Canadian Refugee Procedure/166 - Proceedings must be held in the absence of the public

IRPA Section 166

The legislative provision reads:

166 Proceedings before a Division are to be conducted as follows:
(a) subject to the other provisions of this section, proceedings must be held in public;
(b) on application or on its own initiative, the Division may conduct a proceeding in the absence of the public, or take any other measure that it considers necessary to ensure the confidentiality of the proceedings, if, after having considered all available alternate measures, the Division is satisfied that there is
   (i) a serious possibility that the life, liberty or security of a person will be endangered if the proceeding is held in public,
   (ii) a real and substantial risk to the fairness of the proceeding such that the need to prevent disclosure outweighs the societal interest that the proceeding be conducted in public, or
   (iii) a real and substantial risk that matters involving public security will be disclosed;
(c) subject to paragraph (d), proceedings before the Refugee Protection Division and the Refugee Appeal Division must be held in the absence of the public;
(c.1) subject to paragraph (d), proceedings before the Immigration Division must be held in the absence of the public if they concern a person who is the subject of a proceeding before the Refugee Protection Division or the Refugee Appeal Division that is pending or who has made an application for protection to the Minister that is pending;
(d) on application or on its own initiative, the Division may conduct a proceeding in public, or take any other measure that it considers necessary to ensure the appropriate access to the proceedings if, after having considered all available alternate measures and the factors set out in paragraph (b), the Division is satisfied that it is appropriate to do so;
(e) despite paragraphs (b) to (c.1), a representative or agent of the United Nations High Commissioner for Refugees is entitled to observe proceedings concerning a protected person or a person who has made a claim for refugee protection or an application for protection; and
(f) despite paragraph (e), the representative or agent may not observe any part of the proceedings that deals with information or other evidence in respect of which an application has been made under section 86, and not rejected, or with information or other evidence protected under that section.

The purpose and history of section 166(c) with respect to refugees

The right to privacy is a fundamental human right. IRCC takes the position that the purpose of the provisions under s. 166 of the IRPA are to provide protection for the refugee and their family against harm that might occur from disclosure of their case in public. They note that "in many cases, refugees have family members that are not accompanying them and revealing their identity may put remaining family members in the country of persecution at risk" and that "protecting the confidentiality of a refugee claimant's identity, the particulars of their claim for protection, and the fact that they had submitted a claim is 'vital to ensuring that no claimant is put at additional risk of serious harm, including persecution and torture. Otherwise, disclosure of information could lead to the country of persecution learning of the applicants' whereabouts, which could result in harm to the applicant.'" This is consistent with guidance from the UNHCR that "confidentiality and data protection extend to all communications with current and former asylum-seekers and refugees, as well as all personal data or information obtained from or about them".

Under the 1910 Immigration Act, proceedings before boards that determined admissibility and deportation matters were not public. This was subsequently changed somewhat. Under the regime that existed prior to the creation of the IRB, the refugee determination scheme contained both a public and an in camera hearing. The examination under oath before an officer was not public and persons other than the claimant, the senior immigration officer, the interpreter, and the stenographer could be present only if the claimant consented. The re-determination hearing before the Immigration Appeal Board, however, was public. This changed with the legislation that created the IRB. The Plaut report which presaged the creation of the IRB articulated the rationale for closed hearings as follows:

There is no doubt that the public has a valid interest in legal proceedings generally, as do members of the media. In the refugee context, however, this interest is outweighed by the very real danger to the claimant (should the claim be refused) or to the claimant's family, if the fact of the claim and the testimony given at the hearing become public knowledge and come to the attention of the authorities in the country from which the claimant fled. It is therefore recommended that the claimant have the right to require that the hearing be held in camera.

The above recommendation was accepted and was incorporated into a provision introduced into the bill which led to the founding of the IRB in the late 1980s. In Bill C-86, tabled in the House of Commons on June 16, 1992, the government considered changing this provision back. As originally tabled, the bill provided for public hearings of refugee cases. This provision of the bill raised "a storm of protest" as, it was charged, public hearings would place refugee applicants in jeopardy. In response to this criticism the government reverted to the old rule that hearings before the refugee board would be in camera. Only in exceptional cases would they be held in public.

What is encompassed by the phrase "proceedings before the Refugee Protection Division"?

Section 166(c) provides that "...proceedings before the Refugee Protection Division...must be held in the absence of the public". What is encompassed by the term "proceedings" as it is used in this provision? For a discussion of that, see the definitions section of the RPD Rules, which comments on the definition of the term "proceeding": Canadian Refugee Procedure/RPD Rule 1 - Definitions#Commentary on the definition of "proceeding".

What is entailed by the legislative requirement that proceedings be conducted in the absence of the public?

