Public Safety and Emergency Preparedness) (F.C., No. IMM-4958-19), Strickland, March 31, 2020; 2020 FC 458.
  9. Immigration and Refugee Board of Canada, Interpreter Handbook, December 2012, Government of Canada, online: Immigration and Refugee Board <https://irb-cisr.gc.ca/en/interpreters/Pages/Interpret.aspx> (Accessed May 30, 2020).

Annotated Refugee Protection Division RulesEdit

Interpretation and Definitions (Rule 1)Edit

Rule 1Edit

The text of the relevant rule reads:

Interpretation

Definitions
1 The following definitions apply in these Rules.

Act means the Immigration and Refugee Protection Act. (Loi)

Basis of Claim Form means the form in which a claimant gives the information referred to in Schedule 1. (Formulaire de fondement de la demande d’asile)

contact information means, with respect to a person,
(a) the person’s name, postal address and telephone number, and their fax number and email address, if any; and
(b) in the case of counsel for a claimant or protected person, if the counsel is a person referred to in any of paragraphs 91(2)(a) to (c) of the Act, in addition to the information referred to in paragraph (a), the name of the body of which the counsel is a member and the membership identification number issued to the counsel. (coordonnées)

Division means the Refugee Protection Division. (Section)

officer means a person designated as an officer by the Minister under subsection 6(1) of the Act. (agent)

party means,
(a) in the case of a claim for refugee protection, the claimant and, if the Minister intervenes in the claim, the Minister; and
(b) in the case of an application to vacate or to cease refugee protection, the protected person and the Minister. (partie)

proceeding includes a conference, an application or a hearing. (procédure)

registry office means a business office of the Division. (greffe)

Regulations means the Immigration and Refugee Protection Regulations. (Règlement)

vulnerable person means a person who has been identified as vulnerable under the Guideline on Procedures with Respect to Vulnerable Persons Appearing Before the IRB issued under paragraph 159(1)(h) of the Act. (personne vulnérable)

working day does not include Saturdays, Sundays or other days on which the Board offices are closed. (jour ouvrable)

This should be read in conjunction with the definitions section in the ActEdit

See the definitions section in the IRPA: Canadian Refugee Procedure/Definitions, objectives, and application of the IRPA#IRPA Section 2.

Commentary on the definition of "proceeding"Edit

History of the definitionEdit

Under the previous version of the Rules, the word "proceeding" was defined to include "a conference, an application, a hearing and an interview".[1]

Definition includes the listed elements, but is not limited to themEdit

The definition of a proceeding in Rule 1 "includes" the listed procedures ("proceeding includes a conference, an application or a hearing"), but does not indicate that it is limited to them. The RPD Rules are subordinate to the Act, which in s. 170 contemplates a broad and expansive conception of what a Refugee Protection Division "proceeding" is, including that a file-review decision made without any hearing being held is something that happens in a proceeding (s. 170(f)) and that the Board's provision of notice of the hearing to the Minister is also something that happens in a proceeding (s. 170(c)). Furthermore, the court has commented that "proceedings" as used in section 167 of the Act encompass more than the actual hearing before the RPD.[1] Thus, subsection 168(1) allows a division to determine that "a proceeding" before it has been abandoned for such pre-hearing matters as failing to provide a Basis of Claim form or otherwise failing to communicate with the division as required. In Cui v. Canada the Federal Court commented on the term "proceeding" as it is used in the IRPA as follows:

A “proceeding” has been considered by Justice Tremblay-Lamer of this Court in Gagné v. Canada (Attorney General), 2002 FCT 711 at paragraphs 27 and 28 where she adopted, inter alia, the definition found in Black’s Law Dictionary that a “proceeding” contemplates “the regular and orderly progression of a lawsuit, including all acts and events between the time of commencement and entry of judgment.” Thus a “proceeding” as contemplated by paragraph 166(c) of IRPA is not just the hearing but all that which occurs from the institution of the matter until its final disposition.[2]

See also the following discussion of why a Notice to Intervene is a document provided by the Minister "in a proceeding": Canadian Refugee Procedure/Documents#Meaning_of_"proceeding"_in_this_rule

ReferencesEdit

  1. a b Duale v. Canada (Minister of Citizenship and Immigration), 2004 FC 150 (CanLII), par. 5, <http://canlii.ca/t/1gcff#par5>, retrieved on 2020-01-27
  2. Cui v. Canada (Citizenship and Immigration), 2007 FC 945 (CanLII), par. 6, <http://canlii.ca/t/1t1sc#par6>, retrieved on 2020-08-16.

Communicating with the Division (Rule 2)Edit

The RuleEdit

The text of the relevant rule reads:

Communicating with Division

2 All communication with the Division must be directed to the registry office specified by the Division.

CommentaryEdit

The registry offices are specified on the IRB website, including in the Board's Claimant's Guide. The only registries are in Vancouver, Toronto, and Montreal. While the IRB has offices in other cities, such as Ottawa, Winnipeg, and Calgary, these offices do not have registries and are not registry officers "specified by the Division" to receive communications within the meaning of this rule.[1]

ReferencesEdit

  1. Immigration and Refugee Board of Canada, Claimant's Guide, <https://irb-cisr.gc.ca/en/refugee-claims/Pages/ClaDemGuide.aspx> (Accessed April 14, 2020).

Information and Documents to be Provided (Rules 3-13)Edit

It is said that at its heart, the refugee process is about storytelling. Lawyer Tess Acton writes that "stories permeate the Canadian refugee determination system. At the port of entry a claimant tells their story to the border official, in preparation for a hearing a refugee claimant tells their story to their lawyer, and during the hearing the refugee claimant tells their story to a Board Member. After the hearing the claimant’s story is re-told in the form of a decision authored by the Board Member. These stories are the most important part of a refugee claim, as refugees often come with little else in the way of evidence of persecution."[1] The set of rules described herein regulate, at a high level, the process by which claimants provide these stories to the Board.

Rule 3(1)-(3) - Fixing date, time and location of hearingEdit

The text of the relevant rule reads:

Information and Documents to Be Provided

Claims for Refugee Protection

Fixing date, time and location of hearing
3 (1) As soon as a claim for refugee protection is referred to the Division, or as soon as possible before it is deemed to be referred under subsection 100(3) of the Act, an officer must fix a date, time and location for the claimant to attend a hearing on the claim, within the time limits set out in the Regulations, from the dates, times and locations provided by the Division.

Date fixed by officer
(2) Subject to paragraph 3(b), the officer must select the date closest to the last day of the applicable time limit set out in the Regulations, unless the claimant agrees to an earlier date.

Factors
(3) In fixing the date, time and location for the hearing, the officer must consider
(a) the claimant’s preference of location; and
(b) counsel’s availability, if the claimant has retained counsel at the time of referral and the officer has been informed that counsel will be available to attend a hearing on one of the dates provided by the Division.

Roles of officers, parties, and Board in scheduling mattersEdit

Responsibility for scheduling hearings before the Refugee Protection Division is multifaceted. As indicated by this rule, initial scheduling decisions are to be made by the IRCC or CBSA officer referring the claim. The parties to a proceeding then have the ability to request that the date and time of a claim be changed (Rule 54). The Board also has the power to act on its own motion in scheduling matters.

Rule 3(1): Regulation on mandatory timelines for scheduling claimsEdit

For the text of this regulation, see Canadian Refugee Procedure/Timelines.

Rule 3(4)-(6) - Information an officer must provide to the claimantEdit

Providing information to claimant in writing
(4) The officer must
(a) notify the claimant in writing by way of a notice to appear
    (i) of the date, time and location of the hearing of the claim; and
    (ii) of the date, time and location of any special hearing on the abandonment of the claim under subrules 65(2) and (3);
(b) unless the claimant has provided a completed Basis of Claim Form to the officer in accordance with subsection 99(3.1) of the Act, provide to the claimant the Basis of Claim Form; and
(c) provide to the claimant information in writing
    (i) explaining how and when to provide a Basis of Claim Form and other documents to the Division and to the Minister,
    (ii) informing the claimant of the importance of obtaining relevant documentary evidence without delay,
    (iii) explaining how the hearing will proceed,
    (iv) informing the claimant of the obligation to notify the Division and the Minister of the claimant’s contact information and any changes to that information,
    (v) informing the claimant that they may, at their own expense, be represented by legal or other counsel, and
    (vi) informing the claimant that the claim may be declared abandoned without further notice if the claimant fails to provide the completed Basis of Claim Form or fails to appear at the hearing.

Providing information in writing and documents to Division
(5) After providing to the claimant the information set out in subrule (4), the officer must without delay provide to the Division
(a) a written statement indicating how and when the information set out in subrule (4) was provided to the claimant;
(b) the completed Basis of Claim Form for a claimant referred to in subsection 99(3.1) of the Act;
(c) a copy of each notice to appear provided to the claimant in accordance with paragraph (4)(a);
(d) the information set out in Schedule 2;
(e) a copy of any identity and travel documents of the claimant that have been seized by the officer;
(f) a copy of the notice of seizure of any seized documents referred to in paragraph (e); and
(g) a copy of any other relevant documents that are in the possession of the officer.

Providing copies to claimant
(6) The officer must provide to the claimant a copy of any documents or information that the officer has provided to the Division under paragraphs (5)(d) to (g).

Right to counselEdit

Rule 3(4) states that an officer must notify a claimant in writing that they may be represented "by legal or other counsel". For a discussion of the right to counsel, see: Canadian Refugee Procedure/Counsel of Record.

Rule 4 - Claimant's contact informationEdit

Claimant’s contact information
4 (1) The claimant must provide their contact information in writing to the Division and to the Minister.

Time limit
(2) The claimant’s contact information must be received by the Division and the Minister no later than 10 days after the day on which the claimant receives the information provided by the officer under subrule 3(4).

Change to contact information
(3) If the claimant’s contact information changes, the claimant must without delay provide the changes in writing to the Division and to the Minister.

Information concerning claimant’s counsel
(4) A claimant who is represented by counsel must without delay, on retaining counsel, provide the counsel’s contact information in writing to the Division and to the Minister and notify them of any limitations on the counsel’s retainer. If that information changes, the claimant must without delay provide the changes in writing to the Division and to the Minister.

Rule 4(3): If the claimant's contact information changes, the claimant must without delay provide the changes in writing to the DivisionEdit

Rule 4(3) provides that if a claimant's contact information changes, the claimant must without delay provide the changes in writing to the Division and to the Minister. As a result of this requirement, the Federal Court has declined to find a breach of procedural fairness where an applicant’s opportunity to be heard was lost because they failed to advise the RPD of their updated address and consequently did not receive notice of the hearing.[2] This rule places the obligation on the claimant to advise where they can be contacted. The RPD has no positive obligation to conduct extensive investigations to locate a party, to the extent of engaging the enforcement powers of the Canada Border Services Agency that might be used to locate a person for apprehension.[3] Furthermore, leaving a voicemail with the RPD is not sufficient to discharge a claimant's obligations under this rule, which explicitly requires that the claimant must provide the new contact information in writing.[4] For additional discussion of principles relevant to this, see the discussion of principles related to whether the claimant has been diligent in keeping the Board up to date with their current and correct contact information at Canadian Refugee Procedure/Abandonment#Rule 65(4) - Factors to consider at an abandonment hearing.

Rule 5 - Declaration where counsel is not acting for considerationEdit

Declaration — counsel not representing or advising for consideration
5 If a claimant retains counsel who is not a person referred to in any of paragraphs 91(2)(a) to (c) of the Act, both the claimant and their counsel must without delay provide the information and declarations set out in Schedule 3 to the Division in writing.

