Canadian Refugee Procedure/Decisions

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IRPA Section 169[edit | edit source]

The Act includes the following provisions regarding the obligation to provide reasons:

Decisions and reasons
169 In the case of a decision of a Division, other than an interlocutory decision:
(a) the decision takes effect in accordance with the rules;
(b) reasons for the decision must be given;
(c) the decision may be rendered orally or in writing, except a decision of the Refugee Appeal Division, which must be rendered in writing;
(d) if the Refugee Protection Division rejects a claim, written reasons must be provided to the claimant and the Minister;
(e) if the person who is the subject of proceedings before the Board or the Minister requests reasons for a decision within 10 days of notification of the decision, or in circumstances set out in the rules of the Board, the Division must provide written reasons; and
(f) the period in which to apply for judicial review with respect to a decision of the Board is calculated from the giving of notice of the decision or from the sending of written reasons, whichever is later.

Must the Board provide written reasons for its determination that a claim has been abandoned?[edit | edit source]

In Parveen v. Canada, the Board provided an oral decision that the claim in question had been abandoned. The court noted that in that case, the RPD’s decision was rendered orally and in the presence of the claimant, her counsel and an interpreter. The court stated that the reasons were "detailed and comprehensive, setting out not only the findings but also the reasons they were made." The claimant had obtained a copy of the transcript of the hearing. The claimant argued on judicial review that the RPD’s failure to provide written reasons amounted to a breach of procedural fairness. The court noted that "it could be argued that the determination that a proceeding has been abandoned is a final decision which entails the rejection of the refugee claim, and that the RPD has an obligation to provide reasons in written form, as per paragraph 169(d) of the IRPA":

Decisions and reasons
169 In the case of a decision of a Division, other than an interlocutory decision: 
…
(d) if the Refugee Protection Division rejects a claim, written reasons must be provided to the claimant and the Minister;

The court then went on to note that "on the other hand, it can be said that a determination that a claim has been abandoned is not a decision under section 169 of the IRPA, because it does not decide the merits of a claim, but the more circumscribed question of whether an applicant has abandoned his or her claim. This abandonment of a proceeding is rather dealt with in subsection 168(1) of the IRPA" (quoted above). In that case, the court accepted that "the letter of the law may impose a duty to provide written reasons". The court went on not to grant the judicial review on the basis that the claimant had not been sufficiently prejudiced, but the case does appear to indicate that the law imposes the same obligation to provide written reasons in the case of an abandonment as it does in the case of a rejection of a claim.[1]

What percentage of refugee decisions are made publicly available?[edit | edit source]

A small percentage of the RPD's decisions are anonymized and made publicly available on services such as CanLII. In Devinat v. Canada, the Board discussed the percentage of decisions which become publicly available, a percentage being published that seems roughly similar to its current practice:

Excluding claims where there was a waiver or discontinuance, the CRDD rendered 16,630 decisions during 1996 and we anticipate that it will render 19,900 decisions in 1997. The vast majority of CRDD hearings are held behind closed doors to protect claimants' identity. Its decisions and reasons, if any, are communicated to the parties only and not to the public. Some decisions (295 in 1996) are summarized in our publication RefLex (see para. 16) and published in the Quicklaw database. These decisions are edited to remove identifying information before they are made public and entered in the Quicklaw database.[2]

Rule 67 - Requirement for a Notice of Decision and when written reasons must be provided[edit | edit source]

The text of the relevant rule reads:

Decisions

Notice of decision and reasons
67 (1) When the Division makes a decision, other than an interlocutory decision, it must provide in writing a notice of decision to the claimant or the protected person, as the case may be, and to the Minister.

Written reasons
(2) The Division must provide written reasons for the decision together with the notice of decision
(a) if written reasons must be provided under paragraph 169(1)(d) of the Act;
(b) if the Minister was not present when the Division rendered an oral decision and reasons allowing a claim for refugee protection; or
(c) when the Division makes a decision on an application to vacate or to cease refugee protection.

