Canadian Refugee Procedure/Specialized Knowledge

IRPA Section 170(i)Edit

This section of the Act provides that:

170(i) The Refugee Protection Division, in any proceeding before it,...may take notice of any facts that may be judicially noticed, any other generally recognized facts and any information or opinion that is within its specialized knowledge.

The IRPA provisions for noticing facts are different for refugee proceedings when compared to immigration proceedingsEdit

Section 170(i) of the Act is the provision that applies to the RPD. There is a similar provision for the RAD, s. 171(b).[1] That said, the IRPA does not have similar provisions for the Immigration Division or the Immigration Appeal Division, as Waldman notes in the text Canadian Immigration and Refugee Law Practice:

Both the Immigration Division and the Immigration Appeal Division of the Immigration and Refugee Board may base their decision only on evidence proven before them during the course of the hearing. These two Divisions of the Immigration and Refugee Board have no power to take notice of facts that form part of their expertise, and they err if they attempt to take notice of facts not before them. This contrasts with the procedure at a hearing held before the Refugee Protection Division of the Immigration and Refugee Board, where, pursuant to s. 170 of IRPA, the Division may take notice of any facts that may be judicially noted, and any other generally recognized facts, information or opinions that are within its specialized knowledge.[2]

What is the difference between a fact that may be judicially noticed, a generally recognized fact, and information or opinion that is specialized knowledge?Edit

  • Judicial notice: Judicial notice concerns facts that are considered to be "common knowledge"[3] or are "generally known, reasonably unquestionable, or easily verifiable."[4] The definition provided by Waldman in Canadian Immigration and Refugee Law Practice is that "judicial notice refers to facts that may be noticed by the court without proof thereof, that are either so notorious as not to be the subject of dispute among reasonable people, or facts that are capable of immediate and accurate demonstration by resorting to readily accessible sources of indisputable accuracy."[5] The book goes on to explain that "notorious facts include local conditions and matters, geographical facts, human behaviour and business trade and practices. For example, the fact that Toronto is situated in Ontario or that the rain makes roads slippery would not have to be proven to the court. In simpler terms, the court may and should notice without proof facts that everybody knows."[5] An example more germane to the context of refugee adjudication is that the fact that university education is conducted in the language of the country in which it is located has been cited as an appropriate matter for judicial notice.[6]
  • Generally recognized facts: The category of "generally recognized facts" is a broader one than the category of facts that may be judicially noticed. As the Board states in its legal paper on Weighing Evidence, the term "generally recognized facts" could include facts which are usually accepted without question by scholars, by government and United Nations officials, and by people who resided in an area, but which are not necessarily commonly known by the general public.[7] It includes information that may be gleaned from an encyclopedia[8] and information in the Board's National Documentation Package.[9] It cannot be said that all information in the NDP is of "indisputable accuracy", and hence appropriate for judicial notice, but information in the NDP from reputable sources such as well-regarded human rights groups and academics is nonethless appropriately accepted by the Board as being "generally recognized".
  • Specialized knowledge: In contrast, specialized knowledge is information that a panel has gleaned from other claims in the manner detailed below, even if it would not be generally recognized. See: Canadian Refugee Procedure/Specialized Knowledge#What is "specialized knowledge"?.

Generally recognized facts are not a type of specialized knowledgeEdit

A question can arise about the above typology: per s. 170(i) of the Act, are "generally recognized facts" a category of specialized knowledge or an independent type of fact that the Board may notice? In his text, Waldman notes that:

Section 170(i) also refers to “any other generally recognized facts and any information or opinion that is within [the Division’s] specialized knowledge”. This would give the Division a broad discretion to rely on its knowledge gained from other claims once proper notice had been provided.[10]

This should not be taken as implying that "generally recognized facts" are a subset or type of specialized knowledge. Instead, they are best thought of as an independent type of fact that the Division can recognize, akin to facts that may be judicially noticed. This interpretation of s. 170(i) of the Act is to be preferred for several reasons:

