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. Within this context, RPD Members have to make high-stake decisions on the basis of scarce and uncertain information, they need to strike a balance between the goals of protection and control, and Canadian refugee law is ambiguous and provides limited guidance, with credibility often being a key point in any given case. The process for Refugee Status Determination adopted in Canada that seeks to address these challenges 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.
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.
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.” As the refugee law academic James Hathaway puts it, refugee status arises out of the refugee's predicament, rather than from a formal determination of status. 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, 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. This move away from a constitutive view of asylum to a declaratory one reflects the emergence of a rights-based view of the institution of asylum and refugee status. In Canada, this takes the form of the concrete legal obligation on the Canadian state to recognize as refugees those who meet the criteria in ss. 96 and 97 of the IRPA. Recognition of such is not a discretionary charitable act by Canada, but instead a personal right that individuals have pursuant to the IRPA, and, as recognized by the Inter-American Court of Human Rights, the Refugee Convention. In their words in their decision in Pacheco Tineo v. Bolivia:
Even if the 1951 Convention does not explicitly establish the right to asylum as a right, it is considered to be implicitly incorporated into its text, which mentions the definition of a refugee, the protection against the principle of non-refoulement, and a list of rights to which refugees have access.... With the protection provided by the 1951 Convention and its 1967 Protocol, the institution of asylum assumed a specific form and mechanism at the global level: that of refugee status.
Shauna Labman writes about the significance of this conception of asylum:
The benefit of a rights-based stance in law is that it adds a concrete assertion of legal obligation and accountability to refugee protection. It is equality between the parties. Stuart Scheingold defines this as "the call of the law." He suggests that the assertion of a right implies a legitimate and dignified reciprocal relationship that is societal and not personal. The current alternative calls in refugee protection are for compassion, humanitarianism, and morality. Such claims lack reciprocity and are founded on personal need. As Catherine Dauvergne explains, "a claim for compassion does not effectively function as a right because rights are grounded in equality but compassion is grounded in generosity and inequality."
All this said, the assertion that refugee status determination procedures are declaratory and not constitutive, and its implicit representation of ‘refugeehood’ as an objective identity given by law, appears to be tendentious. It is belied by the large variations in the way different individuals and systems answer the question of "who is a refugee?", even where they are all interpreting the same Convention provisions, evidence, and laws. That said, in the words of Tone Liodden, "the idea of the refugee as a non-negotiable identity across time and space may largely be fictional, but [it] is a ‘crucial fiction’ that has very real consequences for those who are granted – or denied – refugee status." For more on this point, see: 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.
A hearing becomes adversarial where the Minister is involvedEdit
While the Division's mandate is primarily conceived of as inquisitorial and non-adversarial, 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’.” 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.” Despite all of this, the jurisprudence recognizes that the Board may make a decision on the issue of exclusion without the Minister’s participation, 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. 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).
A situation can arise where the Minister concedes a point or makes a recommendation in the claimant's favour; this does not bind the Division and does not relieve a claimant from their obligation to make their case: Fong v Canada. That said, while a joint submission is not binding on the Division, the caselaw establishes that it should be given serious consideration: Nguyen v Canada.
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.
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.
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 Member should be adequately trainedEdit
A decision-maker should be adequately trained on issues of law and fact. While the training of Members of the Refugee Protection Division has generally be well regarded, in contrast, this has not always been seen to be the case with overseas visa officers deciding applications for resettlement from abroad. For example, in Ghirmatsion v. Canada, the Federal Court concluded that the visa officer's "lack of adequate training and support" were evident on cross-examination.
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. 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. 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". 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.
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." 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." Similarly, Member Railton of the Refugee Protection Division has noted that "The role of the Division hearing an application to re-open does not include a fact-finding mission on behalf of the applicants". 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”.
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.
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." States must consider persons exercising their right to asylum honestly and with due diligence so as to not violate their obligation of non-refoulement.
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. 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".