Request for written reasons
(3) A request under paragraph 169(1)(e) of the Act for written reasons for a decision must be made in writing.

How do the written reasons required under Rule 67(2) relate to the oral reasons that are offered for a decision on the day of a hearing?[edit | edit source]

Rule 67(2) provides that the Division must provide written reasons for a decision that the Division makes together with the notice of decision in the circumstances specified. This relates to Rule 10(8) which provides that "A Division member must render an oral decision and reasons for the decision at the hearing unless it is not practicable to do so" (Canadian Refugee Procedure/Information and Documents to be Provided#Rule 10 - Order of questioning in hearings, oral representations, oral decisions, limiting questioning). It is evident that, even where a decision is provided orally, the written reasons need not be identical. For example, in Isiaku v. Canada, the Division delivered oral reasons for decision, but the recording equipment normally used to provide a transcript of the hearing was not functioning during the time at which the Board delivered its oral reasons.[3] As such, the Board did not have the benefit of a transcript of oral reasons to use in preparing written reasons for decision. In its written reasons, the Board stated that it had relied on its recollection of what was stated in the oral reasons. In such a situation, the Board will usually note this in its reasons along with a notation such as the following:

The recording of this oral decision is not available because of what appears to be a technical malfunction. Therefore, this written version of the reasons offered in this case is based not on a recording but on the notes used by the member in rendering the oral decision on <date>.

The court in Isiaku v. Canada expressed no concern with that approach, and in fact preferred the Member's recollection of the decision rendered orally over that of the claimant who had contested some aspects of what was written.[3] Nonetheless, what is clear is that at the time that a Member provides oral reasons, the Member is functus officio and the written reasons which follow from an oral decision should not differ substantially from the oral reasons that were offered.[4] Appellate bodies may review the reasons provided to determine whether there is "any material difference...between the oral and written reasons".[5]

What is the significance of a Notice of Decision issued by the Board registry?[edit | edit source]

Member Maria De Andrade of the Refugee Appeal Division considered a case where, on December 9, 2014, the Board sent the appellant a positive notice of decision. There were no reasons included with the notice of decision. Then on December 23, 2014, the IRB sent the appellant a negative notice of decision, and the reasons included with the notice of decision were dated and signed December 3, 2014. The claimant argued that the RPD was functus officio when it sent the appellant a negative notice of decision on December 23, 2014, after it had already sent a positive notice of decision on December 9, 2014. According to the functus officio principle, a decision-maker no longer has jurisdiction over a matter once he or she has delivered the decision: the decision is final after it is signed and has been disclosed to the parties.[6] The RAD rejected this argument, concluding that the functus officio principle did not apply in this case because the first notice of decision was sent as a result of a clerical error by the RPD Registry.[7] The RAD noted rules 67 and 68 of the Refugee Protection Division Rules which stipulate that the Division must provide a notice of decision to the refugee protection claimant and to the Minister together with written reasons. As no written reasons were provided for the positive decision, and the only evidence was that the member signed and dated the reasons for decision on December 3, 2014, that was the only decision made as per Rule 68(1)(b). A similar issue has been raised with regards to oral decisions. Member Veena Verma of the Refugee Appeal Division considered a case where a decision was rendered orally on March 22, 2016 at the hearing and the notice of decision and a copy of the reasons were sent out on May 6, 2016. The RAD commented on these dates as follows:

I believe it is necessary to clarify the relevant date when considering the admission of new evidence on appeal before the RAD. Subsection 110(4) of the Act refers to the admission of evidence either after or at the time of the rejection. The RPD rendered its oral decision and reasons on March 22, 2016 which is also the date when the decision came into effect. The RPD member did not “sign” his decision on May 6, 2016, rather this is the date on which the RPD Registrar sent the Appellant the Notice of Decision, pursuant to Rule 67 of the Refugee Protection Division Rules, and a written transcript of the decision. In other words, the date of the rejection, and the relevant date in assessing the new evidence under ss. 110(4) of the Act, is March 22, 2016, not May 6, 2016.[8]

