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, RPD Members have to make high-stakes 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.[2] 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 mandate edit

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.[3]

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.[4]

The Board states that the decision-maker is mandated to play an engaged role in the process.[5] This inquisitorial mandate has implications for how a Member is to assess the claim; it implies that the Board “has a duty to consider all potential grounds for a refugee claim that arise on the evidence, even when they are not raised by the applicant”.[6] Such inquisitorial processes are commonly utilized in human rights adjudicatory contexts in order to compensate for inequalities between parties.[7]

Refugee Status Determination is declaratory, not constitutive edit

Recognizing someone as a refugee does not make the person a refugee. This is because refugee status determination is a declaratory, not constitutive act.[8] 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.”[9] 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.[10] In the words of the UK Supreme Court, "the obligation not to refoule an individual arises by virtue of the fact that their circumstances meet the definition of ‘refugee’, not by reason of the recognition by a contracting state that the definition is met."[11]

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,[12] 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 principle is reflected in section 107 of the Act: Canadian Refugee Procedure/107 - Decision on Claim for Refugee Protection#IRPA Section 107: Decision on Claim for Refugee Protection. Once the Board has concluded that a claimant does not satisfy the definition of a refugee, the Board had no general discretion to allow the claimant to remain in Canada on “equitable” grounds.[13]


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.[14] 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.[15]

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."[16]

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."[2] 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 involved edit

While the Division's mandate is primarily conceived of as inquisitorial and non-adversarial,[17] in some cases the Minister intervenes in a claim and the process becomes an adversarial one. As the Board states, "adversarial simply means that there are two opposing parties."[18] 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’.”[19] 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.”[20]

Despite all of this, the jurisprudence recognizes that the Board may make a decision on the issue of exclusion without the Minister’s participation,[21] 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, say, the allegation of exclusion.[22] 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/RPD Rules 26-28 - 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.[23] 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.[24] See: Canadian Refugee Procedure/The right to an independent decision-maker#Members are not bound where the Minister concedes a point.

While the Minister has no obligation to become a party to a proceeding, once it does so and provides disclosure, its disclosure must be "complete" and cannot be selective: Canadian Refugee Procedure/RPD Rules 31-43 - Documents#What documents does a party need to provide when?.

A Member should be adequately trained edit

A decision-maker should be adequately trained on issues of law and fact. The Board states that Members should have a thorough knowledge of the legal framework and a good command of the relevant provisions of the legislation, rules, principles of natural justice, and the case law, etc., in order to make the proper decision and to maintain the credibility and the authoritativeness of the panel.[5]

While the training of Members of the Refugee Protection Division has generally been 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.[25]

There are also limits to the training and competency properly expected of a Member. In Ramirez v. Canada, the claimant argued on judicial review that the Board Member should have considered whether counselling in the proposed IFA location would be likely to adequately address the applicant’s mental health issues; the court rejected this argument, concluding that "such an analysis would have been speculative and well beyond the RAD’s expertise."[26] This principle is also reflected in the additional services available to Members, for example the statement in the Instructions for Gathering and Disclosing Information for Refugee Protection Division Proceedings that where, after consulting with the responsible member manager, the assigned member forms the opinion that forensic verification is necessary, they may direct the RPD adjudicative support team to send the document to the RCMP Forensic Laboratory Services for verification.[27]

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

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 a 'person in need of protection' in the Act.[28] 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.[29] 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".[30] 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.[31]

The Federal Court holds that the onus is on the applicant to submit a clear, detailed, and complete application.[32] 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."[30] 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."[33] 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".[34] 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".[35]

In the Canadian system there also 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.[36] As well, if the Board finds that the agent of persecution is the state, then the burden to establish that there is an IFA within that country where the state persecution is not happening or where a claimant would be protected by the state rests on the party asserting it and not on the claimant.[37] If the Board or the Minister is asserting that a claimant has status in a third country, the burden to establish that they have an entitlement to citizenship pursuant to that country's laws rests on the party asserting the proposition, not the claimant.[38]

Furthermore, even where the burden of proof rests on the claimant, the Board cannot base some findings, for example that there is an internal flight alternative, in the absence of sufficient evidence, solely on the basis that the claimant has not fulfilled the onus of proof.[39] See: Canadian Refugee Procedure/The Board's inquisitorial mandate#There is a shared duty of fact-finding in refugee matters.