  1. The RPD Rule on specialized knowledge makes no mention of generally recognized facts. Rule 22 only speaks of "information or opinion that is within its specialized knowledge" and omits any mention of "generally recognized facts", which implies that the later are not a type of specialized knowledge and thereby subject to the rules thereon.
  2. The courts readily distinguish between "generally recognized facts" and "specialized knowledge". For example, in Aguirre v. Canada, the court's comments indicate that generally recognized facts are distinct from the category of specialized knowledge: "Applicant's counsel says the information given by Mr. Burke was not specialized knowledge within the meaning of subsection 68(4) and I am inclined to agree with her. However, I would think that for purposes of the subsection, Mr. Burke must have thought it was at least a generally recognized fact that it is common to see big cars in Mexico."[11] Ditto the court's comment in Magonza v. Canada, which affirms the distinction between generally recognized facts and specialized knowledge: "the NDP is better viewed as containing generally recognized facts or specialized knowledge."[9] Similarly, when the Federal Court of Appeal considered this provision of the Act, they punctuated it with a comma after "generally recognized facts" as follows, implying that there are three separate categories: "facts which may be judicially noticed, generally recognized facts, and information or opinion that is within the board's specialized knowledge".[12]
  3. The type of knowledge that has been regarded as a "generally recognized fact" does not meet the criteria to be considered specialized knowledge. The type of knowledge that is considered to be a "generally recognized fact" is something that, for instance, the Board gleaned from an encyclopedia (in Hussain v. Canada), which is distinct from "specialized knowledge" that a panel has learned by virtue of their role as a Member of the Board hearing claims.[8]

When must a panel provide notice of "generally recognized facts" before relying upon them?Edit

The previous Immigration Act applied the special notice provisions now enshrined in Rule 22 to generally recognized facts. The relevant provisions of that Act read:

68(4) The Refugee Division may, in any proceedings before it, take notice of any facts that may be judicially noticed and, subject to subsection (5), of any other generally recognized facts and any information or opinion that is within its specialized knowledge. (5) Before the Refugee Division takes notice of any facts, information or opinion, other than facts that may be judicially noticed, in any proceedings, the Division shall notify the Minister, if present at the proceedings, and the person who is the subject of the proceedings of its intention and afford them a reasonable opportunity to make representations with respect thereto.

As such, it was clear from the construction of the then-section 68(4) of the Act that the Board had to provide notice of generally recognized facts that did not meet the test for being judicially noticed, prior to relying upon them. This provision changed with the advent of the IRPA and now the ordinarily procedural fairness concepts regarding notice will apply. Official notice of facts cannot be a basis for fact-finding without disclosure to the parties of the information which the decision-maker intends to rely, allowing them an opportunity to respond.[13] In short, there remains a duty of disclosure where the information to be relied upon is potentially contestable.[14]

Rule 22Edit

The text of the relevant rule reads:

Specialized Knowledge

Notice to parties

22 Before using any information or opinion that is within its specialized knowledge, the Division must notify the claimant or protected person and, if the Minister is present at the hearing, the Minister, and give them an opportunity to
(a) make representations on the reliability and use of the information or opinion; and
(b) provide evidence in support of their representations.

Comparison to previous version of the RulesEdit

The predecessor to Rule 22 in the previous version of the Rules was Rule 18,[15] which bore a very similar wording to the current Rule 22:[16]

18. Before using any information or opinion that is within its specialized knowledge, the Division must notify the claimant or protected person, and the Minister if the Minister is present at the hearing, and give them a chance to
(a) make representations on the reliability and use of the information or opinion; and
(b) give evidence in support of their representations.

