Canadian Refugee Procedure/The right to be heard and the right to a fair hearing

The Supreme Court of Canada states that the principle that the individual or individuals affected by a decision should have the opportunity to present their case fully and fairly underlies the duty of procedural fairness and is rooted in the right to be heard.[1] In short, parties are entitled to an oral hearing and such hearings must be conducted fairly. The fair hearing requirement means that the people affected are given a reasonable opportunity to present their point of view and to respond to facts presented by others, and that the decision-maker will genuinely consider what each person has told them when making the decision. There is also notice requirement which means that the people affected by a decision must be told about the important issues and be given enough information to be able to participate meaningfully in the decision-making process.[2] In considering whether a hearing was fair, the question is whether each party was able to fully and fairly present their case.[3] The following are some of the considerations that emerge in this respect.

The Board must provide the parties with the opportunity to be heardEdit

Parties are entitled to the opportunity to attend an oral hearingEdit

Section 170(e) of the Act states that the Refugee Protection Division, in any proceeding before it, must give the person and the Minister a reasonable opportunity to present evidence, question witnesses and make representations. This provision relates to the right that parties have to be heard. The Supreme Court of Canada has held that fundamental justice requires an oral hearing when issues of credibility are being determined in the refugee context.[4] This hearing process must ensure that parties have an opportunity to present and respond to evidence and to make representations. This is consistent with guidance from the UNHCR that "applicants undergoing individual RSD procedures must have the opportunity to present their claims in person".[5]

Where, for example, the Board prevents a party from speaking on multiple occasions during a hearing,[6] denies a party a reasonable opportunity to cross-examine a witness,[7] refuses to receive evidence,[8] or prevents a party from calling witnesses,[9] this may amount to a denial of the right to be heard and to a breach of natural justice. However, regard must be had to the relevant rules on, say, calling witnesses and submitting documents and the discretion that the Board has in certain circumstances to refuse such evidence. For more detail on fairness considerations related to the manner of conducting the hearing, see: Canadian Refugee Procedure/The right to be heard and the right to a fair hearing#Fairness considerations related to the manner of conducting the hearing.

Furthermore, it must be recognized that the principles of procedural fairness do not provide an untrammeled right to be heard, but the right to a reasonable opportunity to be heard. Where a party does not take advantage of that opportunity, or their actions or omissions result in them being unable to do so, procedural fairness does not automatically give them the right to another opportunity to be heard.[10]

A party is entitled to a hearing without unreasonable delay that causes serious prejudiceEdit

The UNHCR core standards for due process in Refugee Status Determination prescribe that "RSD applications must be processed in the most timely and efficient manner possible".[11] The uncertainty inherent in the asylum process is reported to be a source of significant stress and anxiety for many claimants.[12] Fundamental justice may be violated when there is an unreasonable delay that causes serious prejudice to the person concerned.[13] That said, asylum systems around the world are plagued by significant delays; for example, in the United States, on average, affirmative asylum seekers who receive asylum relief waited more than 1,000 days to be granted asylum.[14]

The Board must notify the Minister where the Board's rules require it and this protects the Minister's right to be heardEdit

Rule 26(1) of the RPD Rules stipulate that "If the Division believes, before a hearing begins, that there is a possibility that section E or F of Article 1 of the Refugee Convention applies to the claim, the Division must without delay notify the Minister in writing and provide any relevant information to the Minister." Similarly, Rule 27(1) stipulates that "If the Division believes, before a hearing begins, that there is a possibility that issues relating to the integrity of the Canadian refugee protection system may arise from the claim ... the Division must without delay notify the Minister in writing and provide any relevant information to the Minister." The failure on the part of the RPD to inform the Minister results in an unfair hearing as the Minister has a right to be involved and as a result of the Minister’s involvement the outcome of the claim could have been different if an exclusion issue is fully canvassed.[15] See Canadian Refugee Procedure/Exclusion, Integrity Issues, Inadmissibility and Ineligibility for a more fulsome discussion of this issue.

Language of proceedingsEdit

A claimant has a right to proceedings in the official language of Canada of their choiceEdit

The IRB Policy Statement on Official Languages and the Principle of the Substantive Equality of English and French provides that the language rights of parties are substantive rights that are distinct from their right to procedural fairness. Both the Official Languages Act and the Canadian Charter of Rights and Freedoms establish official languages rights for parties as well as for individuals who are otherwise involved in IRB proceedings, such as witnesses and Counsel. Consequently, any issue or request concerning the use of either official language will be examined by the IRB independently of considerations of procedural fairness, although the language skills of the parties may nonetheless be considered when examining procedural fairness issues.[16] For more details about this right see: Canadian Refugee Procedure/Documents#Claimants need not provide documents in the language of the proceeding, only in English or French.