The personal information in refugee claim files is generally accorded "Protected B" status. This is defined as "information where unauthorized disclosure could cause serious injury to an individual, organization or government. Examples include: medical information, information protected by solicitor-client or litigation privilege, and information received in confidence from other government departments and agencies." The legal standards requiring the protection of information also stem from the Directive on Departmental Security Management and the Privacy Act, see: Canadian Refugee Procedure/RPD Rules 55-56 - Joining or Separating Claims or Applications#Once claims are joined, information on one claim is properly available to the other joined claimants.

Facilities in which proceedings are held shall be sufficiently private

The requirement in s. 166(c) that refugee proceedings be conducted in the absence of the public tracks Canada’s international obligations. The UNHCR Executive Committee has outlined certain basic requirements for fair and effective status determination procedures. These requirements ensure that people seeking protection are provided with “necessary facilities,” which is defined to include an interview space that respects the privacy of the individuals being assessed.

Issues can arise related to this where a witness is testifying remotely, for example over the telephone. In such situations, the interview should be conducted in a location that will provide the highest level of confidentiality and security to the interviewee. If no such place exists, then it may be more appropriate not to hear such testimony at all, unless the individual concerned provides their informed consent. The greatest risk arises in public places such as hotels or restaurants, where interviews may be overheard and where surveillance may be very likely.

RPD staff must maintain confidences and be sufficiently trustworthy

Persons who have access to "Protected B" information within the government must have "Reliability Status". This is defined as "The minimum standard of security screening required for individuals to have unsupervised access to Protected government information, assets or work sites. Security screening for Reliability Status appraises an individual's honesty and whether he or she can be trusted to protect the government's interests."

Part of this obligation is ensuring that only trusted intermediaries are used, for example that interpreters can also be trusted to maintain confidences.

Facilities in which information is stored must be sufficiently private

The facilities in which refugee claim information are stored must be sufficiently private. As stated in the UNHCR "Privacy Protection Guidelines", "refugee information must be filed and stored in a way that is accessible only through authorized personnel and transferred only through the use of protected means of communication." For example, protected information must not be carried in the open when it is being carried out of the office. When being handled outside of an operational zone, Protected B files must not be "in the open" but carried in an envelope or comparable mechanism.

Protected information should be transmitted and communicated in a way that is sufficiently secure and private

As stated in the UNHCR Privacy Protection Guidelines, refugee information must be transferred only through the use of protected means of communication. This has a number of implications: when contacting a claimant, the RPD should not leave a voicemail about their case on an unknown voicemail if there is an indication that their phone number may have changed. Furthermore, the RPD should not communicate Protected B-level information or higher by email. The Immigration Appeal Division (IAD) has a practice notice on communicating by email. It states that "the IAD will not transmit a document by email if it contains Protected B or higher information or it has been declared confidential or is subject to an order restricting publication, broadcasting or transmission by the IAD or any other competent authority." The same principles should apply to the Refugee Protection Division emailing any such information.

Members shall not disclose confidential information, even to other staff, where doing so is not operationally required

IRB personnel are only permitted access to hearings held in the absence of the public as required for work-related purposes. In the words of the Guideline for Employees of the Government of Canada: Information Management (IM) Basics, the government should ensure that "protected information is only made available on a need-to-know basis to those who are authorized to access it." The Code of Conduct for Members of the Immigration and Refugee Board of Canada provides that "Members shall not disclose or make known any information of a confidential nature that was obtained in their capacity as a member. This means disclosure outside of the IRB to other government departments or agencies or to the general public, as well as disclosure within the IRB to members or staff where such disclosure is not operationally required." This is in keeping with the UNHCR "Privacy Protection Guidelines" which require that "refugee information must be filed and stored in a way that is accessible only through authorized personnel and transferred only through the use of protected means of communication."

Members should only include necessary personal information in their decisions

The Code of Conduct for Members of the Immigration and Refugee Board of Canada provides that "Members have a responsibility to consider the privacy interests of individuals in the conduct of proceedings and the writing of decisions, ensuring that decisions contain only the personal information that is necessary to explain the reasoning of the decision."

The Board may issue a sealing order or confidentiality order

The Immigration Appeal Division has issued what are called "sealing orders" in other cases. Panels of the Refugee Appeal Division and Refugee Protection Division have likewise issued orders that the parties to an appeal, and any person who becomes privy to the sealed information in the record, shall maintain its confidentiality. Such orders that information be sealed and declared confidential, and that parties not to disclose it to the public, have been applied to the content of exhibits, the names of the witnesses, etc. Panels have at times provided quite specific directions, for example that parties delete and destroy specified information after a proceeding has completed.

The federal Privacy Act applies to information submitted to the Refugee Protection Division

Quite apart from section 166 of the IRPA, the federal Privacy Act also places limitations on the ability of a government institution to use and disclose personal information under its control without the consent of the individual to whom it relates. Section 7 of the Privacy Act states that "personal information under the control of a government institution shall not, without the consent of the individual to whom it relates, be used by the institution except (a) for the purpose for which the information was obtained or compiled by the institution or for a use consistent with that purpose; or (b) for a purpose [listed in subsection 8(2) of the Act]."