What is "specialized knowledge"?Edit

Essentially, specialized knowledge is information that a panel has gleaned from its role as a Member of the Board. As RAD Member Patricia O’Connor stated, "The very basis of specialized knowledge involves information which would not necessarily be known to the parties in a particular claim, especially when the knowledge is based on information stemming from other cases before [a panel]."[17] There are any number of examples of what constitutes specialized knowledge, e.g.:

  • In I.P.P. v. Canada the court accepted the following as being examples of specialized knowledge: the statement that Mexican media gives a great deal of coverage to gangs and their activities and the observation that claimants are often able to present medical reports for treatment obtained in Mexico.[18]
  • In Habiboglu v. Canada, the court accepted that the Board had specialized knowledge of the procedures employed by the Canadian Border Security Service to analyse Iraqi documents.[19]
  • In Tariq v. Canada, the court accepted that Board findings about the clothing worn by women in Karachi were an example of the panel relying on specialized knowledge.[20]

However, not just any knowledge that a Member has gleaned from other claims may properly count as specialized knowledge:

  • The knowledge must be quantifiable and verifiable: Specialized knowledge, to count as such, must be "quantifiable and verifiable". Unverifiable personal knowledge does not qualify as specialized knowledge.[21] The court considered this issue in Cortes v. Canada, where the panel had noted that there have been "refugee protection claimants who have filed complaints with the Mexican authorities without necessarily being injured or on their deathbed." The court commented as follows: "In my opinion, the 'specialized knowledge' relied on in this case was mischaracterized. Here, the decision maker drew on the specialized and general knowledge it had acquired over the years to point out to the applicant that this was the first time it had heard such an argument and that its professional knowledge and experience in cases from Mexico demonstrated the contrary. The 'knowledge' relied on in this case was neither quantifiable nor verifiable, which meant that Rule 18 did not apply."[22] Similarly, the Federal Court of Appeal stated that "it is not only normal but inevitable that in performing their role, panel members will be influenced by the experience they may have acquired in the exercise of their duties. On the other hand, as long as the members rely only on their experience and not on specific information, [the specialized knowledge provisions do] not apply."[23]
  • The knowledge cannot be based on stereotypes: As the court stated in Vodics v. Canada, "the use of specialized knowledge in the decision-making process, which is, in fact, the use of acquired personal knowledge on the part of the decision-maker, is acceptable, but with a very important limit when it comes to the use of stereotypes."[24] The court in that case goes on to note that a "stereotype" is a preconceived, standardized, and oversimplified impression of the characteristics which typify a person or situation. The danger in applying a stereotype is that the person who is the exception to the oversimplified impression is not protected from the erroneous application of the impression. The court concludes that a number of the panel's findings in that case were made in error because the specialized knowledge was incomplete and based on stereotypes, for example:

    The CRDD makes the finding that the Applicant's mother's maiden name is not typically Romany, and draws on its specialized knowledge to do so. Therefore, this finding is significant in that it can be taken to be some evidence used to rebut the Applicant's sworn evidence that he is a Roma. However, in my opinion, before the finding can be considered evidence to be used in this way, the CRDD must be satisfied that its specialized knowledge is complete. The CRDD admits that it has specialized knowledge of "some specific Roma names", and, accordingly, I find it is reasonable to conclude that it does not have specific knowledge of all Romany names, if such a task is even possible to reach. The CRDD's statement that the Applicant's mother's maiden name is not typically Romany, is not relevant to the determination of the Applicant's ethnicity. It is conjecture used as evidence. As such, the CRDD should not have used it in forming its negative credibility finding.[25]

The Member must provide sufficient information so that the specialized knowledge can be tested by the partiesEdit

Rule 22 provides that before using any information or opinion that is within its specialized knowledge, the Division must notify the parties and give them a chance to make representations and give evidence in response. This is a requirement of the rules, and procedural fairness, and the courts have held that the effect of Rule 22 is to "codify the common law which requires that parties be notified where information not already on the record may be relied on."[26] Rule 22 provides that the Division must notify the parties (technically the Minister need only be notified if they are present at the hearing, not if they are only intervening in writing) and give them an opportunity to make representations on the reliability and use of the information or opinion. Mr. Justice Campbell commented on what a panel must do so that a party may be said to have had a meaningful opportunity to make representations on the reliability and use of the knowledge in Isakova v Canada: "in order for [the Rule] to be effective, the RPD member who declares specialized knowledge must place on the record sufficient detail of the knowledge so as to allow it to be tested. That is, the knowledge must be quantifiable and verifiable."[27] The legal requirement that specialized knowledge be "quantifiable and verifiable" is thus an aspect of procedural fairness in that the purpose of the notice requirement enshrined in Rule 22 is that a party be able to make meaningful representations on the reliability and use of the information or opinion and this right would be rendered meaningless if the information offered were insufficiently specific for a party to be able to do so.