A claimant has a right to interpretation where it is necessaryEdit

The right to an interpreter in a proceeding in another language is enshrined in section 14 of the Canadian Charter of Rights and Freedoms, and this right has been held to be generally applicable to a proceeding before the RPD. Interpretation should be continuous, precise, impartial, competent and contemporaneous. For a discussion of this, see the commentary to RPD Rule 19: Canadian Refugee Procedure/Interpreters#Legal standard for interpretation. A failure to provide an interpreter at all, or to provide one that offers adequate interpretation, will mean that the process was not fair: Kovacs v. Canada.[17]

Providing information about the status determination process in a range of languagesEdit

Academics have observed that it is a best practice that state authorities widely disseminate information on eligibility criteria, the determination procedure, and the rights associated with recognition in a range of languages.[18] While this may be a best practice for states, to the knowledge of this author, it does not translate into a legal entitlement for claimants under Canadian law. For more details, see: Canadian Refugee Procedure/Counsel of Record#The fact that a claimant lacks counsel does not, in and of itself, mean that their hearing is unfair.

Fairness considerations related to providing complete disclosure of informationEdit

Disclosure rights and obligations for the ClaimantEdit

The RPD is mandated by the common law and the IRPA to respect principles of natural justice and procedural fairness. The right to be heard is a fundamental principle of natural justice. An essential component of the right to be heard is to be able to put relevant evidence before the decision-maker.[19] For more details on this, see: Canadian Refugee Procedure/The right to a hearing and the right to be heard#The Board must provide the parties with the opportunity to be heard.

The information that a claimant provides in their Basis of Claim form must be complete: Canadian Refugee Procedure/Information and Documents to be Provided#Rule 6 - Basis of Claim Form. The documents that parties are obliged to provide to the Board are specified in rules 7 and 34: Canadian Refugee Procedure/Documents#What documents does a party need to provide when?.

Disclosure rights and obligations for the MinisterEdit

While the Minister has no obligation to become a party to a proceeding, once it does so its disclosure must be "complete" and cannot be selective. The documents that parties are obliged to provide to the Board are specified in rules 7 and 34: Canadian Refugee Procedure/Documents#What documents does a party need to provide when?.

Disclosure rights and obligations for the BoardEdit

Fundamental justice will require the the Board provide complete disclosure so as to allow parties to know and meet the case against themselves. In this way, the Board must provide disclosure of documents that it relies upon and provide parties with an opportunity to reply.[20] See Rule 33: Canadian Refugee Procedure/Documents#Rule 33 - Disclosure and use of documents by the Division. The UNHCR affirms that a fair asylum system is one where parties will have access to the complete record that is before the decision-maker.[21]

Furthermore, in any research it conducts, the RPD is to follow the Instructions for Gathering and Disclosing Information for Refugee Protection Division Proceedings.[22] The Instructions note that while RPD members are responsible for identifying information needed for the adjudication of a claim and may gather information, the Research Directorate is primarily responsible for gathering information. The Instructions set out general principles related to the gathering and disclosing of information, as well as specific instructions.[23] These principles apply to how to Board has committed to collecting information regarding a claim, including that:

  1. Responsibility to present supporting evidence rests with the parties. This responsibility remains even when the RPD decides to obtain information other than that provided by the parties.
  2. To ensure a fair determination of a refugee claim, the assigned member requires all the relevant evidence whether such evidence may be favourable or prejudicial to any party.
  3. The RPD will gather information through a transparent and standard process to ensure fairness in decision-making.
  4. The assigned members will request claimant specific information and use such information only where they complete a risk assessment and are satisfied that there is no serious possibility that gathering the information would endanger the life, liberty or security of the claimant or any other person.
  5. ...
  6. The information will be sought by the RPD only in instances where the information is deemed relevant to a determinative issue in the claim, can be obtained in a timely manner, and is likely to result in obtaining new or conclusive information. ...[22]

That said, not every situation where a decision-maker does their own research and fails to disclose it will be considered a breach of procedural fairness. In Dubow-Noor v. Canada, the court held that information obtained independently by the Board (a Google Maps search) was not extrinsic evidence because it was publicly available and not novel.[24]

Fairness considerations related to providing notice of what is at issue in a hearingEdit

Claimants have an expectation that a claim will only be rejected on the basis of a legal issue that a panel has identified as being at issueEdit

To ensure that proceedings are accessible and comprehensible it is expected that a panel will identify the issues that are at stake in a claim and if the panel does not identify a particular issue as being at issue, the panel would err if it subsequently rejected the claim on that basis. As such, where a panel did not advise a claimant that state protection was at issue in a claim, and then rejected the claim on the basis that they had not rebutted the presumption of the availability of state protection, the panel acted unfairly.[25] Similarly, where a panel listed a series of issues that were of concern, but did not list the objective basis of the claim as of concern, the panel erred when it rejected the claim on the basis that the claimant had not established the objective basis of the claim.[26] An exception to this is that some issues are said to always be at issue in every claim, and need not be identified as a distinct issue, including credibility,[27] identity,[28] and the objective basis of the claim.[29] That said, the court nonetheless holds that where relevant, the claimant should be advised that identity is an issue, and of the need to provide specific documents or other corroborative evidence.[30]