In what language or languages must the reasons for decisions be made available where they are publicly released?[edit | edit source]

The Official Languages Act applies to the IRB. Section 20 of the Official Languages Act specifies the circumstances in which a final decision must be made available in both official languages, either simultaneously (s. 20(1)) or in one language and then the other "at the earliest possible time" (s. 20(2)):

Decisions, orders and judgments that must be made available simultaneously
20 (1) Any final decision, order or judgment, including any reasons given therefor, issued by any federal court shall be made available simultaneously in both official languages where
(a) the decision, order or judgment determines a question of law of general public interest or importance; or
(b) the proceedings leading to its issuance were conducted in whole or in part in both official languages.

Other decisions, orders and judgments
(2) Where
(a) any final decision, order or judgment issued by a federal court is not required by subsection (1) to be made available simultaneously in both official languages, or
(b) the decision, order or judgment is required by paragraph (1)(a) to be made available simultaneously in both official languages but the court is of the opinion that to make the decision, order or judgment, including any reasons given therefor, available simultaneously in both official languages would occasion a delay prejudicial to the public interest or resulting in injustice or hardship to any party to the proceedings leading to its issuance,
the decision, order or judgment, including any reasons given therefor, shall be issued in the first instance in one of the official languages and thereafter, at the earliest possible time, in the other official language, each version to be effective from the time the first version is effective.

It is notable that the Official Languages Act provides that the above obligations apply to "federal courts". This is a defined term which, per s. 3(2) of the Act, provides that the IRB is considered a "federal court" for the purposes of the preceding obligations: "In this section and in Parts II and III, federal court means any court, tribunal or other body that carries out adjudicative functions and is established by or pursuant to an Act of Parliament."[9] The Federal Court of Appeal considered the applicability of this provision of the Immigration and Refugee Board in Devinat v. Canada, upholding the following summary of the law from the motions judge in the case:

In my view, the terms of section 20 of the OLA are clear. They require all federal courts, including the respondent [the IRB], to issue their decisions, orders and judgments in both official languages at the earliest possible time in most cases or simultaneously in the cases provided for in paragraph 20(1)(a), unless this would be seriously prejudicial to the public or result in injustice or hardship to any party, and in paragraph 20(1)(b).[10]

As such, where the Board makes a decision available to the public, say via the CanLII website, they must do so in both official languages.

Rule 68(1) - When a decision of a single member panel takes effect[edit | edit source]

When decision of single member takes effect
68 (1) A decision made by a single Division member allowing or rejecting a claim for refugee protection, on an application to vacate or to cease refugee protection, on the abandonment of a claim or of an application to vacate or to cease refugee protection, or allowing an application to withdraw a claim or to withdraw an application to vacate or to cease refugee protection takes effect
(a) if given orally at a hearing, when the member states the decision and gives the reasons; and
(b) if made in writing, when the member signs and dates the reasons for the decision.

A decision takes effect when a Member signs the reasons and this can be an electronic signature[edit | edit source]

As per the Division's Practice Notice: Use of Electronic Signatures, effective November 26, 2019 an electronic signature will satisfy the requirement for members to sign their reasons for decision under Rules 68(1)(b) of the RPD Rules.[11]

Rule 68(2) - When a decision of a three member panel takes effect[edit | edit source]

When decision of three member panel takes effect
(2) A decision made by a panel of three Division members allowing or rejecting a claim for refugee protection, on an application to vacate or to cease refugee protection, on the abandonment of a claim or of an application to vacate or to cease refugee protection, or allowing an application to withdraw a claim or to withdraw an application to vacate or to cease refugee protection takes effect
(a) if given orally at a hearing, when all the members state their decision and give their reasons; and
(b) if made in writing, when all the members sign and date their reasons for the decision.

