Canadian Refugee Procedure/Chairperson Guidelines

Chairperson Guidelines

The IRB has issued a series of Chairperson Guidelines relevant to the work of the refugee divisions, the most commonly dealt with being the Chairperson’s Guideline 3: Proceedings Involving Minors, the Chairperson’s Guideline 4: Gender Considerations in Proceedings, the Chairperson’s Guideline 8: Accessibility to IRB Proceedings, and Guideline 9: Proceedings Before the IRB Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics.

History of the Chairperson Guidelines

This use of guidelines has a long history in the Canadian refugee determination system. Canada issued a “Guideline for Determination of Refugee Status” in 1970 to give immigration officers criteria for selecting refugees overseas. In the 1980s, prior to the founding of the IRB, the Minister issued new guidelines which provided that the benefit of the doubt be given to claimants. In 1993, the Immigration Act was amended to give the Chairperson the authority to issue guidelines. The amendment to the legislation came into force on February 1, 1993. The Board then issued guidelines on the handling of gender-based asylum claims the next month, in March 1993. In 1996, the IRB adopted guidelines on child refugee claimants, reportedly the first such policy initiative of its kind adopted by any state system. The year following the introduction of the IRPA, in 2003, the IRB Chairperson issued Guideline 7 on the Conduct of a Hearing, which created a new order for questioning during an RPD hearing. The new order of questioning in a hearing of a claim for refugee protection was that, if the Minister was not a party, any witness, including the claimant, would be questioned first by the RPD and then by the claimant’s counsel. Much later, in 2017, the Board implemented guidelines on the adjudication of claims involving Sexual Orientation and Gender Identity and Expression (SOGIE). That guideline was expanded to become the present Guideline 9: Proceedings Before the IRB Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics in 2021. The following is a list of the guidelines, including those that have been revoked:

• Guideline 1: Civilian Non-Combatants Fearing Persecution in Civil War Situations
• Guideline 2: Guideline on Detention
• Guideline 3: Child Refugee Claimants—Procedural and Evidentiary Issues
• Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution
• Guideline 5: Providing the PIF and No PIF Abandonment in the Refugee Protection Division
• Guideline 6: Scheduling and Changing the Date or Time of a Proceeding
• Guideline 7: Concerning Preparation and Conduct of a Hearing in the Refugee Protection Division
• Guideline 8: Guideline on Procedures with Respect to Vulnerable Persons Appearing Before the IRB
• Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression

See further: Canadian Refugee Procedure/History of refugee procedure in Canada#Juridification of the refugee system and broader interpretations of the refugee definition.

IRPA Section 159

Section 159 of the Immigration and Refugee Protection Act reads:

Chairperson

159 (1) The Chairperson is, by virtue of holding that office, a member of each Division of the Board and is the chief executive officer of the Board. In that capacity, the Chairperson
...
(h) may issue guidelines in writing to members of the Board and identify decisions of the Board as jurisprudential guides, after consulting with the Deputy Chairpersons, to assist members in carrying out their duties;

The Chairperson's guideline‑issuing and rule‑making powers overlap

Section 159 of the IRPA, supra, sets out the Chairperson's guideline-issuing powers. Section 161 of the IRPA concerns the Chairperson's power to make rules: Canadian Refugee Procedure/161 - Functioning of Board and Division Rules. As the IRB Policy on the Use of Chairperson's Guidelines and Jurisprudential Guides notes, "the Chairperson's guideline‑issuing and rule‑making powers overlap." That policy goes on to state that "that the subject of a guideline could have been enacted as a rule of procedure issued under paragraph 161(1)(a) of the IRPA will not normally invalidate it." It cites the Federal Court of Appeal’s reasoning in Thamotharem v. Canada as support for this proposition.

See further: Canadian Refugee Procedure/159 - Duties of Chairperson.

Some of the guidelines are to be taken into account in a procedural, not a substantive manner

Some of the guidelines are to be taken into account in a procedural, not a substantive manner, others are to be taken into account in both ways. For example, the Chairperson Guideline 3 on proceedings involving minors was formerly to be taken into account in a procedural, not a substantive manner: Zidan v Canada. That version of the Chairperson Guideline 3 concerned the fair conduct of a hearing and not deficiencies in the claim itself: Newton v Canada. That was true until the guideline was overhauled on October 31, 2023, as the present version now concerns substantive matters as well as procedural ones.  

When guidelines can and should be considered

Not mentioning the guidelines will not be fatal to a decision where the record demonstrates compliance with them

The guidelines are intended to ensure that claims are heard with compassion and sensitivity. Demonstrating compassion and sensitivity in the reasons, and an acknowledgement of the individual’s profile, may show that the guidelines were properly considered.