Claimants should have a fair opportunity to respond to a panel's concernsEdit

Procedural fairness entitles to those who are to be subjected to a decision affecting their rights, privileges, or interests to know the case against them.[31] This requires that they "know what evidence has been given and what statements have been made" affecting them and that they be given "a fair opportunity to correct or contradict them."[32] Parties should have a fair opportunity to respond to a panel's credibility concerns. Where a panel may reach an adverse credibility finding, a party should have notice and an opportunity to respond.[33] This rule was articulated as follows by the Federal Court of Appeal in 1989: The claimant should be given an opportunity at the hearing to clarify the evidence and to explain apparent contradictions in their testimony.[34] That said, there are limits to how far this proposition extends and a panel need not advert a claimant's attention to all possible credibility concerns, such as potential inconsistencies between their evidence and the objective country condition documents.

Parties should also have a fair opportunity to respond to other concerns that a panel has regarding issues other than credibility. For example, in Conde v. Canada, the claimant had been designated a vulnerable person by a previous panel of the Board. The claim was returned to the Board for redetermination after the original decision was overturned by the Federal Court. On redetermination, the Member de-designated the claimant as a vulnerable person. On judicial review, the court concluded that this had been done in a procedurally unfair manner as "there was no reason, given the previous psychological evidence and the acceptance of the [applicant] as a vulnerable person at previous hearings, to expect that he needed to provide more psychological evidence without notice".[35] In that case, the Federal Court concluded "clearly, this was procedurally unfair."[36]

Ministerial Notification rules ensure that a claimant will have advance notice of particular types of issuesEdit

Rule 26(1) of the RPD Rules stipulate that "If the Division believes, before a hearing begins, that there is a possibility that section E or F of Article 1 of the Refugee Convention applies to the claim, the Division must without delay notify the Minister in writing and provide any relevant information to the Minister." The obligation to inform the Minister in writing where there is a “possibility” of exclusion, integrity issues, or other other types of issues that require such notice not only ensures that the Minister is heard where they desire to intervene, but it also ensures that a claimant will have adequate notice of the issues at the hearing, including time to prepare for a hearing that may involve a new issue or that may have become more complicated. The court commented on this aspect of the notice requirement in Canada v. Louis, indicating that procedural unfairness that arises from the failure to provide such notice may be relied upon by either a claimant or the Minister: "Even though in [Kanya v. Canada] the breach of the rules of procedural fairness was relied on to the benefit of the refugee claimant, there is no reason that a breach of the obligations provided for in subsection 23(1) of the Rules cannot be relied on in the same way by the Minister who, according to the wording of this provision, is the true beneficiary of the said obligation."[37]

Similarly, a claimant is entitled to 10 days of advance notice where the Minister will be intervening in person and/or of the purpose of any Ministerial intervention: Canadian Refugee Procedure/Intervention by the Minister#Rule 29(2)(a) requirement that the notice state the purpose for which the Minister will intervene.

The Board is bound by its own undertakings where it indicates that something is not at issue or that particular evidence is unnecessaryEdit

The court has held that the Board is bound by its own undertakings and that, once an undertaking is given by a Board Member or a representation is made, failure to comply with it will constitute a breach of natural justice.[38] For example, in Isik v. Canada the Court concluded that the Board had acted unfairly where it indicated that it was not necessary to call a witness and then made adverse credibility findings on the point that the witness may have testified about:  

That said, the Court strongly believes that the RPD should refrain from taking a position on the necessity of presenting a witness unless it knows exactly what facts the witness will testify about and in what specific respect this evidence is meant to corroborate a claimant’s testimony or story. If a counsel simply inquires about the advisability of presenting a witness, the RPD can always refuse to take a position on the basis that it has yet to complete its evaluation of the evidence. If it chooses to take a stand, it must be fully aware that its decision will have consequences. In this particular case, the Court finds that the RPD ought to have known that its comment that the evidence was not necessary would clearly impact on the legal representatives acting in this case and it is clear that it did so without knowing the full extent of the facts on which the proposed witness was meant to testify.[39]

Similarly, in Okwagbe v. Canada the tribunal advised that its only concern was delay but then rejected the claim based on the availability of an IFA. The Court held that this conduct constituted a breach of natural justice.[40]

Fairness considerations related to the manner of conducting the hearingEdit

Section 170(e) of the Act states that the Refugee Protection Division, in any proceeding before it, must give the person and the Minister a reasonable opportunity to present evidence, question witnesses and make representations. The Supreme Court of Canada has held that fundamental justice requires an oral hearing when issues of credibility are being determined in the refugee context.[4] This hearing process must ensure that parties have an opportunity to present and respond to evidence and to make representations. Where, for example, the Board prevents a party from speaking on multiple occasions during a hearing,[6] denies a party a reasonable opportunity to cross-examine a witness,[7] refuses to receive evidence,[8] or prevents a party from calling witnesses,[9] this may amount to a denial of the right to be heard and to a breach of natural justice. However, regard must be had to the relevant rules on, say, calling witnesses and submitting documents and the discretion that the Board has in certain circumstances to refuse such evidence.

