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Canadian Refugee Procedure/Print version

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This is a book about the legal processes involved in claiming refugee status in Canada, focusing particularly on the Refugee Protection Division Rules of the Immigration and Refugee Board of Canada. Tens of thousands of people file a claim for refugee protection in Canada every year. The ensuing process that they navigate is governed by the set of laws described herein.

Preliminary[edit | edit source]

About this text[edit | edit source]

There are many books about the substance of refugee law, both Canadian and international. They cover subjects such as what it means to have a well-founded fear of persecution and when a claimant has access to adequate state protection. This book is not one of them. This is a book about the legal processes involved in claiming refugee status in Canada, focusing particularly on the Refugee Protection Division Rules of the Immigration and Refugee Board of Canada. Tens of thousands of people file a claim for refugee protection in Canada every year. The ensuing process that they navigate is governed by the set of laws described herein.

Qualifications on the scope of this text[edit | edit source]

Refugee law itself may be regarded as a combination of administrative law, human rights law, civil procedure, (at times) criminal law, and international law,[1] and as such, this text seeks to weave these strands together. That said, this text does not aspire to be an all-encompassing description of Canadian legal processes related to refugees, let alone international ones. There are three primary qualifications to note:

  1. First, as James Hathaway observes, the two core concerns of refugee law are qualification for refugee status and the rights that follow from such status. He notes that the first of these questions has attracted by far the greater attention, and, indeed this book continues in that vein by focusing on the processes involved in applying for refugee status as opposed to engaging with the nature of the Canadian legal processes that apply to those entitled to the ensuing remedy, namely, refuge.[2]
  2. Moreover, even when focusing on the process for obtaining refugee status, this text confines itself to the in-Canada asylum process, setting aside discussion of the overseas resettlement provisions in the IRPA. In part, this is because of the nature of those resettlement decisions. As the Government of Canada states, resettlement is managed as an administrative process, and "as a result resettlement decisions are not subject to the same level of formality as asylum determinations."[3] The Canadian government notes that, in addition to being less costly to administer, this allows for quicker decision-making than is the case for asylum adjudication.
  3. Furthermore, even within the context of the in-Canada asylum process, this text does not concern itself with the rules of the Federal Court for judicial review, the rules of the Refugee Appeal Division for appeals, the rules of the Immigration Division for admissibility determinations, or the Pre-Removal Risk Assessment process. Nor does it cover the law and process for having a claim referred to the Immigration and Refugee Board.

Approach and content of this text[edit | edit source]

Having discussed what this text does not cover, I now turn, then, to what this text does aspire to do and how it aims to go about that task. The centrepiece of this book is an annotation of the Refugee Protection Division Rules. This annotation strives to describe the law as it exists (lex lata), to situate such descriptions within the context of the law as it has been (lex historica), and to provide descriptions of the state of the law which are inflected by a conception of the law as it should be (lex ferenda).

Lex lata[edit | edit source]

In describing the law as it exists, the goal of this text is to contribute to the legal positivist project by providing clear descriptions of the way that the provisions at issue are, and have been, interpreted. Bentham observes that "miserable is the slavery of that people among whom the law is either unsettled or unknown."[4] This text aims to reduce indeterminacy by elucidating how the provisions at issue are in fact been operationalized. The twin methodologies utilized in furtherance of this aim are 1) analyizing past decisions in order to extract and identify rules, and 2) an empirical methodology that focuses on statistics about decision-making trends.

This necessarily takes place in an international context given the nature of the international legal commitments at issue in refugee protection. To the extent that the IRPA aims to implement international conventions, the provisions of those conventions applied through this statute should be operationalized in a way that is coherent with convention interpretations done by other states party to the convention. In this sense, the IRPA cannot be seen to be just another domestic statute, but must be interpreted in the context of Canada's international commitments and analyzing Canadian refugee procedure in a way that is informed by those international legal commitments is not a mere paean to internationalist values, but instead an effort to ensure that binding legal commitments are operationalized.

Lex historica[edit | edit source]

In setting out the law, this text strives to include consideration of historical context. It is said that "the life of the law has not been logic, it has been experience".[5] Along these lines, this text strives to focus on the history and evolution of the procedures in question over time, reading the current rules in the context of what has come before and why changes have occurred. Refugee admission is described as an area of immigration law that "remains controversial" and is "difficult to administer".[6] Some of the politics of refugee procedure have arguably been relatively constant over its lifespan; Hamlin, for example, describes refugee law as a tool created by and for states which is intended to depoliticize the subject matter, characterize refugee admissions as a noblesse oblige deserving of accolades, and obscure any question of state obligation arising from legacies of colonialism and continuing patterns of international exploitation and domination.[7] Other aspects of refugee procedure have been characterized by speedy policy changes, occasioned by, in Clayton Ma's words, "new governments and shifting popular opinions".[8] Indeed, Haddad asserts that "the refugee issue cannot be divorced from the political context in which it operates at any one time."[9] In Gorman's words, “the refugee definition is not static but rather a site of ongoing struggle over asylum protection, evolving in response to changing human rights norms and domestic priorities.”[10] Refugee procedure is characterized by such repeated policy shifts not only in Canada, but in many countries that engage in refugee status determination. As an example, Norway's first level refugee status determination system is said to have high staff turnover and to have undergone "frequent reorganizations".[11] The policy change in this area of law means that rules and processes are regularly under development and in flux. This can be a challenge for claimants and lawyers both. Such history, and the values of the moment, also speak to the evolution, interpretation, and application of the rules, and refugee procedures writ large.

Lex ferenda[edit | edit source]

Finally, this text seeks to provide descriptions of the state of the law which are inflected by a conception of the law "as it should be" (lex ferenda). For example, this text does not only summarize key cases and policies, but also attempts to organize and synthesize them into coherent and principled approaches to the sundry procedural issues discussed herein. Where there are multiple approaches to an issue, or the law is underdeveloped, this text seeks to identify an approach that, in the view of this author, is preferable. In providing such descriptions of the law that are inflected by a conception of the law "as it should be", this text has drawn on a number of sources of normative values:

  • Canada’s international legal commitments have been relied upon as a source of normative values. While Canada's refugee policies have evolved and shifted over the past half century, such procedural innovations have taken place against the stable background of the country's international commitments, particularly the commitments enshrined in the 1951 Refugee Convention. Despite the initial estimate of a short lifespan, the Refugee Convention has continued to be relevant for going on seventy years. Anand Upendran writes that that relevance is in large measure supported by the Convention’s rootedness in the Universal Declaration of Human Rights, which, unlike the Convention, "was intended, from its very inception, to forever declare itself to humanity".[12]
  • This text has strived to adopt a decidedly comparative and international perspective. While the text is rooted in Canadian law, its approach to interpreting this country's procedures is grounded in the theory that principled interpretations can be informed by a study of other state’s experiences and approaches, either to emulate or distinguish them.
  • The objectives section of the Immigration and Refugee Protection Act has also been relied upon for a source of Parliamentary intent: Canadian Refugee Procedure/Principles for the interpretation of refugee procedure#IRPA ss. 3(2) and 3(3): Interpretation principles as derived from the Act.

Conclusion[edit | edit source]

As a final note, this text strives to approach these issues with a tone commensurate to the subject matter at issue. It is said that instruments of international human rights law, like the Refugee Convention, are innately sombre. Upendran writes that "they are sombre because they have been necessitated by tragic histories; sombre because they, realistically, recognise the capacity of men and nations to inflict violations; sombre also because, even as they seek to reduce indignities and suffering, they are aware of their powerlessness to prevent those conditions entirely."[12] And yet that somber focus on human rights violation has a counterpoint in refugee law in the concept of refuge and the related forms of relief promised by the refugee regime. Bridget Hayden states: “The significant factor that distinguishes a refugee from other people who cross borders, people who are internally displaced, or indeed from those who have not moved at all but live in abysmal conditions, is the sense of responsibility and either pity or empathy we feel for them. ‘Refugee,’ like all other such categories, is a relational term.”[13] In this way, the protection of refugees can be as much a point of pride and identity for the receiving state as it is a somber exercise.

Canada’s refugee procedures surely say many things about Canada as a state. As one author has noted, "aliens are our mirror image; nothing like our consideration of them and their legal position presents us in so stark a way with an image of ourselves."[14] Just what that image is may be determined by the reader. Arguably, the image that emerges from these pages is of a country that has devoted significant resources and attention to the conditions upon which the other will be recognized as having status in Canada. On the one hand, this reflects and befits a state with a self-proclaimed liberal humanitarian tradition whose identity has been entwined with the concept of being a home for the displaced and persecuted. On the other hand, it can be argued that the very concept of refugee law reifies the dichotomy between “us and them”, “native and foreigner”, and the resources expended on the project may be seen as part of a state-centric initiative to maintain the efficacy and legitimacy of borders, and by extension, sovereign national power. Refugee law, ultimately, is surely an amalgam of these diverse histories and motivations sitting in uneasy union.

References[edit | edit source]

  1. Jenny Poon, A Legal Pluralist Approach to Migration Control: Norm Compliance in a Globalized World, 34 Emory Int'l L. Rev. Recent Dev. 2037 (2020). Available at: https://scholarlycommons.law.emory.edu/eilr-recent-developments/4 at page 2039.
  2. James C. Hathaway, The Rights of Refugees under International Law, April 2021, ISBN: 9781108810913, <https://assets.cambridge.org/97811084/95899/excerpt/9781108495899_excerpt.pdf> (Accessed March 6, 2021), at page 1.
  3. High Commissioner's Forum, Resettlement and Convention Plus Initiatives, discussion paper, Doc FORUM/2003/02 (18 June 2003), para. 13.
  4. 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
  5. Brittanica Encyclopedia, Oliver Wendell Holmes, Jr., <https://www.britannica.com/biography/Oliver-Wendell-Holmes-Jr/The-Common-Law> (Accessed October 9, 2021).
  6. Troper, Harold. The Canadian Encyclopedia, s.v. "Immigration in Canada", Last Edited September 19, 2017, https://www.thecanadianencyclopedia.ca/en/article/immigration
  7. Rebecca Hamlin, Crossing: How We Label and React to People on the Move, Stanford, CA: Stanford University Press, 2021, ISBN 9781503627888, page 63.
  8. Encyclopedia, The Canadian. "Canadian Refugee Policy".  The Canadian Encyclopedia, 10 November 2020, Historica Canada. https://www.thecanadianencyclopedia.ca/en/article/canadian-refugee-policy. Accessed 30 December 2020.
  9. Haddad, E. (2008). The Refugee in International Society: Between Sovereigns (Cambridge Studies in International Relations). Cambridge: Cambridge University Press. doi:10.1017/CBO9780511491351, page 128.
  10. Vanto J, Saarikkomäki E, Alvesalo-Kuusi A, Lepinkäinen N, Pirjatanniemi E, Lavapuro J. Collectivized Discretion: Seeking Explanations for Decreased Asylum Recognition Rates in Finland After Europe’s 2015 “Refugee Crisis.” International Migration Review. November 2021. doi:10.1177/01979183211044096 at page 23.
  11. Tone Maia Liodden, Who Is a Refugee? Uncertainty and Discretion in Asylum Decisions, International Journal of Refugee Law, Advance Article, 29 April 2021 <https://doi-org.peacepalace.idm.oclc.org/10.1093/ijrl/eeab003> (Accessed May 1, 2021).
  12. a b Anand Upendran, At Sea? The State of International Refugee Law, <http://www.mcrg.ac.in/RLS_Migration_2021/Papers/Anand%20Upendran_Abstract.pdf> (Accessed June 2, 2021).
  13. Hayden, Bridget. “What’s in a Name? The Nature of the Individual in Refugee Studies.” Journal of Refugee Studies 19, no. 4 (2006): 471–87.
  14. E.M. Morgan, Aliens and Process Rights: The Open and Shut Case of Legal Sovereignty, (1988) 7 Wisconsin International Law Journal, 107-47, as cited in R. G. L. Fairweather, Canada's New Refugee Determination System, 27 CAN. Y.B. INT'l L. 295 (1989), page 308.

Glossary[edit | edit source]

Acronyms[edit | edit source]

Common acronyms used herein:[1]

  • BOC: Basis of Claim Form
  • CBSA: Canada Border Services Agency
  • CIC: Citizenship and Immigration Canada (the former name for IRCC)
  • COI: Country of Origin Information.[2]
  • DCO: Designated Country of Origin[3]
  • IRCC: Immigration, Refugees and Citizenship Canada
  • DFN: Designated Foreign National[4]
  • IRB: Immigration and Refugee Board of Canada
  • IRPA: Immigration and Refugee Protection Act
  • JG: Jurisprudential Guide[2]
  • NDP: National Documentation Package[2]. These were previously referred to as Standardized Country Files.[5]
  • RAD: Refugee Appeal Division
  • RPD: Refugee Protection Division
  • IRCC: Immigration, Refugees and Citizenship Canada
  • NDP: National Documentation Package
  • PIF: Personal Information Form (Predecessor to the BOC)
  • POE Claim: Port of Entry Claim[3]
  • PRRA: Pre-Removal Risk Assessment
  • UNHCR: United Nations High Commissioner for Refugees

Terms[edit | edit source]

  • Alien: Non-nationals. Pursuant to section 91(25) of the Constitution Act, 1867, the federal Parliament has jurisdiction over "Naturalization and Aliens."
  • Asylum seeker: individuals whose request for sanctuary has yet to be processed.[6] Unlike in present day usage, the term asylum seeker was not used at the time of drafting leading up to the convention in 1951, when instead the dominant term of art was "refugee".[7]
  • Asylum: this has been described as "the protection which a State grants on its territory or in some other place under the control of certain of its organs, to a person who comes to seek it".[8] While its exact content is often contested, the principle of asylum is generally considered to extend beyond protection from refoulement to encompass "admission to residence and lasting protection against the jurisdiction of another State".[9] For example, Goodwin-Gill and McAdam state that the distinction between asylum and non-refoulement, is that asylum relates to the admission of the foreigner to a state's territory, while the latter concerns a prohibition of expulsion or forcible return.[10] Goodwin-Gill states that “Although [no] international instrument defines ‘asylum’, it can be considered as the grant to a non-citizen of lasting protection in the territory of a State, the opportunity to make a life and a living, and the possibility to enjoy fundamental human rights and freedoms.”[11] As Dieter Kugelmann writes in the Max Planck Encyclopedias of International Law, “Asylum implies a long-term stay; accordingly, in most cases, the admission to residence and asylum guarantees the asylees a set of rights. The prohibition of refoulement on the other hand is linked to the time of the existing risk of persecution and only encompasses a minimum standard of State obligations.”[12]
  • Country of origin information (COI) is defined as "Information about the situation in a country that is relevant to the refugee determination process and obtained from publicly available sources that are viewed as, whenever possible, reliable and objective" in the Board's Policy on National Documentation Packages in Refugee Determination Proceedings.[2]
  • Diplomatic asylum is that provided to persons in s State’s legations, warships, military aircraft, and camps.[13] Contrast with territorial asylum.
  • Identity: for commentary on the meaning of the term "identity" as it is used in the IRPA and the RPD Rules, see: Canadian Refugee Procedure/Information and Documents to be Provided#"Identity" as the term is used in the Act and the Rules refers to personal/national identity.
  • Inland office: Any office of Immigration, Refugees and Citizenship Canada (IRCC) or the Canada Border Services Agency (CBSA) inside Canada.[14]
  • Jurisprudential Guide (JG) is defined as "A decision identified by the Chairperson as a JG pursuant to section 159(1)(h) of the Immigration and Refugee Protection Act (IRPA)" in the Board's Policy on National Documentation Packages in Refugee Determination Proceedings.[2]
  • Landed Immigrant: this is an old term that was used under the previous immigration Act and has been replaced by the term "permanent resident".[15]
  • Member: Decision maker on the RAD or RPD.[3]
  • National Documentation Package (NDP) is defined as "A selection of COI documents on a given country from which refugee claims originate, compiled by the RD based on information that is, whenever possible, accurate, balanced, and corroborated" in the Board's Policy on National Documentation Packages in Refugee Determination Proceedings.[2]
  • Non-refoulement is the legal principle banning expulsion and non-admittance of refugees at the border of States Parties[16] where they would be returned to a country in which they face serious threats to their life or freedom.[17] The word refoulement derives from the French verb refouler, which means to push back.[18]
  • Permanent resident: The right to live, work, study and remain in Canada under specific residency obligations.
  • Resettlement relates to the overseas selection of refugees, and is oriented toward facilitating the movement of those chosen in advance.[19]
  • Territorial asylum is that provided in a state's territory.[13] Contrast with diplomatic asylum.

Definitions[edit | edit source]

  • Interpretation refers to the oral transfer of meaning between languages.[20] See, in contrast, translation.
  • Translation refers to the written transfer of meaning between languages.[20] See, in contrast, interpretation.

The Refugee Protection Division Rules themselves include a definitions section, which see: Canadian Refugee Procedure/Definitions. The Act also includes a definitions section, which see: Canadian Refugee Procedure/Definitions, objectives, and application of the IRPA#IRPA Section 2.

References[edit | edit source]

  1. Refugee Hearing Preparation: A Guide for Refugee Claimants, 2019, Page 1 <https://refugeeclaim.ca/wp-content/themes/refugeeclaim/library/guide/rhpg-vancouver-en.pdf>
  2. a b c d e f Immigration and Refugee Board of Canada, Policy on National Documentation Packages in Refugee Determination Proceedings, Effective date: June 5, 2019, <https://irb-cisr.gc.ca/en/legal-policy/policies/Pages/national-documentation-packages.aspx> (Accessed August 30, 2020).
  3. a b c Legal Aid Ontario, Refugee Case Law Toolkit <https://www.legalaid.on.ca/wp-content/uploads/Refugee-Case-Law-toolkit-EN.pdf>, page 7 (Accessed January 25, 2020).
  4. See: Canadian Refugee Procedure/Definitions, objectives, and application of the IRPA#IRPA Section 2.
  5. Hassan, [1993] F.C.J. No. 127 (F.C.A).
  6. United Nations High Commissioner for Refugees, Asylum-Seekers, <https://www.unhcr.org/en- us/asylum-seekers.html> (Accessed May 9, 2020).
  7. Smieszek M. (2021) The Conflicted Making of International Refugee Law. In: The Evolving Psyche of Law in Europe. Springer, Cham. https://doi-org.peacepalace.idm.oclc.org/10.1007/978-3-030-74413-7_4 at footnote 4.
  8. Kay Hailbronner and Jana Gogolin, ‘Asylum, Territorial’, Max Planck Encyclopedia of Public International Law (2013), para 1.
  9. Tamara Wood, The 1969 OAU Convention in Africa, in Satvinder S. Juss, Research Handbook on International Refugee Law, 2019. Edward Elgar Publishing: Northampton, Massachusetts, page 22.
  10. GOODWIN-GILL, G.S. AND MCADAM, J. (2018). The refugee in international law. Oxford: Oxford University Press, at p. 202, as cited in Esraa Adnan Fangary, A Peculiar Leap in the Protection of Asylum Seekers: The Inter-American Court of Human Rights' Jurisprudence on the Protection of Asylum Seekers, The Age of Human Rights Journal, 16 (June 2021) pp. 31-53 ISSN: 2340-9592 DOI: 10.17561/tahrj.v16.6134 at page 40.
  11. Guy Goodwin-Gil, Declaration on Territorial Asylum, July 2012 Introductory Note, <https://legal.un.org/avl/ha/dta/dta.html> (Accessed August 4, 2021].
  12. Dieter Kugelmann, Refugees, Max Planck Encyclopedia of Public International Law, March 2010.
  13. a b Advisory Opinion OC-25/18, as cited in Esraa Adnan Fangary, A Peculiar Leap in the Protection of Asylum Seekers: The Inter-American Court of Human Rights' Jurisprudence on the Protection of Asylum Seekers, The Age of Human Rights Journal, 16 (June 2021) pp. 31-53 ISSN: 2340-9592 DOI: 10.17561/tahrj.v16.6134 at page 35.
  14. Immigration and Refugee Board of Canada, Claimant's Guide (Print version), Version 5 - 2018 <https://irb-cisr.gc.ca/en/refugee-claims/Pages/ClaDemGuide.aspx> (Accessed January 25, 2020).
  15. Woo v. Canada (Citizenship and Immigration), 2007 CanLII 69120 (CA IRB), par. 2, <http://canlii.ca/t/20z95#2>, retrieved on 2020-02-05.
  16. Atle Grahl-Madsen, Commentary on the Refugee Convention 1951, Articles 2–11 (Division of International Protection of the United Nations High Commissioner for Refugees 1997), 13–37.
  17. UN General Assembly, Convention relative au statut des réfugiés, 28 July 1951, available at: https://www.refworld.org/docid/48abd59af.html [accessed 21 December 2020].
  18. Fiorenza Mariani, The Refugee Child in International Law: Child-Specific Challenges in the Refugee Status Determination Process, Master's Thesis, LUISS Guido Carli, <http://tesi.luiss.it/29613/1/639172_MARIANI_FIORENZA.pdf> (Accessed June 5, 2021), page 43.
  19. Prof. Audrey Macklin & Mr Joshua Blum, Country Fiche: Canada, ASILE, January 2021, <https://www.asileproject.eu/wp-content/uploads/2021/03/Country-Fiche_CANADA_Final_Pub.pdf> (Accessed April 2, 2021), page 3.
  20. a b Tess Acton, Understanding Refugee Stories: Lawyers, Interpreters, and Refugee Claims in Canada, 2015, Master of Laws Thesis, <https://dspace.library.uvic.ca/bitstream/handle/1828/6213/Acton_Tess_LLM_2015.pdf>, page 39 (Accessed January 23, 2020).

The history of refugee procedure in Canada[edit | edit source]

History of the concept of the refugee[edit | edit source]

The term 'refugee' was first used in the 1600s in France. The concept's genealogy is entwined with the emergence of the modern view of state sovereignty at that time in Europe. This section traces the history of these two concepts and how the refugees of the 17th century differed from earlier exiles and moving persons.