A panel has a duty to consider all potential grounds for a refugee claim that arise on the evidence edit

Even though the burden of proof rests on a claimant to show that they meet the requirements to be accorded protection, this does not mean that they are obliged to frame their case using the terminology of refugee law or by citing particular cases or statutory provisions. The Board “has a duty to consider all potential grounds for a refugee claim that arise on the evidence, even when they are not raised by the applicant”.[40] Cases should be decided based on all of the law that binds the Board, not just the law that the parties happen to put in front of a panel.[41] This principle is reflected in the UNHCR Handbook, which provides that:

Often the applicant himself may not be aware of the reasons for the persecution feared. It is not, however, his duty to analyze his case to such an extent as to identify the reasons in detail. It is for the examiner, when investigating the facts of the case, to ascertain the reason or reasons for the persecution feared and to decide whether the definition in the 1951 Convention is met with in this respect.[42]

Based on this principle, evidence of political activities in Canada should be considered by the panel whether or not the claimant specifically raises a sur place claim.[43] Similarly, if the evidence suggests a risk of gender-based persecution, the member must assess this risk, even if it is not explicitly alleged.[44] In every case in which the RPD concludes that a claimant has suffered past persecution, but there has been a change of country conditions, the Board is obligated under s. 108(4) to consider whether the evidence presented establishes that there are "compelling reasons" as contemplated by that subsection. This obligation arises whether or not the claimant expressly invokes this subsection: Canadian Refugee Procedure/108 - Cessation of Refugee Protection#The Board must consider "compelling reasons" under s. 108(4) when determining whether an individual qualifies as a refugee.

This can have implications for the Board's duty to inquire into a claim; in Eke v. Canada, the court commented that "as no questions were asked about the potential motives for the attacks, [the RAD] did not have sufficient evidence through the RPD's interrogatories to properly assess the issues on its own."[45]

See: Canadian Refugee Procedure/The Board's inquisitorial mandate#To what extent does a panel of the Division have a duty to inquire into the claim?.

A panel should consider all relevant law edit

Cases should be decided based on all of the law that binds the Board, not just the law that the parties happen to put in front of a panel.[46] The International Court of Justice has held that a panel is not limited to the arguments submitted by the parties and the panel is deemed to take judicial notice of the law and is therefore required to consider on its own initiative all rules which may be relevant.[7] See: Canadian Refugee Procedure/Principles for the interpretation of refugee procedure#Principles about the expectations that one reasonably has of the Board. In the context of refugee proceedings before the Board, panels have an obligation to consider certain issues, such as whether the "compelling reasons" doctrine for granting refugee status despite a change in circumstances applies, whether or not the claimant expressly invokes the relevant subsection of the Act.[47] See: Canadian Refugee Procedure/108 - Cessation of Refugee Protection.

The Member's power to conduct research and find facts edit

As a starting point, the Divisions of the Board are creatures of statute, “and as such, [a Division] has no powers, rights and duties save those bestowed on it by the Act”.[48] The Refugee Protection Division, the Refugee Appeal Division and the Immigration Division and each member of those Divisions have the powers and authority of a commissioner appointed under Part I of the Inquiries Act and may do any other thing they consider necessary to provide a full and proper hearing. See: Canadian Refugee Procedure/165 - Powers of a Member and Canadian Refugee Procedure/170 - Proceedings#IRPA Section 170(a) - May inquire into any matter that it considers relevant to establishing whether a claim is well-founded.

The RPD and RAD may also convene conferences and may require the parties to give any information or provide any document, at or before the conference: Canadian Refugee Procedure/RPD Rule 24 - Conferences.

A panel of the Board may consider judicial notice, specialized knowledge, generally recognized facts, and other sources of knowledge. See: Canadian Refugee Procedure/RPD Rule 22 - Specialized Knowledge.

Panels are also entitled to rely on "common sense". Common sense necessarily involves importing considerations arising not from the evidence itself but from a decision maker's accumulated life experience.[49] That said, common sense is far from a catch-all phrase that licenses any form of reasoning.[50]

When a member determines that it is necessary to consult social media in the adjudication of a proceeding, the Division must channel this type of research through the Board's Research Directorate in accordance with the Procedures for Requesting Research on Individuals Using Social Media Sources.[51]

The Member has wide latitude to question claimants in an inquisitorial process edit

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.[52]

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.[53]

That said, there are limits on appropriate questioning. For example:

Evidence is primarily presented in written form in the Canadian process edit

A hearing is an opportunity for a claimant to complete their evidence and not to introduce new and important facts to their story.[56] The Basis of Claim form is already to include "everything important for [their] claim", as stated on the form - Canadian Refugee Procedure/RPD Rules 3-13 - Information and Documents to be Provided#Requirement that the information provided be complete, true and correct.