Claimants have a right to counselEdit

For considerations of the right to counsel and incompetence of counsel, see the commentary to s. 167 of the Act: Canadian Refugee Procedure/Counsel of Record#IRPA s. 167 on the Right to Counsel.

Hearings shall normally be conducted privatelyEdit

See the commentary on section 166 of the Act: Canadian Refugee Procedure/Proceedings must be held in the absence of the public.

The right to present evidenceEdit

Where a witness is interrupted while providing testimony, this may establish that their right to present oral testimony was interfered withEdit

Where the Board prevents a party from speaking on multiple occasions during a hearing, this may amount to a denial of the right to be heard and to a breach of justice.[6] However, redirecting a witness is not in and of itself problematic; the court concluded in Wysozki v. Canada that seeking to have an applicant respond to the question asked rather than provide other irrelevant information is not a breach of procedural fairness.[41] That said, where a panel interrupts a witness' testimony in a manner that could be described as "constant interruptions or gross interference", this may establish that the process was not fair.[42]

Where a panel or opposing counsel acts in an intimidating way, this may establish that the right to present oral testimony was interfered withEdit

The Code of Conduct for Members of the Immigration and Refugee Board of Canada provides that "Members shall conduct hearings in a courteous and respectful manner while ensuring that the proceedings are fair, orderly and efficient."[43] Intrusive and intimidating interventions by a Board member may be found to interfere with an applicant's ability to present his case.[44] If the interruptions are made for the purpose of clarifying testimony or an issue, they will not raise a reasonable apprehension of bias, even if the manner of questioning or interruption is "energetic".[45] However, there will be cases where conduct crosses the line. For example, in Kumar, the Federal Court of Appeal found that the decision-maker’s conduct of the hearing, which included statements such as [t]his is one of the most ridiculous cases I have ever heard in my life and, in response to a summary of the applicant’s political views, Who cares?, was intrusive and that the intimidating character of the interventions interfered significantly with the applicant’s presentation of his case by his counsel.[46] This concern is related to issues of bias and prejudgment of the evidence: Canadian Refugee Procedure/The right to an unbiased decision-maker#Bias and the Member's Inquisitorial Role.

Evidence may only be admitted where it is credible and trustworthyEdit

Just as the refusal to admit relevant evidence may breach procedural fairness, so can a decision to admit and rely on evidence which may not be reliable, credible, or trustworthy or, in the case of hearsay evidence, in circumstances where a party is unable to correct or contradict any statement prejudicial to its view, including by means of cross-examination.[47] For further discussion of this, see: Canadian Refugee Procedure/IRPA Section 170 - Proceedings#IRPA Section 170(h) - May receive evidence considered credible or trustworthy.

Members are expected to act honestly and in good faith and are precluded from "setting traps" for claimantsEdit

The Code of Conduct for Members of the Immigration and Refugee Board of Canada provides that "Members are expected to act honestly and in good faith, in a professional and ethical manner."[48] Additionally, Parliament's objective with the IRPA is to fulfill Canada's international legal obligations with respect to refugees, including Canada's obligations pursuant to the Refugee Convention, obligations which must be interpreted and performed in good faith.[49] In international law, the concept of good faith, or bona fides, is taken to include duties of honesty, loyalty, and reasonableness.[50] As such, this requirement will preclude outright dishonesty, such as falsely indicating that a claimant made a statement that they did not make, something that has been an issue in other countries' refugee status determination systems.[51] This will also preclude more subtle actions that do not demonstrate good faith, such as "setting traps" for claimants.[52] By way of example, the Board must not mislead a claimant by putting a false premise to them. This has been held to be a "clear breach of procedural fairness".[53] In Yahaya v. Canada, the court concluded that the panel had breached procedural fairness as follows: "It is important because the RPD member’s questioning on this issue added to the confusion, as it resulted from the initial misinterpretation of the Applicant’s statement. At the hearing, the RPD member put a false premise to the Applicant, i.e., that the police visit took place on December 21, 2016, and then took note of how the Applicant reacted to what the Applicant had never understood as being a discrepancy. In effect, the Applicant was asked to explain away a discrepancy that never existed."[54] That conduct was held to have been procedurally unfair, and the matter was remitted to the IRB for redetermination. Similarly, in Reveron v. Canada the Federal Court noted that "The panel seems to have imposed a false premise on Mr. Chace Reveron and asked him to prove it" and concluded that this was a procedural fairness violation.[55]

A panel can establish principled rules regarding the manner in which a witness testifiesEdit

The right to make one’s case is subject to reasonable limitations, but those limitations, when they are the result of the exercise of discretion, are to be made and applied in a principled way.[56] For example, a Member of the Board does not normally err by asking a witness to put away notes before giving testimony. One option for a panel in such circumstances is to offer to the party that they may admit the notes in question as an exhibit, something that was offered in Wysozki v. Canada.[57] Another example of the right of a Board to establish principled limitations on the testimony that may be adduced in a proceeding was where a Member required a proposed overseas witness to attend at the Canadian embassy abroad for identification before the panel would hear their testimony by telephone, a limitation that was upheld by the Federal Court on judicial review: Canadian Refugee Procedure/Witnesses#44(1)(f): If a party wants to call a witness, the party must provide information on whether the parts wants the witness to testify by means of live telecommunication.