A decision takes effect when the Members sign the reasons and these can be electronic signatures[edit | edit source]

As per the Division's Practice Notice: Use of Electronic Signatures, effective November 26, 2019 an electronic signature will satisfy the requirement for members to sign their reasons for decision under Rules 68(2)(b) of the RPD Rules.[11]

Policy and legislation on three-member panels[edit | edit source]

The IRB has a policy on the designation of three-member panels at the Refugee Protection Division.[12] Under the Immigration and Refugee Protection Act (IRPA), hearings by a single member of the Refugee Protection Division (RPD) are the norm. This presumption is reflected in the wording of section 163 of the IRPA, which reads: "Matters before a Division shall be conducted before a single member unless, except for matters before the Immigration Division, the Chairperson is of the opinion that a panel of three members should be constituted." The Chairperson's authority to designate three-member panels for matters before the RPD has been delegated to the Deputy Chairperson (DC) and to the Assistant Deputy Chairpersons (ADCs) of the RPD. Under this delegation cases may only be designated to be heard by three-member panels for training purposes. There were 94 new system hearings in 2018 in which a three-member panel was designated (0.7% of all hearings).[13]

History of two-member panels at the Board[edit | edit source]

The court has observed that throughout the 1990s, the Board carried a very heavy caseload and had a large membership. Its approximately 200 members sat across Canada in panels of two. That ended with the Introduction of the IRPA in the early 2000s.[14]

References[edit | edit source]

  1. Parveen v. Canada (Citizenship and Immigration), 2019 FC 155 (CanLII), para. 21.
  2. Devinat v. Canada (Immigration and Refugee Board), 1999 CanLII 9386 (FCA), [2000] 2 FC 212, par. 64, <http://canlii.ca/t/4ll0#64>, retrieved on 2020-01-25.
  3. a b Isiaku v. Canada (Minister of Citizenship and Immigration), 1998 CanLII 7994 (FC), <https://canlii.ca/t/4bld>, retrieved on 2021-03-12.
  4. Vaszilyova v. M.E.I. (IMM-3321-93, 4 July 1994, F.C.T.D.).
  5. Isiaku v. Canada (Minister of Citizenship and Immigration), 1998 CanLII 7994 (FC), par. 25, <https://canlii.ca/t/4bld#par25>, retrieved on 2021-03-12.
  6. Arango v. Canada (Minister of Citizenship and Immigration), 2014 FC 370 (CanLII).
  7. X (Re), 2015 CanLII 81070 (CA IRB), paras. 28-34 <https://www.canlii.org/en/ca/irb/doc/2015/2015canlii81070/2015canlii81070.html>.
  8. X (Re), 2017 CanLII 52321 (CA IRB), para. 18 <https://www.canlii.org/en/ca/irb/doc/2017/2017canlii52321/2017canlii52321.html>.
  9. Official Languages Act, RSC 1985, c 31 (4th Supp), s 3(2) <http://canlii.ca/t/530sl#sec3subsec2> retrieved on 2020-01-25.
  10. Devinat v. Canada (Immigration and Refugee Board), 1999 CanLII 9386 (FCA), [2000] 2 FC 212, par. 57, <http://canlii.ca/t/4ll0#57>, retrieved on 2020-01-25
  11. a b Immigration and Refugee Board of Canada, Practice Notice: Use of Electronic Signatures, November 26, 2019 <https://irb-cisr.gc.ca/en/legal-policy/procedures/Pages/electronic-signatures-rpd.aspx> (Accessed June 21, 2021).
  12. Immigration and Refugee Board of Canada, Designation of three-member panels - Refugee Protection Division, Effective Date: September 2, 2015, Accessed January 6, 2020, <https://irb-cisr.gc.ca/en/legal-policy/policies/Pages/PolRpdSpr3MemCom.aspx>.
  13. Sean Rehaag, “2018 Refugee Claim Data and IRB Member Recognition Rates” (19 June 2019), online: https://ccrweb.ca/en/2018-refugee-claim-data
  14. Kozak v. Canada (Minister of Citizenship and Immigration), 2006 FCA 124 (CanLII), [2006] 4 FCR 377, para. 55.