Counsel may be representatives without fee who are not lawyers, paralegals, or immigration consultantsEdit

The Federal Court has observed that "Counsel need not be legally qualified and many are not; they are frequently friends, relatives, clergymen or immigration consultants. The latter are not always competent."[5] Rule 5 applies where a claimant retains counsel who is not a person referred to in any of paragraphs 91(2)(a) to (c) of the Act. Those provisions read, in context:

Representation or advice for consideration
91 (1) Subject to this section, no person shall knowingly, directly or indirectly, represent or advise a person for consideration — or offer to do so — in connection with the submission of an expression of interest under subsection 10.1(3) or a proceeding or application under this Act.

Persons who may represent or advise
(2) A person does not contravene subsection (1) if they are
(a) a lawyer who is a member in good standing of a law society of a province or a notary who is a member in good standing of the Chambre des notaires du Québec;
(b) any other member in good standing of a law society of a province or the Chambre des notaires du Québec, including a paralegal; or
(c) a member in good standing of a body designated under subsection (5).

...

Designation by Minister
(5) The Minister may, by regulation, designate a body whose members in good standing may represent or advise a person for consideration — or offer to do so — in connection with the submission of an expression of interest under subsection 10.1(3) or a proceeding or application under this Act.

The Rule provides that in that situation, both the claimant and their counsel must without delay provide the information and declarations set out in Schedule 3 to the Division in writing. That schedule reads as follows:

SCHEDULE 3

(Rules 5 and 13)

Information and Declarations — Counsel Not Representing or Advising for Consideration

Item Information 1 IRB Division and file number with respect to the claimant or protected person. 2 Name of counsel who is representing or advising the claimant or protected person and who is not receiving consideration for those services. 3 Name of counsel’s firm or organization, if applicable, and counsel’s postal address, telephone number, fax number and email address, if any. 4 If applicable, a declaration, signed by the interpreter, that includes the interpreter’s name, the language and dialect, if any, interpreted and a statement that the interpretation is accurate. 5 Declaration signed by the claimant or protected person that the counsel who is representing or advising them is not receiving consideration and the information provided in the form is complete, true and correct.

6 Declaration signed by counsel that they are not receiving consideration for representing or advising the claimant or protected person and that the information provided in the form is complete, true and correct.

The declaration includes a statement that the counsel is not receiving consideration. This is discussed in the Board's Basis of Claim form which states that "The Immigration and Refugee Protection Act makes it an offence for any person not authorized under the Act to knowingly, directly or indirectly, represent or advise a person for consideration – or offer to do so – in connection with a proceeding or application under that Act. (Consideration includes money, or any other form of compensation or reward.)"[6]

Rule 6 - Basis of Claim FormEdit

Basis of Claim Form

Claimant’s declarations
6 (1) The claimant must complete a Basis of Claim Form and sign and date the declaration set out in the form stating that
(a) the information given by the claimant is complete, true and correct; and
(b) the claimant understands that the declaration is of the same force and effect as if made under oath.

Form completed without interpreter
(2) If the claimant completes the Basis of Claim Form without an interpreter’s assistance, the claimant must sign and date the declaration set out in the form stating that they can read the language of the form and understand what information is requested.

Interpreter’s declaration
(3) If the claimant completes the Basis of Claim Form with an interpreter’s assistance, the interpreter must sign and date the declaration in the form stating that
(a) they are proficient in the language and dialect, if any, used, and were able to communicate effectively with the claimant;
(b) the completed Basis of Claim Form and all attached documents were interpreted to the claimant; and
(c) the claimant indicated that the claimant understood what was interpreted.

Requirement that the information provided be "complete, true and correct"Edit

The Rule 6(1)(a) obligation to provide information that is "complete" should be read in conjunction with the instructions in the BOC form that claimants are to include everything that is important to their claims therein, including dates, names and places. Where a fact that is a "significant and central part of a claim" is omitted from the Basis of Claim form, then the Board can consider that when determining whether it has been established that the alleged incident more likely than not occurred; the omission may properly point away from the claimant have established the allegation on a balance of probabilities.[7] See also: Canadian Refugee Procedure/The Board's inquisitorial mandate#Evidence is primarily presented in written form in the Canadian process.

The obligation to provide information that is "complete, true and correct" in Rule 6(1)(a) tracks the following conclusion from the UNHCR Handbook: "The applicant should...Tell the truth and assist the examiner to the full in establishing the facts of his case." Furthermore, the Handbook provides that an applicant should "Supply all pertinent information concerning himself and his past experience in as much detail as is necessary to enable the examiner to establish the relevant facts. He should be asked to give a coherent explanation of all the reasons invoked in support of his application for refugee status and he should answer any questions put to him."[8] In the words of the Law Reform Commission of Canada’ report on the refugee determination process, “There is no place in such a process for adversary tactics of surprise. If the process is to work effectively, there must be full and frank disclosure by all parties concerned and all documents must be available in time to allow them to be reviewed prior to commencement of any hearing.”[9]

Providing exemptions to illiterate claimantsEdit

When this Rule was being drafted, the Board received feedback that illiterate claimants should be given flexibility in those situations in which the BoC Form is not filled out and signed as requested. The Board stated that as discretion rests with the Member to provide an exemption from the requirements of a rule when necessary, and after proper notice to parties, this comment did not necessitate a change in the rules.[10]

Rule 7 - Providing BOC FormEdit

Providing Basis of Claim Form — inland claim
7 (1) A claimant referred to in subsection 99(3.1) of the Act must provide the original and a copy of the completed Basis of Claim Form to the officer referred to in rule 3.

Providing Basis of Claim Form — port of entry claim
(2) A claimant other than a claimant referred to in subsection 99(3.1) of the Act must provide the original and a copy of the completed Basis of Claim Form to the Division.

Documents to be attached
(3) The claimant must attach to the original and to the copy of the completed Basis of Claim Form a copy of their identity and travel documents, genuine or not, and a copy of any other relevant documents in their possession. The claimant does not have to attach a copy of a document that has been seized by an officer or provided to the Division by an officer.

Documents obtained after providing Basis of Claim Form
(4) If the claimant obtains an identity or travel document after the Division has received the completed Basis of Claim Form, they must provide two copies of the document to the Division without delay.

Providing Basis of Claim Form — port of entry claim
(5) The Basis of Claim Form provided under subrule (2) must be
(a) received by the Division within the time limit set out in the Regulations, and
(b) provided in any of the following ways:
(i) by hand,
(ii) by courier,
(iii) by fax if the document is no more than 20 pages long, unless the Division consents to receiving more than 20 pages, or
(iv) by email or other electronic means if the Division allows.

Original Basis of Claim Form
(6) A claimant who provides the Basis of Claim Form by fax must provide the original to the Division at the beginning of the hearing.

When a claimant must provide their BOC formEdit

  • Port of Entry claimants: As per Rule 7(5)(a), for a Port of Entry claimant, their BOC must be submitted to the RPD within 15 days after referral per s. 159.8(2) of the Regulation.[11] However, for the duration of the Covid-19 pandemic, the RPD is temporarily extending the time limit for claims made on or after August 29, 2020. In these cases, the BOC form will now be due 45 days after the day on which the claim was referred to the RPD.[12]
  • Inland claimants: For inland claimants, their BOC must be submitted to IRCC at determination of eligibility, per s. 159.8(1) of the Regulation.
  • Detained claimants: CBSA has taken the position that individuals who initiate claims after being arrested or detained inland are required to complete all the forms, including the Basis of Claim form, within three working days. The basis for this interpretation appears to be the combination of IRPR s. 159.8(1) which says that a person who makes a claim for refugee protection inside Canada other than at a port of entry must provide an officer with the documents and information referred to in s. 99(3.1) not later than the day on which the officer determines the eligibility of their claim under IRPA s. 100(1). The RPD Rule 7 specifies that the Basis of Claim must be provided to the officer referred to in IRPA s. 99(3.1).[13]

See Canadian Refugee Procedure/Time Limit for Providing Documents for the full text of the relevant regulations.

Documents attached to the BOC form need not be translated at the time that they are attachedEdit

Rule 7(3) requires a claimant to attach to their BOC Form a copy of their identity and travel documents, genuine or not, and a copy of any other relevant documents in their possession. In this way, Rule 7(3) functions as one of the main RPD Rules that oblige the disclosure of documents (in comparison, other rules regarding the disclosure of documents generally provide a claimant with discretion about what documents they will provide, see: Canadian Refugee Procedure/Documents#What documents does a party need to provide when?). Such documents need not be translated in order for them to be accepted by the Board. This is because the rule on the language of documents, Rule 32 (Canadian Refugee Procedure/Documents#Rule 32 - Language of Documents), only applies to documents that a claimant chooses to use in the proceeding: "All documents used by a claimant or protected person in a proceeding must be in English or French or, if in another language, be provided together with an English or French translation and a declaration signed by the translator." In this way, Rule 7(3) requires a claimant to provide all relevant documents in their possession at the time that they file their claim, but if a claimant wants to "use" such documents in the proceeding, then they will need to provide a translation of those documents prior to the hearing. Otherwise, the documents will be retained for the purposes of the record, but in an untranslated form, and will likely therefore be assigned limited or no weight. On the other hand, some untranslated documents such as original ID documents from a country may be assigned significant weight, especially where they can be authenticated or compared to sample documents available to the Board in the National Documentation Package or other sources. If these rules were interpreted any other way, for example to limit the ability of a claimant to provide documents such as their non-genuine ID documents where those ID documents are not accompanied by a translation, then it would frustrate the purpose of this disclosure obligation, which is clearly to ensure that the claimant provides, en masse, relevant documents at the earliest time so that the Minister can assess those documents as part of any investigation into the claimant, their credibility, and their identity. If the claimant were only obliged to submit documents for which they had secured a translation, then it would either frustrate the broad mandatory language of the rule ("must attach") or else it could potentially impose significant translation costs on refugee claimants who may not have the resources to pay for, or the ability to procure translations of, the documents (especially in the four Canadian provinces that provide no legal aid to refugee claimants whatsoever: Canadian Refugee Procedure/Counsel of Record#Refugee-related services provided by provincial legal aid programs).

Rule 8 - Application for an extension of time to provide BOC FormEdit

Application for extension of time
8 (1) A claimant who makes an application for an extension of time to provide the completed Basis of Claim Form must make the application in accordance with rule 50, but the claimant is not required to give evidence in an affidavit or statutory declaration.

Time limit
(2) The application must be received by the Division no later than three working days before the expiry of the time limit set out in the Regulations.

Application for medical reasons
(3) If a claimant makes the application for medical reasons, other than those related to their counsel, they must provide, together with the application, a legible, recently dated medical certificate signed by a qualified medical practitioner whose name and address are printed or stamped on the certificate. A claimant who has provided a copy of the certificate to the Division must provide the original document to the Division without delay.

Content of certificate
(4) The medical certificate must set out the particulars of the medical condition, without specifying the diagnosis, that prevent the claimant from providing the completed Basis of Claim Form in the time limit referred to in paragraph 7(5)(a).

Failure to provide medical certificate
(5) If a claimant fails to provide a medical certificate in accordance with subrules (3) and (4), the claimant must include in their application
(a) particulars of any efforts they made to obtain the required medical certificate, supported by corroborating evidence;
(b) particulars of the medical reasons for the application, supported by corroborating evidence; and
(c) an explanation of how the medical condition prevents them from providing the completed Basis of Claim Form in the time limit referred to in paragraph 7(5)(a).

Providing Basis of Claim Form after extension granted
(6) If an extension of time is granted, the claimant must provide the original and a copy of the completed Basis of Claim Form to the Division in accordance with subrules 7(2) and (3), no later than on the date indicated by the Division and by a means set out in paragraph 7(5)(b).