A hearing should be conducted with sufficient inter-cultural understandingEdit

Members should be taught the inter-cultural skills required to conduct interviews in a non-discriminatory and meaningful manner.[58] Furthermore, gender should be appropriately considered when assigning adjudicators to claims, as one academic has argued: "This will help to ensure respect for people whose culture does not allow for a woman to be seen alone with a man who is not her husband, and ensure that women are able to discuss their protection concerns freely with caseworkers."[59] The Federal Court has held that a Member's findings must be "duly sensitive to cultural differences".[60]

A hearing should be conducted in a trauma-informed mannerEdit

Refugee Status Determination processes can have negative psychological effects on asylum-seekers. For claimants who remain in the refugee status determination system for a lengthy period, what have been termed "the toxic effects of refugee determination, uncertainty of situation, producing documentary evidence, demonstrating past trauma, and refugee racism"[61] have all been identified contributors to a condition labelled Prolonged Asylum Seeker Syndrome, a condition characterized by powerlessness, depression, and identity crises.[62] A study conducted by Katrin Schock, an expert in clinical psychology, and colleagues, examined the psychological impact of asylum interviews. The participants were examined 10 days prior and 16 days after their asylum interview and the results clearly showed an “increase in post-traumatic intrusions and a significant decrease in post-traumatic avoidance and hyper-arousal symptoms,” meaning that the findings confirm the stressful impact asylum interviews have.[63] A fair hearing process is one that takes these concerns into account and seeks to minimize them. For additional discussion of this, see: Canadian Refugee Procedure/The right to an unbiased decision-maker#A passive or distant countenance is not required of Board members. This is especially the case for children, where care must be taken to ensure that questions are asked in a manner appropriate to the claimant's age, maturity, and level of understanding, as discussed in the relevant Chairperson's Guideline.

Videoconferencing is not per se unfair, but may be inappropriate in certain circumstancesEdit

Section 164 of the Act provides that the Board may conduct a hearing via live telecommunication. For a discussion of the fairness implications of such technology, see: Canadian Refugee Procedure/Presence of parties and use of telecommunications for hearings#IRPA Section 164.

The Board is not obliged to record hearings, but a lack of such a recording may constitute grounds for setting aside the decisionEdit

There is no statutory right to a recording or transcript of RPD proceedings. A lack of a recording is not by itself a ground for allowing an appeal of a decision. However, it could raise an issue of natural justice, and a reviewing body must consider whether the applicant has been deprived of his or her grounds of appeal given the absence of a recording of the impugned hearing. If the decision facing the RAD or Court could be made on the basis of evidence established through other means, the principles of natural justice would not be infringed. But if the appellant raises an issue that can only be determined through a record of what was said at the hearing, and the absence of, or gaps in, such a record prevents the appeal body from addressing the issue properly, this would normally constitute a ground for allowing the appeal (or review, in the case of a judicial review).[64]

Fairness considerations related to decisionsEdit

Decision-making should be predictable and consistent across the BoardEdit

As the Federal Court of Appeal holds, one of Parliament's intentions with the IRPA was to promote the consistency of decisions.[65] Persons affected by administrative decisions are entitled to expect that like cases will generally be treated alike, and that outcomes will not depend merely on the identity of the individual decision-maker.[66] The Code of Conduct for Members of the Immigration and Refugee Board of Canada provides that "Members, in their decision-making, have a responsibility to support the institutional interest of the IRB in ensuring the consistency of its decisions, while recognizing that no improper influence may be brought to bear upon their adjudicative independence."[67] In short, in the context of this decision-making scheme, it is important that like cases be treated alike, and that this be seen to be done.[68] As Neil Yeates writes in his report on the Board‘s operations, "fairness is undermined when decision making is not perceived as consistent".[69] In the pithy words of the philosopher Patricia Mindus, "Arbitrariness is detrimental to the legitimacy of any rule in a deep and decisive way".[70] Furthermore, in the evocative words of refugee lawyer David Matas, consistency and accuracy in the system’s determinations is important, lest, “real refugees seeking protection in Canada [] evade authorities rather than submit themselves to a deadly game of Russian roulette.”[71]