The world today is divided into sovereign states. All individuals are to be organized into populations and divided territorially amongst these states. In this way, the international state system is both a way of organizing political power, and also a means of organizing people.[1] It was with the Treaty of Westphalia of 1648 that the inter-state legal and political relationships which undergird this system were first established, and the feudal society of the medieval world was superseded by this modern society of sovereign territorial states.[2] Key concepts of modern international relations emerged at this point, including the inviolability and fixity of borders and non-interference in the domestic affairs of foreign sovereign states. In this way, the concept of state sovereignty that emerged with the Peace of Westphalia helped build the modern concept of the state which partitions the world into a vast juxtaposition of independent territorial units.[3] One of the facets of this system was that territory was consolidated, unified, and centralized under a sovereign government and the population of the territory now owed final allegiance to the sovereign. The sovereign state could demand religious and sometimes linguistic conformity to ensure such allegiance.[4]

Within a few decades of the Peace of Westphalia, the term 'refugee' was coined. The word ‘refugee’ can be traced to its origins in the French word réfugié that was used to identify the Huguenots, hundreds of thousands[5] of Reformed Protestant French migrants who escaped the French Catholic monarch to move to non-Catholic European countries[6] around the time of Louis XIV’s revocation of the Edict of Nantes in 1685.[7] This edict had previously allowed Protestant Huguenots to practice their religion openly.[8] With the revocation of the edict, the legal guarantees that had protected Protestant religious practice for a century ended. Calvinist churches were destroyed, Ministers were forcibly exiled, Protestants were forced to convert, and restrictions were put in place on their access to public office and the professions.[9] The term "refugee" was adopted into the English language as these Huguenots arrived in England.[10] Protestants in New France were similarly affected - forced to either abjure Protestantism, return to France, or leave for an English Protestant colony in the new world.[11]

While the term “refugee” was birthed at this point in the 17th century, related concepts, including those of refuge, migration, exodus, asylum, sanctuary, fugitives, exiles, and émigrés have long pre-dated the modern usage of the term. Eve Lester states that flight and requests for hospitality and asylum are concepts as old as life itself,[12] long predating the emergence of the nation-state as the dominant governing structure. Ancient Greece, for example, had a strictly governed system for offering sanctuary at dedicated shrines.[13] Indeed, the word "asylum" dates from this time and its Greek roots refer to the notion of someone who cannot or should not be seized.[14] Gil Loescher states that every major world religion contains teachings on the importance of providing protection to those in need.[15] Migration is a major theme of the Jewish Torah and rabbinical scholars have argued that the concept of non-refoulement has an analogue in ancient biblical Jewish legal principles of refugee protection.[16] The practice of extending benevolence and love to the vulnerable migrant fleeing harm can also be found in Koranic references.[17] For example, Prophet Muhammad and his followers took refuge at Medina after facing persecution from the rulers of Mecca.[18] Furthermore, there has been a long history of intra-European movement to flee persecution, war, religious intolerance, and governmental instability, as with the expulsion of Jews from Spain in 1492 or when many English persons escaped to France during the Interregnum of 1649-1660.[19]

What arguably distinguishes the phenomenon of the refugee from these earlier exiles and moving persons, was how the movements of refugees interacted with the newly emergent state system. In this way, it is no coincidence that the term "refugee" emerged at this time in the 17th century alongside the rise of the modern conception of the state. Indeed, Harsha Walia labels the very concept of an asylum seeker a "state-centric taxonomy only possible because of a prevailing assumption of the border as a legitimate institution of governance".[20] As Emma Haddad argues, the phenomenon of the refugee was marked by its new scale, bureaucratized processes, clear definitions of insiders and outsiders occasioned by newly locked borders and assumptions about the nation state being a proper home for individuals, and the lack of obvious receiving countries as national identities increasingly superseded religious ones.[21] Rebecca Hamlin contrasts the concept of the refugee, which entails crossing an international border and appealing to a state for protection, with practices from earlier in European history when appeals for protection could be made to families, individuals, or religious leaders, not (just) a state.[10] This change had consequences for the individuals themselves; in Arendt’s words, unlike their ‘happy predecessors in the religious wars’, the modern refugee was increasingly ‘welcomed nowhere and [could] be assimilated nowhere’.[22]

Refugee and population movements in pre-confederation Canada[edit | edit source]

Turning to Canada, (im)migration processes, of various sorts, including ones involving the search for refuge, have long been present in this territory. Asking about the history of refugee processes in Canadian history raises an ontological question about who should qualify as a refugee when one looks at population flows in centuries past. To the extent that refugees may be regarded as those with experiences marked by discrimination, displacement across borders, a severing of the bond between the individual and their government, and an overriding apprehension of persecution in their home community, persons meeting such criteria have a long history in this land. That said, the concept of the refugee is indeed a modern one, as described above, and applying it to population movements of pre-Confederation Canada is surely anachronistic. In Rebecca Hamlin's words, "to look back and place a refugee/migrant binary onto crossings of the past does not accurately reflect the realities of those events."[23] It is nonetheless appropriate to review (not erase) the history of population movements in the territory of Canada, both indigenous and colonial, and to chart how the contemporary concept of the refugee is deeply linked with the modern colonial state.

To start, movement and displacement of persons in the territory of Canada is not new. Some First Nations were highly itinerant, as with the Blackfoot who would follow bison across the prairies to hunting grounds where they would utilize bison jumps and runs.[24] Warfare between First Nations also led to aboriginal persons fleeing aggression and moving to new regions. For example, in the 16th century, the Haudenosaunee (Iroquois) embarked on campaigns to subjugate or disperse neighbouring groups while pursuing an ancient ideal that they “extend the rafters of the longhouse” by absorbing their neighbours into one nation and thereby produce a universal peace.[25] In 1649 the Haudenosaunee dispersed the French-allied Huron-Wendat from their homeland by destroying villages. Haudenosaunee dispersal campaigns then impacted the Petun, Neutral and Erie in the 1650s, with those nations dissolving and their members either joining together to form new communities or joining pre-existing Iroquoian nations.[26]

Forced displacement of Indigenous persons also resulted from the actions of the colonial regimes that took hold in Canada and the United States. European powers established their North American colonies on lands that they seized from the pre-existing Indigenous nations. These seizures involved the imposition of borders and attendant physical, social, and cultural displacement. As noted below, this had a number of consequences, including that many First Nations persons were killed by disease and warfare and had their mobility and ways of life disrupted by this new colonial order.

To begin, the colonial regimes in North America used force to establish themselves and to erect international boundaries. These borders have served to restrict First Nations' mobility - British North America and the United States of America required the First Nations to subject themselves to these emergent colonies, even where pre-existing living arrangements did not neatly fit on one side of the border or the other. For example, Crees and Chippewas from Canada became considered "foreign Indians" in the United States and deportable "illegal immigrants" despite ties to lands in the present-day United States that pre-date that country's founding.[27] The subversive chant "we didn't cross the border, the border crossed us" is, for this situation, entirely apt.[28]

Furthermore, even within national boundaries, the colonial regimes erected borders which limited mobility, including the borders involved in the reserve system, which abrogated many relationships with traditional territories, and involved related social, cultural, and political displacements.[29] Many Indigenous persons were compelled to reside on reserves, and, after the 1885 Northwest Rebellion, the federal government developed a pass system — a process by which Indigenous people had to present a travel document authorized by an Indian agent in order to leave and return to their reserves.[30] Even apart from the reserve system, the movements of many First Nations persons were controlled by settlers in Canada, as when a xenophobic hysteria overtook Victoria, BC upon the arrival of Smallpox in 1862, something which led to the police emptying nearby Indigenous encampments at gunpoint, burning them down, and towing canoes filled with smallpox-infected Indigenous people up the coast. Over the next year, as these Indigenous persons returned to their home communities, taking Smallpox with them, and at least 30,000 Indigenous people are reported to have died, representing about 60 per cent of the extant First Nations population.[31] Indeed, one of the most significant effects of colonialism was the large number of First Nations persons in Canada who died of diseases introduced by European colonists. One of the effects of these deaths was the emergence of post-contact communities such as the Abenaki, an aboriginal group in present-day New Brunswick and Quebec which emerged when numerous smaller bands and tribes who shared linguistic, geographical, and cultural traits joined together into a new political grouping after their original tribes were destroyed by disease and warfare.[32]

Apart from the effects of such epidemics and forced movements, the newly created nation of Canada also effected the social and cultural displacement of the pre-existing aboriginal peoples. In the words of the section of the final report of the Royal Commission on Aboriginal Peoples on displacement and assimilation:

[The impact of colonialism on indigenous populations was profound.] Perhaps the most appropriate term to describe that impact is 'displacement'. Aboriginal peoples were displaced physically — they were denied access to their traditional territories and in many cases actually forced to move to new locations selected for them by colonial authorities. They were also displaced socially and culturally, subject to intensive missionary activity and the establishment of schools — which undermined their ability to pass on traditional values to their children, imposed male-oriented Victorian values, and attacked traditional activities such as significant dances and other ceremonies. In North America they were also displaced politically, forced by colonial laws to abandon or at least disguise traditional governing structures and processes in favour of colonial-style municipal institutions.[33]

At times Indigenous communities relied upon the newly created international boundaries when seeking refuge from such displacement. For example, after American troops destroyed 40-50 Cayuga villages in the present-day US in 1779, many peoples of the Cayuga tribe fled the United States to seek refuge in British North America, and in so doing relied on these new borders for their associated guarantee of safety.[34] Indeed, in the 1700s and 1800s, the British instituted policies to encourage immigration to British North America. The people that the British encouraged to relocate included persons who would rightfully be termed refugees today. For example, 50,000 United Empire Loyalists, supporters of the British in the American revolution, migrated north in response to American republicanism.[35] Many of them migrated northward either because they did not wish to become citizens of the new American republic or because they feared retribution for their public support for the British during the War of Independence.[36] The retribution meted out to loyalists in the United States included beatings, imprisonment, and other forms of harassment.[37] Among these loyalists who migrated northward were an estimated 2000 members of the aboriginal peoples bordering the Thirteen Colonies who had supported the British cause, believing that an alliance with the British offered the best hope for preserving their independence and protecting their territories from land-hungry colonists.[38] The loyalists also included thousands of free black persons, some of whom had heeded a British proclamation issued early in the war offering freedom to any slave who deserted his (sic) American master during the Revolution and volunteered to serve with the King's forces. Most of the new black arrivals responded to an offer made late in the conflict that guaranteed that all slaves who made formal claim to protection behind British lines would receive their freedom.[39] Upon arrival, many of these black loyalists faced the scourge of racism and dismal agricultural prospects in Nova Scotia, where they primarily settled, and, bitterly disappointed, 1,200 sailed for Sierra Leone to start afresh on the west coast of Africa in 1792.[39] Nonetheless, over the next century an estimated 30,000 African Americans came to Canada as the final stop on the underground railroad, seeking protection from slavery in that country.[40]

While it is the case that black and aboriginal persons did flee the United States for Canada, the fact is that a racial logic was at work in the Canadian colonial project which shaped who the regime saw fit to welcome.[41] We can see this logic of colonialism in Canada's history, both in terms of how First Nations were treated, but also with how the state responded to ethnic and national outsiders. In the 1700s, the British enacted deliberate policies to reinforce the British character of their North American possessions. This included the forced deportation of Acadians from present-day Nova Scotia. In 1755, Lieutenant-Governor Lawrence and his council decided that the Acadians should be dispersed among the several colonies on the continent through forced transhipment. More than 3000 Acadians were transported to southern British colonies in the present-day United States that year. As many as a third of the passengers died on the ships. Many Acadians sought refuge on Prince Edward Island and in Cape Breton; they gained only temporary respite. In 1758, another British expedition against Louisbourg forced its surrender, and 6000 more Acadians were forcibly removed from their homes.[42]

Indeed, while the government in Canada made explicit efforts to entice persons who can aptly be titled refugees to choose to come to the country, they were generally individuals who hailed from the "right countries" and were of desired races, religions, and nationalities. For example, John Graves Simcoe, the first lieutenant-governor of Upper Canada, issued a proclamation in 1792 inviting Americans to emigrate to Upper Canada. This included a special appeal to the members of pacifist religious communities, including Quakers, Mennonites, and Dunkards, which promised them an exemption from military service.[43]

Finally, the concept of the refugee may also be thought of as a legal concept, and in this respect the First Nations in Canada have long faced questions about how to define and justify the conditions of community membership. Today such questions are primarily viewed through the lens of immigration and citizenship in the Canadian legal regime, but in aboriginal legal regimes they may equally be viewed through the concepts of family law, house group membership, and kinship rights, among others.[44] Indeed, a multitude of indigenous laws and legal traditions have persisted in the territories of Canada, both prior to, and then alongside, this country's colonial legal order. As John Borrows writes, the earliest practitioners of law in North America were its Indigenous inhabitants.[45] These indigenous laws and legal traditions have been defined by their diversity, continuity, repression, survival, and adaptability.[46] Bhatia writes, for example, about a number of First Nations' legal principles that relate to citizenship and welcoming the other,[46] such as the Dish With One Spoon wampum agreement, an Indigenous citizenship law made between Haudenosaunee and Anishinaabe nations in 1701.[47] Arima, for their part, writes about First Nations' legal principles related to family relations, such as the way that the Nootka on Vancouver Island would intermarry with persons from the Coast Salish groups on the mainland, despite otherwise less than amicable relations between the nations.[48]

The emergence of legal restrictions on immigration[edit | edit source]

During its earliest centuries, Canada and its forebears had neither an official immigration policy, nor the means to control the movement of individuals at the border.[49] This tracks the experience of other western states at the time. In Chetail's summary, the 17th century rise of the nation-state, and its implicit corollary—territorial sovereignty—did not generally coincide with the introduction of border controls.[50] Quite the contrary, the admission of (the right kinds of) foreigners was viewed as a means of strengthening the power of the host state, primarily for demographic and economic reasons. As a result, until the 19th and early 20th centuries, displaced, persecuted, and poor populations in Europe and North America were able to simply move to new jobs and opportunities in new regions.[51] While the federal Parliament had been given jurisdiction over "Naturalization and Aliens" pursuant to section 91(25) of the Constitution Act, 1867, Canada's first post-Confederation immigration law, the 1869 Act Respecting Immigration and Immigrants, reflected the laissez-faire zeitgeist by saying nothing about which classes of immigrants should be admitted and which categories should be proscribed.[52] Passports, for example, were not generally required for European and North American travel prior to the First World War.[53] Given all of this, defining a refugee was not a major concern for the reigning powers.[54]

While, from the point of view of western states people prior to World War I enjoyed a certain freedom of movement in the world, by no means did these comparatively open-door immigration practices result in a practical and non-discriminatory freedom of movement for all. Restrictions on freedom of movement took many forms. Some of the earliest restrictions on movement which were imposed by states were imposed on the internal movement of both nationals and non-nationals within each state's territory. In Europe such internal migration restrictions were mainly imposed for tax purposes,[50] and in British North America, as discussed above, one of the principal reasons for such restrictions was to control the aboriginal populations.

Furthermore, even at this time, not all migrants were welcomed by Canadian society. Even while all British subjects formally had the right to settle anywhere in the Empire, including the British Dominion of Canada,[55] as Jan Raska describes it, the Canadian government admitted migrants based on prevailing sociocultural, economic, and political views of the ‘desirable’ immigrant.[56] The seemingly laissez-faire immigration policies of early Canada existed, to an important extent, because of de facto travel restrictions which particularly limited travel to Canada for those of "undesirable races", not least of which were the lack of economical transportation modes to the new world from anywhere except western Europe for several centuries.[41] Even for those who were able to migrate to a new country at this time, the comparatively open-door immigration practices did not result in historical refugees enjoying the suite of rights set out in the modern Refugee Convention. For example, as Emma Borland writes, the French Huguenots of the 17th century did not receive an entirely welcoming reception in the United Kingdom and were not granted permanent residence.[57] Instead, the Huguenots kept the status of foreigner, rather than being considered ‘subjects’, and therefore had only limited rights in England at that time.[58]

In any event, the comparatively laissez-faire attitude towards immigration which had prevailed began to increasingly give way as the capacity of the state to monitor and govern the populace increased.[50] The concept of asylum took on a newfound importance in the 1800s in Europe as countries began to conclude bilateral treaties committing to extradite criminals, which limited individuals' hitherto freedom to abscond from one state to another. States did see fit to exclude from such extradition regimes those who had perpetrated political crimes, on the basis that they should properly be granted asylum from prosecution.[59] The concept of a political asylee in Latin America was similarly codified in a series of regional conventions dating from 1889.[60] Yet more restrictive immigration policies began to be imposed at the turn of the 20th century concomitant to the emergence of the modern welfare system. In Thériault's chronology, as states became more financially involved in the welfare of their population, they became increasingly concerned with the perceived additional burden of new immigrants and refugees.[61] Furthermore, increased global mobility at this time began to make racially-inflected concerns about immigration more acute.[62]

The barriers that states began to erect increasingly affected those who would today be termed refugees, as exceptions to the country’s growing immigration restrictions were generally not made based on the reason why an individual wished to depart their home state. As James Hathaway puts it, "what mattered was not the motive for immigration, but rather the immigrant's potential to contribute to the development of Canada".[63] That said, despite lacking a refugee policy as such, the government occasionally attempted to ease and facilitate the entry of victims of religious and political persecution.[64] A number of the people that the Canadian government specifically sought to entice to come to Canada during this period could, incidentailly, rightfully be thought of as refugees, including:

  • In the 1870s and 1880s the Canadian government sought to entice Mennonites to settle in western Canada. The Mennonite search for a new home was precipitated by the introduction of a policy of Russification in the schools of the Ukraine, where they lived, and by the implementation of universal conscription, which went against their pacifist beliefs.[65] The Canadian government not only offered them freedom from military service, but also freedom from swearing the oath of allegiance, a requirement which conflicted with their religious beliefs.[65]
  • Following the assassination of Tsar Alexander II in March 1881, violent pogroms took place throughout Russia, and hundreds of Jews were massacred, while others were systematically turned out of their homes and ordered from their villages. At this point, millions of Russians fled in search of refuge.[66] Hundreds of them availed themselves of group-settlement opportunities in western Canada. The first party of more than 200 Russian Jewish refugees to arrive in Canada in 1882 faced what Trebilcock and Kelley describe as "formidable obstacles" to their resettlement.[67] For example, when the federal government and the Jewish community settled on an appropriate piece of land for the new arrivals, the plan was abandoned after neighbouring Mennonites objected to living beside Jews. Eventually, a number of settlements succeeded and by the turn of the century, the Jewish population of Canada was approximately 17,000, almost ten times that of 1880.[67] Then, from 1900 to 1921, a further 138,000 Jews immigrated to Canada, many of them refugees fleeing yet further pogroms in Czarist Russia and Eastern Europe.[68]
  • Persecuted Doukhobors also began to arrive from Russia at this point, as well.[68]

Over time, amendments to Canada's immigration legislation began to explicitly enshrine the country’s discriminatory policies in statute. These amendments were in keeping with the rise of such restrictions in other western countries at this time; indeed, by 1930 every independent state in the Western Hemisphere had passed legislation limiting migration on racial grounds.[69] That said, as Somani puts it, racism at the Canadian border was masked by a performance of legality as Canada was reluctant to incorporate racial restrictions into its immigration laws too overtly, lest this undermine the notion of a cohesive British empire and undermine geopolitical relationships, say with the Japanese, or lend support to independence movements, for example that in India.[70] To this end, Canadian policies which de facto discriminated on the grounds of class, race, sex, and disability[71] were couched in neutral language, as with a power accorded to Cabinet to exclude any class of immigrant where it deemed that such exclusion was “in the best interests of the country”.[72]

The specific exclusionary measures employed in Canada included:

  • Documentation requirements: Canada, like many states at the beginning of the 20th century, implemented a requirement that travellers to Canada carry passports. As Kaprielian-Churchill writes, the passport requirement appears to have been implemented for the purposes of exclusion.[73] It was strictly applied to Asian immigrants, for example, while not being required for more favoured classes of immigrants.
  • Restrictions based on ethnicity, including racially selective taxation: the Chinese head tax was used to selectively exclude this groups of migrants.[40] It was first imposed by the Chinese Immigration Act of 1885, which is described as the first piece of Canadian legislation to exclude immigrants based on ethnic origin.[74] The head tax on Chinese immigrants was set at $50 in 1885, raised to $100 in 1900,[75] and then raised to $500 in 1903.[76] In contrast, the standard fare to enter the country for other immigrations was one dollar per passenger over one year of age.[77] Later, the 1923 Chinese Immigration Act eliminated the duties placed on earlier Chinese immigrants,[74] but instead outright prohibited the permanent settlement of almost all Chinese migrants. While exceptions were formally made for diplomats, merchants having invested at least $2,500 in an established business (and their wives),[78] people of Chinese origin born in Canada,[79] and students, only 15 Chinese immigrants were admitted to Canada in the 23 years following this Act.[74] It was repealed in 1947.[80]
  • Racial restrictions on immigration incentive and loan programs: Loan an incentive programs, such as the 1950s Assisted Passage Loan Scheme, provided loans to those who could not afford their own transportation to Canada. Loans were provided to those from Europe, but not to those from Africa or Asia.[81]
  • Racially-based internment: the internment of Ukrainians was directed at excluding and controlling these migrants.[82]
  • Refusal to process immigration paperwork for racial reasons: Of the more than 1 million American immigrants reported to have emigrated to Canada between 1896 and 1911, fewer than 1000 of them were African Americans. Trebilcock and Kelley report that there was relatively limited interest in settling in Canada shown by the African-American community and that the Canadian government did less than nothing to cultivate such interest. On those occasions when department officials or immigration agents were approached by African Americans wishing to emigrate to Canada, government policy was restrictive. At times, requests were simply ignored by Canadian immigration agents or put 'on file' indefinitely.[83] Otherwise, section 38(c) of the 1910 Immigration Act, allowed the Governor-in-Council to “prohibit ... the landing in Canada ... of immigrants belonging to any race deemed unsuited to the climate or requirements of Canada.” Black American immigrants were routinely excluded as being “unsuited to the climate” of Canada.[84]
  • Discriminatory use of health-based restrictions: Facially neutral legislative provisions were also employed in discriminatory ways; for example, while nothing in the Immigration Act specifically barred black Americans, any immigrant could effectively be denied access to Canada for health reasons under the Act's medical provisions. The government in 1911 instructed immigration inspectors along the American border to reject all black persons as unfit for admission on medical grounds. As Harold Troper notes, "there was no appeal."[36]
  • Class-based restrictions: In 1879, an order-in-council was passed to prohibit the landing in Canada of "indigents and paupers" unless the master of the ship carrying them deposited sufficient funds to provide temporary assistance and cover inland travel expenses.[85] The government amended the Immigration Act in 1910 to prohibit all "charity cases" who had not received written authority to immigrate to Canada from the superintendent of immigration at Ottawa or the assistant superintendent of emigration for Canada in London. As Valerie Knowles writes, this clause was inspired by the large number of impoverished British immigrants who had arrived in Canada with the assistance of charitable organizations eager to rid Britain of paupers and to provide them with a new start in Canada.[86]
  • Restrictions based on the manner of coming to Canada: Canada used facially neutral legislation regarding the manner in which individuals came to Canada to discriminate against racial minorities. The Chinese Immigration Act of 1885 limited the number of Chinese persons a ship could carry to one for every fifty tons of cargo, as compared to one European for every two tons of cargo.[87] Later, the 1906 “continuous journey regulation” authorized the Minister to prohibit entry of immigrants unless they came to Canada from the country of their birth or citizenship "by a continuous journey on through tickets purchased before leaving the country" (the wording was subsequently amended slightly).[88] This regulation famously prohibited the landing of all but 20 of the 376 passengers, most of whom were Sikhs, on the SS Komagata Maru in 1914.[89] The boat was not allowed to dock in Vancouver, and, after a two-month stalemate, the Komagata Maru was forced to turn around and sail back across the Pacific Ocean. While these would-be immigrants had not started out as refugees,[90] 26 of its passengers were killed by the British Indian police upon arrival in India,[74] who suspected that the passengers had become aligned with a group based in North America that was committed to the overthrow of the British Raj in India.[40] This continuous journey rule had particular implications for refugees, regardless of race, because its requirement that tickets be purchased in the country of birth or in Canada, an impossible requirement for most refugees who, by definition, would be loath to return to their country to embark on a voyage to Canada.[91] Furthermore, the restrictive intent behind the continuous journey rule was exemplified by actions that the Canadian government took to stop the only direct ship service between India and Canada, the Canadian Pacific shipping line's Calcutta-Vancouver service.[74] Later, the federal government would come to prohibit the landing of "skilled and unskilled workers" in Western seaports in 1913; that restriction had predictable racial effects considering who it was who was likely to arrive in Canada via the Pacific ocean.[92] Another Canadian interdiction effort from the early 1900s involved authorities responding to consternation among prairie residents about a possible influx of African-American settlers[93] by instructing railway staff not to sell train tickets to Black people coming from the US.[94]
  • Religious restrictions: For a three-year period starting in 1919, Doukhobors, Mennonites, and Hutterites were specifically prohibited entry into Canada because of, in the words of the relevant order-in-council, "their peculiar customs, habits, modes of life and methods of holding property, and because of their probable inability to become readily assimilated or to assume the duties and responsibilities of Canadian citizenship within a reasonable time after their entry."[95] The Hutterites are said to have provoked particular resentment in Canada at this time on account of their pacifism and consequent refusal to bear arms in the World War.[96]
  • Sex-based policies: In 1938, male residents of Canada who were able to support their intended wives were able to sponsor a fiancée. Female residents of Canada were not extended the same ability to sponsor a spouse.[97]

Exceptions to these restrictive policies were made for those with temporary status in Canada, for example fifteen thousand Chinese men were brought to Canada to construct the country's first transcontinental railroad.[98] However, exceptions were generally not made based on the reason why an individual wished to depart their home state - indeed, until the 1970s, Canada made no formal distinction between refugees and other migrants.[72]

League of Nations era[edit | edit source]

It was in the wake of the First World War and the Russian Revolution that the term "refugee" came to be widely used. While the term "refugee" does date to the 17th century, it had not been widely used until this point. It was during the 1920s that the term "refugee" began to emerge with more frequency and long-standing "competitor terms", like asylum, protection, and hospitality, began to be "relegated to oblivion". As Hamlin describes it, the term refugee "was a product of this period."[99] Amidst rising public concern about this issue, and in response to an appeal from the International Committee of the Red Cross,[100] Member states of the League of Nations approved the creation of a refugee office in 1921 and appointed Fridtjof Nansen as the first High Commissioner for Refugees.[101] In 1922, Nansen created the so-called 'Nansen Passport' for Russian refugees.[102] This was an international identity certificate facilitating the movement and resettlement of refugees uprooted by the events of World War I, the Russian revolution, and the Armenian genocide in Turkey. This institutional innovation provided several million post-WWI European refugees with a way to seek protection and assistance.[101] It has also been pinpointed as the beginning of international refugee law.[103] In 1925, the Refugee Service of the International Labor Organization (ILO) took on responsibility for issuing these Nansen Passports. Five years later, the League of Nations entrusted this humanitarian aspect of refugee work to the Nansen International Office for Refugees, or International Refugee Office for short.[104][105]

Thériault states that at first it was generally assumed that the refugee problem was temporary and states voluntarily afforded refugees relatively generous benefits. However, by the late 1920s, European states began to recognize the enduring nature of the refugee problem and increasingly refused to integrate refugees. This led to a shift in international refugee law as efforts to have states adopt agreements that imposed substantial obligations, such as the 1922 and 1924 arrangements regarding the issuance of the Nansen Passport to Russian and Armenian refugees, began to meet with limited state interest.[106] Canada, for one, refused to sign onto any of these international initiatives.[107] The Canadian government steadfastly refused to recognize the Nansen Passport on the basis that Canada would only accept such passport bearers if they were returnable to another country in the event that they became criminals or insane, something that Kaprielian-Churchill describes as a smokescreen and means of rejecting refugees.[108] In fact, even once other countries strove to accommodate the Canadian demand for returnability, Canadian officials continued to refuse refugees, finding other grounds for rejection.[109] In 1931, Canadian officials spoke with pride that only "a dozen refugees" had been admitted to Canada on the League of Nations' Nansen Passport.[110]

In order to address the fact that the agreements underpinning the Nansen Passport lacked the status of treaty law,[111] the League of Nations convened an international conference in 1933 to negotiate a Convention Relating to the International Status of Refugees. Canada neither attended the conference nor subscribed to the ensuing agreement.[112] Nonetheless, this Convention is remembered as the first attempt to create a comprehensive legal framework for the protection of refugees.[113]

The stark limits on Canada's willingness to take in refugees can be illustrated by looking at the main refugee groups that sought sanctuary during this period. As Irving Abella and Petra Molnar write, xenophobia and anti-semitism permeated Canada and "there was little public support for, and much opposition to, the admission of refugees [to the end of the Second World War]".[40] For example, in the 1930s Canada restricted the admission of European Jews who sought safe haven from antisemitism and the emergence of fascism in Germany, but welcomed Sudeten Germans from Czechoslovakia in search of refuge given that they were considered to be more "desirable" immigrants.[56] Armenian refugees were also subject to Canada's exclusionary policies. The Ottoman Empire began the mass killing, relocation, and deportation of its Armenian population in 1915. This claimed more than 1 million lives and resulted in more than half a million displaced persons. While 80,000 Armenian refugees would receive sanctuary in France, and 23,000 in the United States, fewer than 1,300 were admitted to Canada.[114]

Canada justified its restrictive resettlement policies by employing a narrow definition of who qualified for refugee protection (to the extent that it discussed the categorization whatsoever). For example, when Jewish organizations in Canada asked the Canadian government for permission to resettle Jewish refugees displaced in Europe, the government demurred, claiming that, since many had left Russia with the consent of the authorities, they could not be considered refugees.[115] Canada also did not support efforts to expand the conception of who was entitled to refuge. In 1938, the US government brought together 30 countries for a conference on the subject of the worsening refugee situation in Europe. Canada was a reluctant participant, tarrying for months before accepting the US invitation to attend the Evian, France event. Valerie Knowles describes Canada's participation at the summer 1938 conference as having been "minimal" and states that it was to Canada's relief that the delegates at the conference accomplished little more than to produce a statement of lofty principles not actually necessitating more liberal immigration policies.[116] The Intergovernmental Committee on Refugees (ICR) that was established that year, mandated to assist Jews from Germany and Austria, operated without Canadian involvement.[117] Evian's legacy is that it is seen as a key moment in what Hathaway has caled "the individualization of refugee law", because when the ICR was founded, it set forth a definition of a refugee that focused for the frist time on why people were beign displaced, something that would come to influence the 1951 Refugee Convention.[118]

Canada also appears to have disregarded the notion of refoulement in its deportation decisions. For example, in its zeal to expel Communists, Canada removed persons who would be persecuted in their home countries. Hans Kist reportedly died of torture in a German concentration camp after being sent to that country from Canada.[119] Kelley and Trebilcock write that many activitists sent to fascist countries such as Italy, Germany, Finland, and Croatia were also in danger of losing their lives upon return.[119]

That said, some people appropriately regarded as refugees did move to Canada during this time through Canada's regular immigration streams. In fact, Prime Minister Mackenzie King asserted that between 1932 and 1943 most of the immigrants who entered Canada were refugees.[120] For example, between 1923 and 1930 close to 20,000 Mennonites from Russia were permitted to settle in Canada. As Kelley and Trebilcock set out the history, German-speaking Mennonite refugees from Russia came to Canada to escape hardship they were experiencing following the Russian revolution. Their refusal to take up arms during the revolution had alienated and angered both sides of the conflict, and Mennonites increasingly became the victims of brutal assaults and intimidation, which continued after the civil war ended. Throughout the 1920s, land expropriation, official intolerance of their religion, and threats of forcible relocation to Siberia prompted thousands to seek a safe haven elsewhere.[121]

WWII-era refugee policies[edit | edit source]

Canadian refugee policy continued to be marked by antisemitism and xenophobia throughout the Second World War. Sanctuary was provided to many persons of favoured ethnicities, principally the British, and was denied to others.

At the beginning of the war, Canada began to allow for the admission of British children in danger overseas. The government agreed to the admission of 5,000 British children and their mothers and more than 4,500 British children and 1,000 mothers came to Canada. The movement was abruptly terminated in 1940 when two ships carrying children to Canada were torpedoed.[122]

Entry for non-British persons was not facilitated in the same way. For example, a visible manifestation of the antisemitism which marked Canada's immigration and refugee policy at this time was the 1939 decision to deny admission to 930 Jewish refugees on the SS St. Louis seeking asylum from Nazi Germany. These refugees were instead sent back to what awaited them in Germany. When, later in the war, in 1943, Canada did announce that it intended to admit some Jewish refugees who had made their way to the Iberian peninsula, this is said to have "ignited a storm of protest from anti-refugee interests". Quebec opposition leader Maurice Duplessis held rallies in which he charged that that provincial and federal Liberals were set to allow the "International Zionist Brotherhood" to, in his words, settle 100,000 Jewish refugees in Quebec in return for election financing.[123] Ultimately, Canada admitted 5,000 Jewish refugees during the Second World War, something Trebilcock and Kelley call one of the worst records of any democracy in providing assistance to the persecuted Jews of Europe.[124] In contrast, the US allowed 240,000, Britain 85,000, China 25,000, Argentina and Brazil over 25,000 each, and Mexico and Colombia received some 40,000 between them.[40] When Canadian immigration officials were asked how many Jews the country would admit after the war, their famous response was, “None is too many.”[125]

Measures were also employed to exclude and restrict persons considered "enemy aliens" during the Second World War. Canada enacted mass internment policies that placed so-called German enemy aliens - Nazi sympathizers and Jewish refugees alike - into camps.[126] Regulations under the War Measures Act also restricted entry by Japanese immigrants, provided for the deportation of Canadian citizens of Japanese descent,[127] and effected the internment of Japanese persons.[40] In February 1942 the government ordered the expulsion of some 22,000 Japanese Canadians from a 100-mile swath of the Pacific Coast. The majority were relocated in the interior of British Columbia, often in detention camps in isolated ghost towns. Japanese Canadians were forced to remain in these detention camps until the end of the war. Then, after the conclusion of hostilities, about 4,000 would surrender to pressure and leave Canada for Japan under the federal government's "repatriation" scheme. Of these, more than half were Canadian-born and two-thirds were Canadian citizens.[116]

During the war, the British government also transported 2,500 "enemy aliens" to Canada. For the most part, these were German and Austrian nationals, many of them highly educated Jews, who had been living in Great Britain when the war erupted. Valerie Knowles describes their reception in Canada as follows:

The Canadian government agreed to receive these male civilian internees in the belief that it would be assisting hard-pressed Britain by accepting custody of a number of "potentially dangerous enemy aliens". Canadian authorities were therefore astonished to see a large assortment of teenage boys, university students, priests, and rabbis step ashore at Quebec. Despite their misgivings, however, the Canadians proceeded to place all in camps that resembled maximum security prisons. And it was here that scientists, theologians, musicians, teachers, artists, and writers, among others, would be forced to bide their time for months to come.[123]

Knowles notes that, fortunately for these prisoners, the British government soon realized that it had done a possibly grave injustice to many of the internees and initiated steps to have them released. In 1945, Canada reclassified these one-time prisoners as "Interned Refugees (Friendly Aliens) from the United Kingdom" and invited them to become Canadian citizens. 972 chose to do so.[128]

United Nations Relief and Rehabilitation Administration (UNRRA) and the International Refugee Organization (IRO)[edit | edit source]

In 1943, with the end of World War II in sight, the allied powers began to lay the foundations of a post-war refugee regime. In that year, they established the United Nations Relief and Rehabilitation Agency (UNRRA) in preparation for the liberation of Europe.[129] The War had created a refugee crisis of at least 10 million stateless persons in Europe alone.[130] At war’s end, there were over a million displaced persons and refugees in crowded shelters maintained by United Nations agencies in Europe. Some of these people were concentration camp survivors, others were individuals who had been dispatched to labour camps in Germany and Austria, and still others were those refusing to be repatriated to communist regimes.[131] Canada provided funding to the UNRRA, which operated more than 800 displaced persons camps in Europe;[132] distributed about $4 billion worth of goods, food, medicine, and tools, at a time of severe global shortage; and focused on the repatriation of displaced persons back to their home countries in Europe in 1945-46.[133]

The activities of the UNRRA immediately began to be enmeshed in Cold War politics. The organization was faced with large numbers of displaced persons who were reluctant to return to countries where communist parties were taking a firm hold. Many Polish, Ukrainian, and Baltic persons were thus residing in camps, asking to be referred to a non-communist country, as opposed to their country of citizenship. Soviet officials objected to any willingness to countenance such demands. While the UNRRA was returning large numbers of displaced persons to their countries against their will at this point, this was becoming increasingly untenable.[134] In response, in December 1946 Western governments decided to stop funding the UNRRA and to transfer the task of organizing resettlement work from the UNRRA to a new entity, the International Refugee Organization. Unlike the UNRRA, the IRO had no Soviet participation[101] and its chief function was not repatriation, but instead the overseas resettlement of refugees and displaced persons.[135] As Shauna Labman writes, it was at this point that the focus of refugee law and institutions shifted from an individual's inability to return home to their unwillingness to return home.[129] In retrospect, this move to accommodate those with objections to returning to communist countries represented a sea-change in the international approach to refugees. Previously, international organizations had dealt only with specific groups of refugees, such as Russian or German refugees, and, in Gil Loescher's words, governments had never attempted to formulate a general definition of the term 'refugee'. For the first time, therefore, with the establishment of the IRO, the international community was making refugee eligibility dependent on the individual rather than group membership and accepted the individual's right to flee from political persecution to a safe country.[135]

To achieve its mandate, the IRO had its own specialized staff, a fleet of more than 40 ships, and, most importantly, the political and economic support of the developed world. With the opening up of this IRO resettlement program, the number of repatriations to Eastern Europe was reduced to a small trickle and the IRO began operations that would relocate more than 1 million Europeans to the Americas, Israel, Southern Africa, and Oceania.[136] After the Second World War, the Canadian government began to receive more pressure both domestically and internationally to fulfill its humanitarian responsibility of hosting displaced persons.[137] In 1946, the Canadian government signed an order-in-council that allowed Canadians to sponsor displaced family members in Europe.[138] In 1947, Canada began to accept refugee referrals from the International Refugee Organization.[139] Canada also deployed its own immigration officers overseas for the purposes of selecting from among the displaced persons.[140] Collectively, these arrivals comprised what was called the Displaced Persons Movement, which successfully resettled 186,154 persons to Canada over the course of six years.[138] Of these, 100,000 entered Canada between 1947 and 1951 through what were termed labour-sponsored movements whereby an employer could show the government that a job could not be filled locally and the government in turn would have the IRO refer two or three potential immigrants from among available refugees for each needed labourer.[141] During the four and a half years of IRO operations, Canada would accept 12% of all refugees resettled by the organization, when compared to Australia at 18%, Israel at 13%, and Britain at 8%.[135] The terminology used at this time is not consistent: at times 'displaced persons' were contrasted with refugees in that displaced persons were those willing to return to their country of nationality post-war whereas refugees were not;[142] at times the terms 'refugee' and 'displaced person' were used as synonyms; and at times the term 'displaced persons' was used to refer to what we now think of as 'internally displaced persons', in contrast to 'refugees' who had fled across a border from their home state.[143]

When announcing the government's willingness to allow the movement of war survivors to Canada on May 1 1947, Prime Minister Mackenzie King articulated the government's position as follows: "It is not a 'fundamental human right' of any alien to enter Canada. It is a privilege. It is a matter of domestic policy. Immigration is subject to the control of the parliament of Canada."[144] Despite such protestations to the contrary, this speech is seen as the beginning of Canada accommodating the concept of human rights enshrined in the then-new United Nations Charter. For example, in deference to the UN Charter, Mackenzie King announced that the Chinese Immigration Act of 1923 would be repealed and that Chinese residents of Canada would be able to apply for naturalization.[145] Similarly, it was at this time that Canada was involved in discussions about the Universal Declaration of Human Rights, which would emerge in 1948 recognizing that “everyone has the right to seek and to enjoy in other countries asylum from persecution.”[146] Despite this growing accommodation to human rights rhetoric, King's realpolitik was reflected in Canada's actions: the tens of thousands of displaced persons that Canada accepted during this post-war period were "carefully selected, and most of them would have satisfied our standards if they had been applying as immigrants", according to one contemporary author.[147] Furthermore, it is arguable that the Holocaust had surprisingly little effect on refugee policies in the immediate post-war decades, especially in comparison to the effect of Cold War power politics on Canada's actions.[148]

1947 also saw the birth of the modern concept of Canadian citizenship, with the coming into force of the Canadian Citizenship Act that January.[149] The new Citizenship Act eliminated the previous classification of "British subject",[74] merged the pre-existing legal concepts of “nationality” and “citizenship” into a single status, that of “Canadian citizen”, and in so doing sought to create a unifying symbol for Canadians.[150]

The founding of the UNHCR, negotiation of the Refugee Convention, and growing refugee intake[edit | edit source]

The International Refugee Organization had a time-limited mandate. The assumption of the international community was that refugees and displaced persons were a creation of war, hence an end to the fighting would mean an end to the existence of such individuals.[151] However, as the IRO's June 1950 termination date neared, refugees continued to abound in Europe. Indeed, they were increasingly arriving across Western European borders from the Eastern Bloc.[152] As a result, on December 3, 1949, the UN General Assembly decided to establish the United Nations High Commissioner for Refugees (UNHCR).[18] A year later, on December 14, 1950, the Statute of the Office of the United Nations High Commissioner for Refugees was passed by the UN General Assembly, which defined the UNHCR's mandate to provide for the protection of refugees and forcibly displaced people and assist in their voluntary repatriation, local assimilation, or resettlement to a third country.[153] The UNHCR began its work on January 1, 1951 with a staff of 99 and a budget of $300,000.[154] At that point, the IRO was engaged in an extended wind up of its operations, which it completed by 1952.[155] The UNHCR, too, was intended to be temporary, with the UN General Assembly giving the organization a 3-year mandate to address the needs of displaced Europeans from World War II.[156]

At the same time, negotiation of what would become the foundational treaty for modern refugee protection, the 1951 United Nations Convention Relating to the Status of Refugees, was underway. The preparatory work for the Convention started in 1948,[157] with the initiation of the UN Secretary-General’s ‘Study on Statelessness’.[158] The first round of negotiations in the drafting of the Refugee Convention then began through what was termed the Ad Hoc Committee on Statelessness and Related Problems, which was appointed by the UN Economic and Social Council on 8 August 1949.[159] The Ad Hoc Committee was said to comprise a small circle of government representatives possessing ‘special competence’ on the subject, in the words of the relevant ECOSOC resolution.[160] It was mandated to consider, and act on, the recommendations made in the Secretary-General’s ‘Study on Statelessness’.[158] Cold War politics were felt during these discussions largely through the absence of the eastern block countries—the USSR and Poland first ‘walked out’ and then boycotted the Ad Hoc Committee in protest of the participation of (Nationalist) China.[161] The committee, chaired by Canadian Leslie Chance, met from 16 January to 16 February 1950, and prepared the first draft of a refugee convention.[162]

The Ad Hoc Committee then provided its report to the Social Committee of the UN Economic and Social Council. Discussions among the 15 country representatives on the Social Committee then took place over the course of eight meetings from 31 July to 10 August 1950.[159] A draft text was voted on by ECOSOC, and the text then passed to the UN General Assembly. On December 14, 1950, the General Assembly debated and then adopted a draft of the text by 41 votes to 5, with 10 abstentions.[163]

From there, a committee entitled the UN Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons was formed to conduct the final negotiations on the Convention.[164] The much-discussed travaux préparatoires of the Refugee Convention are from these meetings, which ran from July 2 to July 25, 1951, with the Convention being signed three days later on July 28.[165] Cold War politics played an important role in the countries that participated in this conference—other than Yugoslavia, no Soviet bloc country attended the meetings.[166] Pursuant to this Refugee Convention, refugee status was a label held by individuals on the grounds of their personal circumstances. This contrasted with earlier definitions that had generally applied to all nationals of a particular state or persons of a particular ethnic group from that state, and in so doing required the asylum seeker to provide a more personalized account of their experiences as well as the general situation in the country of origin. Thereby, the scope of protection was narrowed and the importance of individual screenings increased.[167]