Extensions will only be granted if there is a justifiable reason for the delayEdit

The Board's public commentary to the previous version of the RPD rules that "An extension [to provide this form] will only be granted if there is a justifiable reason for the delay" continues to apply to decisions made under the current Rule 8.[14] The legal standard that the Board is to apply in assessing an application for an extension of time to provide the Basis of Claim form is that set out in subsection 159.8(3) of the Immigration and Refugee Protection Regulations, which provides that "If the documents and information cannot be provided within the time limit ... the Refugee Protection Division may, for reasons of fairness and natural justice, extend that time limit by the number of days that is necessary in the circumstances." As such, a claimant should demonstrate that the form "cannot be provided within the time limit", that their inability to provide it within the time limit raises "reasons of fairness and natural justice", and that the period that they are requesting as an extension is what is "necessary" in the circumstances.

One academic argues that as a principle, refugee claimants should have time to recover and be ready to disclose the reasons of their flight and the possible ill treatment they risk suffering in their country of origin in case of return prior to having to provide such information to the state.[15] It is frequently observed that there are gendered aspects to this short deadline, which is said to particularly penalize survivors of rape and sexual violence, since it is well-documented that these survivors often need time before they are ready to disclose their experiences, whether to a lawyer completing a form describing their experiences, or to decision-makers.[16]

This Rule applies to applications for an extension of time, but does not constrain the Board's ability to extend deadlines on its own motionEdit

At times, the IRB has extended the deadline for filing a Basis of Claim form of its own accord. For example, during the COVID-19 pandemic, the Board issued a Practice notice on the temporary extension of time limits for filing the basis of claim form. This practice notice provided a temporary extension for filing a Basis of Claim form, specifically stating: "If your time limit for filing the BOC Form with the RPD falls between February 15 and April 15, 2020 inclusive, the deadline is extended to May 30, 2020." The authority for this rule was cited as subsection 159.8(3) of the Immigration and Refugee Protection Regulations which provide that the RPD may extend the time for providing the BOC Form for port of entry claimants by the number of days necessary for reasons of fairness and natural justice. Furthermore, that practice directive noted that section 165 of the Immigration and Refugee Protection Act provides that the RPD may do whatever is necessary for a full and proper hearing.[17] The principle is that this rule does not constrain the Board from extending a deadline and only governs how the Board should exercise its discretion where a claimant applies to extend the deadline.

Applications for an extension of time must be received at least three working days before the expiry of the time limit for providing the formEdit

As per Rule 8(2), the application for an extension of time to provide the BOC must be received by the Division no later than three working days before the expiry of the time limit set out in the Regulations. The 3 working day time period is counted backwards from the expiry date to provide the BOC. Day 1 is the first business day before the expiry date. The application must be received no later than the third business day before the expiry date to provide the BOC. This arises as a result of the definition of "working day" in RPD Rule 1.

Applications received after that date will be dealt with under the BOC abandonment rule, Rule 65(2): Canadian Refugee Procedure/Abandonment#Rule 65(2) - When the BOC Abandonment hearing must be scheduled. The interaction between this rule and the abandonment rule was discussed in the Board's commentary to the previous version of the RPD Rules, which remains instructive:

An application for an extension of time received after the [time limit] will be considered at a special hearing held under [presently, subsection 65(2)] of the Rules. At that hearing, the claimant will be given a chance to explain the delay in filing the [Form]. The claimant should make every effort to provide a completed [Form] to the Division before or at the special hearing. If there is no justifiable reason for the delay, the Division may declare the claim to be abandoned (Immigration and Refugee Protection Act, subsection 168(1)).[18]

Thus, for example, the Board has denied requests for an extension of time to file Basis of Claim forms where the claims had already been declared abandoned.[19] As such, the proper procedure in such cases is for the claimant to either participate in the abandonment process under Rule 65 or, if that has been completed, then to apply to reopen the claim pursuant to Rule 62.

Rule 9 - Changes to BOC FormEdit

Changes or additions to Basis of Claim Form
9 (1) To make changes or add any information to the Basis of Claim Form, the claimant must
      (a) provide to the Division the original and a copy of each page of the form to which changes or additions have been made;
      (b) sign and date each new page and underline the changes or additions made; and
      (c) sign and date a declaration stating that
          (i)  the information given by the claimant in the Basis of Claim Form, together with the changes and additions, is complete, true         
               and correct, and
          (ii) the claimant understands that the declaration is of the same force and effect as if made under oath.

Time limit
(2) The documents referred to in subrule (1) must be provided to the Division without delay and must be received by it no later than 10 days before the date fixed for the hearing.

Claimants are under an ongoing obligation to amend their Basis of Claim form should additional information ariseEdit

Claimants are under an ongoing relationship to update their Basis of Claim form to ensure that it is complete. The process for making such changes is described by this rule, Rule 9. The obligation to provide such updates arises from the fact that claimants swear or affirm at the beginning of their hearing that their Basis of Claim form is "complete, true, and correct",[20] the instruction on the BOC form that "if your information changes or if you want to add information, you must inform the IRB",[21] the statements in the IRB's Claimant's Guide that "If you find a mistake on your BOC Form or realize that you forgot something important, or receive additional information, you must tell the RPD",[22] and caselaw that all the important facts of a claim for refugee protection must appear in the BOC Form.[23] As is summarized in the Irwin Law text Refugee Law, "the duty to provide a complete and accurate BOC Form has been interpreted as an ongoing one. A claimant must amend and update his BOC if circumstances change or new information comes to light; in the absence of such amendments, adverse inferences can be drawn."[24]

No explanation for BOC amendments necessaryEdit

It was previously the case that a draft of this rule required that an explanation of changes to the BOC form be provided. Following stakeholder feedback, that requirement was eliminated. The Board commented on this feedback as follows in its RPD Rules Regulatory Impact Analysis Statement:

Respondents commented that the rule which addresses changes or additions to the BoC Form was overly complicated in its wording. Several respondents expressed confusion regarding how the requested explanations for any additions or deletions were to be provided. A respondent also suggested that the IRB ensure that claimants, when providing amendments to their BoC Form, be required to state that the changes are "true to the best of the claimant's knowledge". In response to these comments, the IRB has: (1) simplified the language in this rule, (2) removed the requirement for an explanation of changes, and (3) included an additional requirement that claimants provide a declaration which states that the information given by the claimant in the BoC Form, together with the changes and additions, is complete, true and correct, which is consistent with the declaration in the BoC Form that claimants must initially sign.[25]

Rule 10 - Order of questioning in hearings, oral representations, oral decisions, limiting questioningEdit

Conduct of a Hearing

Standard order of questioning
10 (1) In a hearing of a claim for refugee protection, if the Minister is not a party, any witness, including the claimant, will be questioned first by the Division and then by the claimant’s counsel.

Order of questioning — Minister’s intervention on exclusion issue
(2) In a hearing of a claim for refugee protection, if the Minister is a party and has intervened on an issue of exclusion under subrule 29(3), any witness, including the claimant, will be questioned first by the Minister’s counsel, then by the Division and then by the claimant’s counsel.

Order of questioning — Minister’s intervention not on exclusion issue
(3) In a hearing of a claim for refugee protection, if the Minister is a party but has not intervened on an issue of exclusion under subrule 29(3), any witness, including the claimant, will be questioned first by the Division, then by the Minister’s counsel and then by the claimant’s counsel.

Order of questioning — application to vacate or cease refugee protection
(4) In a hearing into an application to vacate or to cease refugee protection, any witness, including the protected person, is to be questioned first by the Minister’s counsel, then by the Division and then by the protected person’s counsel.

Variation of order of questioning
(5) The Division must not vary the order of questioning unless there are exceptional circumstances, including that the variation is required to accommodate a vulnerable person.

Limiting questioning of witnesses
(6) The Division may limit the questioning of witnesses, including a claimant or a protected person, taking into account the nature and complexity of the issues and the relevance of the questions.

Oral representations
(7) Representations must be made orally at the end of a hearing unless the Division orders otherwise.

Oral decision and reasons
(8) A Division member must render an oral decision and reasons for the decision at the hearing unless it is not practicable to do so.

The standard order of questioning is that any witness will be questioned first by the Division and this is a fair processEdit

It used to be the case that hearings began with an introductory "examination in chief" by a claimant's counsel. This aspect of the refugee process was sharply criticized. The Law Reform Commission of Canada noted that while the process before the Division is supposed to be non-adversarial, "all of the details of the adversarial system are present in the examination-in-chief, cross-examination, and re-examination format".[26] The Board commissioned the noted refugee law academic James C. Hathaway to write a report on its processes in which he recommended "the present practice of an introductory 'examination in chief' by counsel should be dispensed with".[27] The Board subsequently acted on this advice and Thamotharem v Canada was a case which concluded that the resultant process is a fair one, especially given that Board Members may vary the order of questioning in exceptional circumstances.[28]

It is expected that counsel will provide oral submissions after the evidence has been heardEdit

Rule 10(7) states that representations must be made orally at the end of a hearing unless the Division orders otherwise. The Chairperson’s Guidelines 7: Concerning Preparation and Conduct of a Hearing in the Refugee Protection Division ) state that “in general, it is expected that counsel should be ready to give oral representations after the evidence has been heard.”[29] However, the Division has the discretion to order that written representations be provided instead of oral ones.[30]

A Member rendering an oral decision at the end of the hearing is not, in and of itself, indicative of biasEdit

Rule 10(8) provides that a Division member must render an oral decision and reasons for the decision at the hearing unless it is not practicable to do so. In Pajarillo v. Canada, the claimant argues that the RPD was biased against her because the member made up her mind to reject the Applicant’s claim prior to hearing. The sole basis for making this allegation against the member was that the member returned after a lunch break and proceeded to render a lengthy oral decision. The court rejected this argument, noting that the claimant had failed to establish that the facts or issues in the case were so substantial or complex it was not reasonably practicable to comply with Rule 10(8) of the RPD Rules. The court stated: "The mere fact that the RPD was able to draft a decision and render it orally shortly 50 minutes after the conclusion of the hearing does not prove bias. A review of the transcript of the hearing discloses that the RPD member took into account the Applicant’s testimony and counsel’s arguments in reaching her decision."[31] For more detail, see: Canadian Refugee Procedure/The right to an unbiased decision-maker#Statements or conduct that might indicate a predisposition on the part of the decision-maker.

Rule 11 - Documents Establishing Identity and Other Elements of the ClaimEdit

Documents Establishing Identity and Other Elements of the Claim

Documents
11 The claimant must provide acceptable documents establishing their identity and other elements of the claim. A claimant who does not provide acceptable documents must explain why they did not provide the documents and what steps they took to obtain them.

Rule 11 should be read in conjunction with Section 106 of the ActEdit

Section 106 of the IRPA states:

Claimant Without Identification

Credibility

106 The Refugee Protection Division must take into account, with respect to the credibility of a claimant, whether the claimant possesses acceptable documentation establishing identity, and if not, whether they have provided a reasonable explanation for the lack of documentation or have taken reasonable steps to obtain the documentation.

History of Rule 11 of the RPD RulesEdit

Rule 7 of the previous RPD Rules is in nearly (but not) identical language to the current version of the rules:

7. The claimant must provide acceptable documents establishing identity and other elements of the claim. A claimant who does not provide acceptable documents must explain why they were not provided and what steps were taken to obtain them.