Does the Member need to specifically use the words "specialized knowledge" or refer to this rule by number prior to relying on specialized knowledge?Edit

Arguably not, as the purpose of the Rule is satisfied where a claimant has notice of the specialized knowledge being relied up, and an adequate opportunity to reply, regardless of whether or not the particular words "specialized knowledge" are uttered by the panel member. The principle enshrined in Rule 22 is that prior to relying on any specialized knowledge, a panel of the Board must "advise the claimant of the actual information it will be relying on and give the claimant an opportunity to challenge the evidence."[5]

Member Jolyane Lefebvre of the Refugee Appeal Division considered this issue in a 2019 decision. It involved a case where the RPD found that the answers provided by the male appellant concerning why the appellants had failed to seek asylum in Chile or the United States diminished and undermined their credibility. The RPD was of the opinion that it was reasonable to expect that the appellants would have obtained information on these options, considering their statements that they feared returning to their country. The principal appellant testified that he did not have the right to apply for asylum in the United States because of his “parole” status. The Member stated during the hearing that “that there are several types of parole.” The RAD Member held in the reasons that "I am of the opinion that the member misspoke and should have told the appellants that his specialized knowledge led him to determine that there are several types of 'parole.' As Rule 22 of the Refugee Protection Division Rules sets out, the member must notify the parties and give them an opportunity to make representations or provide evidence in support of their representations at the time of the hearing. I would agree that this was not done because the member failed to specifically mention that he had specialized knowledge in this area."[28]

Does specialized knowledge only arise from a Member's personal hearings or is what a Member learns of their colleague's hearings also properly considered specialized knowledge?Edit

Specialized knowledge is information that a panel has gleaned in its role as a Member of the Board. It need not arise from hearings that the Member in question presided over personally. Thus, for example, the Federal Court has held that the Board may take notice of an expert opinion in a "lead case" and consider it in a subsequent case, as an exercise of its authority to take notice of information and opinions within its specialized knowledge, provided it gives proper notice.[29] Relatedly, the RPD may where a Member has knowledge of similar claims, details of such knowledge are part of their specialized knowledge, and that knowledge may be placed on the record provided that the notice requirements set out in the Refugee Protection Division Rules are followed.[30] Additionally, specialized knowledge need not arise from a hearing at all: the Board states in the legal services paper on its website that "specialized knowledge" may arise from a panel's knowledge of documents in the Board's Documentation Centre, for example.[7]