Canada was seen to be a leader at the conference drafting the Convention: it was one of twenty-six countries to send a delegate to participate in the conference;[56] a Canadian, Leslie Chance, chaired the conference;[168] Canada was the country in the Americas that presented the most proposals during the process of drafting the Convention, voicing comments during discussions that were otherwise dominated by the European states; and Canada was a part of the working group vested with the responsibility of drafting arguably the key part of the Convention - the definition of a refugee in Art. 1 of the document.[169] Canadian chairman Leslie Chance reported “we have been regarded throughout as taking a forward attitude.”[170] As an aside, Chance's statement could be regarded as somewhat self-serving given the shifting positions Canada took at the conference, for example arguing, contra France and the United Kingdom, for the inclusion of temporal and geographical limitations in the Convention, prior to flipping that position and arguing against such restrictions.[171] In any event, Canada did ultimately advocate at the conference "in favour of the widest possible definition" and took the position that "the purpose of the Convention was to protect refugees, not states."[172]

Commonwealth states like Australia and Britain ratified the resultant Convention.[173] Unlike those countries, Canada declined to do so. By way of explanation, then Secretary of State for External Affairs Lester B. Pearson announced that the government was concerned the Convention would give the refugee “the right to be represented in the hearing of his appeal against deportation” and, further, that the Convention would “grant rights to communists or to other persons who believed in the destruction of fundamental human rights and freedoms.”[170] The Canadian government also noted with concern that, "some sections of the Convention appeared to prohibit states from deporting 'bona fide' refugees, even on grounds of national security".[174] This reflected the RCMP’s belief that the Convention would restrict Canada’s right to deport refugees on security grounds and the government’s suspicion that the International Refugee Organization was infiltrated by communists.[175] Without Canada, the Refugee Convention entered into force on April 22, 1954.[176]

Despite not signing the Convention, in the ensuing years Canada inexorably became more involved in refugee matters:

  • Pledging to respect non-refoulement obligations: Despite not signing the Convention, Canada pledged to nonetheless uphold the Convention’s non-refoulement obligation. In practice, Canada had no difficulty in ensuring compliance with what it viewed to be the requirements of the Convention because, from the late 1940s, and in line with US practice,[177] Canada's Immigration Branch had invoked an administrative ban on deportations to any Communist country.[178] Haddad notes that such a commitment was not onerous as the numbers emerging from behind the Iron Curtain were minimal for the simple reason that "refugees could not escape".[179]
  • Financially supporting UNHCR: Canada financially supported the UNHCR from its establishment.[139] That said, Canada's contributions to UNHCR for the maintenance of refugees during this period have been described as "minimal" and in 1952 the Canadian government eliminated the UNHCR’s Canadian office.[180]
  • Becoming a member of UNHCR ExCom: In 1959, began to sit on the then-new UNHCR Executive Committee, an advisory body of states that gives guidance to the High Commissioner.[181] The UN General Assembly established the Executive Committee of the Programme of the United Nations High Commissioner for Refugees in 1958, several years after the founding of the UNHCR. ExCom is responsible for approving the Office's annual budget and programme, for setting standards and reaching conclusions on international refugee protection policy issues, and for providing guidance on UNHCR's management, objectives, and priorities. In the 1950s, this group started with 24 member states.[182] ExCom members need not have ratified the Refugee Convention, but are instead selected ‘on the basis of their demonstrated interest in and devotion to the solution of the refugee problem’.[183]
  • Growing refugee resettlement and admission: At the time of UNHCR's creation, one of its principal tasks was to resolve the situation of those in displaced persons camps in Europe. Despite an initial expectation that this could be accomplished quickly, as of 1960 the UNHCR was still running refugee camps in Europe for persons displaced during WWII.[184] For its part, by this time Canada had admitted nearly 250,000 displaced persons from Europe,[185] many of whose journeys to Canada had been subsidized by a Canadian government seeking to recruit more workers for a booming economy.[186] In the years following the UNHCR's creation, Canada also allowed for refugee entry on an ad-hoc basis for those displaced from other regions and for other reasons, ranging from small groups, such as when Canada admitted 39 Palestinian families in the wake of the displacement occasioned by the founding of the State of Israel,[187] to larger movements, including the 37,000 Hungarian refugees Canada admitted following the Hungarian Revolution in 1956.[188]
  • Increased procedural fairness and creation of immigration appeal boards: Canada also saw a movement towards increasing the extent of procedural fairness offered to migrants in Canada, providing for the creation of immigration appeal boards in 1952 which could hear appeals from decisions to deport aliens. Each board would consist of at least three members selected by the executive from officials at the department. That said, Canada's overall immigration laws continued to restrict persons for reasons of race, class, and health, and "national security" concerns related to the fear of communism, which were used to reject more than 29,000 applications to enter Canada between 1946 and 1958.[185] The ability to have recourse to an immigration appeal board was also limited at this time: all appeals were to be heard by the Minister unless, at the Minister's discretion, the appeal was directed to an IAB.[189] Furthermore, the Minister could also reverse any decision of an IAB.[190]

Non-discrimination measures[edit | edit source]

The 1952 Immigration Act empowered Cabinet to limit the admission of migrants by reason of a large number of grounds that allowed for Canada's discriminatory policies, including:

(i) nationality, citizenship, ethnic group, occupation, class or geographical area of origin,

(ii) peculiar customs, habits, modes of life or methods of holding property,

(iii) unsuitability having regard to the climatic, economic, social, industrial, educational, labour, health or other conditions or requirements existing ... in Canada ... or

(iv) probable inability to become readily assimilated or to assume the duties and responsibilities of Canadian citizenship ...[191]

By the 1960s, values were changing across Canada, and around the world, and Canada’s racially-based, Eurocentric approach to immigration and refugee policy was becoming less and less aligned with how the country both viewed itself and wished itself to be seen. Canada’s unofficial ban on black immigrants was costing it diplomatic legitimacy with newly independent former colonies and, by 1961, Britain began to pressure Canada to change its policies as it had an open door to immigrants, such as those from the West Indies, that were barred entry into Canada.[192] Further, this race-based approach clearly contradicted the then-new Canadian Bill of Rights.[193]

Canada began to repeatedly liberalize who it was prepared to admit, for example admitting 325 tubercular refugees and their families around 1960, the first time that Canada had waived its health requirements for refugees.[68] In 1962, Prime Minister Diefenbaker's Immigration Minister tabled new regulations in the House that eliminated racial discrimination as a major feature of Canada's immigration policy. With this revision, historian Valerie Knowles states that the last vestige of discrimination which remained in the immigration regulations was a provision that allowed immigrants from Europe and the Americas to sponsor a wider range of relatives, something that was inserted at the last moment because of a fear that there would be an influx of sponsorships by persons from India.[194] In 1965, Canada ratified the four Geneva Conventions which form the basis of international humanitarian law,[195] including the 1949 Geneva Convention Relating to the Protection of Individuals in Times of War which includes a provision that refugees should not be considered enemy aliens if they had formerly had the nationality of an enemy power.[196] Then, in 1966 Lester B. Pearson's government created the Department of Manpower and Immigration and mandated it with the responsibility of processing refugees without “discrimination by race, country or religion”.[170] That department set to work and in 1967 all vestiges of discrimination were removed from the immigration regulations, if not the statutes themselves, and the government implemented its much-vaunted 'points system' in the regulations to guide the selection of many categories of immigrants.[86]

Immigration Appeal Board Act[edit | edit source]

Immigration Appeal Boards, each consisting of three staff members from the immigration department, had been a feature of the Immigration Act since the 1950s. 1962 regulations expanded the jurisdiction of these boards to include appeals from all deportation decisions under the Act.[197] In this way, while immigration to Canada continued to be considered a privilege, and not a right, basic due process protections were coming to be seen as properly extended to aliens. Specifically, as Trebilcock and Kelley note, it was coming to be accepted that the rules governing admission or deportation of aliens should be reasonably well specified and transparent, and that deportation decisions should generally be open to challenge before a neutral tribunal.[198] That said, at this point, the Immigration Appeal Boards played what Trebilcock and Kelley describe as “a very minor role” in immigration decisions because their jurisdiction was limited to questions of law, and in view of the large discretionary powers granted to the Department of Citizenship and Immigration, errors of law were quite rare.[199] Furthermore, given that the boards were controlled by immigration as officials, they could be considered neither neutral nor independent.

In March 1967, the Immigration Appeal Board Act changed this. This Act emerged from what was called the Sedgwick Report, drawn up by Joseph Sedgwick, Q.C., a one-man board of inquiry which had been commissioned by the government to study a series of highly controversial deportations. Chief among the recommendations was the establishment of a completely independent immigration appeal board.[200] The principal features of the newly reconstituted Board were:

  • Independence: The Board was no longer controlled by immigration as officials, but was instead a a quasi-judicial entity independent of the Department of Manpower and Immigration.
  • Broader jurisdiction: A right of appeal to the Board was created for everyone who had been ordered deported from Canada, including those who believed themselves to be refugees in accordance with the 1951 Geneva Convention, and for denial of Canadian citizens’ family sponsorship applications.[201] Persons could appeal to the IAB on grounds of law, fact, mixed fact and law,[202] or compassion.[68] The Immigration Appeal Board Act empowered the Board to quash a deportation order against a person it determined to be a Convention refugee.[178]
  • Final authority over deportation decisions: Under the 1952 Immigration Act, the IAB consisted of Immigration Branch officials who made recommendations to the Minister, which the Minister could accept or reject at their discretion. Decisions of the newly reconstituted IAB were instead final (subject only to judicial review, as set out below).[141]
  • Judicial review: IAB decisions were final, subject to an appeal with leave to the Supreme Court of Canada on questions of law, including jurisdiction.[202] As commentators have noted, these leave requirements have effectively served to "insulate" such administrative decisions from judicial review.[203]

The 1967 changes to the Immigration Appeal Board are said to have proceduralized and judicialized immigration policy to an unprecedented degree and to have presaged calls for similar due process protections in the determination of refugee claims.[204] That said, the Board had a statutory limit of 7 to 9 judges[205] (later increased to 10) and was unable to keep pace with the scale of removals being ordered.[206] Almost immediately, the Board was swamped with a backlog that, at existing case processing rates, was expected to take decades to go through.[207] For example, as of August 1973 the IAB had a backlog of 17,000 cases, which it was deciding at a rate of 100 cases per month.[208] In effect, anybody wanting to achieve de facto permanent residence in Canada only needed to lodge an appeal of their deportation with the Immigration Appeal Board to be added to the Board's backlog, which began to extend into the 21st century.[206] As a result, in 1973 the government amended the Immigration Appeal Board Act to abolish the universal right of appeal for all persons in Canada. Instead, only permanent residents, valid visa holders, and persons claiming to be refugees or Canadian citizens were given a right of appeal.[208] In order to clear the backlog, the government also instituted a one-time amnesty program, which more than 39,000 people availed themselves of, including a significant number of US draft dodgers.[209]

Negotiation of the 1967 Refugee Protocol[edit | edit source]

In the late 1960s, negotiations were underway to expand the temporal and geographic scope of the 1951 Refugee Convention. This initiative was driven by decolonization in Africa and the scale of the emerging refugee phenomenon there. To wit, in the early 1960s, 150,000 Tutsi refugees fled Rwanda for Uganda, Burundi, Tanzania and Zaire; more than 80,000 refugees from Zaire could be found in Burundi, the Central African Republic, Sudan, Uganda and Tanzania by 1966; the first Sudanese war that ended in 1972 created 170,000 refugees; and there were 250,000 refugees from Rhodesia in Mozambique, Zambia and Botswana by the end of the 1970s. Estimates put the total refugee population of Africa at 400,000 in 1964, a figure that had reached one million by the end of the decade.[210] At the same time, many newly independent African states saw the the 1951 Convention as one that reflected European experience - and by its terms was limited to those fleeing persecution ‘as a result of events occurring before 1 January 1951'. The Organization of African Unity's move to negotiate a regional refugee convention for Africa was feared by the UNHCR as something that could limit its authority and undermine the (supposedly) universal regime it shepherded.[211] The 1967 Protocol was UNHCR's response. As articulated by the UNHCR, the motivation behind this initiative was to ensure that the de facto racial distinctions built into the 1951 Convention yielded to a growing anti-discrimination postcolonial zeitgeist:

The Convention had led to an unfortunate discrimination among the different groups of refugees, in particular with regard to the African refugees. Such discrimination conflicted with the Statute of his Office and was contrary to the universal spirit of the Convention itself.[212]

The resultant protocol was signed at New York in January 1967. It entered into force that October. The changes that the protocol made to the 1951 Refuge Convention were straightforward: extending the territorial and temporal scope of the Refugee Convention to cover refugees outside of Europe and those displaced for newly emerging reasons.[213] Canada was a laggard in signing the instrument. It initially refused to commit to the initiative to negotiate a protocol to the Refugee Convention on the basis that it was preparing what it termed its White Paper on Immigration.[214] In 1966 Canada released its White Paper on Immigration to, in researcher Clare Glassco's words, "test the waters" for making more fundamental changes to the immigration regime.[215] Reaction to the White Paper was negative.[74] As a result, it would be three years until Canada would come to sign onto the 1967 Refugee Protocol.

Canada's ratification of the Refugee Convention and Protocol[edit | edit source]

Among many initiatives, the 1966 White Paper on Immigration committed to the establishment of an immigration admissions policy that would be free from discrimination on the grounds of race, religion, or ethnicity. Further, the Paper proposed both the introduction of a refugee determination process within Canada’s borders, as well as the ratification of the 1951 UN Refugee Convention. As immigration official E.P. Beasley noted in 1966, in reference to the need for a clear refugee policy, in his view Canada had “become a country of first asylum,” and, thus, “the time may have come to set forth in legislation machinery and a methodology for determining these individual cases more precisely and more fairly.”[215] The concept of a "first country of asylum" in this context refers to a situation where Canada is the first country that grants protection to an individual, as opposed to resettling individuals who have already found temporary protection elsewhere.[216] At this time, Canada was increasingly seeing itself as a country of first asylum as Cold War crises caused thousands to seek safe haven in the West.[56]

In May 1969 Canada ratified the 1957 Agreement Relating to Refugee Seamen.[217] Then, a month later, in June 1969 Canada ratified the 1951 Convention Relating to the Status of Refugees as well as the 1967 Protocol Relating to the Status of Refugees.[218] Despite these ratifications, and while access to the Immigration Appeal Board continued to be available for those who had been ordered deported from Canada, no statute-based, official refugee policy existed in Canada for affirmative claims until the implementation of the 1976 Immigration Act.[219] Instead, in 1973 the Canadian government established its first formal administrative structure to deal with refugee claimants. An interdepartmental committee comprised of representatives from the Departments of External Affairs and Manpower and Immigration met to assess individual claims and forward their recommendations to the Minister of Manpower and Immigration who had the authority to decide whether a refugee claimant would remain in Canada or be deported.[56] At this point, inland claims occurred at the level of hundreds per year. Individual orders-in-council granted a person status in Canada at the Minister’s discretion and were based in part on humanitarian, economic, and political considerations.[56]

This in-Canada assessment system complemented the overseas assessments then ongoing. Canada had issued a “Guideline for Determination of Refugee Status” in 1970 to give immigration officers criteria for selecting refugees overseas.[220] That year Cabinet also approved what was termed the Oppressed Minority policy, which provided for the selection of oppressed people who were not Convention refugees because they were still in their home countries.[221]

Establishment of the Federal Court and increasing judicial scrutiny of immigration decisions[edit | edit source]

Immigration law during the first century of Canada as a nation has been said to have been implemented in a "highly discretionary and largely unaccountable" manner.[222] It had previously been the case that the Immigration Act included a very strong privative clause, which courts had largely respected. The 1910 Act stated that "no court, and no judge or officer thereof shall have jurisdiction to review, quash, reverse, restrain or otherwise interfere with any proceeding, decision or order of the Minister or of any Board of Inquiry, or officer in charge ... relating to the detention or deportation of any rejected immigrant ... upon any ground whatsoever, unless such person is a Canadian citizen or has Canadian domicile."[223] As Trebilcock and Kelley summarize, courts of the day, on the whole, respected these limitations imposed upon them.[224] The comments of one Quebec Superior Court judge on this privative clause from a 1921 decision are illustrative:

... what Parliament intended, and what Parliament actually provided in the language of this statute, was that all questions as to the entry of immigrants into Canada should be determined exclusively by the machinery of the Department of Immigration, namely by the board of inquiry and immigration officers, subject only to an appeal to the Minister, and without any powers of review or control by the Courts ... ... no Court or Judge may interfere with the proceedings of a board of inquiry, either on the grounds of misunderstanding or misrepresentation of the law, or of the regulations, nor on account of admission of illegal evidence, nor of error in weighing the evidence heard, nor on account of any informality or omissions which may fairly be classed as a matter of procedure, or of departmental regulation.[225]

This began to shift so that principles of fairness and due process began to assume an increasing importance in the system. The scope of the privative clause in the Act was reduced and in 1971, the Federal Court was established. This court would come to have a significant effect on immigration enforcement practices in Canada given that it not only inherited the previous Exchequer Court’s jurisdiction, it was also accorded the power to review decisions of all federal boards, commissions, and tribunals.[226] Its immigration caseload would come to account for a large majority of its work and caused long queues of cases seeking judicial review. In the years preceding the implementation of the Refugee Appeal Division at the IRB in 2012, judicial review of inland refugee matters made up around half of the Federal Court’s caseload.[227] Raphael Girard also credits the court's decisions with, in all likelihood, embedding principles of procedural fairness and transparency of decision making in the immigration Ministry's day-to-day operations.[228]

1976 Immigration Act[edit | edit source]

The revised Immigration Act introduced into Parliament in 1976, and brought into force two years later, was a watershed moment for Canadian immigration policy. It overhauled the statute for the first time more than two decades, expunged the last vestiges of open discrimination in the Act, for example by lifting a ban prohibiting gay men and women from immigrating,[56] and, after a broad national debate, introduced a series of objectives into the statute which largely remain to this day. It did all of this through provisions that, with their detail and specificity, served to constrain executive decision making.[229] It was with the introduction of the 1976 Immigration Act into Parliament that the government reinforced its willingness to assume its international share in refugee resettlement.[110] It was this legislation that, for the first time, incorporated Canada's Refugee Convention obligations into statutory form.[230] The new Act recognized Convention refugees as a class of immigrants that could be selected abroad for permanent residence in Canada.[231] The legislation also gave legal standing to the pre-existing ad hoc committee for advising the Minister of Immigration on individual refugee claims from people at the border or in Canada, the Refugee Status Advisory Committee (RSAC).[231]

The RSAC process was as follows: those who sought refugee stats in Canada had to first present themselves to an immigration officer. If they were found to be inadmissible (as was usually the case), then they would be sent to an immigration inquiry for a determination about whether they should be removed from the country. It was at this point that the individual could request refugee status, in which case the removal order was stayed and the person was brought before a senior immigration officer for an interview regarding the substance of the refugee claim. The senior immigration officer then sent the transcript of the interview to the RSAC. The RSAC reviewed the application and made a recommendation to the Minister as to whether to accept or deny the claim for protection.[232] The program was very small: it processed only a few hundred claims per year throughout the late 1970s.[233] In the year that the revised Immigration Act came into force, for example, 4,130 refugees were admitted to Canada, all of whom were fleeing communism.[234]

Those who were not granted refugee status by the RSAC or the Minister had recourse to make an application on humanitarian and compassionate grounds. Such applications were considered by what was termed the Special Review Committee, which acted in an advisory capacity to the Minister.[232] The system did also include limited appeal rights to the Immigration Appeal Board.[235] The IAB reviewed the documentary record and was authorized to grant an oral hearing on the merits of the claim for any applicant who, on the basis of the documentary record, showed that there were reasonable grounds to believe that the claim could be established.[232] Under this system, in its last year of operation, about nine percent of claimants determined by the Minister not to be refugees were determined by the Board to be refugees.[236]

At the same time that Canada incorporated its obligations under the Refugee Convention and Protocol into domestic law, a series of international efforts to expand the scope of those treaties were underway. Some were successful, for example Canada ratified the Protocol to the Agreement relating to Refugee Seamen in 1975.[237] Other efforts were fruitless. In 1967 the United Nations adopted a Declaration on Territorial Asylum[238] which provided, in Article 3, that no person entitled to invoke Article 14 of the Universal Declaration of Human Rights should be subjected to measures such as rejection at the frontier. A conference was then held in 1977 to embody this, and other provisions, in a revised convention, a proposed UN Convention on Territorial Asylum.[239] While a draft was produced,[240] the conference ultimately ended in failure.[241]

In the 1970s, most refugees that Canada accepted came via overseas resettlement, not an in-Canada asylum process. In the early 1970s Canada accepted its first non-European refugees by resettling a group of 228 Tibetan refugees and developing a “Tibetan Refugee Program” to host them.[242] Tibetan refugee hosting opened the doorway to other refugee resettlement, as Canada accepted more than 7,000 ethnic South Asians expelled from Uganda under the dictatorship of Idi Amin in 1972-73, the first non-white refugees admitted to Canada in large numbers.[243] Canada then admitted 7,000 Chilean refugees fleeing Pinochet’s regime in 1973 and about 10,000 Lebanese refugees fleeing the Lebanese Civil War between 1975 and 1978.[244] In the 1970s, the U.S. was the largest source country of immigration, in part because of the large numbers of draft dodgers and deserters unwilling to fight in Vietnam who found refuge in Canada.[68] Historian Valerie Knowles states that it is impossible to arrive at hard numbers for the number of draft resister and deserters who escaped to Canada during the Vietnam War, but estimates range from 30,000-40,000 from the Canadian Council for Refugees to between 80,000-200,000 according to Mark Fruitkin, a "draft resister" and author.[245] Later that decade, from 1978 and 1981, 60,000 refugees from Southeast Asia were accepted - a figure that represents 25 percent of the number of immigrants admitted in these years.[185] During this time, Canada resettled more refugees from overseas than any other country on a per capita measurement.[246] Canadian immigration officials also travelled to El Salvador to interview prisoners at risk from paramilitary death squads there and grant refuge in Canda to some of those at risk, an example of processing claims in another country.[247]

That said, decisions to accept these groups of individuals were ad hoc and highly political; for example, fearing that most of the Chilean political refugees were too left wing, and not wishing to alienate either the American or new Chilean administrations, the Canadian government restricted the numbers, which is what limited Canada to only accepting about 7,000 Chileans during that 30-year conflict.[40] Similarly, while Canada accepted some Ugandan Asian refugees, there was marked public opposition to the move, with a poll in 1972 indicating that only 45 percent of Canadians approved of the government's decision; some in the government came to view this initiative as having cost the government seats in that year's election.[248]

To address demands from civil society to have more of a role in refugee sponsorship, and criticism about government refugee sponsorship decisions, in 1978 Canada established a Private Sponsorship Program through which citizens could assist fully or partially in privately sponsoring new refugees.[249] To date more than 300,000 refugees have come to Canada through this program.[250]

Background to the founding of the Immigration and Refugee Board[edit | edit source]

The background to the creation of the Immigration and Refugee Board of Canada lay in concerns about the rigour, capacity, independence, and fairness of the pre-existing refugee status determination system in the 1980s.