Rule 7 was introduced into the RPD rules with the onset of the IRPA building on a previous commentary and an accompanying Practice Notice that had been issued by the IRB in 1997. This Commentary on Undocumented and Improperly Documented Claimants was issued to provide guidance to CRDD members as to how to deal with claimants who lacked proper documentation.[32]

"Identity" as the term is used in the Act and the Rules refers to personal/national identityEdit

The term "identity" can take on various meanings in the context of the IRPA and these rules. For example, the Board produced a public commentary to the previous version of the RPD Rules, which commented on the meaning of identity as follows:

""Identity" most commonly refers to the name or names that a claimant uses or has used to identify himself or herself. "Identity" also includes indications of personal status such as country of nationality or former habitual residence, citizenship, race, ethnicity, linguistic background, and political, religious or social affiliation."[32]

That commentary is no longer in effect today. Thus, while it remains common to refer to an individual's “ethnic identity” or their “identity as Roma”, the Federal Court has held that these are not aspects of “identity” as that term is used in section 106 of the Act:

While ethnicity, like religion, sexuality, or other fundamental personal characteristics, may be considered part of one’s identity, I do not consider these characteristics to fall within the scope of “identity” in section 106. Rather, section 106 appears to refer to identity in the sense of personal/national identity[33]

It should be presumed that the way that the term "identity" is used in the Rules conforms to the way that the term is used in the Act.

A claimant is obliged to provide any relevant documents in their possession at the time that they provide their BOC formEdit

As per Rule 7(3), the claimant must attach to the original and to the copy of the completed Basis of Claim Form a copy of their identity and travel documents, genuine or not, and a copy of any other relevant documents in their possession. This obligation is reproduced in the Basis of Claim form which instructs: "Attach two copies of any documents you have to support your claim, such as travel documents (including your passport) and identity, medical, psychological or police documents."[34] The Appendix to the BOC form discusses this in more detail: "Attach two copies of all documents (identity, travel or other documents) that you have with you now to support your claim for refugee protection, including documents that are not genuine, documents that you got in an irregular or illegal way or by giving information that is not true, and documents you used that do not really belong to you."[35] The requirement to provide copies of non-genuine identity documents is a reflection of the reality that roughly 60 percent of refugee claimants arrive either with false documents or without proper documentation.[36] The Board's commentary to the previous version of the rules may provide some guidance about the scope of this obligation: "These documents include not only those that were used but also those intended to be used for travelling or supporting the claim."[18] Rule 7(4) further provides that if the claimant obtains an identity or travel document after the Division has received the completed Basis of Claim Form, they must provide two copies of the document to the Division without delay.

A claimant has an obligation to make reasonable efforts to establish their identity and to corroborate their claimEdit

Rule 11 provides that a claimant must provide acceptable documents establishing their identity and other elements of the claim. Subsection 100(4) of the Immigration and Refugee Protection Act requires the claimant to produce all documents and information as required by the rules of the Board. This obligation tracks the following statement from the UNHCR Handbook: "The applicant should...make an effort to support his statements by any available evidence and give a satisfactory explanation for any lack of evidence. If necessary he must make an effort to procure additional evidence."[8] The Basis of Claim form emphasizes a claimant's obligation to make efforts to obtain such documents as follows:

If you do not have [identification] documents like this with you, you need to do everything you can to get them immediately. If you still cannot get these documents, you will need to explain the reason for this at your hearing and show that you did everything you could to get them.[35]

As explained in the Board's commentary to the previous version of these rules, "the claimant should keep a record of the steps taken, such as copies of letters sent, to obtain identity and other necessary documents."[37] In this way, as explained in the Board's commentary to the previous version of the RPD Rules, a claimant who is unsuccessful in obtaining documents to establish his or her identity and other elements of the claim should not only be prepared to provide a reasonable explanation for the lack of documents and describe the diligent efforts they made to obtain such documents, but they should also be able to present proof of the steps that were taken.[37]

The types of documents a claimant should submit to establish their identityEdit

As stated in the Board's commentary to the previous version of the RPD Rules, "Section 106 of the Immigration and Refugee Protection Act imposes a duty on the claimant to provide acceptable documents establishing the claimant's identity, including documents the claimant does not possess but can reasonably obtain."[18] The commentary went on to state that "In assessing the claimant's credibility, the Division must consider the lack of such documents and any reasonable explanation given for not providing them, as well as the steps taken to obtain them. Documents that are not genuine, that have been altered, or that are otherwise improper are generally not acceptable proof of identity."[18] The Claimant's Kit from the Board highlights the claimant's responsibility to provide relevant documents and clarifies what types of documents might be considered acceptable:

You must show the RPD evidence of who you are by giving the RPD high-quality copies of official documents with your name and date of birth on them (“identity documents”). For example, you can give a passport, national identity card, birth certificate, school certificate, driver’s licence, military document, and professional or religious membership card. ... If you do not provide identity documents or other documents in support of your claim, you will have to explain at your hearing why you do not have them and show that you did everything to try to get them.[10]

The Board's commentary to the previous version of the rules also had the following commentary on the subject of "Other independent evidence to establish identity", which appears to continue to be of relevance:

The claimant who lacks documents or whose documents are not found acceptable should be prepared to present other independent evidence to establish his or her identity or other elements of the claim, if such evidence is available. Such evidence may include:

  • testimony of friends, relatives, community elders or other witnesses; and
  • affidavits of individuals who have personal knowledge of the claimant's identity or other elements of the claim.[32]

The types of documents a claimant should submit to establish "other elements of their claim"Edit

The scope of Rule 11 is not limited to documents establishing identity and also applies to "other elements of the claim".[38] The Board has a document on its website entitled Important instructions for refugee claimants which states "You should obtain and submit whatever documents you can to support your claim, such as police reports, medical records, newspaper articles etc."[39] The Claimant's Kit highlights the claimant's responsibility to provide relevant documents and clarifies what type of documents might be considered acceptable:

Along with identity documents, you can submit other high-quality copies of original documents that you feel are relevant to your claim, including proof of membership in political organizations, medical or psychological reports, police documents, business records, news clippings, visas and travel documents (airplane, train or bus tickets). ... If you do not provide identity documents or other documents in support of your claim, you will have to explain at your hearing why you do not have them and show that you did everything to try to get them.[10]

Similarly, the instructions on the BOC form state: "Attach two copies of any documents you have to support your claim, such as travel documents (including your passport) and identity, medical, psychological or police documents.[34] Additionally, the caselaw has indicated that Roma claimants may be expected to have approached NGO and governmental sources for identity documents relating to their ethnicity.[40]

Inferences about credibility that may be made where a claimant does not supply documentsEdit

The starting-point when assessing credibility in the Canadian refugee determination system is the principle in the oft-cited case of Maldonado that “[w]hen an applicant swears to the truth of certain allegations, this creates a presumption that those allegations are true unless there be reason to doubt their truthfulness”.[41] Drawing on the Maldonado presumption, a line of cases flowing from the decision of Justice Teitelbaum in Ahortor has concluded that the absence of corroborative evidence is not, in and of itself, a basis to disbelieve a claimant’s allegations.[42] These principles, however, exist alongside section 106 of the IRPA and Rule 11 of the Refugee Protection Division Rules, SOR/2012-256 [RPD Rules], which were introduced subsequent to the decisions in Maldonado and Ahortor.[43] As such, Canadian refugee law provides that it would be an error to make a credibility finding based on the absence of corroborative evidence alone, where there are no other reasons to doubt a claimant's credibility.[44] Specifically, an adverse credibility inference may only be drawn if a claimant fails to produce evidence that the decision-maker reasonably expects should be available in the claimant’s circumstances, and no reasonable explanation for failing to provide it is given, or there is already a valid reason to doubt the claimant’s credibility.[45]

The Division may instruct a claimant to provide specific documentsEdit

The Board's public comment to the previous version of the RPD Rules noted that "the Division may instruct the claimant to provide specific documents that have been identified by the Division in the claim-screening process as being necessary for considering the claim."[37] The Board retains the power to issue such instructions under its power to control its own process. Further, the Board's powers under the Inquiries Act authorize members to compel testimony and the production of evidence: Canadian Refugee Procedure/Powers of a Member.

A claimant must provide original documents at the hearing, or beforehand, on the request of the DivisionEdit

As per Rule 42, a claimant is to present the originals of his or her documents at the beginning of the hearing of the claim. The Division may require the claimant to provide the originals earlier by notice in writing. See Canadian Refugee Procedure/Documents#Rule 42 - Original documents for further details, including the way that the Board has waived part of this rule during the Covid-19 period.

Rule 12 - Supplying contact information after an Application to Vacate or to Cease Refugee ProtectionEdit

Application to Vacate or to Cease Refugee Protection

Contact information
12 If an application to vacate or to cease refugee protection is made, the protected person must without delay notify the Division and the Minister in writing of
(a) any change in their contact information; and
(b) their counsel’s contact information and any limitations on the counsel’s retainer, if represented by counsel, and any changes to that information.

CommentaryEdit

For a discussion of the principles applicable to this provision, see the commentary on Rule 4(3), the equivalent provision for refugee claimants: Canadian Refugee Procedure/Information and Documents to be Provided#Rule 4 - Claimant's contact information.

Rule 13 - Declaration where counsel not representing or advising for considerationEdit

Declaration — counsel not representing or advising for consideration
13 If a protected person retains counsel who is not a person referred to in any of paragraphs 91(2)(a) to (c) of the Act, both the protected person and their counsel must without delay provide the information and declarations set out in Schedule 3 to the Division in writing.

CommentaryEdit

In effect, Rule 13 requires that a protected person who is being represented by someone who is not a lawyer, paralegal, or registered immigration consultant to complete a form certifying that their counsel is not being paid. What is a protected person? Section 95(2) of the IRPA provides that "a protected person is a person on whom refugee protection is conferred [under subsection 95(1) of the Act], and whose claim or application has not subsequently been deemed to be rejected under subsection 108(3), 109(3) or 114(4)." In this way, Rule 13 is the analogue to RPD Rule 5 which imposes the same obligation on refugee claimants: Canadian Refugee Procedure/Information and Documents to be Provided#Rule 5 - Declaration where counsel is not acting for consideration.