Even where the RPD has not mentioned the guidelines in its reasons, the RPD will not have erred where it has respected the intent and spirit of them in the case at hand. One RAD panel reaching this conclusion commented: "I note that the Appellant does not point to any evidence that the RPD was insensitive or inappropriate in its questions, or that it conducted the hearing in a way that was insensitive to the Appellant’s emotional state or her well-being." As such, the RAD held in that case that despite not mentioning the guidelines in the original decision, this was not a basis on which to overturn the decision in and of itself. The failure to specifically mention a guidelines does not mean that it was not considered. On appeal to the RAD, a claimant should point to a specific issue regarding the RPD’s application of a guideline and explain how the alleged failure to consider the guideline led to an erroneous finding. In contrast, however, where a panel has not meaningfully applied the guidelines, the decision should not generally be considered a reasonable one and the courts have frequently returned matters to the Board for redetermination.

The guidelines may only be applied where their subject is at issue in the proceeding or claim

In Elisias v. Canada, the court held that the Chairperson’s Guideline 4 on gender could not be applied in the case because a fear of persecution based on gender was not alleged and there were no facts to support such persecution or other difficulties specific to the female applicant’s gender:

[23]  The applicants further argued that the RPD failed to [translation] “properly consider” Guideline 4. In that regard, they asserted that since they no longer had any permanent status in Brazil, they would be forced to return to Haiti. They submitted that the RPD ought to have examined whether the female applicant would have some protection in Haiti, given that she had been targeted by Lavalas supporters as the spouse of the applicant. They criticized the RPD for failing to ask the female applicant any question about this and for having made no mention of Guideline 4 in its reasons.

[24]  The Court finds this argument to be without merit.

[25]  The female applicant never claimed a fear of gender-based persecution and there is no evidence of such persecution or of any specific difficulties related to her gender. Guideline 4 does not apply to every situation in which a woman seeks protection. The gender of the female applicant must play a role in her fear of persecution. In this case, the fear of persecution is solely based on her association with the applicant’s father in his past political activities. It was not a question of gender-based persecution or discrimination. Moreover, the Court did not detect any insensitivity towards the female applicant.

A division should not refuse to apply guidelines because of a lack of credibility

The Federal Court has held that it is circular reasoning to impugn a claimant's credibility – and thus her claim about the abuse she had endured – and then use that finding to support a position that the Gender Guidelines did not apply because of the lack of evidence that warranted the application of the Guidelines.

However, this question of credibility is distinct from whether the evidence indicates that a provision of a guideline is relevant. For example, section 7.13 of the gender guideline notes that women from certain cultures where men do not share the details of their political, military or even social activities with their spouses, daughters or mothers, may find themselves in a difficult situation when questioned about the experiences of their male relatives. The Federal Court has upheld a RAD finding that this portion of the guideline was not relevant where an applicant never claimed she was unable to specify her son’s political activities and instead testified that her son had never been politically active.

The Board can consider guidelines where a claim involves the "secondary victims" of persecution of a group identified in the guidelines, such as parents affected by a child's gender-related claim

The Refugee Appeal Division has concluded that "Although the Chairperson’s Guideline 4 addresses the primary victim of rape, I find that the secondary victims, in this case the parents, must benefit from a certain sensitivity and appropriate understanding on behalf of the decision-maker when he questions them about this". That was a case in which the primary victim of the gendered persecution was not a party to the refugee claim, but the RAD nonetheless, on the basis of, inter alia, insensitive questions that had been posed to these parents, remitted the matter to the RPD for reconsideration and ordered that "The RPD must take into consideration the Chairperson’s Guideline 4 in the adjudication of this case."

An identification of vulnerability will generally continue to apply to a redetermination of a claim

Section 5.1 of the previous version of the Chairperson’s Guideline 8 noted that the identification of vulnerability would usually be made at an early stage in the process. In Conde v. Canada, the court considered a case where a claimant was designated as a vulnerable person, the Board's decision was overturned on judicial review, and at the redetermination of their claim, the panel considered whether they should continue to be recognized as vulnerable. In that case, the court noted that the Board "revoked" the claimant's vulnerable person status at the commencement of the new hearing redetermining the claim, implying that the fact that the claimant had been accepted as a vulnerable person at previous hearings meant that he should presumptively continue to be recognized as such at this new hearing. In this way, the effect of a vulnerable person designation appears to mirror the Board's rules for appointing a designated representative for a claimant, which also continue to apply to subsequent proceedings before the institution: Canadian Refugee Procedure/RPD Rule 20 - Designated Representatives#RPD Rule 20(6) - What proceedings the designation applies to.

The RAD need not refer to a specific portion of a guideline where it is not raised on appeal

The RAD need not refer to a specific portion of a guideline where it is not raised on appeal. For example, several of the guidelines describe intersectionality and state that Members should apply an intersectional approach in all proceedings to which the guideline applies, based on the evidence of the proceeding. That said, the Federal Court has indicated that the RAD cannot be criticized for not assessing whether an RPD analysis was insufficiently intersectional where the RPD conclusion was not challenged before the RAD.

Medical evidence and the consideration of guidelines

A medical diagnosis is not required for gender-related factors to be relevant in explaining a claimant’s difficulties in giving evidence

Footnote 31 of the former Gender Guidelines stated that "In R v. Lavallee, the Court indicated that expert evidence can assist in dispelling these myths and be used to explain why a woman would remain in a battering relationship." That said, nowhere do the Gender Guidelines state a medical diagnosis is required for gender-related factors to be relevant in explaining a claimant’s difficulties in giving evidence. If a panel refuses to take into account the guidelines and gender in assessing a claimant's evidence on the basis that they have not provided a professional diagnosis, they will have acted on the basis of an irrelevant consideration.