To begin with, throughout the 1980s there were concerns about the rigour of Canada's asylum system and about potential abuse of the system. In the words of Deborah Anker, in the early 1980s the government undertook to amend what it painted as a fragile asylum system being taken advantage of by ‘illegitimate’ immigrants.[251] Such concerns about the integrity of the system were exemplified by the Reform Party platform in the 1980s which invoked what has been labelled "inflammatory language" about "immigration abuses, bogus refugees, [and] improper selection of immigrants".[252] One response to these concerns, implemented in the mid-1980s, was what Deborah Anker describes as a series of restrictive measures, including the elimination of employment authorization and various social services for refugee claimants, and a new practice of returning refugee claimants travelling from the US to that country until their Canadian hearing date approached.[251]

There were also concerns about the capacity of the pre-IRB system as a result of a growing number of refugee claims that were being made during the decade. Rebecca Hamlin states that Canada signed the above-noted international treaties making commitments to refugee protection before it began to consider itself to be a country of first asylum and before asylum seekers started coming to its shores in significant numbers.[253] In 1980 Canada received what today looks like a very modest 1,488 refugee claims.[235] By the middle of the 1980s, however, such a large number of people were making in-country asylum claims that the system had become completely overloaded, with 8,260 claims being made in 1985.[235] This increase in Canada mirrored similar increases elsewhere in the world, for example, while in 1976 Western European nations received 20,000 asylum seekers, in 1980 there were 158,000 such applicants and by 1986, more than 200,000 claims were being made annually.[254]

In response to these growing numbers, as well as concerns about political interests potentially affecting decision-making on claims, in 1982 decision-making was transferred to a newly reorganized Refugee Status Advisory Committee,[255] which for the first time was made clearly independent of the immigration department, with its own Chairman and an increased budget. This allowed it to, for the first time, compile authoritative and independent documentation on refugee-producing situations around the world.[231] This system involved only written submissions, assessed by the committee in private, with the committee ultimately making recommendations to the Minister of Immigration,[256] although in 1983 a pilot to provide such claimants with an oral hearing began in Toronto and Montreal.[56] The Committee consisted equally of members from private life, the Department of Immigration, and the Department of External Affairs.[257] As such, concerns about the independence of the refugee determination process from Canada's foreign policy persisted. The granting refugee status could be seen to make a statement about the state of origin, and Canada had a history of restricting the grant of refugee status on political grounds, focusing it in particular on Communist states and demonstrating a reluctance to recognize refugees from newly emerging post-Colonial states, lest such grants of refugee protection be perceived as an admission that western powers' policies and actions had been the cause of refugee flows.[258]

This impetus for change was bolstered by a series of court decisions which undermined the extant framework for the refugee system. To that point, the system had distinguished between "in status" and "out-of-status" persons, contemplating refugee claims only for those individuals under inquiry for having violated the Immigration Act.[259] In 1985, the Federal Court held that distinction to be unfair and inoperative.[260] Furthermore, another 1985 decision, Singh v. Minister of Employment and Immigration, established that where the credibility of a claimant is at stake, an oral hearing before the then-Immigration Appeal Board was required. In so ruling, the Supreme Court of Canada set aside the previous system under which an application for an oral hearing had to be made.[261] The Singh decision is often seen as a watershed that enforced Canadian Charter of Rights and Freedoms protections for migrants on arrival on Canadian soil, thereby requiring an overhaul of the refugee determination process to ensure that fair oral hearings started to be offered as a matter of course.[235] One immediate response to the Singh decision was to expand access to oral hearings and to increase the capacity of the system in order to facilitate such access. In 1985, Bill C-55 modified the IAB to ensure that all refugees had the opportunity to have an oral hearing during their appeal and the bill increased the number of IAB members from eighteen up to fifty.[262]

To address this constellation of challenges, the Canadian governments of the day commissioned a series of major studies, principally the 1983 Robinson Report entitled Illegal Migrants in Canada, the 1984 Ratushny Report entitled A New Refugee Status Determination Process for Canada, and the 1985 report by Rabbi Gunther Plaut entitled Refugee Determination in Canada. Each of these reports recommend approaches for a new asylum determination system that would address both the right to be heard, and balance the competing interests of fairness and efficiency.[235] What ultimately emerged from these reports and the related legislative machinations of the 1980s was a new asylum system centred around a tribunal model. The relevant legislation, Bill C-55, or the Refugee Reform Act, was introduced in the House of Commons in 1986. There was lengthy debate about the legislation and it was not passed until 1988.[235]

Finally, one of the formative events in the creation of the IRB was the perceived crisis situation which emerged in the late 1980s when the federal government recalled Parliament for an emergency session to amend the Immigration Act after 174 Sikh persons arrived by lifeboat near the fishing village of Charlesville, Nova Scotia.[56] At that time, the Canadian Employment and Immigration Advisory Council reported that most business and labour leaders felt the government had "lost control of the border".[263] Parliament's resultant law, Bill C-84, the Refugee Deterrents and Detention Act, supplemented the yet-to-be-brought-into-force Bill C-55, and was considered to be a restrictive piece of legislation.[264]

The Immigration and Refugee Board of Canada emerged from these bills, and it represented a fresh start for asylum policy-making in Canada. The IRB came into existence as an independent administrative tribunal on January 1, 1989 with 115 members.[265] At that time, the IRB consisted of two divisions: the Convention Refugee Determination Division and the Immigration Appeal Division. Gordon Fairweather, a former Attorney General of New Brunswick and the first Chief Commissioner of the Canadian Human Rights Commission, was appointed as the first Chairman of the IRB.[56]

Features and aspects of the new system included:

  • Governor-in-Council appointees: Members of the Convention Refugee Determination Division were appointed by the Governor in Council.[205]
  • Non-adversarial processes: The CRDD hearing into a claim was usually conducted in a non-adversarial manner, in that the Minister was entitled only to present evidence and could not cross-examine the claimant or make representations (save where exclusion was at issue).[205] Panels of the CRDD were assisted by an IRB employee called a Refugee Hearing Officer (RHO).[205]
  • Private proceedings: In contrast to the public proceedings at the former IAB, CRDD proceedings were normally conducted in camera.[205]
  • Informal processes: IRB management aimed to ensure that the Board respected its quasi-judicial status and avoided the trappings of a conventional court system, pushing the idea of brief written decisions and also supporting oral decisions.[266]
  • No countries designated pursuant to the safe third country regime: One concern raised by civil society with the new legislation was the Safe Third Country Regime that it introduced. In response to public criticism of the Safe Third Country Regime, Barbara McDougall, who was then Minister of Employment and Immigration, became persuaded that the United States might send refugee claimants deported from Canada back to Central America where their lives would be in jeopardy. As a result, she announced in December 1988 that she was "prepared to proceed with no country on the safe third country list ... We think the new system will be able to function without it."[267]
  • Limitations on judicial review: This bill introduced a leave requirement for access to the Federal Court of Appeal for judicial review of a CRDD decision.[268]
  • Post-determination risk assessment: The government instituted a policy in 1989 to conduct a risk review for refused refugee claimants where time had passed between their refusal and deportation to assess claims regarding new risks.[68] Specificially, unsuccessful refugee claimants were able to apply for post-determination review by an immigration official to evaluate whether removal would result in compelling personal risk. This review assessed "risk to life, inhumane treatment, or extreme sanctions," and could provide protection to persons not covered by the 1951 Convention and Protocol.[269] Approximately 2-3% of such applications were accepted.[270] As discussed below, this process eventually became the foundation for what is now s. 97 of the IRPA.

As part of the transition to the new system, the government instituted a one-time expedited review program for people with pending asylum applications. This was designed to "clear the decks" and allow for a fresh start in asylum policy-making.[233] It essentially amounted to a general amnesty for refugee claimants who had entered Canada before 21 May 1986, one where individuals were permitted to stay in Canada and become permanent residents if they were already employed or likely to secure employment in the near future and had no medical, security, or criminal concerns.[56] While under the previous system 30% of applicants had been accepted,[271] under the expedited review program, acceptance rates were much higher - approximately 85% of the 28,000 applicants processed in 1986, for example, were accepted. All told, a backlog of 125,000 cases accumulated between the Singh decision and the coming into effect of the reformed refugee determination system in 1989, cases which were addressed through this expedited review program.[228] While the expedited review program was supposed to be able to process the outstanding applications within two years, it took much longer to do so, keeping, in the words of the Canadian Council for Refugees Executive Director Janet Dench, "refugees in limbo and separated from their families for years".[74]

Juridification of the refugee system and broader interpretations of the refugee definition[edit | edit source]

A longer-term implication of the Singh decision and the resultant changes to the refugee system, including the creation of the IRB, has arguably been the increasing 'juridification' of the refugee system.[272] Colin Scott defines juridification as the “process by which relations hitherto governed by other values and expectations come to be subjected to legal values and rules”.[273] The reasons offered for decisions by the Refugee Status Advisory Committee in the 1980s were scant; as refugee lawyer David Matas describes it, the reasons often consisted of "merely a few sentences" which "seldom related the findings of fact on which their conclusions were based".[274] In short, he states, what were offered were conclusions, as opposed to reasons. The reasons offered by the IRB would generally be more fulsome. This transition was consistent with international trends at the time - for example, it was not until 1984 that the Home Secretary in the UK was even required to give reasons for an asylum decision.[275]

In this way, as the juridification of the system emphasized the importance of individuals retaining counsel, it is no coincidence that it was in 1986 that a group of immigration consultants assembled to form the immigration industry association in Canada, the Association of Immigration Counsel of Canada.[74] Questions that remained about the legality of the immigration consultant regime were put to rest in the 1990s with legal proceedings that the Law Society of British Columbia brought against Jaswant Singh Mangat, who ran Westcoast Immigration Consultants Ltd., providing representation for a fee before the Immigration and Refugee Board. After a BC judge issued an injunction against these activities on the basis that Mangat was not called to the bar in British Columbia, his became a test case, ultimately resolving in 2001 when the Supreme Court of Canada concluded that non-lawyer immigration consultants were in fact legal and authorized by the Immigration Act.[74] At this time there was no system regulating immigration consultants and there was nothing in Canadian law which would prohibit an unlicenced individual from charging a fee to represent a client in an immigration matter.[74] This would not arrive until after 2002.

With the end of the Cold War, and this juridification of the refugee system, the nature of who was recognized as a refugee began to shift - the concept went from being primarily about flight from Communism to a broader human rights-based conception of who was entitled to protection. The newfound IRB began to interpret the Refugee Convention in a way that was characterized as "expansive" and "progressive". In 1991, Canada became one of the first countries in the world to recognize sexual orientation-related persecution as a basis for claiming asylum.[276] In 1993, the Immigration Act was amended to give the Chairperson the authority to issue guidelines.[277] Canada then issued guidelines on the handling of gender-based asylum claims in 1993, something that was associated with a growing acceptance of claims related to gender-based persecution.[278] In 1996, the IRB adopted guidelines on child refugee claimants, reportedly the first such policy initiative of its kind adopted by any state system.[279] Much later, in May 2017, the Board, for the first time, implemented guidelines on the adjudication of claims involving Sexual Orientation and Gender Identity and Expression (SOGIE).[280]

These progressive interpretations of Canada's refugee obligations were influenced by Canada's human rights obligations and international human rights procedures that refugee claimants may access. Claimants can bring individual complaints to seven UN treaty bodies, as well as to the special procedures established by the UN Human Rights Council, in particular, the Special Rapporteur on the human rights of migrants. The Committee against Torture is by far the most solicited UN treaty body and between 80 per cent and 90 per cent of all individual complaints submitted thereto concern alleged violations of the principle of non-refoulement enshrined in Article 3 of the Convention.[281]

Growing claim numbers and efficiency measures[edit | edit source]

The arguable corollary to this broadened definition of a refugee was an increasing difficulty of distinguishing refugees from other migrants.[282] Such challenges, the individualistic status determination model employed in Canada, as well as a ballooning number of claims, quickly resulted in backlogs. Soon after the IRB started in 1989, the number of asylum seekers reaching Canada began to rise, from a rate of several thousand a year, to reach 37,000 in 1992.[283] This happened concomitant to several global crises, including the implosion of the former Yugoslavia in 1991-92, which saw a number of persons come to Canada and claim asylum. At this point, Canada also fast tracked the admission of more than 25,000 refugees from Bosnia through its resettlement program.[284]

Bill C-86, passed by the Senate in December 1992, was a response to this influx of claimants. The bill was perceived to be primarily concerned with boosting the system's efficiency. It did this in a number of ways:

  • First was by eliminating a screening system for claims at the IRB and transferring authority for determining whether an applicant was eligible to claim refugee status from the Board to senior immigration officers at the immigration department.[285] Specifically, the Immigration Act had previously included a procedure whereby all applicants had a hearing before a panel of two in which a claimant had the burden of proving that they were eligible to have their claim determined and that there was a credible basis for the claim.[286] If either of the two panel members were persuaded, then the claim would be heard at a full hearing before the CRDD. As of October 1989, 5% of claims had been determined to lack a credible basis pursuant to this process.[287] In the name of efficiency, Bill C-86 transferred the eligibility determination step to the department and abandoned the screening process designed to eliminate claims with “no credible basis”.[288]
  • Changes were also made to the process for seeking judicial review of the Board's decisions. Until 1993, panels of the Federal Court of Appeal had been conducting the judicial reviews, where they granted leave. In that year, amendments to the Immigration Act vested single judges of the Federal Court of Canada, Trial Division, with original judicial review jurisdiction over decisions of the Convention Refugee Determination Division.[289] The move from multi-member panels to single judges for judicial reviews was yet another efficiency measure implemented for this high volume system.

In 1994, as a concession to pragmatism, the government decided not to return certain refused refugee claimants to their countries of origin, particularly certain claimants from China. It did this by introducing the Deferred Removal Orders Class (DROC), which allowed applications for landing from refused refugee claimants who had not been removed after three years, subject to certain conditions. The Class was particularly aimed at resolving the situation of some 4,500 Chinese claimants waiting in limbo.[74] In this way, the initiative was a compromise: providing a sort of amnesty for the existing backlog of claimants, who had waited while deportations to China were suspended following the Tiananmen Square massacre, while also announcing that deportations of new refused claimants would recommence. Later, Canada also introduced special measures to address the situations of claimants who were not being recognized through regular procedures. In January 1997 the government introduced the Undocumented Convention Refugees in Canada Class (UCRCC), which offered a means for some refugees from Somalia and Afghanistan who were unable to satisfactorily establish their identity to become permanent residents, but imposing a five year wait from the date of their refugee determination.[68]

Finally, the position of the Refugee Hearing Officer continued to be seen as an important part of the efficiency and integrity of the system. This position assisted CRDD Members by conducting research and being responsible for questioning during hearings. In 1995, the position was renamed to be called a Refugee Claim Officer.[277]

Growing claim numbers and deterrence measures[edit | edit source]

There was a time when the refugee "problem" was thought to be solvable.[290] The Office of the United Nations High Commissioner for Refugees (UNHCR) was originally set up for only three years. The office was renewed by the UN General Assembly thereafter, but only for successive five-year periods. This UNHCR's temporary nature, and repeated renewals, continued until December 2003. At that time, the UNGA removed the temporal limitation and created a framework for refugee protection set to continue indefinitely, "until the refugee problem is solved".[290] In Shauna Labman's words, the removal of the temporal limitation on UNHCR's mandate speaks to the recognition of the increasing unlikelihood of such a resolution.[290] Ebbing expectations of any permanent solution to refugee issues have come at the same time as refugee numbers have grown, asylum claimants have come from further afield, and concomitant refugee status determination costs have increased. This has been driven by reductions in the cost of international air travel, and the end of the Cold War, and with it a sharp reduction in the number of countries placing limits on the ability of nationals to leave their state (viz. the fall of the Berlin Wall).[179]

In response, in Bríd Ní Ghráinne's words, states have begun to employ increasingly "creative" means to constrain refugee flows and restrict the number of individuals they recognize as refugees.[291] Such measures have included curtailing the entry of refugees onto their territories through what she terms “relatively invisible—and hence politically expedient—non-entrée measures”[291] which have been deployed by Canada to an increasing extent in recent decades. Canada's geographic location, buffered by the U.S., Mexico, and three oceans, has long made it difficult for irregular migrants to reach its territory.[292] As the number of claimants in the country has risen in recent decades, Canada has increasingly turned towards the following non-entrée measures:

  • Restrictive visa policies: Until the late 1970s Canada had many fewer direct flights from other countries and it also had no visa requirement for any country in the western hemisphere.[293] Instead, many travellers to Canada had to switch flights in the United States, something which generally required a visa to that country. In the late 1970s, direct flights to Canada from other countries began to spring up and Canada began to implement an in-Canada asylum system. Canada simultaneously began to require visas for entry into Canada, something which restricted access to the asylum process.[280] Such visa requirements expanded to the point that today citizens of states considered to be "refugee producing" generally require visitor visas that are described as "extremely difficult to obtain".[294] For example, the rejection rate for visa applications from refugee-producing countries such as Somalia, Yemen, Afghanistan, and Syria is nearly 75 per cent.[251]
  • Carrier sanctions: Carrier sanctions refer to obligations placed on airlines and other transportation services to take care that they not transport anybody without a visa, if they are required to have one.[295] The Department of Citizenship and Immigration charges a carrier what has been labelled a "hefty" administration fee[296] for each traveller arriving with improper documents.[297]
  • Criminalization of people smuggling: Canada has used provisions criminalizing human smuggling as a means to deter asylum claims, for example bringing charges against a US humanitarian worker for smuggling (an offence under IRPA that carries a maximum life sentence) for transporting twelve Haitian asylum seekers to the USA–Canada border.[298] Furthermore, in 1993 the passage of Bill C-86 established an expanded list of criteria by which an applicant might be determined inadmissible.[299]
  • Biometric requirements: In the early 1990s, the government introduced a requirement that asylum applicants be fingerprinted.[300] The government also then introduced and gradually expanded biometric requirements for visa applicants; by the end of 2018, all visitors requiring visas also required biometrics.[301] Measures were also taken to use such biometric identifiers as part of information-sharing agreements with other countries. The Canada-US Smart Border Declaration of December 2001 committed that the two countries would develop common biometric identifiers and engage in the exchange of information.[302] A 2003 agreement between the countries entilted Sharing of Information on Asylum and Refugee Status Claims allows for the automated, systematic sharing of information between Canada and the US about asylum seekers, including biometric and biographic data.[302]
  • First country of asylum principles: Canadian immigration legislation has permitted the designation of safe countries since 1988.[303] This provision was used to authorize the safe third country agreement between Canada and the United States in 2004 (see below).
  • Stricter port-of-entry interviews and security screening: In the early 1990s, the government introduced deterrence measures design to push down the number of refugee claims, including stricter port-of-entry interviews.[300] Then, in the wake of the 9/11 attacks, the then Immigration Minister announced that there would be much greater utilization of the strategy of Front-End Security Screening (FESS) for refugees as they arrive in Canada.[304] More detail on FESS screening is available at: Canadian Refugee Procedure/Changing the Date or Time of a Proceeding#Regulation 159.9(3)(b): The process for investigations and inquiries related to sections 34 to 37 of the Act is referred to as the FESS process.
  • Pushback operations: For example, in 1998 Canadian officials arranged for the interception by the Senegalese navy of a boat carrying 192 Tamil persons from Sri Lanka, individuals who were then returned to Colombo before they could arrive in Canada.[305]
  • Overseas interdiction: CBSA employees called migration integrity officers work overseas, ensuring that individuals who are travelling to Canada have proper travel documentation.[306] Canada's interdiction programs abroad are a component of what is termed its Multiple Borders Strategy (MBS). Under the MBS, liaison officers are tasked with preventing persons who lack Canadian authorization or other required documents from boarding planes or boats bound for Canada.[307] In 2012 the government reported that there were 63 such officers in 49 locations worldwide.[308] Between 2001 and 2014, such liaison officers intercepted over 86,000 persons offshore.[309] For example, in 2018, 7,208 people, mostly from Romania, Mexico, India, Hungary, and Iran, were barred from boarding flights to Canada due to "improper documentation".[310]
  • Funding for border enforcement in countries of transit: Canada funds border enforcement in the global South to prevent departure.[311]

Furthermore, measures have been implemented to streamline the asylum process for those in Canada and make claiming asylum in Canada less desirable:

  • Limitations on appeal: One efficiency measure that was implemented at the time of the IRB's founding was that refugee claimants no longer had the ability to appeal a refusal of their claim under this revised system. As David Matas writes, this aspect of the new process was much criticized by legal counsel for refugees at the time.[312] Claimants whose claims were declined continued to have recourse to seek judicial review at the Federal Court. However, a leave requirement was introduced in amendments to the Immigration Act in 1989.[313] As a result of this, those seeking judicial review at the Federal Court required leave of the court to have their case heard. Leave to appeal has been granted in about 10 per cent of cases and reasons for refusal of leave are not granted.[314]
  • Broader restrictions on eligibility to claim: In 1994, authority was provided to the Minister of Citizenship and Immigration to issue a danger opinion against a refugee applicant on the basis of serious criminality. This had the effect of staying the refugee proceedings, removing the case from the jurisdiction of the IRB.[315]
  • Restrictions on employment for claimants: In the early 1990s, the government prevented refugee claimants from working. This was changed later in the 1990s.
  • Move from two-person panels to one-person panels: As the Convention Refugee Determination Division was originally conceived, refugee claimants would appear before panels of two decision-makers, only one of whom needed to accept their claim for their application to be successful. A cost-saving initiative was announced in March 1995 to move to one-person panels.[316] While the legislation would not be changed to make one-person panels the norm until the next decade, one-person panels de facto became the norm in the 1990s anyways. During that period, refugee determinations were usually made by one member sitting alone, with the "consent" of the applicant to do so. Catherine Dauvergne writes that by the time of the legislative amendment in 2002 that formalized this practice, one-person panels had already become rare.[317]
  • Increased focus on effecting removals: Citizenship and Immigration Canada describes removal as a key tool within the refugee system.[318]
  • Professionalization of immigration consultants: Steps were taken to professionalize the non-lawyer immigration consultants who can represent individuals before the IRB, including the 1996 creation of an Immigration Practitioners Certificate Program at Seneca College in Ontario, the first such program in Canada.[74]