Another way that Canada fulfils this obligation is through claimant-specific research; the Board has committed to using the following process when engaging in such research pre-hearing: Canadian Refugee Procedure/The right to a fair hearing#Disclosure rights and obligations for the Board. When it comes to whether the Board is obliged to do such research, or to reach out to a potential witness during a hearing, there is a split in the Federal Court jurisprudence about whether and in what circumstances the Board has any such obligation. One line of jurisprudence is represented by the Decision of Justice Russell in Paxi v Canada wherein he commented that "for the Board to take issue with the authenticity of the document yet make no further inquiries despite having the appropriate contact information to do so is a reviewable error." This appears to place a higher onus on the Board to inquire into a claim and solicit independent evidence. A contrasting line of jurisprudence is exemplified by the decision of Mr. Justice Roy in Lutonadio v. Canada that endorsed the following statement:
I disagree that an administrative tribunal has an obligation to contact a witness to obtain information. This is not its role. The onus rests with the Applicant to bring forward evidence it intends to rely upon and in doing so, always to put the best foot forward. It is not up to the RPD to chase down evidence from a witness to be satisfied that the document is authentic and that a person exists who has sworn to the truth of its contents before someone authorized to confirm that fact. This onus rests with the Applicant who should provide the necessary information authenticating the author and the document.
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." What are those cases in which an examiner is to go to greater lengths to produce such evidence?
There is widespread 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." The UNHCR stipulates that "procedures should be in place to identify and assist asylum seekers with specific needs."
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.” 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".
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. 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:
[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.
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." 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.
To what extent does a panel of the Division have a duty to inquire into the claim?Edit
- The panel is obliged to test the evidence provided where this is necessary in order to ascertain the truth: Where evidence is provided by a claimant, there is an obligation on the Board to test that evidence. As the Board's legal services department puts it in its paper on Assessment of Credibility in Claims for Refugee Protection, RPD members have a duty to get at the truth concerning the claims they hear. As Justice Nadon stated in Maksudur v. Canada, "In most refugee claims, the prime issue, if not the only issue, is whether the story related by the [claimant] is true. Consequently, Board members have a duty to the [claimant] and to Canada to employ their best endeavours in the pursuit of that goal to discover the truth." Justice Mosley concluded that "a close examination of the merits of the claim is consistent with the nature of the process and the role of the member".
- The panel should confront a claimant and probe where it harbours credibility concerns: When it comes a Member's obligations with respect to the acquisition of information necessary for the fair and expeditious determination of a refugee claim, the court has commented on a Member's duty to enquire by stating that "the RPD has a responsibility to prompt and probe" where it harbours a concern about credibility in certain circumstances:
[I]t was unreasonable for the RAD to draw an adverse inference from the Applicant’s bare“no”in this second brief exchange. This was an issue where considerably more questioning was required in order to assess the true depth of the Applicant’s knowledge. Indeed, the RPD has a responsibility to prompt and probe where it harbours a concern like this and the RAD has a corresponding responsibility to hold the RPD to that interrogatorial standard.
- A panel is not required to tell the applicant that their evidence is insufficient or ask the applicant to provide additional evidence, but it may elicit information where this is necessary to determine whether the claimant is a refugee: While there are a number of policy statements indicating that it may be advisable for Members to solicit additional information in particular cases, the law appears to be adequately captured by the Federal Court's statement in Mbengani v. Canada that a panel is not required to tell the applicant that his evidence is insufficient or ask the applicant to provide him with additional evidence. While that decision involved a PRRA proceeding, the principle would apply with equal force to the RPD. That said, there are policy statements made to the effect that where there is a lack of evidence in a particular case, a Member may have a duty to elicit it. The Member's inquisitorial role means that they have a duty not only to hear whatever evidence comes before them, but, ultimately, according to the academic Hathaway, that they must inform themselves sufficiently to "determine whether or not the [claimant] is a Convention refugee." To this end, in 1990s the IRB developed what was sometimes called the “Specialized Board of Inquiry Model”, in which the CRDD members were proactive in pre-hearing file review, preliminary issue identification, claim screening, scheduling hearings, and the acquisition of information necessary for the fair and expeditious determination of a refugee claim. Indeed, to this day 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."
- The panel has a duty to enquire into matters related to the fairness of the proceedings if there is an indication of a procedural fairness issue: For example, in Gallardo v. Canada the Federal Court commented that the Division should have inquired into the claimant's capacity to represent himself given counsel’s statements that the claimant had not been properly prepared and the claim had been inadequately put together without the assistance of counsel. The Court held that the Division erred in not so inquiring.
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. 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." 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. For an additional discussion of this issue, see: Canadian Refugee Procedure/Documents#The panel should consider the most recent National Documentation Package.
- 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.
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- Maksudur v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 8826 (FC), <https://canlii.ca/t/466k>.
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