Canadian Refugee Procedure/RPD Rules 67-68 - Decisions

IRPA Section 169

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.

Section 169 of the IRPA specify circumstances in which written reasons must be provided, circumstances which do not include interlocutory decisions

Section 169 of the IRPA specifies a number of circumstances in which written reasons for a decision must be provided. For example, per s. 169(1)(d), if the Refugee Protection Division rejects a claim, written reasons must be provided to the claimant and the Minister. Relatedly, s. 169(1)(c) provides that in the case of a decision, other than an interlocutory decision, the Refugee Appeal Division must render the decision in writing. This is also to be read in conjunction with RPD Rule 67(2), which provides a number of other circumstances in which written reasons for a decision are required, including when the Division makes a decision on an application to vacate or to cease refugee protection (RPD Rule 67(2)(c)), and if the Minister was not present when the Division rendered an oral decision and reasons allowing a claim for refugee protection (RPD Rule 67(2)(b)).

One thing that is notably exempt from these provisions is any requirement to provide written reasons for oral interlocutory decisions. There is jurisprudence that suggests that when a motion is decided at an RPD hearing with reasons for dismissing it given orally, the RPD does not have to repeat its reasons in its subsequent written decision. Interlocutory decisions can be contrasted with those that deny or allow a refugee claim. For example, a decision to reopen a refugee claim pursuant to RPD Rule 62 (Canadian Refugee Procedure/RPD Rules 62-63 - Reopening a Claim or Application#RPD Rule 62(1) - Who may make an application to reopen when) is an interlocutory decision, not a final one. The Board commented as follows about the lack of a requirement to provide reasons for interlocutory decisions as follows in the context of the former Immigration Act:

The Immigration Act does not require written reasons to be given for interlocutory decisions. However, it is suggested that if the issue has an interesting aspect to it, brief reasons for the interlocutory decisions should be included in the final reasons in the case, where final reasons are given. The provision of reasons in these matters promotes consistency in interlocutory decision-making across the Refugee Division, while providing some degree of fairness to those appearing before it.

The Board should provide written reasons for a determination that a claim has been abandoned

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". 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.

Under the previous Immigration Act, the Federal Court held that it was unlikely that the obligation under the Act to give written reasons was applicable to any decision other than a decision on a claim, such as an abandonment decision.

What percentage of refugee decisions are made publicly available?

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.

RPD Rule 67 - Requirement for a Notice of Decision and when written reasons must be provided

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?

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/RPD Rules 3-13 - Information and Documents to be Provided#RPD 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 the Board delivered its oral reasons. As such, the Board did not have the benefit of a transcript of the oral reasons to use in preparing the 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. Nonetheless, what is clear is that after 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. Appellate bodies may review the reasons provided to determine whether there is "any material difference...between the oral and written reasons".

What is the significance of a Notice of Decision issued by the Board registry?

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. 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. 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.

In what language or languages must written decisions be made available?

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 that 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." The Federal Court of Appeal considered the applicability of this provision to 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).

As a practical matter, in Devinat v. Canada the Federal Court ordered that where the Board makes a decision available to the public, say via the Quicklaw website, they must do so in both official languages. When it comes to providing reasons to an individual, the court commented in obiter in Nambazisa v. Canada that there is "arguably a positive obligation upon a decision maker like the RPD to provide the Decision to [the claimant in their language of choice], in light of the RPD’s duty to communicate and offer services to any member of the public in the language of his choice". Indeed, the Minister states that when the original version of a set of reasons is not written in an applicant’s preferred language of choice or in the language of record, the Board's usual practice is to issue decisions in both official languages at the same time. Where the tribunal fails to do so, this may raise issues with the reasonableness of the decision:

When, as the RPD did in the case of Mr. Nambazisa, an administrative decision maker issues a decision in an official language other than the litigant’s preferred official language or the official language of record, without making a translation simultaneously available, it in fact abdicates its responsibility to justify to the affected party, in a manner that is transparent and intelligible, the basis on which it arrived to its conclusion. This, again, clearly does not pass the test of reasonableness laid out in Vavilov, and calls for the Court’s intervention.

Furthermore, even where a translation is made available, the mere act of a decision maker having written a decision "in a language other than the official language of the trial chosen by an applicant can create uncertainty and doubts about the decision maker’s language abilities."

In contrast, there are no provisions in the IRPA or in the RPD Rules that require written reasons be translated into the language of interpretation other than English or French.

For more context to the above excerpt from the Official Languages Act, see: Canadian Refugee Procedure/Official Languages Act#Section 20: Decisions, orders and judgments.

Each version of reasons that have been translated into French or English are equally authoritative

Section 20 of the Official Languages Act requires that final decisions, orders and judgments issued by the Board be made available in both official languages, not issued in one language and "translated" into the other. This means that both versions are equally authoritative.

RPD Rule 68(1) - When a decision of a single member panel takes effect

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

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.

A decision takes effect when the Members sign the reasons and these can be electronic signatures

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.

RPD Rule 68(2) - When a decision of a three member panel takes effect

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.

Policy and legislation on three-member panels

The IRB has a policy on the designation of three-member panels at the Refugee Protection Division. 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).

History of two-member panels at the Board

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.