Rebecca Hamlin situates the rise of this regime to deter asylum claims in the following way: "the rise of the regime of deterrence is, in part, a story of unintended consequences, because international commitments made by each country in a particular political moment came back to haunt future generations of policymakers. Had these countries' leaders anticipated the financial, security, and political challenges of the present-day situation, they might not have been as willing to make commitments that, at the time, were largely an abstraction."[253]

The 2002 move from the Immigration Act to the IRPA[edit | edit source]

In the late 1990s, the federal government began a process to overhaul the then-Immigration Act, including with a lengthy public consultation period.[319] It commissioned a report entitled Not Just Numbers: A Canadian Framework for Future Immigration which set out priorities for the reformed system, some of which were accepted and others (like removing jurisdiction for determining refugee status from the IRB and transferring it to civil servants[320]) which were not. The resulting Immigration and Refugee Protection Act (“IRPA”) was an entirely new statute and represented the first complete revision of immigration legislation in Canada since 1978.[321] The shift from the Immigration Act to the IRPA in June 2002 also marked a new era of asylum policy in Canada - one that has been described as being focused on relieving administrative burdens. In the drafting and development of the IRPA, considerable public attention was been devoted to the question of whether to have one act governing immigration matters and a separate act governing refugee law. The idea, motivated by concern about the fundamental differences between immigration and refugee law, and advocated for in the Not Just Numbers report, was ultimately rejected; however, the Act's new title and the establishment of a separate division of the legislation devoted to refugees reflect this concern.[322] Highlights of the new legislative framework include the following:

  • Framework legislation: Compared to the previous legislation, the IRPA was described as framework legislation, with more details to be found in the regulations.[277]
  • Consolidated grounds for refugee protection: The IRPA expanded the categories of persons entitled to refugee protection. Under the former immigration legislation, the only category of person who was clearly entitled to protection was a person who fell within the definition of “Convention refugee”. IRPA expanded the scope of coverage to include persons who are at risk of torture, death, and cruel and unusual treatment upon deportation to their country of nationality or former habitual residence.[323] Canada had ratified the Convention Against Torture in 1987, but did not implement it directly in Canadian domestic law until this point.[324] Rebecca Hamlin writes that there is no evidence to suggest that Parliament considered the introduction of section 97 to be monumental when it discussed IRPA before voting on it in 2002. When the bill was being debated, Minister of Citizenship and Immigration Elinor Caplan assured members of Parliament the IRPA "gives us the ability to streamline our procedures, so that those who are in genuine need of our protection will be welcomed in Canada more quickly and those who are not in need of protection will be able to be removed more quickly. That streamlining is extremely important."[325] Immediately after IRPA went into force, the IRB Legal Services division produced a lengthy guide for decision makers on how to make section 97 decisions; the guide states that these decisions were subsumed under the IRB mandate to avoid the "delays and inconsistencies" of the previous "fragmented" and "multilayered approach".[325]
  • Creation of the RAD: The IRPA created the Refugee Appeal Division (RAD), which would review negative decisions on their merits, though this took ten years to fully implement.[326] Specifically, after the Act was passed, Citizenship and Immigration Canada announced that as a result of “pressures on the system” implementation of the RAD would be delayed.[327]
  • Shift from the CRDD to the RPD: The Convention Refugee Determination Division (CRDD) became the Refugee Protection Division (RPD), to reflect the fact that it now had jurisdiction over the consolidated grounds for refugee protection and, because the IRB backlog was a huge concern, the staff time required to support the RAD was created through a shift from two-member panels to single-member hearings so that half the number of Board members would be required for each case.[328]
  • PRRA: The IRPA transitioned from the Post-Determination Refugee Claimants in Canada Class (PDRCC) to the Pre-Removal Risk Assessment (PRRA) process.[329] The way PRRA functions is that if a refused asylum seeker is not removed from Canada within a year of the last decision on their refugee claim, they may be eligible for a PRRA to assess whether the risk faced by the refugee claimant changed over that year.[330] When the government announced the creation of CBSA in 2003, originally the plan was to transfer PRRA responsibility to them, but in the wake of pressure from NGOs, PRRA responsibility remained with Citizenship and Immigration Canada.[331] PRRA is an administrative review of an application done on the basis of a written submission.[332]
  • Increased security provisions: Sharryn Aiken, et. al., write that the most significant shift signalled by the IRPA is that it demonstrated a marked security turn in Canadian immigration law. They note that "this is hardly surprising in legislation that was passed in the immediate aftermath of the September 11, 2001 attacks in the United States.[319] Peter Showler writes that the government almost scrapped IRPA to introduce a law much tougher on refugees, but that Immigration Minister Elinor Caplan decided to proceed with the IRPA in the end.[333] This law included a number of security-related measures, including:
    • Increased authority to detain claimants: The IRPA expanded the authority of immigration officers to detain refugee claimants where they represented a flight risk, a danger to the public, and/or their identity was in doubt. This expanded authority resulted in the number of individuals detained pursuant to the Immigration Act rising substantially, from 8,000 people in the year 2000 to some 11,500 in 2003.[334]
    • Broader grounds of ineligibility to claim refugee protection because of criminality: When compared to the 1976 Act, IRPA included broadened grounds restricting the eligibility of refugee claimants to have their refugee claims determined.[335]
    • Anti-smuggling measures: The past century has seen what Gil Loescher describes as "dramatic growth" in human trafficking and trans-continental people smuggling.[336] Provisions in the IRPA for the first time implemented Canada's obligations under the Palermo Convention together with its Smuggling Protocol and Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children.[337] Smugglers became eligible for a sentence of life imprisonment upon criminal conviction.[338]

While the above overhaul of the system represented considerable change, it is also notable that some of the changes argued for in the Not Just Numbers report were ultimately rejected. For example, that report had recommended that the processing of overseas and inland refugee claims be unified within a single system with shared decision-makers for both. Having a single system reflected a desire for more consistent decision-making on refuge status, but, in Shauna Labman's words, "[brushed over] the additional necessity of the selection aspect in overseas resettlement."[339] The proposal was not adopted.

Post-IRPA measures[edit | edit source]

Following the introduction of the IRPA, a number of measures were taken which had a continued focus on system integrity, efficiency, and reducing backlogs at the RPD. These included:

  • Reverse-order questioning: 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 is not a party, any witness, including the claimant, would be questioned first by the RPD and then by the claimant’s counsel.[340]
  • Refusal to introduce the RAD: Over the next decade subsequent to the coming into force of the IRPA, there were several attempts by some members of Parliament to pass another act forcing the implementation of the RAD, including a very near success in summer 2008.[341]
  • Creation of CBSA: The Canada Border Services Agency was established in 2003. It operates as part of the Department of Public Safety Canada, also created in 2003 following the model of the US Department of Homeland Security. [342]
  • Increasingly merit-based Member appointment process: Additionally, there were changes to the appointment process for Governor in Council Members of the Division. Such GIC appointments to the IRB have always been controlled by the Minister of Citizenship and Immigration, although reforms implemented in the 1990s started to provide greater scope for management of the IRB to participate in the selection and reappointment of Members based on more merit-based criteria. These efforts were reversed in the winter of 2006 when the newly elected government introduced changes to give the Minister greater control and discretion. The Chair of the IRB unexpectedly resigned at this time, eight months before the end of his mandate, leading to speculation that he did so in protest, having been a strong advocate for a more merit-based appointment process.[314]
  • Introduction of the Safe Third Country Agreement with the United States: STCAs are bi- or multi-lateral agreements requiring refugees to seek refuge in the first country they reach, prohibiting them from seeking asylum in the other state(s) party to the agreement.[94] A provision for safe third country agreements was included in Canada's Immigration Act in the 1980s. Canada attempted to negotiate such an agreement with the United States in the decades following, without success. For example, in 1993 Canada entered into a Memorandum of Agreement with the United States with the intent of the latter being declared as a safe third country,[343] but in 1998 the Canadian government announced that negotiations with the U.S. pursuant to that Memorandum of Agreement, negotiations which aimed to see the US designed a safe third country, were being abandoned.[68] It was only in the wake of 9/11 that Canada was able to successfully conclude such negotiations.[344] Specifically, on December 5, 2002, Canada signed its STCA with the United States.[345] That agreement came into effect on December 29, 2004, the first time that the safe third country regime in Canada's immigration legislation was first utilized.[346] The agreement, modelled on the multilateral Dublin Regulation among European Union member states,[347] prohibits most persons from seeking asylum at a regular land port of entry in either country if they first landed in the other one.[94] The immediate impact of the STCA was to significantly lower the number of inland refugee claims in Canada; there was a 49 percent drop in claims made at the Canada-US border after the agreement came into effect.[94] This trend, however, did not last.[348] For those who did make a claim at the Canadian border, the vast majority fitted within one of the exceptions to the agreement - in 2005, of the 4033 claims made at the border, only 303 refugee claimants were returned to the United States as ineligible to apply in Canada.[332]
  • Enlargement of UNHCR ExCom: Canada has continued to sit on the UNHCR ExCom. Its size has grown from 25 states in the 1950s to 106 today. As a result, Gil Loescher writes, ExCom has become too large and politicized and it is frequently not an effective decision-making body.[182]
  • Regulation of immigration consultants: The Canadian Society of Immigration Consultants was established to regulate the activities of immigration consultants providing representation for a fee in 2004, the first time that such a regulatory body had been established in Canada.[74]

Refugee reform in 2010 and 2012[edit | edit source]

Two pieces of legislation made significant changes to the refugee system in 2010 and 2012, the Balanced Refugee Reform Act (BRRA, 2010) and the Protecting Canada’s Immigration System Act (PCISA, June 2012). Key portions of PCISA were originally part of the Preventing Human Smugglers from Abusing Canada’s Immigration System Act (Human Smugglers Act), which was introduced as Bill C-49 in October 2010. After a Canadian federal election in May 2011 caused Bill C-49 to die on the order paper, the newly formed majority government re-introduced the provisions as Bill C-4 in June 2011. This Human Smugglers Act was then incorporated into Bill C-31, PCISA, in June 2012.[349]

As Neil Yeates describes it, the thrust of these reforms was for faster processing of claims, with a view that bona fide claimants would be more quickly approved, and failed claimants, after access to the new Refugee Appeal Division of the IRB, would be more quickly removed from Canada.[350] Various changes were made to assist this, including:

  • Legislated timelines for hearings: The legislation included accelerated timelines for scheduling refugee hearings,[347] with a requirement that a hearing take place within 60 days of a claimant making their claim.[351]
  • Implementation of the Refugee Appeal Division (RAD). As part of this reform, the RAD came into being on December 15, 2012.[352]
  • Public servant decision-makers: Shifting from Governor-in-Council appointees to public servants as first-level decision makers at the IRB’s Refugee Protection Division. The shift away from Governor-in-Council appointees reflected a key recommendation from the government's own immigration-law advisory committee, namely that qualified public servants should be named to the Immigration and Refugee Board, not political appointees.[353]
  • Elimination of the Refugee Protection Officer position: A position that had variously gone by the name Refugee Hearing Officer (RHO), Refugee Claim Officer (RCO), and Refugee Protection Officer (RPO)[354] was eliminated on the basis that it would no longer be necessary given the expertise that the public servant decision-makers would possess. These roles had previously assisted Members by conducting questioning at hearings.
  • Creating a list of Designated Countries of Origin (DCOs), countries that were not generally considered to be refugee-producing, and where measures to deter and expedite such claims were consequently legislated.[355] The Designated Country of Origin list was introduced in 2012 as part of the Protecting Canada’s Immigration System Act. The initiative was modelled on the European Safe Country of Origin list, which is used in that asylum system.[347] The implications for asylum seekers coming from DCOs included an expedited hearing process with shortened timelines, no access to the Refugee Appeal Division, no automatic stay of removal for failed claimants seeking judicial review, limited access to PRRA, and no eligibility for a work permit or health care while awaiting a decision on their claim. Designation as a safe country was dependent on a combination of qualitative observations of countries’ levels of democratic process and human rights records and on two quantitative thresholds, including when 75 percent or more of previous claims by nationals of a country had been rejected by the IRB or 60 percent or more of previous claims by nationals of a country had been withdrawn. The initial DCO list included 25 countries and was eventually expanded to include 42 countries.[356] On May 17, 2019, following a Federal Court ruling in which specific provisions of the DCO policy were struck down for not complying with the Canadian Charter of Rights and Freedoms, the Government of Canada announced that it would remove all countries from the DCO list[356] and that the DCO regime would eventually be repealed through legislative amendment.[357]
  • Creating the concept of Designated Foreign Nationals: The PCISA reforms established a regime for what are termed Designated Foreign Nationals.[358] DFNs, as defined in the Act, are groups of two or more refugee claimants suspected by the Minister of Public Safety 'irregular arrival' with the aid of smugglers.[359] The implications of being so designated include that DFNs will be automatically detained until their refugee claim is determined if they are sixteen years of age or older.[351] This built on the way that mandatory detention had already been utilized in Canada after the arrival of Tamil refugees aboard the MV Ocean Lady and MV Sun Sea in 2010.[360] Furthermore, even if their claim is accepted, DFNs are unable to apply for permanent residence status for five years,[351] as well as being unable to obtain a travel document and unable to sponsor family members.[359] Soon after the introduction of these provisions in the Act, they were invoked by the government in multiple cases.[361]
  • The IRB doing PRRA: The Balanced Refugee Reform Act also transferred authority over the PRRA from the Minister to the IRB, although this transfer has never actually been brought into force.[362]
  • Limitations on the Interim Federal Health Program: The Interim Federal Health Program provides refugee claimants with access to health care while their claims are pending. As part of a strategy to create disincentives for refugee claimants to come to Canada, in 2012 the government cut access to health care for some categories of claimants.[363] It was introduced via Orders in Council in 2012 which limited access to health care in Canada while select refugee claims were pending, principally claims from claimants who originated from DCOs.[364] This policy was declared unconstitutional by the Federal Court in 2015, with the court concluding that the resultant regime amounted to "cruel and unusual treatment" prohibited by the Canadian Charter of Rights and Freedoms.[186] This decision is one in a line of similar cases from courts that have pushed back against restrictive asylum legislation around the world. For example, the UK House of Lords, in Limbuela, found that decisions made to refuse support to asylum seekers risked violating the prohibition on inhuman and degrading treatment due to the risk of a claimant being "obliged to sleep in the street, save perhaps for a short and foreseeably finite period, or was seriously hungry, or unable to satisfy the most basic requirements of hygiene".[365]

The current version of the Refugee Protection Division rules came into force on October 26, 2012 following the coming-into-force of this legislation.[366] The Immigration and Refugee Board, in its public comments, emphasized these rules and the importance of decisions being guided by them. This aligned with comments at the time from the Immigration Minister Jason Kenney of this sort: "I think most Canadians intuitively understand that broad public support for immigration, and, frankly, diversity in our society is contingent on having a well-managed, rules-based, fair immigration system. I think they understand that we all have a stake in maintaining such a system".[252] Following the coming into force of this new legislation and RPD rules in 2012, there was a 49 percent decline in asylum claims.[367]

2010s refugee protection initiatives[edit | edit source]

Resettlement programs[edit | edit source]

Canada actively resettles thousands of refugees per year within a voluntary burden-sharing scheme. This act places Canada near the top of a small group of approximately thirty countries worldwide willing to offer refugee protection through resettlement in addition to the promise of non-refoulement in the Refugee Convention.[368] Three states have traditionally been the leaders in resettlement: Canada, Australia, and the United States. Combined, they have tended to receive approximately 90 percent of the UNHCR's resettlement referrals.[369] By way of example, in the 2017 calendar year, the United States resettled 33,400 refugees, while Canada resettled 26,600 refugees, and Australia resettled 15,100 refugees.[370] In line with this tradition, Canada launched a program to resettle more than 25,000 Syrian refugees in 2015.

Sanctuary city movements[edit | edit source]

Many people do not file for asylum but live in the margins of society as undocumented self-settled migrants fearing arrest, deportation, and other punitive measures.[371] The 1906 Immigration Act made it the duty of municipal authorities to report select categories of removable immigrants, including those who had become a charge upon public funds or upon any charitable institution.[372] This duty was subsequently removed from Canada’s immigration legislation. Nonetheless, persons without legal immigration status in Canada, whether that of a refugee, refugee claimant, or otherwise, have faced difficulties accessing government and private services lest immigration documents be demanded or they be referred to immigration authorities and deported. In Canada, since 2013, Toronto, London, Vancouver,[373] and Hamilton have all declared themselves sanctuary cities.[374] These sanctuary city policies have generally involved ordinances ensuring access to municipal services for the undocumented, though without going so far as prohibiting information-sharing with federal border enforcement authorities altogether.

Expanded information-sharing agreements between Five Eyes countries[edit | edit source]

The 2010s saw a significant increase in the use of biometric technologies by asylum systems around the world. By the end of 2018, for instance, the UN Refugee Agency alone reported the capture and storage of biometric identity for over 7.1 million refugees.[375] Canada has long been collecting biometric information from refugee claimants and at this time is began to exchange such information more with partner countries. Canada has long had information-sharing agreements with the United States whereby information about refugee claimants is exchanged. For example, the Canada-US Smart Border Declaration of December 2001 committed that the two countries would develop common biometric identifiers and engage in the exchange of information.[302] A 2003 agreement between the countries entilted Sharing of Information on Asylum and Refugee Status Claims allows for the automated, systematic sharing of information between Canada and the US about asylum seekers, including biometric and biographic data.[302] The exchanged information includes: identity-related information, for example biographic and biometric data; previous refugee claim status (denied, abandoned, or granted); data that would indicate that a claim is inadmissible; and any evidence submitted to support a previous application.[302] In 2009 the "Five Eyes" countries signed a Data Sharing Protocol to conduct a small number of "immigration checks" through biometric (fingerprint) data exchanges. This arrangement was intended as a pilot for automated data exchanges and it involved commitments to share 3000 fingerprints annually. Canada then reached information sharing agreements with the United Kingdom (2015), Australia (2016), and New Zealand (2016) which moved from the pilot model to the automated sharing of information.[302]

Irregular border crossing controversy[edit | edit source]

Since the Board's 1989 founding, the number of people making refugee claims has increased greatly, both in Canada and internationally. Looking at the numbers globally, during decade of the 1980s, there were 2.3 million applications for asylum lodged worldwide, mostly in western Europe, the United States, and Canada. During the 1990s, this number grew to 6.1 million applications filed, and the list of receiving nations grew to include Australia, New Zealand, Scandinavia, and southern Europe. During the 2000s, there were 5.5 million new applications filed worldwide, and countries such as Ireland, Greece, Poland, and South Africa became popular new destinations.[376] Today, roughly one million individuals apply for asylum globally each year,[377] with those classified as refugees representing 7–8 per cent of the global migrant population.[378] Similarly, in Canada, while the volume of new claims has gone through cycles, volume has trended upwards over time. Soon after the IRB started in 1989, the number of asylum seekers reaching Canada went up from a rate of several thousand a year to reach 37,000 in 1992.[283] Since then, three notable case decision backlogs have occurred: in 2002 with over 57,000 claims, in 2009 with over 62,000 pending claims,[379] and post-2017, where the Refugee Protection Division had 90,000 claims awaiting decision.[380]

In this context, persons crossing irregularly from the United States into Canada became a significant political issue starting around 2017.[252] Such crossings occurred primarily at Roxham Road on the Quebec-New York border and at Emerson, Manitoba. From 2017 to 2020 more than 59,000 people crossed the Canada-US border in an irregular manner and claimed asylum in Canada,[381] in order to evade the restrictions put in place by the Safe Third Country Agreement. This included 20,593 claimants in 2017, 19,419 claimants in 2018, and then 16,077 claimants in 2019.[381] Quebec received approximately 95% of the irregular border crossers from the United States.[382] The total number of asylum claims in Canada similarly rose over this period, going from 23,870 in 2016, to 50,390 in 2017, to 55,040 in 2018, to 64,045 in 2019.[383]

The resources dedicated worldwide to Refugee Status Determination (RSD) have been appropriately described as immense. States and UNHCR rendered 1.5 million decisions on individual asylum claims in 2017[384] and as of 2018 there were 3.5 million asylum seekers in the world.[385] Although exact figures are difficult to determine, academics note that the combined cost of RSD performed by states and UNHCR exceeds the total cost of direct humanitarian assistance provided to refugees by UNHCR.[386] In fact, Thériault has estimated that the Global North alone spends $20 billion on RSD,[387] a number which is a multiple of the UNHCR’s budget,[388] and, by his estimate, four times the budget made available to agencies that are responsible for the care of the refugee population in the Global South, despite the fact that 85% of refugees reside there.