ReferencesEdit

  1. Immigration and Refugee Protection Act, SC 2001, c 27, s 171 <http://canlii.ca/t/53z6t#sec171> retrieved on 2020-04-01.
  2. 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 218 of the PDF.
  3. El-Bahisi v Canada (Minister of Employment and Immigration), [1994] FCJ No 2 at para 6 (TD).
  4. Cheng v Canada (Minister of Employment and Immigration), [1993] FCJ No 1036 at para 6 (TD) as cited in Martin David Jones and Sasha Baglay. Refugee Law (Second Edition). Irwin Law, 2017, page 305.
  5. a b c 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 1759 of the PDF.
  6. Hassan v Canada (Minister of Citizenship and Immigration), [1996] FCJ No 250 at para 3 (TD), as cited in Martin David Jones and Sasha Baglay. Refugee Law (Second Edition). Irwin Law, 2017, page 305.
  7. a b Immigration and Refugee Board of Canada, Weighing Evidence - Chapter 6: Application to Specific Situations, Date of Paper: December 31, 2003 <https://irb-cisr.gc.ca/en/legal-policy/legal-concepts/Pages/EvidPreu06.aspx#614> (Accessed April 2, 2020).
  8. a b Hussain v. Canada (Minister of Citizenship and Immigration), 2000 CanLII 15956 (FC), par. 22, <http://canlii.ca/t/43fw#par22>, retrieved on 2020-04-01.
  9. a b Magonza v. Canada (Citizenship and Immigration), 2019 FC 14 (CanLII), par. 81, <http://canlii.ca/t/hwz13#par81>, retrieved on 2020-04-01.
  10. 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 1760 of the PDF.
  11. Aguirre v. Canada (Minister of Citizenship and Immigration), 1998 CanLII 7791 (FC), par. 7, <http://canlii.ca/t/4bws#par7>, retrieved on 2020-04-01.
  12. Lawal v. Canada (Minister of Employment and Immigration) (C.A.), 1991 CanLII 8193 (FCA), [1991] 2 FC 404, par. 15, <http://canlii.ca/t/gcxxd#par15>, retrieved on 2020-04-01.
  13. Donald JM Brown & John M Evans, Judicial Review of Administrative Action in Canada (Toronto: Canvasback, 2011) (loose-leaf) at para 10.8320 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 194.
  14. Galindo, [1981] 2 FC 781.
  15. Toma v. Canada (Citizenship and Immigration), 2014 FC 121 (CanLII), par. 29, <http://canlii.ca/t/g2xfx#par29>, retrieved on 2020-04-01.
  16. Hernandez Cortes v. Canada (Citizenship and Immigration), 2009 FC 583 (CanLII), par. 34, <http://canlii.ca/t/29nmk#par34>, retrieved on 2020-04-01.
  17. X (Re), 2018 CanLII 140810 (CA IRB), par. 29, <http://canlii.ca/t/j040z#par29>, retrieved on 2020-04-01.
  18. I.P.P. v. Canada (Citizenship and Immigration), 2018 FC 123 (CanLII), par. 189, <http://canlii.ca/t/hrjrg#par189>, retrieved on 2020-04-01.
  19. Habiboglu v. Canada (Minister of Citizenship and Immigration), 2005 FC 1664 (CanLII), para. 11.
  20. Tariq v. Canada (Minister of Citizenship and Immigration), 2005 FC 404 (CanLII), par. 24, <http://canlii.ca/t/1k0v0#par24>, retrieved on 2020-04-01.
  21. Mama v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1515.
  22. Hernandez Cortes v. Canada (Citizenship and Immigration), 2009 FC 583 (CanLII), par. 36, <http://canlii.ca/t/29nmk#par36>, retrieved on 2020-04-01.
  23. Djeziri v. Canada (Minister of Citizenship and Immigration), 1998 CanLII 7965 (FC), par. 5, <http://canlii.ca/t/4bm4#par5>, retrieved on 2020-04-01.
  24. Vodics v. Canada (Minister of Citizenship and Immigration), 2005 FC 783 (CanLII), par. 15, <http://canlii.ca/t/1kx4w#par15>, retrieved on 2020-04-01.
  25. Vodics v. Canada (Minister of Citizenship and Immigration), 2005 FC 783 (CanLII), par. 39, <http://canlii.ca/t/1kx4w#par39>, retrieved on 2020-04-01.
  26. Razburgaj v. Canada (Citizenship and Immigration), 2014 FC 151 (CanLII), par. 18, <http://canlii.ca/t/g34tl#par18>, retrieved on 2020-04-01.
  27. Isakova v. Canada (Minister of Citizenship and Immigration)
  28. X (Re), 2019 CanLII 116770 (CA IRB), par. 30, <http://canlii.ca/t/j3v79#par30>, retrieved on 2020-04-01.
  29. Horvath, Ferenc v. M.C.I. (F.C.T.D., no. MM-2203-00), Blanchard, June 4, 2001.
  30. Thillaiyampalam, Sangarasivam v. M.C.I. (F.C.T.D., no. IMM-429-94), Gibson, November 24, 1994. See also Cadet, Marie v. M.E.I. (F.C.T.D., no. A-939-92), Dub, October 18, 1993; and Comes, Norman v. M.C.I. (F.C.T.D., no. IMM-3575-98) Rouleau, May 28, 1999.