Achieving consistency is a challenge for any judicial system; for example, in the context of the American asylum system, it has been said that “in many cases, the most important moment in an asylum case is the instant in which a clerk randomly assigns an application to a particular asylum officer or immigration judge”.[72] Scholarship from Europe notes a relationship where the number of xenophobic attacks in a region leads to lower recognition rates in the following year, suggesting that for case officers the “preferences and moods that prevail in their land guide their decisions.”[73] In Canada, academic studies point to variations in refugee claim approvals and rejections by individual decision-makers at the RPD for cases that have similar facts and relate to the same country of origin.[74] Professor Sean Rehaag states that there is an extent to which inconsistency is a necessary corollary of independence, writing that "while the independence of Board members offers important protections against inappropriate government interference in refugee adjudication, this independence sometimes makes it difficult for the IRB to achieve another key policy objective: consistency across refugee determinations made by different Board members".[74] Yet, that said, research by scholars focused on variation within RSD regimes confirms that the Canadian RSD regime has lower levels of variation by individual decision makers than other regimes.[75]

That said, the importance of consistency does not mean that the courts will intervene in the Board’s operations for this reason alone; the general rule is that unlike judges, tribunal members are free, as far as the law is concerned, not to follow previous decisions of their tribunal colleagues even if the previous decisions cannot be distinguished.[76] This was recognized in the Supreme Court of Canada’s 1993 decision Domtar v. Québec, where it held that the fact that two tribunal decisions are in direct conflict with one another does not render either one of them necessarily reviewable by the courts.[77] That said, in order for their decision to be reasonable, it may be incumbent upon a Member to show that they have turned their mind to any other decisions that have been brought to their attention. As the Supreme Court of Canada articulated in Canada v. Vavilov, to promote “general consistency”, any administrative body that departs from its own past decisions typically “bears the justificatory burden of explaining that departure in its reasons”.[78] In choosing to follow, or distinguish, another decision, a Board Member may consider factors such as whether the decisions materially differ in the facts, a different question was asked in the other decision, the other decision is clearly wrong, or the application of the other decision would create an injustice.[79]

Decision-making assigned to a Member must be done by the Member and shall not be delegatedEdit

The principle that delegata potestas non potest delegari applies to matters at the RPD. In short, no delegated powers can be further delegated. Alternatively, this administrative law principle can be stated delegatus non potest delegare ("one to whom power is delegated cannot himself further delegate that power"). This is affirmed in the Code of Conduct for Members of the Immigration and Refugee Board of Canada which stipulates that "decision-making responsibility shall not be delegated."[80]

Parties are entitled to reasoned decisionsEdit

Parties are entitled to reasoned decisions on applications they make to the Board.[81] Whether or not those decisions must be in writing or may be made orally is governed by specific provisions of the IRPA; see the commentary to section 169 of the Act: Canadian Refugee Procedure/Decisions and Reasons. The requirement to provide reasons when an application is made applies equally to refugee claims, applications by the Minister, as well as to preliminary matters that raised by either party. This requirement has several implications:

  • Parties are entitled to responses to applications that they make: This principle was illustrated by Goodman v. Canada, in which Mr. Goodman asked that his PRRA application be held in abeyance pending the determination of his outstanding application for Ministerial relief. Counsel asked the Officer to respond to the request for a deferral and, if it was refused, to allow an additional 30 days from the date of the CIC’s response in order to provide updated submissions and materials. The Officer never responded to these requests and then went on to render a negative decision. The court held that this was an error and that a response to the application should have been provided.[82] Similarly, in Naeem v. Canada, the court concluded that the applicant was denied fairness by not receiving a decision in response to a deferral request.[83]
  • The Board's reasons should show that the panel meaningfully grappled with the key elements of the case: The Board should provide explicit findings and meaningful justifications of its decision regarding the central issues and concerns raised by the parties in a transparent and intelligible manner. See Gomes v. Canada for a discussion of this principle.[84] The Board Member must especially engage with evidence that, on its face, appears to contradict their key findings about the case.[85] In this way, the Board’s decision-makers do not generally have the freedom to be arbitrary but must provide reasons that are justified and intelligible.
  • Each claim should be considered individually where there are multiple joined claimants: Every application should be considered individually and where multiple persons make a claim and the claims are joined, each claimant is entitled to have their unique circumstances considered in the decision that ultimately ensues.
  • Reasons should be sufficiently clear: Reasons should be sufficiently clear on key points. For example, credibility determinations should be made in “clear and unmistakable terms”.[86]
  • The Board's findings of fact should accurately reflect the evidence: Misapprehending evidence that may have impacted the outcome of a decision constitutes a reviewable error.[87] For an example of where this was not done, in Varga v. Canada the Federal Court concluded that "The RPD seriously misstates Ms. Varga’s evidence"[88] and overturned the decision on this basis as follows: "the RPD's serious misstatement of the evidence on a matter central to its Decision vitiates its whole credibility finding with regard to Ms. Varga".[89]

Parties are entitled to timely decisions and reasons thereforEdit

The Code of Conduct for Members of the Immigration and Refugee Board of Canada stipulates that "Members are expected to render their reasons in accordance with any standards that may be established by the IRB regarding quality decision-making and timeliness."[90] Ordinarily, decisions are to be provided orally at the end of the hearing: Canadian Refugee Procedure/Information and Documents to be Provided#Rule 10 - Order of questioning in hearings, oral representations, oral decisions, limiting questioning. See also: Canadian Refugee Procedure/The right to a hearing and the right to be heard#A party is entitled to a hearing without unreasonable delay that causes serious prejudice.