ReferencesEdit

  1. 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?sequence=7&isAllowed=y>, page 37 (Accessed January 23, 2020).
  2. Mendoza Garcia v Canada (Citizenship and Immigration), 2011 FC 924 at paras 8, 14.
  3. Perez v. Canada (Citizenship and Immigration), 2020 FC 1171 (CanLII), par. 30, <http://canlii.ca/t/jc9b0#par30>, retrieved on 2021-01-14.
  4. Perez v. Canada (Citizenship and Immigration), 2020 FC 1171 (CanLII), par. 34, <http://canlii.ca/t/jc9b0#par34>, retrieved on 2021-01-14.
  5. Weerasinge v. Canada (Minister of Employment and Immigration), 1993 CanLII 2996 (FCA), [1994] 1 FC 330.
  6. Immigration and Refugee Board of Canada, Basis of Claim Form, November 2012 Version <https://irb-cisr.gc.ca/en/forms/Documents/RpdSpr0201_e.pdf>, page 9.
  7. Uwejeyah v. Canada (Citizenship and Immigration), 2020 FC 849 (CanLII), par. 13, <http://canlii.ca/t/jc7vl#par13>, retrieved on 2021-01-08.
  8. a b UN High Commissioner for Refugees (UNHCR), Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, April 2019, HCR/1P/4/ENG/REV. 4, available at: https://www.refworld.org/docid/5cb474b27.html [accessed 26 January 2020], page 45.
  9. Law Reform Commission of Canada, The Determination of Refugee Status in Canada: A Review of the Procedure (Draft Final Report) 128 (1992).
  10. a b c Immigration and Refugee Board of Canada, RPD Rules Regulatory Impact Analysis Statement, Date modified: 2018-07-04, Accessed January 3, 2020 <https://irb-cisr.gc.ca/en/legal-policy/act-rules-regulations/Pages/RiasReir.aspx>.
  11. Berger, Max, Refugee Essentials, Canadian Bar Association Immigration Law Conference, Montreal, Quebec, May 2013, <http://www.cba.org/cba/cle/pdf/imm13_paper_berger.pdf>, page 4.
  12. Immigration and Refugee Board of Canada, Practice notice on the temporary extension of time limits for filing the Basis of Claim form, August 28, 2020, <https://irb-cisr.gc.ca/en/legal-policy/procedures/Pages/practice-notice-temporary-extension-boc-form.aspx> (Accessed August 31, 2020).
  13. BC Public Interest Advocacy Centre (BCPIAC), Refugee Reform and Access to Counsel in British Columbia, July 30, 2015, <https://bcpiac.com/wp-content/uploads/2015/09/LFBC-Refugee-Reform-Paper-Final-July-30-2015-2.pdf> (Accessed January 12, 2020), page 33.
  14. Immigration and Refugee Board of Canada, Commentaries to the Refugee Protection Division Rules, Date Modified: 2009-05-22 <https://web.archive.org/web/20100704062357/http://www.irb-cisr.gc.ca/eng/brdcom/references/aclo/pages/rpdcomment.aspx> (Accessed January 28, 2020).
  15. Mariagiulia Giuffré, ‘Access to Asylum at Sea? Non-Refoulement and a Comprehensive Approach to Extraterritorial Human Rights Obligations’ in Violeta Moreno Lax and Efthymios Papastavridis (eds), Boat Refugees and Migrants at Sea: A Comprehensive Approach: Integrating Maritime Security with Human Rights (Brill Nijhoff 2017) 265.
  16. Canadian Council for Refugees, The challenge of fair and effective refugee determination, 23 July 2009 <https://ccrweb.ca/files/fairdetermination.pdf> (Accessed April 24, 2020), page 7.
  17. Immigration and Refugee Board of Canada, Practice notice on the temporary extension of time limits for filing the basis of claim form, Signed March 15, 2020 <https://irb-cisr.gc.ca/en/legal-policy/procedures/Pages/rpd-covid19.aspx> (Accessed March 16, 2020).
  18. a b c d Immigration and Refugee Board of Canada, Commentaries to the Refugee Protection Division Rules, Date Modified: 2009-05-22 <https://web.archive.org/web/20100704062357/http://www.irb-cisr.gc.ca/eng/brdcom/references/aclo/pages/rpdcomment.aspx> (Accessed January 28, 2020).
  19. X (Re), 2014 CanLII 98260 (CA IRB), par. 8, <http://canlii.ca/t/gm0xt#par8>, retrieved on 2020-03-15.
  20. Community Legal Education Ontario (CLEO), Refugee Rights in Ontario: Answering questions at the hearing, Updated Jan 29, 2014, Accessed January 5, 2020, <https://refugee.cleo.on.ca/en/answering-questions-hearing>.
  21. Immigration and Refugee Board of Canada, Basis of Claim Form, November 2012 version, Accessed January 5, 2020, <https://irb-cisr.gc.ca/en/forms/Documents/RpdSpr0201_e.pdf>.
  22. Immigration and Refugee Board of Canada, Claimant's Guide, Date modified: 2018-08-29, Accessed January 5, 2020, <https://irb-cisr.gc.ca/en/refugee-claims/Pages/ClaDemGuide.aspx>.
  23. X (Re), 2015 CanLII 56636 (CA IRB), para. 43 <https://www.canlii.org/en/ca/irb/doc/2015/2015canlii56636/2015canlii56636.html>.
  24. Martin David Jones and Sasha Baglay. Refugee Law (Second Edition). Irwin Law, 2017, page 293.
  25. Immigration and Refugee Board of Canada, RPD Rules Regulatory Impact Analysis Statement, Date modified: 2018-07-04, Accessed January 3, 2020 <https://irb-cisr.gc.ca/en/legal-policy/act-rules-regulations/Pages/RiasReir.aspx>.
  26. Law Reform Commission of Canada, The Determination of Refugee Status in Canada: A Review of the Procedure (Draft Final Report), 16-17 (1992).
  27. Hathaway, James C., Rebuilding trust: A Report of the Review of Fundamental Justice in Information Gathering and Dissemination at the Immigration and Refugee Board of Canada, Refugee Studies Centre, Publisher: Osgoode Hall Law School, York University, December 1993, page 74.
  28. Thamotharem v. Canada (Minister of Citizenship and Immigration), 2007 FCA 198 (CanLII), [2008] 1 FCR 385.
  29. Immigration and Refugee Board of Canada, Chairperson Guidelines 7: Concerning Preparation and Conduct of a Hearing in the Refugee Protection Division <https://irb-cisr.gc.ca/en/legal-policy/policies/Pages/GuideDir07.aspx> (Accessed January 30, 2020), section 5.8.
  30. Dong v. Canada (Minister of Employment & Immigration), [1991] F.C.J. No. 364, 14 Imm. L.R. (2d) 317 (F.C.T.D.).
  31. Pajarillo, Donna Parcasio v. M.C.I. (F.C., no. IMM-3740-19), Lafreniere, December 20, 2019; 2019 FC 1654.
  32. a b c Immigration and Refugee Board of Canada, Assessment of Credibility in Claims for Refugee Protection, January 31, 2004, <https://irb-cisr.gc.ca/en/legal-policy/legal-concepts/Pages/Credib.aspx#n2452> (Accessed January 27, 2020), section 2.4.5.2.
  33. Pazmandi v. Canada (Citizenship and Immigration), 2020 FC 1094 (CanLII), par. 23, <http://canlii.ca/t/jbv6m#par23>, retrieved on 2020-12-17.
  34. a b Immigration and Refugee Board of Canada, Basis of Claim Form, November 2012 Version <https://irb-cisr.gc.ca/en/forms/Documents/RpdSpr0201_e.pdf>, page 2.
  35. a b Immigration and Refugee Board of Canada, Basis of Claim Form, November 2012 Version <https://irb-cisr.gc.ca/en/forms/Documents/RpdSpr0201_e.pdf>, Appendix - page 1.
  36. Department of Justice, Immigration and Refugee Legal Aid Cost Drivers, 2002, <https://www.justice.gc.ca/eng/rp-pr/other-autre/ir/rr03_la17-rr03_aj17/p37.html#a310> (Accessed August 23, 2020), at 3.10.
  37. a b c Immigration and Refugee Board of Canada, Commentaries to the Refugee Protection Division Rules, Date Modified: 2009-05-22 <https://web.archive.org/web/20100704062357/http://www.irb-cisr.gc.ca/eng/brdcom/references/aclo/pages/rpdcomment.aspx> (Accessed January 28, 2020).
  38. Kitenga Lunda, Zico c. M.C.I. (C.F., no. IMM-3727-19), Gascon, 18 juin 2020, 2020 CF 704.
  39. Immigration and Refugee Board of Canada, Important instructions for refugee claimants (Print version), Date modified on website: 2018-12-11 <https://irb-cisr.gc.ca/en/refugee-claims/Pages/ClaDemGuideInstruct.aspx> (Accessed January 27, 2020).
  40. Somyk v. Canada (Citizenship and Immigration), 2016 FC 1338 (CanLII), <http://canlii.ca/t/gvx8d>.
  41. Maldonado v Canada (Minister of Employment and Immigration), [1980] 2 FC 302 (CA).
  42. Ahortor v Canada (Minister of Employment and Immigration), [1993] FCJ No 705 at paras 35–37, 45, 50.
  43. Ismaili v Canada (Citizenship and Immigration), 2014 FC 84 at paras 31–35.
  44. Triana Aguirre v. Canada (Citizenship and Immigration), 2008 FC 571 at paragraph 15.
  45. Luo v Canada (Citizenship and Immigration), 2019 FC 823 at paras 18–22.

Counsel of Record (Rules 14-16)Edit

As Martin Jones and Sasha Baglay observe, “the representation of refugee claimants by qualified counsel is an important part of the Canadian refugee determination process. The availability and expertise of counsel bring significant benefits to both the claimants and the overall efficiency and legitimacy of the process. The representation of refugee claimants is also an expression of a fundamental constitutional and common law value: that individuals facing complicated legal proceedings with serious consequences should be allowed to be represented so as to ensure that there is a full and fair hearing.”[1] The following sections outline the contours, limits, and practicalities of this right.

Canadian Charter of Rights and FreedomsEdit

Section 7 of the Canadian Charter of Rights and Freedoms provides:

Life, liberty and security of person
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Section 10(b) of the Canadian Charter of Rights and Freedoms provides the following right to counsel:[2]

Arrest or Detention
10. Everyone has the right on arrest or detention ...
(b) to retail and instruct counsel without delay and to be informed of that right ...

Both sections 7 and 10 of the Charter are relevant to the right to counsel in refugee proceedingsEdit

The court has found that section 7 Charter rights are involved in inland refugee proceedings and that they include “the right to be represented by competent and careful counsel”.[3] For a discussion of s. 10 of the Charter, see: Canadian Refugee Procedure/Counsel of Record#The right to counsel does not apply where a person is not yet subject to proceedings before the Board and where the person is not detained.

Canadian Bill of RightsEdit

Section 2(d) of the Canadian Bill of Rights concerns the right to counsel:[4]

Construction of law
2 Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to
(d) authorize a court, tribunal, commission, board or other authority to compel a person to give evidence if he is denied counsel, protection against self crimination or other constitutional safeguards;

IRPA s. 167 - Right to counselEdit

Right to counsel
167 (1) A person who is the subject of proceedings before any Division of the Board and the Minister may, at their own expense, be represented by legal or other counsel.

In what immigration contexts do claimants have a right to counsel?Edit

The right to counsel applies from the time a person is subject to proceedings before the Board, not just at the hearingEdit

Section 167(1) of the Act provides that a person who is the subject of proceedings before any Division of the Board may be represented by legal or other counsel. As such, this provision of the Act ties the right to counsel to whether or not the individual is the subject of proceedings before the Board. In Canada v. Gutierrez, the Federal Court of Appeal found that the applicants had a right to counsel at an interview conducted after their claim had been made, but a few weeks before their hearing before the Board was scheduled. In that situation, the claimants were considered to be the subject of proceedings before the Board, and as such, were entitled to be represented by counsel according to s. 167 of the Act.[5]

The right to counsel does not apply where a person is not yet subject to proceedings before the Board and where the person is not detainedEdit

A person is generally not entitled to counsel at interviews or pre-hearing proceedings where the person has not yet become the subject of proceedings at the Board, for example before a claim is referred to the Board: Canada v. Bermudez.[6] In Canada v. Barrios, the claimant's request to be represented by counsel during his initial encounter with a CBSA officer who was interviewing him at the border was denied. In subsequent proceedings before the RPD, the claimant requested that evidence arising from this interview be excluded because it was, he argued, obtained in violation of his right to counsel. The court held that the CBSA's conduct in interviewing the claimant in the absence of counsel did not violate any right to counsel, since the person concerned had no right to counsel in the circumstances because they were not, at the time they were being interviewed, subject to any proceedings before the Board.[7]

This conclusion will be different, however, where a person is detained and not free to leave at the time that they are being questioned: Chen v. Canada.[8] This is so on the basis that in such circumstances an individual's s. 10(b) right to counsel under the Charter of Rights and Freedoms will apply.