Around the world, irregular arrivals generally have higher success rates for asylum claims than those who apply after arriving on some other temporary visa. For example, in Australia, the historical average success rate for asylum seekers who arrive by boat has been more than 80 per cent. The academic Daniel Ghezelbash states that this is largely due to the effectiveness of visa regimes in identifying persons with potential asylum claims and not giving them a visa which would allow them to travel to the country by regular means.[389] Despite the comparative bona fides of such claimants, the journeys undertaken by claimants arriving in a country irregularly, and necessitated by state deterrence measures, are often hazardous. For example, several crossers into Canada lost limbs to frostbite after walking for hours in freezing temperatures, and Mavis Otuteye, a 57-year-old Ghanaian grandmother, was found dead from hypothermia in a ditch near the Canada-US border in 2017.[390]

This increase in border crossings between the United States and Canada had political, procedural, and legal consequences, including:

  • Challenges to Safe Third Country Agreement: There were post-2017 calls to suspend or end the Safe Third Country Agreement, including a legal challenge to the agreement, which was denied by the Federal Court of Appeal in 2021 for procedural reasons.[391]
  • Increase in claims: The increase in claims caused the government to increase IRB capacity. One of the effects of this increase in refugee claims has been a growing backlog of claims to process at the Immigration and Refugee Board of Canada. In its 2019-20 departmental plan, the IRB noted that "an inventory of more than 75,000 claims has accumulated, representing more than two years of work at current funding levels".[392] One of the federal government initiatives in response to this surge in claims was to temporarily expand the processing capacity of the IRB. The government increased resources at the Refugee Protection Division so that it could deal with up to 50,000 asylum claims annually by 2021.[393]
  • Calls to extend the Safe Third Country Agreement: There were post-2017 calls to extend the application of the Safe Third Country Agreement across the entire Canada-US border. As of 2017, polls indicated that 70 percent of Canadians felt that security along the Canada-US border should increase.[394] A 2018 Angus Reid poll indicated that more than half of respondents said that Canada was too generous to asylum seekers who cross into Canada irregularly.[395] In their 2019 platform, the Conservative Party of Canada committed to prioritizing "economic migration" and favouring those facing "true persecution" over "bogus" refugee claimants.[252] The Conservative Party indicated that, if elected, it would hire 250 more CBSA officers and move IRB Members closer to crossing sites to expedite the process.[396]
  • Changes to eligibility for referral to the IRB: The irregular border crossing controversy led to Parliament making changes to which claimants are eligible for a hearing before the IRB. In June 2019, amendments were made to the Immigration and Refugee Protection Act in Bill C-97, the Budget Implementation Act. These changes introduced new grounds of ineligibility for refugee claimants if they have previously requested asylum in a country with which Canada has an information-sharing agreement or arrangement. In practice this means that individuals who made a previous claim in the United States, United Kingdom, Australia, or New Zealand (the "five eyes countries") are ineligible to claim refugee status in Canada and have their claims heard by Immigration and Refugee Board, though if information sharing agreements are made with other countries, they also will be included.[397] This is so regardless of whether a decision was ever made on the previous claim.[398] Those found to be ineligible to make a claim to the IRB may submit an application for a pre-removal risk assessment instead.[399] Idil Atak describes this omnibus Bill as having been "adopted hastily in the lead-up to the 2019 federal election" as part of the government's measures to respond to the irregular border crossing controversy[400] and this can be seen as an example of the Canadian government's capacity to respond to developing circumstances quickly with new immigration legislation.[401]
  • Changes to IRB scheduling: As the backlog of claims at the IRB rose, the average wait time for a first hearing at the RPD grew to two years, as opposed to the statutory timeline of two months for most asylum seekers.[402] The increase in claims triggered a change in how the IRB scheduled and prioritized claims. The Immigration and Refugee Protection Regulation allows for exceptions to the time limit for the RPD to hold a hearing in the case of operational limitations.[403] To deal with its backlog, the IRB began to prioritize older cases for scheduling before newer cases and abandoned the case processing timelines in the Regulations. Previously, when IRCC or CBSA referred a file to the RPD, the claimant was also provided a hearing date; the RPD then postponed that hearing for lack of capacity to hold it within the time limit. As of August 29, 2018, claimants were no longer provided a hearing date at the time of referral.[404]

Covid-19[edit | edit source]

In 2020, in response to the Covid-19 virus, fifty-seven countries shut their borders to asylum seekers.[405] At first, the Canadian government announced that all claimants arriving outside ports of entry would be screened for the virus and then quarantined if the test results were positive. The Canadian government changed its position days later, announcing that all claimants would be returned to the United States.[406] As part of this, the two countries reached a temporary agreement which allows Canada to send back individuals entering Canada from the US to make an asylum claim.[407] The agreement applies between official ports of entry along the land border and at air and marine ports of entry. The government also designated Roxham Road as a port of entry for the purposes of the Safe Third Country Agreement and began returning refugee claimants to the US at this point.[408] In response to these measures, the number of those attempting to cross the border irregualrly plummeted, for example, 24 irregular migrants sought to make claims between March 16, when the border closed, and May 8, 2020.[409]

The pandemic saw a number of states temporarily suspend asylum procedures.[410] Canada was one of them. The Refugee Protection Division shut down all hearings for several months as a result of the pandemic, resuming them in the summer of 2020. Referrals of claims to the IRB by IRCC and CBSA were delayed or suspended for far longer.[411]

The Covid-19 pandemic also saw the Canadian government implement one of its periodic amnesty campaigns for asylum seekers, in this case a program that became colloquially known as the Guardian Angels initiative which granted permanent residence status to asylum seekers who were involved with front-line caregiving during the pandemic.

Conclusion[edit | edit source]

The next chapters in the story of refugee protection procedure in Canada remain to be written. What can be said is that the concept of the ‘refugee’ is as old as the state system, and, in the words of academic Eve Lester, it will remain with us for as long as the state system remains.[12] As Emma Haddad writes, refugees are the consequence of erecting political boundaries and failing to protect all individuals as citizens, hence pushing insiders outside. So long as these conditions pertain - there are political borders constructing separate states and creating clear definitions of insiders and outsiders, and failures of protection - there will be refugees.[412]

References[edit | edit source]

  1. Haddad, E. (2008). The Refugee in International Society: Between Sovereigns (Cambridge Studies in International Relations). Cambridge: Cambridge University Press. doi:10.1017/CBO9780511491351, page 48.
  2. Haddad, E. (2008). The Refugee in International Society: Between Sovereigns (Cambridge Studies in International Relations). Cambridge: Cambridge University Press. doi:10.1017/CBO9780511491351, page 49.
  3. Chetail, V. (2019). International Migration Law. London, England: Oxford University Press, page 16.
  4. Haddad, E. (2008). The Refugee in International Society: Between Sovereigns (Cambridge Studies in International Relations). Cambridge: Cambridge University Press. doi:10.1017/CBO9780511491351, page 50.
  5. Reports of the number of people who left France at this time vary. Julia Morris cites a figure of 1 million in Julia Morris, The Value of Refugees: UNHCR and the Growth of the Global Refugee Industry, Journal of Refugee Studies, 11 January 2021, https://doi-org.ezproxy.library.yorku.ca/10.1093/jrs/feaa135 at page 4. Emma Haddad writes "From the 1670s to the start of the eighteenth century it is estimated that between 200,000 and 500,000 French Protestants left France as refugees to seek protection abroad" in Haddad, E. (2008). The Refugee in International Society: Between Sovereigns (Cambridge Studies in International Relations). Cambridge: Cambridge University Press. doi:10.1017/CBO9780511491351 at page 52. In contrast, Hazal Barbaros writes: “The number of immigrants varies according to sources. To begin with, the total number of members of the Reformed Church of France is estimated to be around 900,000. Some sources indicate that the most likely number of emigrants is 200,000 approximately, whereas the others give hyper-inflated figures like 800,000 which basically means France was deprived of nearly the whole of its Protestant population. Concerning those who chose England as their destination, the number is approximated to be between 40,000 to 50,000.” See Hazal Barbaros, Post Tenebras Lux: The Huguenot Diaspora in Early Modern London and its Reflections in Refugee Wills, Master’s Thesis, August 2021, Department of History, İhsan Doğramacı Bilkent University, Ankara, <http://repository.bilkent.edu.tr/bitstream/handle/11693/76474/10412602.pdf?sequence=1> (Accessed August 28, 2021), pages 9-10 of document.
  6. Melanie Baak, Once a Refugee, Always a Refugee? The haunting of the refugee label in resettlement, in Jordana Silverstein and Rachel Stevens Refugee Journals: Histories of Resettlement, Representation, and Resistance, Feb. 4, 2021, ANU Press, <https://library.oapen.org/bitstream/handle/20.500.12657/47330/book.pdf?sequence=1> (Accessed March 20, 2021), at page 56.
  7. Hazal Barbaros, Post Tenebras Lux: The Huguenot Diaspora in Early Modern London and its Reflections in Refugee Wills, Master’s Thesis, August 2021, Department of History, İhsan Doğramacı Bilkent University, Ankara, page 7 of document.
  8. Gil Loescher, Refugees: A Very Short Introduction, May 2021, Oxford, ISBN: 9780198811787, page 23.
  9. Haddad, E. (2008). The Refugee in International Society: Between Sovereigns (Cambridge Studies in International Relations). Cambridge: Cambridge University Press. doi:10.1017/CBO9780511491351 at page 52.
  10. a b Rebecca Hamlin, Crossing: How We Label and React to People on the Move, Stanford, CA: Stanford University Press, 2021, ISBN 9781503627888, page 28.
  11. Jaenen, Cornelius J.. "Huguenots". The Canadian Encyclopedia, 16 December 2013, Historica Canada. https://www.thecanadianencyclopedia.ca/en/article/huguenots. Accessed 06 April 2021.
  12. a b Eve Lester, Australian responses to refugee journeys: Matters of perspective and context, in Jordana Silverstein and Rachel Stevens Refugee Journals: Histories of Resettlement, Representation, and Resistance, Feb. 4, 2021, ANU Press, <https://library.oapen.org/bitstream/handle/20.500.12657/47330/book.pdf?sequence=1> (Accessed March 20, 2021), at page 26.
  13. Laura Madokoro, On public sanctuary: exploring the nature of refuge in precarious times, in Dauvergne, C. (ed), Research handbook on the law and politics of migration, April 2021, ISBN: 9781789902259, page 96.
  14. Rebecca Hamlin, Crossing: How We Label and React to People on the Move, Stanford, CA: Stanford University Press, 2021, ISBN 9781503627888, page 27.
  15. Gil Loescher, Refugees: A Very Short Introduction, May 2021, Oxford, ISBN: 9780198811787, page 22.
  16. Gilad Ben-Nun, Migration and Society: Advances in Research 4 (2021): 124–136, doi:10.3167/arms.2021.040112, at page 126.
  17. UNHCR, “Islam and Refugees” UN High Commissioner’s Dialogue on Protection Challenges. Theme: Faith and Protection English (12–13 December 2012), as cited in Smieszek M. (2021) Rights of Asylum: Overview of International and European Laws Concerning Inclusion and Exclusion. In: The Evolving Psyche of Law in Europe. Springer, Cham. https://doi-org.peacepalace.idm.oclc.org/10.1007/978-3-030-74413-7_2.
  18. a b John Aku Ambi, Appraisal of The Principle of Burden-Sharing in Refugee Protection, NAUJILJ 12(2) 21, <https://www.ajol.info/index.php/naujilj/article/download/215310/203063> (Accessed October 9, 2021), page 18.
  19. Hazal Barbaros, Post Tenebras Lux: The Huguenot Diaspora in Early Modern London and its Reflections in Refugee Wills, Master’s Thesis, August 2021, Department of History, İhsan Doğramacı Bilkent University, Ankara, <http://repository.bilkent.edu.tr/bitstream/handle/11693/76474/10412602.pdf?sequence=1> (Accessed August 28, 2021), page 8 of document.
  20. Albeit she is referring to the related term of “asylum seeker” in this quote. See: Harsha Walia, Border & Rule, Winnipeg: Fernwood Publishing, ISBN: 9781773634524, page 6.
  21. Haddad, E. (2008). The Refugee in International Society: Between Sovereigns (Cambridge Studies in International Relations). Cambridge: Cambridge University Press. doi:10.1017/CBO9780511491351, page 62.
  22. Hannah Arendt, The Origins of Totalitarianism (New York: Harcourt, Brace and World, 1966), p. 267.
  23. Rebecca Hamlin, Crossing: How We Label and React to People on the Move, Stanford, CA: Stanford University Press, 2021, ISBN 9781503627888, page 29.
  24. Dempsey, Hugh A.. "Blackfoot Confederacy".  The Canadian Encyclopedia, 18 July 2019, Historica Canada. https://www.thecanadianencyclopedia.ca/en/article/blackfoot-nation. Accessed 25 October 2021.
  25. Heidenreich, C.E.. "Huron-Wendat".  The Canadian Encyclopedia, 10 October 2018, Historica Canada. https://www.thecanadianencyclopedia.ca/en/article/huron. Accessed 01 January 2021.
  26. Peter G. Ramsden and Zach Parrott, "Haudenosaunee (Iroquois)" in The Canadian Encyclopedia, August 28, 2015 <https://thecanadianencyclopedia.ca/en/article/iroquois> (Accessed December 30, 2020).
  27. Harsha Walia, Border & Rule, Winnipeg: Fernwood Publishing, ISBN: 9781773634524, page 25.
  28. Harsha Walia, Border & Rule, Winnipeg: Fernwood Publishing, ISBN: 9781773634524, page 23.
  29. Melissa May Ling Chung, The Relationships Between Racialized Immigrants And Indigenous Peoples In Canada: A Literature Review, MA Thesis, 2012 <https://digital.library.ryerson.ca/islandora/object/RULA%3A1429> (Accessed December 30, 2020).
  30. Nestor, Rob, "Pass System in Canada". In The Canadian Encyclopedia. Historica Canada. Article published July 10, 2018; Last Edited July 13, 2018. https://www.thecanadianencyclopedia.ca/en/article/pass-system-in-canada
  31. Joshua Ostroff, How a smallpox epidemic forged modern British Columbia, August 1, 2017, Maclean's, <https://www.macleans.ca/news/canada/how-a-smallpox-epidemic-forged-modern-british-columbia/> (Accessed October 30, 2021).
  32. Lee Sultzman (July 21, 1997). "Abenaki History". Archived from the original on April 11, 2010. Retrieved March 20, 2010.
  33. Report of the Royal Commission on Aboriginal Peoples. Ottawa: The Commission, 1996. Print, at page 132 <http://data2.archives.ca/e/e448/e011188230-01.pdf> (Accessed January 1, 2021).
  34. Emerson Klees. Persons, Places, and Things around the Finger Lakes Region. Rochester, Finger Lakes Publishing, 1994. Page 10.
  35. Sharryn Aiken, et al, Immigration and Refugee Law: Cases, Materials, and Commentary (Third Edition), Jan. 1 2020, Emond, ISBN: 1772556319, at page 6.
  36. a b Troper, Harold. "Immigration in Canada".  The Canadian Encyclopedia, 19 September 2017, Historica Canada. https://www.thecanadianencyclopedia.ca/en/article/immigration. Accessed 30 December 2020.
  37. Valerie Knowles, Strangers at Our Gates: Canadian Immigration and Immigration Policy, 1540-2015, March 2016, ISBN 978-1-45973-285-8, Dundurn Press: Toronto, p. 36.
  38. Valerie Knowles, Strangers at Our Gates: Canadian Immigration and Immigration Policy, 1540-2015, March 2016, ISBN 978-1-45973-285-8, Dundurn Press: Toronto, p. 40.
  39. a b Valerie Knowles, Strangers at Our Gates: Canadian Immigration and Immigration Policy, 1540-2015, March 2016, ISBN 978-1-45973-285-8, Dundurn Press: Toronto, p. 42.
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  44. For a discussion of the universality of such concepts, see: Kelley, Ninette, and Michael J. Trebilcock. The Making of the Mosaic: A History of Canadian Immigration Policy. Toronto: University of Toronto Press, 2010 (Second Edition). Print. Page 3.
  45. John Borrows, Canada’s Indigenous Constitution (Toronto: University of Toronto Press, 2010) at 301.
  46. a b Bhatia, Amar. "We Are All Here to Stay? Indigeneity, Migration, and ‘Decolonizing’ the Treaty Right to Be Here." Windsor Yearbook of Access to Justice, vol. 13, no. 2, 2013, p. 61.
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  49. Bon Tempo, Carl J. 2008. Americans at the gate: the United States and refugees during the Cold War. Princeton, N.J.: Princeton University Press. Page 14. This speaks to the US experience, which was similar to the Canadian.
  50. a b c Chetail, V. (2019). International Migration Law. London, England: Oxford University Press, page 39.
  51. 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, at p. 6 (para. 2).
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  53. Julia Morris, The Value of Refugees: UNHCR and the Growth of the Global Refugee Industry, Journal of Refugee Studies, 11 January 2021, https://doi-org.ezproxy.library.yorku.ca/10.1093/jrs/feaa135 at page 5.
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  56. a b c d e f g h i j k Jan Raska, Canada’s Refugee Determination System, Canadian Museum of Immigration at Pier 21, August 21, 2020, <https://pier21.ca/research/immigration-history/canada-s-refugee-determination-system> (Accessed January 1, 2021).
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  67. a b Ninette Kelley and Michael J. Trebilcock, The Making of the Mosaic: A History of Canadian Immigration Policy. Toronto: University of Toronto Press, 2010 (Second Edition). Print. Pages 75-76.
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  71. Dirks, Gerald E.. "Immigration Policy in Canada".  The Canadian Encyclopedia, 23 October 2020, Historica Canada. https://www.thecanadianencyclopedia.ca/en/article/immigration-policy. Accessed 30 December 2020. See also the discussion of the act passed in 1885 "to restrict and regulate Chinese immigration" (the head-tax act) in Valerie Knowles, Strangers at Our Gates: Canadian Immigration and Immigration Policy, 1540-2015, March 2016, ISBN 978-1-45973-285-8, Dundurn Press: Toronto, p. 71.
  72. a b George Melnyk and Christina Parker, Finding Refuge in Canada: Narratives of Dislocation, February 2021, Athabasca University Press, ISBN 9781771993029, page 8.
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  411. Jay Turnbull, They want to work, but thousands of asylum seekers are waiting on the sidelines, CBC News, Feb 22, 2021 <https://www.cbc.ca/news/canada/montreal/asylum-seekers-work-permits-delay-pandemic-1.5921285> (Accessed March 7, 2021).
  412. Haddad, E. (2008). The Refugee in International Society: Between Sovereigns (Cambridge Studies in International Relations). Cambridge: Cambridge University Press. doi:10.1017/CBO9780511491351, pages 7 and 213.

Procedural Fairness and Natural Justice[edit | edit source]

Principles for the interpretation of refugee procedure[edit | edit source]

Fundamental justice requires that a tribunal which adjudicates upon rights must act fairly, in good faith, without bias and in a judicial temper, and must give the opportunity for parties to adequately state their case.[1] The standards of conduct for the Board are fundamentally based on and recognize two principles: (i) that public confidence and trust in the integrity, objectivity and impartiality of the IRB must be conserved and enhanced; and (ii) that independence in decision-making is required.[2] This section of the book will explore the principles that have been used when interpreting these requirements in the refugee context.

Procedural fairness interpretation principles as derived from caselaw[edit | edit source]

The following are some of the principal principles regarding the interpretation and application of procedural fairness as they have emerged in the refugee context caselaw:

Principles about the expectations that one reasonably has of the Board[edit | edit source]

  • A high duty of procedural fairness is owed in the refugee context. The Federal Court of Appeal has stated that “The independence of the Board, its adjudicative procedure and functions, and the fact that its decisions affect the Charter rights of claimants, indicate that the content of the duty of fairness owed by the Board, including the duty of impartiality, falls at the high end of the continuum of procedural fairness.”[3] This obligation arises not only from Canada’s domestic administrative law, but also from Canada’s international commitments and obligations. The Refugee Convention also provides that the expulsion of a refugee ‘shall be only in pursuance of a decision reached in accordance with due process of law’.[4] In Agiza v. Sweden, the UN Committee against Torture found that article 3 of the CAT carries with it an implicit right to an ‘effective, independent and impartial review of a decision to expel’.[5] The Board's duty of fairness is also said to be heightened when it is dealing with self-represented claimants: Canadian Refugee Procedure/Counsel of Record#The Board has a heightened duty of procedural fairness when dealing with self-represented claimants.
  • The tribunal and its procedures should be as accessible as possible.[6] The Federal Court has held that the IRPA provisions regarding refugee status determination evince a legislative intention to avoid the formalities which are attendant upon court hearings in civil or criminal proceedings.[7] To this end, the Executive Committee of the UNHCR recommends that states provide refugee claimants with the necessary guidance as to the procedure to be followed.[8]
  • It is not the Board's role to provide legal advice to claimants. In Sundaram v. Canada the Federal Court stated that it was "not prepared to read into the immigration scheme an obligation on officials to give advice on practice and procedures. The situation of giving advice is markedly different from those Court decisions which have held that officials must provide prospective applicants with the necessary forms. People are entitled to government forms; they are not entitled to receive free legal advice from RPD officials."[9] Put another way, "it is not the obligation of the Board to 'teach' the Applicant the law on a particular matter involving his or her claim".[10] For more detail, see: Canadian Refugee Procedure/Counsel of Record#The Board has a heightened duty of procedural fairness when dealing with self-represented claimants.
  • The tribunal's decisions should follow the law. Cases should be decided based on all of the law that binds the Board, not just the law that the parties happen to put in front of a panel.[11]
  • The Board’s procedures should be predictable. The basic principles of equal protection and due process reflected in the American Declaration of the Rights and Duties of Man require predictable procedures.[12] Canada’s position is that it implements the relevant parts of the American Declaration using the standards and procedures of the IRPA.[13] Similarly, UNHCR states in its Procedural Standards for Refugee Status Determination that "RSD applications must be processed pursuant to transparent and fair procedures".[14]
  • The Board must not fault parties for its own deficiencies. For example, in Huseen v. Canada, the government pointed out that the IRB Office in Toronto only received a venue change request one day before the abandonment hearing. The court commented "this speaks to the internal communications between regional offices at the IRB, as the Calgary IRB office was handed the change of venue request, in person, about three weeks prior. It would be unfair to fault the Applicants for the Board’s delay in internal communications, over which the Applicants had no control or influence."[15]
  • Decision-makers should prepare thoroughly. The Code of Conduct for Members of the Immigration and Refugee Board of Canada provides that "Members shall make each decision on the merits of the case, based on thorough preparation, the assessment of evidence properly before the member and the application of the relevant law."[16] For more detail, see: Canadian Refugee Procedure/The Board's inquisitorial mandate#The Refugee Protection Division has an inquisitorial mandate.
  • Decision-makers should consider all of the evidence before them. There exists a presumption in Canadian refugee law that decision-makers have considered all of the evidence before them.[17] The more important the information, particularly where it contradicts a finding being made, the more the requirement that it explicitly be referred to and distinguished in the reasons provided. This requires time. Asylum cases are said to be ‘highly fact intensive and depend upon presentation and consideration of numerous details and documents which can take no small amount of time.[18] Evidence from social psychology studies of judging suggests a relationship between time taken and accuracy: judges with higher caseloads have been found to be more likely to make inaccurate decisions, as they rely less on deliberative reasoning and careful processing of information and more on their gut feeling and intuition.[19] But see: Canadian Refugee Procedure/The Board's inquisitorial mandate#The Board should consider the most up-to-date country conditions evidence.
  • Claims should be processed expeditiously. For details, see: Canadian Refugee Procedure/Principles for the interpretation of refugee procedure#The objectives of this Act with respect to refugees include the establishment of efficient procedures.