The Board must consider the evidence submitted to itEdit

The Board has a duty to receive and consider evidence submitted by the parties at any time until a decision is rendered (Rule 43).[91] If the Board fails to do so, for example where evidence is submitted but does not reach the panel deciding the case, then the procedure cannot be said to have been fair. That said, a decision-maker is entitled to limit repetitive testimony and to not allow testimony that is not central to the claim.[92] Furthermore, while there may be valid grounds for a panel to refuse to admit evidence, see: Canadian Refugee Procedure/Documents#The Board has jurisdiction to refuse to admit documents for reasons that are broader than the Rule 35 criteria, a panel cannot refuse to consider evidence without such valid grounds. Indeed, the Board Member must consider the entirety of the evidence in the record before making any determinations.[93] The Board Policy on National Documentation Packages in Refugee Determination Proceedings commits that "The RPD and RAD will consider the most recent NDP(s) in support of assessing forward-looking risk."[94] See also: Canadian Refugee Procedure/Documents#The panel should consider the most recent National Documentation Package. 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". For more detail on this, see: Canadian Refugee Procedure/The Board's inquisitorial mandate#There is a shared duty of fact-finding in refugee matters.

A panel may only make a decision based on evidence on the record or evidence that is otherwise available to themEdit

A panel of the Refugee Protection Division may only base a decision on evidence on the record, or evidence that is otherwise properly available to the Member, for example through their specialized knowledge, or because the evidence may be judicially noticed or is otherwise a generally recognized fact. Where a Member “fills in the gaps” in a refugee's account by making false assumptions, they err.[95] For a discussion of the rules and law related to specialized knowledge at the RPD, see the commentary to Rule 22: Canadian Refugee Procedure/Specialized Knowledge.

Decisions must follow the law, provide a rational chain of reasoning, and be non-discriminatoryEdit

Decisions must not be illegal, irrational, or discriminatory.[96] For more detail, see: Canadian Refugee Procedure/Guideline 4 - Women Refugee Claimants Fearing Gender-Related Persecution and Canadian Refugee Procedure/Principles for the interpretation of refugee procedure#Principles about the manner in which the Board is to exercise its discretion.