The right to counsel in Canadian law is not a right to state-funded counselEdit

Section 167(1) of the IRPA provides that an individual may be represented by counsel "at their own expense". In Canada, the courts have stated, "there is no general constitutional right to legal aid, but only a right arising in specific circumstances".[9] As such, no Canadian case has established that refugee claimants have a right to state-funded counsel. Instead, the Federal Court has held that "state-funded legal aid is only constitutionally mandated in some cases [and] the right to counsel is not absolute".[10] This is consistent with jurisprudence in similar jurisdictions and at international law. For example, the UK High Court states that international law does not require the provision of legal advice and assistance to asylum seekers.[11] US courts have not accepted a constitutional or statutory argument that appointed counsel is required for noncitizens to vindicate their right to a fair hearing in immigration court.[12] Similarly, Canadian courts have held that international law does not specifically call for legal counsel as part of the implementation of a fair refugee adjudication system.[11]

UNHCR has expressed the view that whether or not refugee claimants have a right to state-funded counsel in Canada should be thought of as an open question. Section 7 of the Charter of Rights and Freedoms raises the possibility that an implied right to state-funded counsel for indigent claimants may, under certain circumstances, be included within its protection guarantees, given that protection claims involve grave issues related to a person’s security. Specifically, the notion of “fundamental justice” in s. 7 of the Canadian Charter of Rights and Freedoms involves both substantive and procedural fairness. As a consequence, a UNHCR report discussing the Canadian asylum process observes that representation is likely necessary when refugee claimants do not understand the procedures in order to ensure that the process is conducted in accordance with principles of fundamental justice.[13] The academic Sharryn Aiken, et. al., also write that "there are strong arguments that s 7 guarantees refugee claimants a right to counsel at refugee hearings".[14]

Indeed, at the international level there are many statements about rights to legal counsel in asylum proceedings. The UN Human Rights Committee has concluded that the International Covenant on Civil and Political Rights requires that ‘“asylum-seekers be properly informed and assured of their rights, including the right to apply for asylum, with access to free legal aid”.[15] Similarly, the European Court of Human Rights has held that failure to provide access to legal aid for asylum seekers by Greece constituted a violation of the European Convention on Human Rights in particular circumstances.[16] As well, the Council of the European Union Procedures Directive on Minimum Standards on Procedures in Member States for Granting and Withdrawing Refugee Status provides that in the event of a negative decision, applicants in EU member states are in principle entitled to free legal assistance which Member States may, however, make contingent upon the fulfilment of further requirements such as that the appeal or review is likely to succeed.[17]

The Inter-American Commission on Human Rights states that legal aid may be necessary when it is required in order to effectively vindicate a fundamental protected right under the American Declaration of the Rights and Duties of Man or the Constitution or laws of a particular country. This flows in large measure from the principle that rights must be implemented in ways that give them proper effect.[18] It also flows from the right to equal protection of - and before - the law. They state in a report on the Canadian refugee determination system that when deciding whether legal aid is necessary for a particular individual, one may properly consider the circumstances of the particular case, its significance, legal character, and the context in the particular legal system.[19]

In what contexts will a lack of counsel render a hearing unfair?Edit

The fact that a claimant lacks counsel does not, in and of itself, mean that their hearing is unfairEdit

The Federal Court states that "individuals are free to choose to represent themselves or to be represented by counsel".[20] As a matter of practice, the notices of hearing sent by the Board to claimants advise them of their right to be represented by counsel.[21] While about 90% of claimants attend their hearing with representation,[22] they may proceed with a claim and hearing without counsel. The Canadian jurisprudence is clear that where a claimant does not request a postponement on the basis of this lack of counsel, there is no obligation on the Board to canvass the issue of a postponement of the hearing simply because a claimant is unrepresented.[23] As Refugee Appeal Division Member Atam Uppal held in one case, the mere fact that a claimant was unrepresented and the Board denied the claim did not mean that the RPD denied procedural fairness or that the claimant was denied his right to a fair hearing.[24] Instead, the lack of representation by counsel results in a breach of procedural fairness only if, given the circumstances, it deprives the applicant of the opportunity to “participate meaningfully” in the hearing.[25]

A panel may be obliged to postpone a hearing to give a claimant an opportunity to obtain counsel upon request in certain circumstancesEdit

The court has stated that "the right to be represented by counsel is not an absolute right. It is predicated on all parties and counsel acting reasonably in all circumstances."[26] In certain circumstances, where a party has acted diligently and reasonably and has not been able to obtain counsel for the hearing, and requests a postponement of a hearing to obtain counsel, it may be unfair for a panel to deny that request and proceed with the hearing. The following principles can therefore be drawn from the case law: although the right to counsel is not absolute in an administrative proceeding, refusing an individual the possibility to retain counsel by not allowing a postponement is reviewable if the following factors are in play: the case is complex, the consequences of the decision are serious, the individual does not have the resources - whether in terms of intellect or legal knowledge - to properly represent his interests.[27] See Rule 54 on changing the date and time of a proceeding for further discussion of this and a discussion of the rules that a panel should consider when exercising its discretion: Canadian Refugee Procedure/Changing the Date or Time of a Proceeding.

Where a claimant is unrepresented and is clearly not understanding what is occurring, the Board should inquire about whether they wish to have counselEdit

The general rule is that there is no stand-alone duty on a tribunal to advise a party about the availability of or right to legal aid in immigration proceedings.[28] That said, the court has noted that "applicants are often lost without counsel" and that counsel "can make a significant impact in the smooth progression of a proceeding".[29] Where it is clear that an unrepresented claimant is not understanding what is occurring, a panel may be obliged to enquire with the claimant about whether they wish to have counsel. In Alvarez v. Canada, the Court found a breach of natural justice in circumstances where the tribunal proceeded despite the fact that it was clear that the applicant was not understanding the proceedings.[30] The court reached this conclusion even though the claimant had not formally requested an adjournment at the time of the hearing. For additional discussion of this principle, see: Canadian Refugee Procedure/Changing the Date or Time of a Proceeding#The Board's actions on its own motion (ex proprio motu).

The Board has a heightened duty of procedural fairness when dealing with self-represented claimantsEdit

Unrepresented claimants are comparatively rare in refugee proceedings; for example, in 2011–2012 Legal Aid Ontario provided services to 90% of all refugee claimants in Ontario.[31] The proportion of unrepresented claimants nationally remained relatively consistent at 12 to 13 percent from 2009 to 2012.[32] British Columbia has traditionally had significantly higher rates of unrepresented claimants than the rest of the country, with approximately a quarter of claimants unrepresented at their refugee hearings.[33] Caselaw establishes that the RPD owes unrepresented litigants a heightened duty of fairness.[34] However, the precise scope of this duty will depend on all of the circumstances of the case, including the sophistication of the applicant; where the applicant is clearly sophisticated, this may support the fairness of the procedural choices that were made.[35] The courts have commented positively on Members taking steps to inform self-represented claimants about RPD procedures and about the existence and application of the National Documentation Package.[36] The Board also commits in its Guideline 8 - Concerning Procedures with Respect to Vulnerable Persons Appearing Before the Immigration and Refugee Board of Canada that it "will take extra care to ensure that self-represented vulnerable persons can participate as meaningfully as possible in their own hearings."[37]

In what contexts will counsel incompetence render a hearing unfair?Edit

Normally, claimants with counsel are more likely to succeed with their claimsEdit

Statistically, claimants with counsel are far more likely to succeed with their refugee claims than are those who are unrepresented. Several studies have shown that there is a clear correlation between having legal advice and the recognition of refugee status.[38] A study of legal advisers in Cairo, Egypt, for example, found that refugees who had legal advice had nearly double the chance of having their refugee status recognized after a UNHCR interview than other, unrepresented, asylum seekers.[39] In the US, Schoenholtz and Jacobs found that asylum seekers who had legal assistance were four to six times more likely to be recognized as refugees compared to those who did not have assistance.[40] In this study, access to a legal adviser was found to improve the chance of recognition, regardless of the refugee’s origin, at every stage of the determination process studied. Studies of the Canadian refugee status determination system have also concluded that having a lawyer is associated with an increased chance of success in refugee proceedings: according to a study by academic Sean Rehaag, Canadian claimants with representation from a lawyer were approximately 75 percent more likely to succeed than those who were unrepresented.[41]

Deficiencies of counsel's conduct are properly attributed to their clientEdit

Generally, the courts have held clients liable for the misconduct of their counsel: “It is well recognized that a person has to accept the consequences of their choice of counsel.”[42] Sometimes counsel will adopt a theory of the case that does not succeed or will make tactical decisions in approaching a case where another lawyer would have decided differently. The Federal Court has held that the general rule is that you do not separate counsel's conduct from the client. Counsel is acting as agent for the client and, as harsh as it may be, the client must bear the consequences of having hired poor counsel.[43] This principle is reflected in the instructions in the Basis of Claim form that every claimant receives as part of the claimant process, which notes that "If you have counsel, you are responsible for making sure that your counsel meets the deadlines."[44] That said, this principle may be distinguishable in situations where counsel's conduct is incompetent to the point where it would be unfair to attribute deficiencies to the client, as discussed in the following section.

A hearing will be unfair where counsel incompetence results in a miscarriage of justiceEdit

The two-part test for setting aside a decision on the basis of counsel incompetency is that a party must establish 1) that counsel’s acts or omissions constituted incompetence, and 2) that a miscarriage of justice resulted:[45]

The core test for setting aside a decision due to counsel incompetence consists of two components: a performance component and a prejudice component. The burden is on the Applicant to prove both. The Applicant must prove that counsel performed incompetently. The incompetence must be specific and supported by evidence. The Applicant must also prove that the incompetence caused a miscarriage of justice. A miscarriage of justice may manifest in procedural unfairness, a compromise of trial fairness, or some other readily apparent form.[46]

1) IncompetenceEdit

In the words of the Federal Court of Appeal, the irreparable harm that can befall an individual upon deportation "obviously calls for the utmost vigilance from counsel representing claimants, and for the need on their part to act with the highest standard of professionalism and thoroughness."[47] There is a strong presumption that former counsel’s conduct fell within the wide range of reasonable professional assistance.[48] As such, the test for concluding that counsel was incompetent is strict, and counsel incompetence will only be found to have caused procedural unfairness in extraordinary circumstances.[49] Notice must be given to former counsel[50] and the applicant has the burden of proof. For more details on the prerequisites for making such an argument before the RPD, see Rule 62(4): Canadian Refugee Procedure/Reopening a Claim or Application#Rule 62(4) - Allegations against counsel. Examples of inadequate representation, counsel incompetence, negligence, and other improper conduct follow:

  • Failure to comply with undertakings: In Shirwa v. Canada, counsel had made an undertaking to file written submissions on issues that were raised during the hearing and then failed to do so. The court held that this was a serious failure on the part of counsel.[51]
  • Failure to provide important evidence to the Board: In El Kaissi v. Canada the court concluded that counsel had acted incompetently where they failed to produce a piece of corroborating evidence which the applicant had provided to counsel.[52] In Mcintyre v. Canada, the court concluded that counsel had acted incompetently when they failed to file crucial evidence as to the country conditions that demonstrated how the applicant, a gay man, would be affected by removal.[53]
  • Failure to assist the claimant in the preparation of documents: In Galyas v. Canada, the court held that counsel had acted incompetently where the claimant had been "left to prepare [his BOC form] by himself, without guidance on what it should contain[,] and what the RPD would be looking for in such a narrative."[54] In El Kaissi v. Canada the court concluded that counsel had acted incompetently where they did not assist the claimant in the preparation of the Personal Information Form.[52]
  • Failure to meet with the claimant in advance of the hearing to prepare: In El Kaissi v. Canada the court concluded that counsel had acted incompetently where they did not meet with their clients until just prior to the hearing.[52]
  • Failure to advance an important argument before the Board as a result of ignorance: Counsel must have a sufficient knowledge of the fundamental issues or principles of law applicable to the particular work they have undertaken to enable them to perceive the need to ascertain the law on relevant points.[55] For example, in Satkunanathan v. Canada the applicant's former counsel appeared to be under the mistaken impression that it was not possible to advance a particular argument before the Board, when in fact it was. This was held by the court to have fallen below the standard of competence expected of counsel and to have resulted in an unfair hearing.[56]
  • Failure to notify the claimant of their hearing date.[57]
  • Failure to appear for a hearing date where they are counsel of record.[58]
  • Acting while having a conflict of interest.[59]
  • Cumulative grounds: Counsel have also been held incompetent because of the cumulative impact of many acts and omissions which alone would not amount to incompetence.[60] As the court stated in Fernandez v. Canada, "I do not have to find any one act of egregious conduct to find that former counsel was incompetent. I need to establish that the actions fell outside of the realm of reasonable judgment".[61]
2) PrejudiceEdit

Where counsel provides inadequate representation, including professional incompetence, negligence, and other improper conduct, this may support a finding that the proceeding was unfair.[62] In making this determination, there must be an assessment of whether counsel’s performance resulted in procedural unfairness, whether the reliability of the trial’s result may have been compromised, or whether the outcome might be affected.[63] With respect to whether the outcome might be affected, the court examines whether there is "a reasonable possibility that the original decision could have been different."[61]

Rule 14 - Becoming counsel of recordEdit

Counsel of Record

Becoming counsel of record
14 (1) Subject to subrule (2), as soon as counsel for a claimant or protected person agrees to a date for a proceeding, or as soon as a person becomes counsel after a date for a proceeding has been fixed, the counsel becomes counsel of record for the claimant or protected person.