Furthermore, the purpose of an oral hearing before the Refugee Protection Division is not for a claimant to repeat everything that is in their Basis of Claim form. 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."[57] 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 Canadian Refugee Procedure/RPD Rule 23 - Allowing a Claim Without a Hearing). The purpose of an oral hearing is to test and explore 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.[58]

It is also not always necessary for a panel to confront a party regarding deficiencies in their evidence. For example, in Ati v. Canada the court concluded that it was proper for the RPD to have concluded that a party did not meet their onus as a result of a lack of evidence, and that it was procedurally fair for the RPD to have done so even where the panel did not ask why such evidence was not presented.[59] For more on this issue, see: Canadian Refugee Procedure/The right to be heard and the right to a fair hearing#Claimants should have a fair opportunity to respond to a panel's concerns.

There is a shared duty of fact-finding in refugee matters edit

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."[60] States must consider persons exercising their right to asylum honestly and with due diligence so as to not violate their obligation of non-refoulement.[61] See also: Canadian Refugee Procedure/Principles for the interpretation of refugee procedure#Canada must perform its international legal obligations with respect to refugees in good faith.

National Documentation Packages edit

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.[62] This information will concern the general situation prevailing in the countries of origin against which applications of asylum are being made. For the authority of the RAD to disclose such information, see: Canadian Refugee Procedure/110-111 - Appeal to Refugee Appeal Division#The RAD must proceed without a hearing on the basis of the record of the proceedings of the RPD, subject to listed exceptions, but this provision does not restrict the RAD from introducing new evidence.

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".[63] When conducting a judicial review of a PRRA decision, the court commented that "It is not for the Officer, who has many applications to adjudicate, to comb through all available National Documentation Package evidence looking for something that might establish risk for the Applicant. Rather, the onus lies with the Applicant to demonstrate to the Officer the basis for the risk claimed, he must include - or at minimum point to - the relevant country condition evidence."[64]

Furthermore, the Board should consider the most recent version of the National Documentation Package available at the time that it makes its decision. See: Canadian Refugee Procedure/RPD Rules 31-43 - Documents#The panel should consider the most recent National Documentation Package.

Claimant-specific research edit

Another way that Canada fulfils this obligation is through claimant-specific research. The RAD provides the following as examples of where it may engage in such research: where the RPD record and information provided by the parties fail to resolve certain issues that are before the RAD and if new issues arise.[65] 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.

For a discussion of whether (and when) a panel may be obliged to engage in such claimant-specific research, see: Canadian Refugee Procedure/The Board's inquisitorial mandate#To what extent does a panel of the Division have a duty to inquire into the claim?.

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

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."[60] 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."[66] The UNHCR stipulates that "procedures should be in place to identify and assist asylum seekers with specific needs."[67]

Minors and those entitled to designated representatives edit

One such category of claimants is those whose ability to appreciate the nature of the proceedings is impaired, either because they are incompetent or a minor. The principal way that such assistance is provided in the Board's process is through the appointment of a designated representative for the person: Canadian Refugee Procedure/RPD Rule 20 - Designated Representatives.

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.”[68] Similarly, in Ravi v. Canada the claim of an Applicant who had severe mental health issues related to schizophrenia, psychosis and potential alcohol dependency was reopened on the basis that it was unfair to assess the Applicant’s credibility, and his case more broadly, when he had significant mental illness issues at the hearing, and lacked a designated representative.[69]

Furthermore, the UNHCR states that determining the claim of a minor "may call for a liberal application of the benefit-of-the-doubt principle".[70]

Claimants in detention edit

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.[71] 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 as a result of their deprivation of liberty:[72]

[W]hen the complainant is in a situation where he/she cannot elaborate on his/her case, for instance, when the complainant ... 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.[73]

For further discussion of this, see: Canadian Refugee Procedure/RPD Rule 30 - Claimant or Protected Person in Custody.

Self-represented claimants edit

See: Canadian Refugee Procedure/RPD Rules 14-16 - Counsel of Record#Where a claimant is unrepresented and is clearly not understanding what is occurring, the Board should inquire about whether they wish to have counsel.