ReferencesEdit

  1. Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para 127.
  2. Ombudsman for Banking Services and Investments, Natural justice and procedural fairness at OBSI, <https://www.obsi.ca/en/how-we-work/resources/Documents/Principles-of-Natural-Justice-in-Ombudsmanship.pdf> (Accessed April 27, 2020).
  3. Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para 127.
  4. a b Singh v. Canada (Minister of Employment & Immigration), [1985] S.C.J. No. 11, [1985] 1 S.C.R. 177, 14 C.R.R. 13 (S.C.C.).
  5. 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.
  6. a b c Siba v. Canada (Minister of Citizenship & Immigration), [2001] F.C.J. No. 1890, 229 F.T.R. 161 (F.C.T.D.).
  7. a b Cheung v. Canada (Minister of Employment & Immigration), [1981] F.C.J. No. 43, 122 D.L.R. (3d) 41 (F.C.A.).
  8. a b Gonzalez v. Canada (Minister of Employment & Immigration), [1991] F.C.J. No. 408, 14 Imm. L.R. (2d) 51 (F.C.A.).
  9. a b Konadu c. Canada (Minister of Employment & Immigration), [1991] A.C.F. No. 330 (C.F.A.).
  10. Perez v. Canada (Citizenship and Immigration), 2020 FC 1171, <https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/490416/1/document.do>, para. 22.
  11. 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.
  12. Maestri, G., & Monforte, P. (2020). Who Deserves Compassion? The Moral and Emotional Dilemmas of Volunteering in the ‘Refugee Crisis.’ Sociology. https://doi.org/10.1177/0038038520928199 <https://publications.aston.ac.uk/id/eprint/41657/1/Maestri_Monforte_Who_deserves_compassion.pdf> (Accessed July 4, 2020), at page 8.
  13. Canada (Minister of Citizenship and Immigration) v. Parekh, [2010] F.C.J. No. 856, 2010 FC 692 (F.C.).
  14. Lauren Lee, Sanctuary, Safe Harbor and Aylum, But Is it Available for Domestic Violence Victims? The Analysis of Domestic Violence Asylum Seekers in the United States and Internationally, 21 San Diego Int'l L.J. 495 (2020). Available at: https://digital.sandiego.edu/ilj/vol21/iss2/4 (Accessed July 25, 2020), page 500.
  15. X (Re), 2014 CanLII 96668 (CA IRB).
  16. Immigration and Refugee Board of Canada, Policy Statement on Official Languages and the Principle of the Substantive Equality of English and French, Date modified: 2018-07-03 <https://irb-cisr.gc.ca/en/legal-policy/policies/Pages/pnnpollo.aspx> (Accessed January 22, 2020).
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  18. Momoh, S., van Eijken, H., & Ryngaert, C. (2020). Statelessness Determination Procedures. The Statelessness and Citizenship Review, 2(1), 86–111. Retrieved from https://statelessnessandcitizenshipreview.com/index.php/journal/article/view/137 at page 94.
  19. Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9 (CanLII), at para. 50.
  20. For a general statement of this principle from a non-immigration context, see: May v Ferndale Institution, 2005 SCC 82 at para 92.
  21. UN High Commissioner for Refugees (UNHCR), Fair and Efficient Asylum Procedures: A Non-Exhaustive Overview of Applicable International Standards, 2 September 2005, available at: https://www.refworld.org/docid/432ae9204.html [accessed 4 May 2020].
  22. a b Instructions for Gathering and Disclosing Information for Refugee Protection Division Proceedings, Instructions issued by the Chairperson pursuant to section 159(1)(a) of the Immigration and Refugee Protection Act, amended December, 2012 <https://irb-cisr.gc.ca/en/legal-policy/policies/Pages/InstructInfo.aspx>.
  23. X (Re), 2015 CanLII 39898 (CA IRB), par. 143, <http://canlii.ca/t/gk23z#par143>, retrieved on 2020-08-16.
  24. Dubow-Noor v. Canada, 2017 FC 35, paras. 16-18.
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  43. 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 9.
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  49. The terms of the Refugee Convention are to be interpreted pursuant to the principles set out at arts 31–32 of the Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331, Can TS 1980 No 37 as noted in Joshua Blum, When Law Forgets: Coherence and Memory in the Determination of Stateless Palestinian Refugee Claims in Canada, International Journal of Refugee Law, eeaa019, https://doi-org.peacepalace.idm.oclc.org/10.1093/ijrl/eeaa019. For a discussion of the relationship between this Vienna Convention and the Refugee Convention, see: Canadian Refugee Procedure/Principles for the interpretation of refugee procedure#The Vienna Convention on the Law of Treaties codifies public international law rules of treaty interpretation applicable to the interpretation of the Refugee Convention.
  50. 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 15 of the article.
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  54. Yahaya v. Canada (Citizenship and Immigration), 2019 FC 1570 (CanLII), paras. 33-34.
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  74. a b Sean Rehaag of York University/Osgoode Hall writes on outcomes at the RPD and RAD suggesting divergent decision-making among individual decision makers. See, e.g., Rehaag, Sean. "Troubling Patterns in Canadian Refugee Adjudication." Ottawa Law Review 39.2 (2008): 335-365.
  75. 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 184.
  76. S. Ronald Ellis, The Corporate Responsibility of Tribunal Members, Canadian Journal of Administrative Law & Practice, February 2009, 22 Can. J. Admin. L. & Prac. 1, <http://www.ccat-ctac.org/CMFiles/Ron%20Ellis/21.TheCorporateResponsibilityofTribunalMembers.pdf#page15> (Accessed July 25, 2020), page 8.
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  81. 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. 1120 (para. 108).
  82. Goodman, Joseph John v. M.P.S.E.P. (F.C. nos. IMM-686-16, IMM-1508-18, IMM-1633-15, IMM-4246-16), Barnes, December 9, 2019; 2019 FC 1569.
  83. Naeem v Canada (Citizenship and Immigration), 2016 FC 1073, ACWS (3d) 382.
  84. Gomes, Eloi Biquer Silva Rosa v. M.C.I. (F.C., no. IMM-2283-19), Pamel, April 9, 2020; 2020 FC 506.
  85. Cepeda-Gutierrez v Canada (Minister of Citizenship and Immigration), 157 FTR 35, [1998] FCJ No 1425 (FC).
  86. Hilo v Canada (Minister of Employment and Immigration), [1991] FCJ No 228 (CA).
  87. Tamayo Valencia v Canada, 2018 FC 1013.
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  92. Almoqaiad, Saosan Khalil I., v. M.C.I. (F.C., no. IMM-684-19), Favel, January 29, 2020; 2020 FC 160.
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  95. E. Dowd, J. Hunter, B. Liddell, J. McAdam, A. Nickerson & R. Bryant, “Filling Gaps and Verifying Facts: Assumptions and Credibility Assessment in the Australian Refugee Review Tribunal”, International Journal of Refugee Law, 30(1), 2018, 71–103.
  96. This point draws on the work of Mindus, P. (2020). Towards a Theory of Arbitrary Law-making in Migration Policy. Etikk I Praksis - Nordic Journal of Applied Ethics, 14(2), 9-33. https://doi.org/10.5324.eip.v14i2.3712 at page 17.