Limitation on counsel’s retainer
(2) If a claimant or protected person has notified the Division of a limitation on their counsel’s retainer, counsel is counsel of record only to the extent of the services to be provided within the limited retainer. Counsel ceases to be counsel of record as soon as those services are completed.

Who may act as counsel in refugee proceedings before the Board?Edit

An individual can pay fees to be represented by a person who is a lawyer, paralegal or immigration consultant. A person may also be represented by someone who is not one of those professionals. For the form that needs to be completed in such circumstances, see Rule 5 (which applies to refugee claimants - Canadian Refugee Procedure/Information and Documents to be Provided#Rule 5 - Declaration where counsel is not acting for consideration) and Rule 13 (which applies to persons who have already been conferred refugee status - Canadian Refugee Procedure/Information and Documents to be Provided#Rule 13 - Declaration where counsel not representing or advising for consideration).

Parties may be represented by multiple counsel (co-counsel) in a proceedingEdit

Parties may be represented by more than one representative (counsel, immigration consultant, etc.) in a proceeding before the IRB. This was allowed for the Minister in Muhammad v Canada,[64] a case before the Immigration Division, and has been allowed for claimants appearing before the RPD as well.[65] Indeed, this is commonly done for the training for new representatives, as when articling students co-counsel with a more experienced lawyer.[66]

Refugee-related services are provided by some provincial legal aid programsEdit

The Refugee Appeal Division has concluded that the law is that, in general, there is "no obligation of the RPD to inform claimants of the availability of Legal Aid".[67] That said, the Board publishes a Claimant's Kit, which is made available to all claimants, and includes a list of Canadian legal aid offices.[68] Six provinces - British Columbia, Alberta, Manitoba, Ontario, Quebec, and Newfoundland and Labrador - offer immigration and refugee legal aid services.[69] Some other provinces, such as Nova Scotia, used to provide legal aid, but cancelled the programs in the late 1990s during budgetary cuts.[70] The overwhelming majority of the work of the Refugee Protection Division is centered in the provinces that do have legal aid programs.[71]

British Columbia Legal Services SocietyEdit

In British Columbia, the Legal Services Society authorizes 16 hours for case preparation, with an additional 8 hours permitted if there is a second adult client, and a further four hours for any additional adult clients. Lawyers are also paid for their time at the RPD hearing. LSS will pay for up to 10 hours of interpretation services per adult client, with additional hours requiring authorization.[72] The BC Public Interest Advocacy Centre states that these hours rates are "so low they invariably require a subsidy in time and commitment from counsel who accept such retainers to ensure adequate representation."[73] In the 2013-2014 fiscal year, funding was approved for 82 percent of applications by refugee claimants (348 out of 424 applications).[74] The average total cost to BC's Legal Services Society of a refugee claim under the new system in the 2013-2014 fiscal year was $2,062, including disbursements.[75] The average of legal fees alone charged in private refugee cases in the Western Region in the same time period would appear to have been in the range of $4000.[76] Such limits on legal aid fees have been said to have resulted in "more experienced lawyers [stopping the practice of] asylum and immigration law" in other jurisdictions.[77]

Legal Aid ManitobaEdit

In Manitoba, most of the case preparation work is done by two salaried paralegals working with the Manitoba Interfaith Immigration Council.[78] The legal aid tariff in that province provides far fewer hours for work on refugee claims than is allowed under the tariffs in British Columbia, Ontario and Alberta. As of 2019, the Manitoba tariff allows 13 hours for preparation and the first half-day of hearing.[79]

Legal Aid OntarioEdit

Legal Aid Ontario (LAO) provides (as of 2013) counsel with 5 hours to prepare a BOC form, 11 hours to prepare for a refugee hearing, plus the time of the hearing. LAO will pay up to 10 hours of interpretation services in case preparation, with authorization required for any additional time.[80] LAO pays 16 hours to prepare for a RAD hearing (plus an additional four hours and attendance time if the RAD proceeding involves an oral hearing), 15 hours for an application for leave for a judicial review, and 15 hours to prepare for a judicial review (the combination with preparation hours not to exceed 27 hours, plus attendance time).[81]

QuebecEdit

While Quebec operates a legal aid program for refugee claimants, they have been criticized in the past for their failure to compensate counsel for preparatory and pre-hearing work.[82]

Rule 15 - Request to be removed as counsel of recordEdit

Request to be removed as counsel of record
15 (1) To be removed as counsel of record, counsel for a claimant or protected person must first provide to the person represented and to the Minister, if the Minister is a party, a copy of a written request to be removed and then provide the written request to the Division, no later than three working days before the date fixed for the next proceeding.

Oral request
(2) If it is not possible for counsel to make the request in accordance with subrule (1), counsel must appear on the date fixed for the proceeding and make the request to be removed orally before the time fixed for the proceeding.

Division’s permission required
(3) Counsel remains counsel of record unless the request to be removed is granted.

Board commentary on discretion to refuse requests for counsel to be removed as counsel of recordEdit

Lorne Waldman notes in his text that "the Rules do not specify how the Board is to deal with an application by counsel to be removed."[83] Some guidance on this issue comes from the drafting history for the current version of the rules and the Board's public commentary thereon. When this rule was being drafted and the IRB solicited feedback on it, three respondents provided comments concerning the process to follow to be removed as counsel of record. Specifically, respondents requested that the rule which stipulates that counsel of record remain counsel of record until the request is granted be changed to state that counsel are released as of the Division's receipt of the written notification. While the IRB has noted that it is unlikely to require counsel of record to continue to represent a claimant if a request has been made to the Division in a timely manner, the IRB maintains that it has discretion to deny the request in appropriate circumstances, such as where allowing it would impede the timely progress of a proceeding and cause an injustice. With this in mind, the rule retains its current form.[84]

Rule 16 - Removing counsel of recordEdit

Removing counsel of record
16 (1) To remove counsel as counsel of record, a claimant or protected person must first provide to counsel and to the Minister, if the Minister is a party, a copy of a written notice that counsel is no longer counsel for the claimant or protected person, as the case may be, and then provide the written notice to the Division.

Ceasing to be counsel of record
(2) Counsel ceases to be counsel of record as soon as the Division receives the notice.

