Canadian Refugee Procedure/The Board's inquisitorial mandate

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.