Where a claimant has no possibility of obtaining documentation relating to their allegation edit

Where a claimant has no possibility of obtaining documentation relating to their allegation, fairness may require the Board to assist a claimant to make their case. 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:[72]

[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..., 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.[73]

In Jankovic v. Canada the Federal Court held that the RPD breached procedural fairness by not taking steps to acquire information:

The Applicant seeks the RPD’s assistance to obtain a document that has presumably been submitted to Canadian authorities, who have thus far failed to respond to the Applicant’s ATIP request. The document in question is not in the possession of the Applicant, but instead is in the possession of the Canadian authorities. The Applicant is not in a position to force the Canadian authorities to produce the document to the RPD, only the Minister would be able to do so, should he so choose. Further, the Minister has relied on the Interpol Zagreb letter to seek the Applicant’s exclusion from refugee protection – the same letter whose accuracy is now put into question by the very document that the Applicant requires assistance to obtain. ... Given all these circumstances, and given the importance of the Adjustment Letter to the Applicant’s claim, the RPD’s conclusion that verifying the information contained in the Interpol letter did not fall within its role was not only unreasonable, it was a breach of procedural fairness.[74]

This is akin to the Federal Court's reasoning in Abdallah v. Canada in which the court concluded that it was unfair for the RAD not to have assisted the Applicant to obtain an original document held by the CBSA:

[5]  It is clear from the RAD’s decision that the RAD came to a negative credibility finding with respect to the identity documents evidence. Counsel for the Applicant argues that had the RAD allowed the Applicant to verify the genuineness of the documents through requesting the originals from the CBSA, the outcome might have been different. If the identity documents were proved to be genuine, it could have an impact on the conclusions drawn. I accept this argument. [6]  On the facts of this particular case, I find it was unreasonable for the RAD not to have assisted the Applicant to obtain the original SNC from the CBSA, particularly when the authenticity of the SNC was questioned by only viewing a copy. The Applicant asked for fairness since she was helpless in obtaining the original SNC; fairness was not granted. In my opinion, this action constitutes a breach of the duty of fairness owed to the Applicant.[75]

However, the Federal Court of Appeal notes that it will not always be necessary for a claimant to have the Board's assistance to obtain a document from CBSA; in Singh v. Canada, the court noted that the appellant "could have obtained a copy [of a document - his diploma] from the CBSA and submitted it himself as evidence to the RPD."[76]

To what extent does a panel of the Division have a duty to inquire into the claim? edit

Ordinarily, the onus to establish their claim rests upon the applicant. It will suffice for a panel to identify the issues and ask open-ended questions about the main points for a claimant to have had a fair opportunity to present their case. For example, in Singh v. Canada, the court stated: "It is clear, later in the hearing, that the female Applicant was asked open-ended questions as to whether there were any reasons why she would not wish to move to any of the IFAs and had the option to address the impacts of her rape had she wished to. The RAD, therefore, did not err".[77] See: Canadian Refugee Procedure/The Board's inquisitorial mandate#A claimant has an onus to show that they meet the criteria to be recognized as a refugee. However, in some cases a panel has a duty to inquire into a claim.

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

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.[78]

Procedural fairness dictates that the parties should have an opportunity to present submissions and evidence on the new documents if they include material new information. As such, disclosure of an updated NDP is not required in all cases, only where they include material new information.[78] This principle is reflected in the IRB Policy on National Documentation Packages in Refugee Determination Proceedings, which provides that the RAD will disclose to the parties new NDP documents only when they wish to rely upon them.[79] As such, while the Federal Court holds that procedural fairness obligations can be met simply by "[disclosing] the most recent NDP and [giving] the Applicants an opportunity to respond and make submissions",[80] the IRB's policy quoted above appears to specify that the RAD will instead only provide specific documents that it wishes to rely on.

That said, the Board 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.[63] For example, it is not the role of the RAD to address concerns relating to the reasonableness of an IFA when such concerns are not raised by applicants.[81] See: Canadian Refugee Procedure/The right to be heard and the right to a fair hearing#The Board must not ignore evidence that is validly before a panel.

For an additional discussion of this issue, see:

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 edit

Refugee determination as a process of inquiry requires that Members ensure that they are adequately informed in order to determine whether the claimant is a Convention refugee.[5] 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 their evidence is insufficient or ask the applicant to provide additional evidence.[82] 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."[83] 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.[84] 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."[85]

The panel should confront a claimant and probe where it harbours credibility concerns edit

When it comes to 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.[86]

The purpose of a hearing is in part for the panel to complete the record to a sufficient degree for the panel to conduct its assessment. If a panel is to make a negative credibility determination, it needs to sufficiently inform itself of the facts in order to make that determination. RAD Member Ayanna Roberts commented that an intersectional analysis should consider the society in which the person is operating and any barriers that the person may encounter, but that in the case before her, the RPD had failed to consider relevant factors in its analysis when it drew a negative credibility inference, specifically noting that the personal beliefs and openness to sexual diversity of the families that the appellant had been living with were not canvassed during the hearing.[87]

The panel is obliged to test the evidence where this is necessary in order to ascertain the truth edit