What are uses consistent with the purpose for which information is obtained in the refugee context?

According to the Treasury Board Interim Policy on Privacy Protection, consistent use is defined as one that has a reasonable and direct connection to the original purpose(s) for which the information was obtained or compiled. This means that the original purpose and the proposed purpose are so closely related that the individual would expect that the information would be used for the consistent purpose, even if the use is not spelled out. In Bernard v. Canada, the Supreme Court of Canada noted that to qualify as a “consistent use” under paragraph. 8(2)(a), a use need not be identical to the purpose for which information was obtained. There need only be a sufficiently direct connection between the purpose for obtaining the information and the proposed use, such that an individual could reasonably expect that the information could be used in the manner proposed.

The following are examples of consistent uses that have been identified in previous decisions:

• Disclosing a claimant's identity to a foreign government for the purpose of investigating their claim: In Igbinosun v. Canada the Federal Court held that disclosure of a claimant's identity to a foreign government for the purpose of investigating their potential exclusion from the refugee protection regime was a use of the information "consistent with [the purpose for which the information was obtained]" within the meaning of paragraph 8(2)(a) of the Privacy Act. The normal practice of the Minister in such circumstances was exemplified in Moin v. Canada, wherein the Minister disclosed the claimant’s name to a foreign state (the alleged persecutors) but there was no indication that the Minister had advised authorities in the foreign country that the claimant had made a claim for asylum. As such, this inquiry was seen as unobjectionable by the court in that case. Where the Minister goes beyond providing a claimant's name and discloses additional information to the alleged persecutor, such as copies of documents that a claimant submitted, they may err. For example, in Canada v. X, Member McCool of the Refugee Protection Division stated: "In investigating the merits, bona fides or veracity of claims brought before the Division, the Minister must balance, and be seen to balance, the need to protect the individual, including those who have been determined to be Convention refugees, against the need, in the public interest, to detect and prevent fraud."
• Disclosing information regarding the conduct of authorized representatives to regulatory bodies: Section 13.1 of the Immigration and Refugee Protection Regulations provides that if a member of the Board or an officer determines that the conduct of a representative in connection with a proceeding before the Board is likely to constitute a breach of the person's professional or ethical obligations, the Board may disclose information to a body that is responsible for governing or investigating that conduct or to a person who is responsible for investigating that conduct. The Board has a Policy on Disclosing Information Regarding the Conduct of Authorized Representatives to Regulatory Bodies which states that it is the view of the IRB that such disclosures are in accordance with paragraph 8(2)(b) of the Privacy Act, namely that it is for a purpose in accordance with any Act of Parliament or any regulation made thereunder that authorizes disclosure. See also: Canadian Refugee Procedure/IRPR s. 13.1 - Authorized disclosure.

For further discussion of the Privacy Act in the refugee context, see: Canadian Refugee Procedure/RPD Rules 55-56 - Joining or Separating Claims or Applications#Once claims are joined, information on one claim is properly available to the other joined claimants.

An application may be made to have the proceedings conducted in public

Applications to have proceedings conducted in public are considered under the rubric of RPD Rule 57: Canadian Refugee Procedure/RPD Rule 57 - Proceedings Conducted in Public#RPD Rule 57 - Proceedings Conducted in Public or the equivalent rule at the RAD.

Should a panel admit copies of decisions from other claims?

As section 166(c) of the Act provides, refugee proceedings are to be conducted in the absence of the public. Some decisions are anonymized and are posted on CanLII by the Board (for data on this, see: Canadian Refugee Procedure/RPD Rules 67-68 - Decisions#What percentage of refugee decisions are made publicly available?). At times, counsel will want to provide decisions to a panel of the Board from other panels of the Board that have not been published. It is common practice that counsel will indicate that they have the consent of the claimant in question to provide the decision and that they will anonymize parts of the decision that disclose the claimant's identity. Where this is not done, panels of the Board have declined to admit such information. For example, in one such case Refugee Appeal Division Member Kim Polowek stated that:

The RAD notes that proceedings before the Refugee Protection Division and Refugee Appeal Division must be held in the absence of the public and should not be disclosed without the consent of the persons involved in the proceeding (i.e. the claimant). Given that the Appellant has not provided any confirmation which would indicate that each claimant referred to in these RPD decisions has provided consent for disclosure to the RAD, and the fact that despite the partial redactions, many personal details remain in each of the RPD decisions, the Appellant’s Application [] to submit these RPD decisions to the RAD as new evidence fails.

That reasoning may be persuasive in similar cases. In contrast, where the consent of the claimant has been obtained and/or the decision has been well redacted of personally-identifying information, a panel may decide to admit such decisions.