ReferencesEdit

  1. Martin David Jones and Sasha Baglay. Refugee Law (Second Edition). Irwin Law, 2017, page 328.
  2. The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 10 <http://canlii.ca/t/ldsx#sec10> retrieved on 2020-05-02.
  3. Mathon v Canada (Minister of Employment and Immigration) (1988), 38 Admin LR 193 at 208 (TD), as cited in Martin David Jones and Sasha Baglay. Refugee Law (Second Edition). Irwin Law, 2017, page 314.
  4. Canadian Bill of Rights, SC 1960, c 44, s 2 <http://canlii.ca/t/j05x#sec2> retrieved on 2020-04-17.
  5. Canada (Minister of Citizenship and Immigration) v Paramo de Gutierrez, 2016 FCA 211 at para 44.
  6. Canada (Minister of Citizenship and Immigration) v Bermudez, 2016 FCA 131 at para 50.
  7. Canada (Citizenship and Immigration) v. Barrios (F.C., no. IMM-59-19), O’Reilly, January 10, 2020; 2020 FC 29.
  8. Chen v. Canada (Minister of Citizenship & Immigration), [2006] F.C.J. No. 1163, 2006 FC 910 (F.C.).
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  18. See generally, IACtHR, Advisory Opinion OC-11/90 supra, at para. 30 (addressing the issue of exhaustion of domestic remedies under the American Convention); UNHum.Rts.Committee, Currie v. Jamaica, Comm. Nº 377/1989, U.N. Doc. CCPR/C/50/D/377/1989 (1994), at paras. 10, 13 (explaining that absence of legal aid where required to vindicate a right operates not only to excuse compliance with the requirement of exhaustion of domestic remedies, but also constitutes a violation of the right to a fair trial).
  19. Inter-American Commission on Human Rights (IACHR), Report on the Situation of Human Rights of Asylum Seekers Within the Canadian Refugee Determination System, 2000, Inter-Am. C.H.R., OEA/Ser.L/V/II.106, Doc. 40 rev. (2000), available at: https://www.refworld.org/docid/50ceedc72.html [accessed 18 August 2020], para. 127.
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  22. Hamlin, Rebecca. Let Me Be a Refugee: Administrative Justice and the Politics of Asylum in the United States, Canada, and Australia. New York: Oxford University Press, 2014. Print. Page 88.
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  25. Li v Canada (Citizenship and Immigration), 2015 FC 927 at paragraph 37.
  26. Afrane v. Canada (Minister of Employment and Immigration) (1993), 64 F.T.R. 1 (F.C.T.D.)
  27. Mervilus v. Canada (Minister of Citizenship and Immigration), 2004 FC 1206 at paragraph 25.
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  29. Cervenakova v Canada (Citizenship and Immigration), 2012 FC 525, at paras 64, 67.
  30. Alvarez v. Canada (Minister of Citizenship & Immigration), [2010] F.C.J. No. 1007, 2010 FC 792 (F.C.).
  31. Berger, Max, Immigration Essentials 2013 Presentation, Canadian Bar Association Immigration Conference Montreal Materials <http://www.cba.org/cba/cle/pdf/imm13_paper_berger.pdf>, page 33.
  32. BC Public Interest Advocacy Centre, Refugee Reform and Access to Counsel in British Columbia, July 2015 <https://bcpiac.com/wp-content/uploads/2015/09/LFBC-Refugee-Reform-Paper-Final-July-30-2015-2.pdf> (Accessed January 12, 2020), page 27.
  33. BC Public Interest Advocacy Centre, Refugee Reform and Access to Counsel in British Columbia, July 2015 <https://bcpiac.com/wp-content/uploads/2015/09/LFBC-Refugee-Reform-Paper-Final-July-30-2015-2.pdf> (Accessed January 12, 2020), page 3.
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  35. Wysozki v. Canada (Public Safety and Emergency Preparedness) (F.C., No. IMM-4958-19), Strickland, March 31, 2020; 2020 FC 458, para. 38.
  36. Ait Elhocine v. Canada (Citizenship and Immigration), 2020 FC 1068 (CanLII), par. 25, <http://canlii.ca/t/jc063#par25>, retrieved on 2021-01-06.
  37. Immigration and Refugee Board of Canada, Guideline 8 - Concerning Procedures with Respect to Vulnerable Persons Appearing Before the Immigration and Refugee Board of Canada, Amended: December 15, 2012, <https://irb-cisr.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx> (Accessed February 9, 2020).
  38. Azadeh Dastyari, BA/LLB (Hons I) (Sydney), PhD (Monash), Daniel Ghezelbash, BA/LLB (Hons I), PhD (Sydney), Asylum at Sea: The Legality of Shipboard Refugee Status Determination Procedures, International Journal of Refugee Law, , eez046, https://doi.org/10.1093/ijrl/eez046
  39. Michael Kagan, ‘Frontier Justice: Legal Aid and UNHCR Refugee Status Determination in Egypt’ (2006) 19 Journal of Refugee Studies 45, 54.
  40. Andrew Schoenholtz and Jonathan Jacobs, ‘The State of Asylum Representation: Ideas for Change’ (2002) 16 Georgetown Immigration Law Journal 739, 740.
  41. Sean Rehaag, “The Role of Counsel in Canada’s Refugee Determination System: An Empirical Assessment,” (2011) 49 Osgoode Hall Law Journal 71.
  42. Williams v Canada (Minister of Employment and Immigration) (1994), 74 FTR 34 (TD).
  43. Jouzichin v Canada (Minister of Citizenship and Immigration) (1994), 52 ACWS (3d) 157, 1994 CarswellNat 1592.
  44. Immigration and Refugee Board of Canada, Basis of Claim Form, November 2012 Version <https://irb-cisr.gc.ca/en/forms/Documents/RpdSpr0201_e.pdf>, Appendix page 2.
  45. Hamdan v Canada (Immigration, Refugees and Citizenship), 2017 FC 643.
  46. R v GDB, 2000 SCC 22 at para 27, as cited in Tapia Fernandez v. Canada (Citizenship and Immigration), 2020 FC 889.
  47. Canadian Association of Refugee Lawyers v. Canada (Immigration, Refugees and Citizenship), 2020 FCA 196 (CanLII), par. 90, <http://canlii.ca/t/jblsl#par90>, retrieved on 2020-11-17.
  48. Satkunanathan v. Canada (Citizenship and Immigration), 2020 FC 470 (CanLII), par. 87, <http://canlii.ca/t/j65bj#par87>, retrieved on 2020-04-17.
  49. Yang v Canada (Minister of Citizenship and Immigration), 2015 FC 1189 at para 15.
  50. Mahadjir Djibrine v. Canada (Citizenship and Immigration), 2020 FC 1036 (CanLII), par. 18, <http://canlii.ca/t/jbhtg#par18>, retrieved on 2020-11-25.
  51. Shirwa v. Canada (Minister of Employment & Immigration), [1993] F.C.J. No. 1345, [1994] 2 F.C. 51 (F.C.T.D.).
  52. a b c El Kaissi v. Canada (Minister of Citizenship & Immigration), [2011] F.C.J. No. 1518, 2011 FC 1234 (F.C.).
  53. Mcintyre v. Canada (Minister of Citizenship & Immigration), [2016] F.C.J. No. 1373, 2016 FC 1351 (F.C.).
  54. Galyas v. Canada (Minister of Citizenship & Immigration), [2013] F.C.J. No. 245, 2013 FC 250 (F.C.).
  55. Central Trust Co v Rafuse, [1986] 2 SCR 147, 1986 CanLII 29 (SCC), at 208.
  56. Satkunanathan v. Canada (Citizenship and Immigration), 2020 FC 470 (CanLII), par. 90, <http://canlii.ca/t/j65bj#par90>, retrieved on 2020-04-17.
  57. Gulishvili v Canada (Minister of Citizenship and Immigration), 2002 FCT 1200.
  58. N'Takpe v. Canada (Minister of Citizenship and Immigration), 2002 FCT 978 (CanLII), par. 10, <http://canlii.ca/t/1j1vw#par10>, retrieved on 2020-09-06.
  59. N'Takpe v. Canada (Minister of Citizenship and Immigration), 2002 FCT 978 (CanLII), par. 9, <http://canlii.ca/t/1j1vw#par9>, retrieved on 2020-09-06.
  60. Memari v Canada (Minister of Citizenship and Immigration), 2010 FC 1196 at para 64.
  61. a b Tapia Fernandez v. Canada (Citizenship and Immigration), 2020 FC 889, para. 43.
  62. Diaz Ordaz Castillo v. Canada (Citizenship and Immigration), 2009 FC 1227 (CanLII), par. 8, <http://canlii.ca/t/26wwt#8>, retrieved on 2020-01-29
  63. Mahadjir Djibrine v. Canada (Citizenship and Immigration), 2020 FC 1036 (CanLII), par. 40, <http://canlii.ca/t/jbhtg#par40>, retrieved on 2020-11-25.
  64. Muhammad v Canada (Citizenship and Immigration), 2013 CanLII 96687 (CA IRB), <http://canlii.ca/t/gfhm7>, retrieved on 2021-01-05.
  65. X (Re), 2010 CanLII 98036 (CA IRB), <http://canlii.ca/t/frq60>, retrieved on 2021-01-05.
  66. X (Re), 2011 CanLII 100717 (CA IRB), par. 11, <http://canlii.ca/t/g7s02#par11>, retrieved on 2021-01-05.
  67. Cyril v. Canada (Citizenship and Immigration), 2015 FC 1106 (CanLII), par. 16, <http://canlii.ca/t/gl9cx#par16>, retrieved on 2020-05-13.
  68. Immigration and Refugee Board of Canada, Claimant's Kit, Date modified: 2018-08-29 <https://irb-cisr.gc.ca/en/refugee-claims/pages/ClaDemKitTro.aspx> (Accessed May 13, 2020).
  69. Immigration and Refugee Board of Canada, List of legal aid offices, <https://irb-cisr.gc.ca/en/legal-policy/legal-concepts/Pages/legal-aid-office.aspx> (Accessed January 30, 2020).
  70. Martin David Jones and Sasha Baglay. Refugee law (Second Edition). Irwin Law, 2017, page 320.
  71. Inter-American Commission on Human Rights (IACHR), Report on the Situation of Human Rights of Asylum Seekers Within the Canadian Refugee Determination System, 2000, Inter-Am. C.H.R., OEA/Ser.L/V/II.106, Doc. 40 rev. (2000), available at: https://www.refworld.org/docid/50ceedc72.html [accessed 18 August 2020], para. 123.
  72. Legal Services Society, Immigration Tariff, December 2012, available online: Legal Services Society, <http://www.lss.bc.ca/assets/lawyers/tariffGuide/immigration/immigrationTariffDec2012.pdf> (Accessed January 15, 2020) at 1.
  73. BC Public Interest Advocacy Centre (BC PIAC), Refugee Reform and Access to Counsel in British Columbia, September 2015, <https://bcpiac.com/wp-content/uploads/2015/09/LFBC-Refugee-Reform-Paper-Final-July-30-2015-2.pdf> (Accessed January 12, 2020), page 26.
  74. BC Public Interest Advocacy Centre (BC PIAC), Refugee Reform and Access to Counsel in British Columbia, September 2015, <https://bcpiac.com/wp-content/uploads/2015/09/LFBC-Refugee-Reform-Paper-Final-July-30-2015-2.pdf> (Accessed January 12, 2020), page 28.
  75. BC Public Interest Advocacy Centre (BC PIAC), Refugee Reform and Access to Counsel in British Columbia, September 2015, <https://bcpiac.com/wp-content/uploads/2015/09/LFBC-Refugee-Reform-Paper-Final-July-30-2015-2.pdf> (Accessed January 12, 2020), page 20.
  76. Canadian Lawyer “2014 Legal Fees Survey” (June, 2014), page 37.
  77. John R. Campbell, The role of lawyers, judges, country experts and officials in British asylum and immigration law, Published online by Cambridge University Press: 31 March 2020, International Journal of Law in Context, DOI: https://doi-org.ezproxy.library.yorku.ca/10.1017/S1744552320000038 (Accessed April 4, 2020), at page 10.
  78. Government of Canada Department of Justice, Immigration and Refugee Legal Aid Cost Drivers Final Report, 2002 <https://www.justice.gc.ca/eng/rp-pr/other-autre/ir/rr03_la17-rr03_aj17/p9.html#ftn116> (Accessed April 15, 2020).
  79. CBC, Legal Aid Manitoba wants non-lawyers empowered to argue refugee claims, Jan 02, 2019 <https://www.cbc.ca/news/canada/manitoba/legal-aid-manitoba-advocates-refugee-claimants-1.4952641> (Accessed April 15, 2020).
  80. 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?sequence=7&isAllowed=y>, page 52 (Accessed January 23, 2020).
  81. Berger, Max, Immigration Essentials 2013 Presentation, Canadian Bar Association Immigration Conference Montreal Materials <http://www.cba.org/cba/cle/pdf/imm13_paper_berger.pdf>, page 32.
  82. Hathaway, James C., Rebuilding trust: A Report of the Review of Fundamental Justice in Information Gathering and Dissemination at the Immigration and Refugee Board of Canada, Refugee Studies Centre, Publisher: Osgoode Hall Law School, York University, December 1993, page 76.
  83. Waldman, Lorne, Canadian Immigration & Refugee Law Practice, Markham, Ont.: LexisNexis Butterworths, 2018, ISBN 9780433478928, ISSN 1912-0311, <https://search.library.utoronto.ca/details?5022478> (Accessed April 1, 2020) at page 1725 of the PDF.
  84. Immigration and Refugee Board of Canada, RPD Rules Regulatory Impact Analysis Statement, Date modified: 2018-07-04, <https://irb-cisr.gc.ca/en/legal-policy/act-rules-regulations/Pages/RiasReir.aspx> (Accessed January 3, 2020).

Language of Proceedings (Rules 17-18)Edit

Charter of Rights and FreedomsEdit

Sections 16 to 22 of the Canadian Charter of Rights and Freedoms concern language rights, the most probative provisions being:[1]

Official languages of Canada
16. (1) English and French are the official languages of Canada and have equality of status and equal rights and privileges as to their use in all institutions of the Parliament and government of Canada.
...

Proceedings in courts established by Parliament	
19. (1) Either English or French may be used by any person in, or in any pleading in or process issuing from, any court established by Parliament.

Communications by public with federal institutions
20. (1) Any member of the public in Canada has the right to communicate with, and to receive available services from, any head or central office of an institution of the Parliament or government of Canada in English or French, and has the same right with respect to any other office of any such institution where
(a) there is a significant demand for communications with and services from that office in such language; or
(b) due to the nature of the office, it is reasonable that communications with and services from that office be available in both English and French.

The Board is considered to be a "court established by Parliament" for the purposes of Charter language rightsEdit

Section 19 of the Charter provides that "Either English or French may be used by any person in, or in any pleading in or process issuing from, any court established by Parliament." Is this right applicable to proceedings before the IRB? It is. The expression “courts” includes quasi-judicial organizations. The test to be applied in determining whether a quasi-judicial body is to be considered a "court" for such purposes is stated as follows: it includes any federal institution whose organizing statute confers the power to decide matters affecting the rights or interests of the individual, by applying principles of law and not considerations of convenience or administrative policy.[2] The position that the government has taken before is that s. 19 of the Charter is applicable to proceedings before the Board: Ta