Where evidence is provided by a claimant, there may be an obligation on the Board to test that evidence. Members are responsible for making the inquiries necessary, including questioning the claimant, to determine the validity of the claim.[88] 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.[89] The law “imposes a duty upon RPD members to assess the credibility of refugee claimants.”[90] 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."[91] Justice Mosley writes that "a close examination of the merits of the claim is consistent with the nature of the process and the role[] of the member".[92] The Board states that there is a duty to ascertain the truth, and relevant questions should not be left in the air through the failure of counsel to ask those questions.[5] This is consistent with the role of the Refugee Protection Division, as envisaged in the report from Rabbi Plaut that led to the IRB's founding, with that report stating: "a determination that a claimant is a refugee requires an assessment of credibility, for the [Division] must satisfy itself that the facts as asserted by the claimant are true."[93] Plaut goes on to note about refugee status determination that "the whole exercise falters and justice is thwarted if the truth is not elicited".[94]

A panel may have a duty to contact a witness to obtain information where it has credibility concerns edit

When it comes to whether the Board is obliged to conduct claimant-specific 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."[95] 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.[96]

Both lines of jurisprudence continue to be followed. For example, in the 2022 decision Zhang v Canada, the court commented about immigration officers that "there does appear to be an expectation that an Officer will take it upon themselves to simply use the contact information provided to verify the authenticity of the evidence that is provided", citing Paxi v Canada in support of this proposition.[97] Relatedly, the 2022 decision Jankovic v. Canada held that fairness will "sometimes require the RPD to take a small, not-too-onerous, step of making further inquiry into the information relevant to a claim."[98]

There are limits to the Board's onus to inquire into matters. In Ramirez v. Canada, the claimant argued on judicial review that the Board Member should have considered whether counselling in the proposed IFA location would be likely to adequately address the applicant’s mental health issues. The court rejected this argument, concluding that "such an analysis would have been speculative and well beyond the RAD’s expertise."[26]

A panel has a duty to enquire into matters where the onus for adducing evidence falls onto the Board edit

By way of example, on matters of exclusion, where the Minister does not intervene in a claim, the onus is on the Board to establish that an individual is excluded (or determine that they are not). Where the record indicates that this is a possible concern, the RPD should conduct a sufficiently thorough questioning to adequately assess whether an individual is excluded under the Refugee Convention. The failure to conduct such an examination, for example where the RPD does not inquire into the matter and simply relies on the absence of sufficient evidence on the record to determine that exclusion has not been established, is an error.[99]

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 edit

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.[100] The Court held that the Division erred in not so inquiring. In Gorgulu v. Canada, the Federal Court concluded that a decision maker should have alerted an applicant to what appeared to be an oversight in their submissions, stating that the "reasons fail to demonstrate that they considered the consequences of not providing the applicant with an opportunity to rectify what may very well have been an oversight concerning important information in support of his PRRA application".[101] The Board should also verify that representatives appearing before the Board are authorized to do so: Canadian Refugee Procedure/Counsel of Record#The Board should verify that representatives appearing before the Board are authorized pursuant to the Act and regulations.

The Refugee Appeal Division must independently assess claims edit

The RAD is obliged to conduct an independent review of the case, focusing on the errors identified by the appellant.[102] This has implications for the role of the RAD; the RAD cannot be expected to examine every piece of evidence and try to draw out arguments that could support an asylum claim.[103] Simply because the RAD expresses agreement with the RPD’s reasoning does not mean it failed to undertake its own assessment or analysis.[104] For more detail, see: Canadian Refugee Procedure/RAD Rules Part 1 - Rules Applicable to Appeals Made by a Person Who Is the Subject of an Appeal#Rule 3(3)(g)(i): The appellant's record must contain a memorandum with submissions regarding the errors that are the grounds of the appeal.

That said, the Board Member must engage with evidence that, on its face, appears to contradict their key findings about the case.[105] See: Canadian Refugee Procedure/The right to be heard and the right to a fair hearing#Reasons should be sufficiently clear and provide a rational chain of reasoning.

References edit

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  102. Fatime v Canada (Citizenship and Immigration), 2020 FC 594 at para 19.
  103. Chakroun c. Canada (Citoyenneté et Immigration), 2023 CF 1170 (CanLII), au para 18, <https://canlii.ca/t/jzxbz#par18>, consulté le 2023-09-29.
  104. Singh v Canada (Citizenship and Immigration), 2023 FC 332 at para 27.
  105. Cepeda-Gutierrez v Canada (Minister of Citizenship and Immigration), 157 FTR 35, [1998] FCJ No 1425 (FC).