The Practice Notice on Covid-19 does not explicitly speak to the provision of medical evidence for vulnerable person applications

Section 2.4 of the guideline provides that whenever it is reasonably possible, the vulnerability must be supported by independent credible evidence filed with the IRB Registry. This will normally take the form of expert evidence of the sort discussed at section 8 of the guideline (below). During the Covid-19 period, the Board has issued a practice notice entitled Refugee Protection Division: Practice Notice on the resumption of in-person hearings. Section 3.2 of that practice notice is entitled "Waiver (removal) of requirement to file a medical certificate" and it reads "Until further notice, where the RPD Rules contain a requirement to provide a medical certificate, this requirement as well as the requirement to explain why there is no medical certificate, is waived. [emphasis added]". Footnote 6 of that practice notice lists what Rules it applies to, none of which relate to vulnerable persons:

This applies to applications to extend the time to provide the BOC Form (RPD Rules 8(3), (4) and (5)); applications to change the date or time of a hearing (RPD Rules 54 (6), (7), and (8)); and a certificate provided in support of explanations given at a special hearing on abandonment (RPD Rules 65(5), (6); and (7)).

Vulnerable persons are discussed in the RPD Rules, but they are not discussed in any of the aforementioned rules, instead they are discussed at Rules 1 (Canadian Refugee Procedure/RPD Rule 1 - Definitions) and 53 (Canadian Refugee Procedure/RPD Rule 53 - Changing the Location of a Proceeding), among others. As such, the practice notice removing the requirement to file medical evidence during the Covid-19 period does not in and of itself modify Guideline 8. That said, as set out in the IRB’s Practice Notice – Special Measures Due to Covid-19, the RPD commits to apply its rules flexibly where the parties have difficulty complying with them due to the COVID-19 pandemic.

While expert evidence is helpful to the Board, it is not necessary and the Board may identify any individual as vulnerable even in the absence of expert evidence on point

Although an expert report or other independent credible evidence is the preferred way to prove vulnerability, it is not obligatory. The absence of expert evidence will not necessarily lead to a negative inference concerning vulnerability; the Board must consider whether it was “reasonably possible” to obtain such evidence, per para. 8.6 of the former version of the guidelines. As Janet Cleveland notes in an article on point, in several cases the IRB has concluded that a person was vulnerable based on a letter from counsel describing behaviour consistent with mental health problems. She states that there have also been cases in which the Board recognized the person as vulnerable and ordered an early hearing on its own initiative based simply on the claimant’s BOC form as well as behaviour observed by Board staff.

The Board should not expect revised or updated expert evidence without reason

In Conde v. Canada, the claimant had submitted two medical reports, dated one and six years prior to the hearing. The claimant had been designated as a vulnerable person by a previous panel of the Board. The Board's previous decision had been overturned on judicial review and remitted to the Board for redetermination. On redetermination, the RPD revoked the claimant's vulnerable person status, stating "I considered both the psychological assessment of Dr. Devins dated October 9, 2013 and the updated psychological assessment dated January l1, 2018. The RPD was not provided with more up to date psychological assessment for this second re-determination." The court stated that, with respect to the panel's decision, "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. Clearly, this was procedurally unfair." As such, if a panel comments on a psychological report being dated, the panel should provide a reason as to why the passage of time reduces the weight that is properly attributed to the report.

Credibility, implausibility and demeanour

The Division is required to consider the guidelines where there are inconsistencies in testimony and the applicant has suffered abuse

If a woman has suffered abuse and has inconsistencies between her testimony and her BOC narrative, the RPD is obliged to weigh the evidence with the Gender Guidelines in mind. It is a best practice for the Division to show that it has considered the guidelines while it is making credibility findings, and not to simply consider them in a separate section at the end of its reasons. In Okpanachi v. Canada, the Federal Court found that the Board had erred when it did not do so:

Here, the RAD did not even refer to the Gender Guidelines in its credibility analysis, let alone assess why the omissions cannot be explained by the factors set out in the Gender Guidelines, before accepting the RPD’s conclusion on credibility based on the omissions. As such, I find the RAD has not taken into account the Gender Guidelines “in a meaningful way” when it adopted the RPD’s credibility finding based on the omissions in the BOC.

However, it is not necessarily an error for the guideline-driven analysis to be separated physically in a particular decision from a credibility analysis: such a conclusion would focus unduly on form over substance.

The guidelines do not create mandatory checklists when making credibility determinations where potential vulnerabilities are not present

Several of the guidelines comment on credibility determinations. For example, the guideline on Proceedings Involving Minors states that Credibility determinations must be made on a case-by-case basis and take into consideration a list of following factors. That said, guidelines or other publications which seek to make decision-makers aware of possible vulnerabilities and responses to trauma are not a checklist for credibility assessment when those potential vulnerabilities are not present.