Principles about the expectations that one reasonably has of claimants and counsel[edit | edit source]

  • Parties are responsible for their own files. The Federal Court has noted that there exists "[abundant case law] to the effect that the applicants are responsible for their files and cannot use their own wrongdoing as a means to justify fatal omissions, procedural though they may be."[20] While "a failure to comply with procedural obligations does not automatically disqualify a claimant from relief on fairness grounds, [] at some point a claimant will be considered the author of their own misfortune."[21]
  • Claimants may be expected to submit asylum claims promptly. Article 31 of the Refugee Convention provides that states shall not impose penalties on asylum seekers, but only if they present themselves to authorities without delay: "The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence."[22] Similarly, Canada's Federal Court has noted that claimants may be expected to submit asylum claims promptly: "refugees and asylum-seekers have duties and obligations to respect national laws and measures to maintain public order, including obligations to cooperate with the asylum process, which may include presenting themselves to authorities and submitting asylum claims promptly".[23]
  • Parties should be aware of the information on file. The Federal Court holds that applicants must take responsibility to ensure that they understand the written correspondence they receive regarding their refugee claim.[24] The Board Policy on National Documentation Packages in Refugee Determination Proceedings states that "the RPD provides the parties with information as to where the [National Documentation Package] can be found on the Board's website, and it is the parties' responsibility to check the IRB website for the newest version of the relevant NDP(s) prior to their hearing."[25] This is also stated in the Important Instructions claimants receive when they make their claim: “You should also check the IRB website for the newest version of the NDP prior to your hearing” and is stated in similar terms in the Claimants’ Guide.
  • Parties will cooperate with the asylum process and supply all pertinent information. The Federal Court holds that a person whose safety is threatened in his or her country of origin and who is seeking the protection of a country of refuge is necessarily keen to comply with the legal framework that has been established for that purpose.[26] The legally non-binding refugees handbook issued by UNHCR stipulates that the applicant should assist the examiner to the full in establishing the facts of their case and supply all pertinent information concerning themself and their past experience.[27] The Federal Court states that "refugees and asylum-seekers have duties and obligations to respect national laws and measures to maintain public order, including obligations to cooperate with the asylum process, which may include presenting themselves to authorities and submitting asylum claims promptly, or complying with procedures to regularize their stay."[23] For details about how this principle takes shape in the RPD Rules, see: Canadian Refugee Procedure/Documents#What documents does a party need to provide when?.
  • Claimants will comply with the law and be honest. The Federal Court has held that in immigration matters, "the jurisprudence is clear that applicants have to provide complete and accurate information.... There is a duty on an applicant to ensure that their submissions are complete and correct".[28] The Federal Court has stated that "refugees and asylum-seekers have duties and obligations to respect national laws and measures to maintain public order".[23] In Canada, such legal obligations require that a claimant answer truthfully all questions put to them in the refugee claim process[29] and to disclose material facts pursuant to the duty of candour that foreign nationals seeking to enter Canada have.[30] This is specified in s. 16 of the IRPA which stipulates that “A person who makes an application must answer truthfully all questions put to them for the purpose of the examination”. This obligation may be read in conjunction with Art. 2 of the Refugee Convention, which provides that, “Every refugee has duties to the country in which he finds himself, which require in particular that he conform to its laws and regulations as well as to measures taken for the maintenance of public order.”[27] Similarly, the legally non-binding handbook issued by UNHCR stipulates that the applicant should tell the truth.[27]
  • Deficiencies in counsel's conduct are properly attributed to their clients. The Federal Court has held that in immigration matters, "the jurisprudence is clear that applicants have to provide complete and accurate information and are bound by the submissions made by those who represent them in the process".[28] The general rule is that you do not separate counsel's conduct from the client. Counsel is acting as agent for the client and, as harsh as it may be, the client must bear the consequences of having hired poor counsel.[31] This principle is reflected in the instructions in the Basis of Claim form that every claimant receives as part of the claimant process, which note that "If you have counsel, you are responsible for making sure that your counsel meets the deadlines."[32] That said, there are exceptions to this principle where counsel’s conduct falls sufficiently below the standard expected of competent counsel: Canadian Refugee Procedure/Counsel of Record#In what contexts will counsel incompetence render a hearing unfair?.
  • Concerns about defects of procedural fairness should be raised by parties at the earliest opportunity. The general rule is that a party should raise allegations about procedural fairness at the earliest possible opportunity.[33]

Principles about the manner in which the Board is to exercise its discretion[edit | edit source]

The Code of Conduct for Members of the Immigration and Refugee Board of Canada is based on the IRB's dedication to the following values - honesty, good faith, fairness, accountability, dignity, respect, transparency, openness, discretion, cultural sensitivity and loyalty.[34] These values should be evinced by all of the Board's conduct and decisions. In particular:

  • Justice must be seen to be done. The Board has an institutional responsibility to ensure that the tribunal's adjudication is both actually performed at an optimum level of competency, fairness and objectivity and is perceived to have been so performed.[6] A tension exists between the imperative to be efficient and work rapidly through multiple cases on the one hand, and the imperative to be considered, deliberative, and just on the other (and to be seen to be so).[35] The first set considerations must not undermine respect for the second sort. For example, in one hearing where the Refugee Protection Division had double-booked a Member, who then tried to complete two hearings in the time ordinarily allotted to one, the court commented as follows: "while I find it commendable from an efficiency standpoint that the Member was prepared to deal with both matters, the aura of urgency that pervaded the hearing undermined the process. A reading of the transcript suggests some sense of impatience and concern on the part of the Member about being able to complete the hearing."[36]
  • Administrative convenience should not override fundamental justice, which includes procedural fairness.[37] Asylum adjudication is situated within administrative law structures, where tensions between values such as efficiency and economy are precariously balanced with fairness and justice.[38] As noted by Lord Dyson in his 2015 decision condemning the so‐called Detained Fast Track (DFT) in the United Kingdom, "justice and fairness should not be sacrificed on the altar of speed and efficiency".[39] Instead, as Canada's Federal Court holds, the Board “… is required to strike a balance between expeditious proceedings on the one hand and procedural fairness or natural justice on the other.”[40]
  • The rules should not be interpreted in a way that is overly rigid. The courts have held that when interpreting the Refugee Protection Division rules, one must "avoid the mire of procedural dogma"[41] as "procedure should be the servant of justice, not its mistress".[42] The Federal Court has stated that "the door should not slam shut on all those who fail to meet ordinary procedural requirements. Such a restrictive reading would undermine Canada’s commitment to its refugee system and underlying international obligations".[43] The court has gone on to note that "the opportunity to free a family from the scourge of persecution should not rest on an overly rigid application of procedural requirements."[44] The tenor of the Rules is that flexibility is needed to guard against form trumping substance and the interests of justice and to guard against decisions not being made on their merits.[45] Refugee applications may be allowed to proceed, despite procedural defects, to ensure that the requirements of natural justice are fulfilled.[46] This applies with special force during the period of the Covid-19 pandemic: the principle set out in the Refugee Protection Division: Practice Notice on the resumption of in-person hearings is that the Board will apply the rules flexibly in light of Covid-19.[47]
  • Claimants are entitled to representation and rules should be relaxed for unrepresented litigants. The representation of refugee claimants is described as “an expression of a fundamental constitutional and common law value: that individuals facing complicated legal proceedings with serious consequences should be allowed to be represented so as to ensure that there is a full and fair hearing.”[48] The court has stated that an unrepresented party “is entitled to every possible and reasonable leeway to present a case in its entirety and that strict and technical rules should be relaxed for unrepresented litigants”.[49] For more detail, see: Canadian Refugee Procedure/Counsel of Record#The Board has a heightened duty of procedural fairness when dealing with self-represented claimants.
  • The Board's procedures should not be restricted to the judicial paradigm. The courts have recognized that administrative agencies such as the IRB "are often required to be procedurally innovative in order to handle a heavy caseload effectively and to make the most efficient use of scarce resources."[50] The Board’s procedure "should not be confined in a model of due process that draws exclusively on the judicial paradigm and discourages innovation. Nonetheless, procedures designed to increase quality and consistency cannot be adopted at the expense of the duty of each panel to afford to the claimant before it a high degree of impartiality and independence."[51] For example, the court has held that "A hearing held by the Board should not be turned into a trial. The consequences that attach to these hearings are serious and the measure of procedural fairness must be commensurate. However, it does not reach the level of disclosure found in criminal law, for instance."[52]
  • Members should exercise their discretion with a spirit of justice and sensitivity. The Board states in its Guideline 8 that all persons appearing before the IRB need to be treated with sensitivity and respect.[53] Caselaw from the Federal Court also states that the member must at all times be attentive and sensitive to claimants.[54] The following comment from the UNHCR Handbook about how the task of refugee status determination should be approached is instructive: "Since the examiner’s conclusion on the facts of the case and his personal impression of the applicant will lead to a decision that affects human lives, he must apply the criteria in a spirit of justice and understanding and his judgement should not, of course, be influenced by the personal consideration that the applicant may be an ‘undeserving case’."[55] The German Ansbach Court has stated that "in order to comply with the spirit of the Geneva Convention, the provisions of the Convention should be interpreted liberally and with human compassion, and thus generously. [translated]"[56]
  • Claimants should be given the benefit of the doubt in appropriate circumstances.[57] The Federal Court holds that the Board has a broad discretion to alleviate the burden of proof upon a refugee claimant in appropriate circumstances.[58] The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status provides that the benefit of the doubt should be granted to the claimant in certain circumstances: "After the applicant has made a genuine effort to substantiate his story there may still be a lack of evidence for some of his statements. As explained above (paragraph 196), it is hardly possible for a refugee to 'prove' every part of his case and, indeed, if this were a requirement the majority of refugees would not be recognized. It is therefore frequently necessary to give the applicant the benefit of the doubt." However, as per the Supreme Court of Canada, it is not appropriate to apply the benefit of the doubt where the claimant's allegations run contrary to generally known facts or the available evidence.[59] The UNHCR Handbook states: "The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts."[60] This standard also forms part of Canadian law on when the benefit of the doubt principle should not apply, per the Federal Court.[61]
  • The Board should have strong reasons before attributing dishonesty or malicious intent to a claimant. The Federal Court has held that "attributing dishonesty or malicious intent to an applicant is subject to a very high threshold".[62]
  • Parties can expect consistency and the Board should decide like cases in the same manner. For more details, see: Canadian Refugee Procedure/The right to be heard and the right to a fair hearing#Decision-making should be consistent across the Board.

IRPA ss. 3(2) and 3(3): Interpretation principles as derived from the Act[edit | edit source]

This section will set out the objectives and application provisions in the Act and then provide commentary on some specific ones. In the words of Sharryn Aiken, et. al., one of the enduring features of Canadian immigration law since the 1976 Immigration Act has been "a complex and contradictory set of objectives".[63] Those objectives, in so far as they concern refugees, read as follows in the current IRPA:

Objectives — refugees
3...
(2) The objectives of this Act with respect to refugees are
(a) to recognize that the refugee program is in the first instance about saving lives and offering protection to the displaced and persecuted;
(b) to fulfil Canada’s international legal obligations with respect to refugees and affirm Canada’s commitment to international efforts to provide assistance to those in need of resettlement;
(c) to grant, as a fundamental expression of Canada’s humanitarian ideals, fair consideration to those who come to Canada claiming persecution;
(d) to offer safe haven to persons with a well-founded fear of persecution based on race, religion, nationality, political opinion or membership in a particular social group, as well as those at risk of torture or cruel and unusual treatment or punishment;
(e) to establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system, while upholding Canada’s respect for the human rights and fundamental freedoms of all human beings;
(f) to support the self-sufficiency and the social and economic well-being of refugees by facilitating reunification with their family members in Canada;
(g) to protect the health and safety of Canadians and to maintain the security of Canadian society; and
(h) to promote international justice and security by denying access to Canadian territory to persons, including refugee claimants, who are security risks or serious criminals.

Application
(3) This Act is to be construed and applied in a manner that
(a) furthers the domestic and international interests of Canada;
(b) promotes accountability and transparency by enhancing public awareness of immigration and refugee programs;
(c) facilitates cooperation between the Government of Canada, provincial governments, foreign states, international organizations and non-governmental organizations;
(d) ensures that decisions taken under this Act are consistent with the Canadian Charter of Rights and Freedoms, including its principles of equality and freedom from discrimination and of the equality of English and French as the official languages of Canada;
(e) supports the commitment of the Government of Canada to enhance the vitality of the English and French linguistic minority communities in Canada; and
(f) complies with international human rights instruments to which Canada is signatory.

The above objectives can be compared to the section of the IRPA that sets out objectives for the immigration (as opposed to humanitarian or refugee) streams:

Objectives — immigration

3... 3 (1) The objectives of this Act with respect to immigration are (a) to permit Canada to pursue the maximum social, cultural and economic benefits of immigration; (b) to enrich and strengthen the social and cultural fabric of Canadian society, while respecting the federal, bilingual and multicultural character of Canada; (b.1) to support and assist the development of minority official languages communities in Canada; (c) to support the development of a strong and prosperous Canadian economy, in which the benefits of immigration are shared across all regions of Canada; (d) to see that families are reunited in Canada; (e) to promote the successful integration of permanent residents into Canada, while recognizing that integration involves mutual obligations for new immigrants and Canadian society; (f) to support, by means of consistent standards and prompt processing, the attainment of immigration goals established by the Government of Canada in consultation with the provinces; (f.1) to maintain, through the establishment of fair and efficient procedures, the integrity of the Canadian immigration system; (g) to facilitate the entry of visitors, students and temporary workers for purposes such as trade, commerce, tourism, international understanding and cultural, educational and scientific activities; (h) to protect public health and safety and to maintain the security of Canadian society; (i) to promote international justice and security by fostering respect for human rights and by denying access to Canadian territory to persons who are criminals or security risks; and

(j) to work in cooperation with the provinces to secure better recognition of the foreign credentials of permanent residents and their more rapid integration into society.

There is a statutory interpretation convention to the effect that statements of objectives in legislation serve to constrain executive discretion in implementing the law. In the words of Sharryn Aiken, et. al., however, the objectives of the IRPA "are so plentiful and far-ranging that they arguably serve to support any potential discretionary implementation choice."[64] As such, in Catherine Dauvergne's view, the objectives "are so complex that they can neither guide nor constrain."[65] Shauna Labman writes that the twenty-five separate paragraphs addressing the objectives and application of the act add to the IRPA's "contradictions and confusions".[66] Dauvergne writes that these provisions "serve no purpose other than to announce that the government is aware of how thorny an issue immigration is in Canadian politics and to ensure that the law is able to mirror prevailing political views without amendment."[65] Indeed, the Federal Court has concluded that even if an RPD Rule is non-compliant with one of these objectives, this would not render it ultra vires of its enabling provision in the Act.[67]

IRPA Section 3(2)(a) - The refugee program is about saving lives and offering protection[edit | edit source]

Objectives — refugees
(2) The objectives of this Act with respect to refugees are
(a) to recognize that the refugee program is in the first instance about saving lives and offering protection to the displaced and persecuted;

This has been a long-standing provision in the Act[edit | edit source]

This reflects one of the objectives that was inserted into the 1976 Immigration Act, which was “to fulfill Canada’s international legal obligations with respect to refugees and to uphold its humanitarian tradition with respect to the displaced and persecuted.”[68]

The refugee program aims to offer protection, including the legal rights specified in the Refugee Convention[edit | edit source]

Section 3(2)(a) of the IRPA provides that the objectives of this Act with respect to refugees are, inter alia, to recognize that the refugee program is in the first instance about saving lives and offering protection to the displaced and persecuted. The protection envisaged is not just protection from refoulement, but also the suite of positive rights enumerated in the Refugee Convention. In the words of Donald Galloway, Canada’s obligation under the Refugee Convention is not merely the negative duty of not returning a person to a place where they face a risk to their life or their freedom is threatened – the duty found explicitly within Article 33 of the Convention. Canada’s duty also embraces the wider positive duty to recognize the status (and a host of other rights) of individuals who are unable to or are justified in not availing themselves of protection in their country of origin.[69] The Refugee Convention enumerates a number of core rights that all refugees benefit from, and then additional entitlements may accrue as a function of the nature and duration of the refugee's attachment to the asylum state. The most basic set of rights inhere as soon as a refugee comes under a state’s de jure or de facto jurisdiction; a second set applies when he or she enters a state party’s territory; other rights inhere only when the refugee is lawfully within the state’s territory; some when the refugee is lawfully staying there; and a few rights accrue only upon satisfaction of a durable residency requirement.[70] In sum, the rights discussed in the Convention are those that follow:

Within state’s jurisdiction Art 3: Non discrimination

Art 12: Personal status

Art 13: Acquisition of movable and immovable property (same as foreigners)

Art 16: Access to the courts and legal assistance (same as citizens)

Art 20: Rationing access (same as citizens)

Art 22(1): Elementary education (same as citizens)

Art 22(2): Secondary and tertiary education (same as foreigners)

Art 29: Fiscal charges/taxation (same as foreigners)

Art 30: Transfer of assets

Art 33: Non-refoulement

Physical presence Art 4: Freedom of religion (same as citizens)

Art 25: Administrative assistance

Art 27: Identity papers

Art 31: Freedom from penalisation for illegal entry

Lawful presence Art 18: Self-employment (same as foreigners)

Art 26: Freedom of movement (same as foreigners)

Art 32: Non expulsion

Lawful stay or habitual residence Art 14: Artistic rights and industrial property (same as citizens)

Art 15: Right of association (most favourable treatment accorded to foreigners)

Art 17: Wage-earning employment (most favourable treatment accorded to foreigners)

Art 19: Liberal professions (same as foreigners)

Art 21: Housing (same as foreigners)

Art 23: Public relief (same as citizens)

Art 24: Labour legislation and social security (same as citizens)

Art 28: Travel documents

Long-term residence Art 34: Facilitate naturalisation[71]

The big picture rationale behind the inclusion of these rights in the Convention was the objective of preventing refugees from becoming legal non-persons. In the words of the UK House of Lords, "the general purpose of the Convention is to enable the person who no longer has the benefit of protection against persecution for a Convention reason in his own country to turn for protection to the international community."[72] After the First World War, the academic Alleweldt states, the typical problem of refugees was the lack of any legal status in the state of refuge, which deprived them automatically of many rights and opportunities. Accordingly, the parties to the Convention envisaged, for humanitarian reasons as well as for practical reasons of cooperation, providing refugees with a status which would comprise a key set of their human rights and freedoms.[73] In short, the rights guaranteed to recognized refugees by the Convention are intended to provide them with the rights necessary to start life anew.[74]

The fact that the refugee protection is in the first instance about saving lives and offering protection can be contrasted with the goals for the immigration programs provided in the IRPA[edit | edit source]

Section 3(2)(a) of the IRPA provides that the objectives of this Act with respect to refugees are, inter alia, to recognize that the refugee program is in the first instance about saving lives and offering protection to the displaced and persecuted. This can be contrasted with the broader set of objectives for Canada's immigration programs set out in s. 3(3)(1) of the Act, which include the successful integration of immigrants and maximizing immigration's economic benefits for Canada. This contrast should inform interpretations of the Act. While in immigration law, writ large, the desirability of an immigrant (e.g. their work experience, education, fluency in French or English, or youth) is recognized as a proper consideration for how the government may choose to accord status, refugee law, in contrast, provides the framework for individuals who are fleeing persecution to seek safety in which the primary consideration is to be, in the words of s. 3(2)(a) of the IRPA, saving lives and offering protection. In the words of Molly Joeck, "conflating the two is a dangerous exercise".[75]

IRPA Section 3(2)(b) - Fulfilling Canada’s international legal obligations with respect to refugees[edit | edit source]

Objectives — refugees
(2) The objectives of this Act with respect to refugees are
(b) to fulfil Canada’s international legal obligations with respect to refugees and affirm Canada’s commitment to international efforts to provide assistance to those in need of resettlement;

This has been a long-standing provision in the Act[edit | edit source]

This reflects one of the objectives that was inserted into the 1976 Immigration Act, which was “to fulfill Canada’s international legal obligations with respect to refugees and to uphold its humanitarian tradition with respect to the displaced and persecuted.”[68]

The IRPA should be interpreted in a way that ensures Canada fulfills its international legal obligations with respect to refugees[edit | edit source]

Section 3(2)(b) of the Act specifies that the objectives of the IRPA with respect to refugees are, among other things, to fulfill Canada's international legal obligations with respect to refugees. There is a well-established presumption that, where possible, Canada’s domestic legislation should be interpreted to conform to international law.[76] The Supreme Court of Canada holds that the provisions of the IRPA "cannot be considered in isolation from the international norms which they reflect".[77] Section 3(2)(b) of the Act reinforces that, where possible, the provisions of the IRPA should be interpreted in a way that fulfills Canada's obligations pursuant to, inter alia, the Refugee Convention.

The Refugee Convention sets out a number of rights to which refugees are entitled[edit | edit source]

See: Canadian Refugee Procedure/Principles for the interpretation of refugee procedure#The refugee program aims to offer protection, including the legal rights specified in the Refugee Convention.

The Vienna Convention on the Law of Treaties codifies public international law rules of treaty interpretation applicable to the interpretation of the Refugee Convention[edit | edit source]

The rules of treaty interpretation for discerning the content of Canada's international legal obligations with respect to refugees were codified in the Vienna Convention on the Law of Treaties. Arts. 31 and 32 of the Vienna Convention on the Law of Treaties provides that:[78]

ARTICLE 31: General rule of interpretation
1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:
(a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty;
(b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.

3. There shall be taken into account, together with the context:
(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;
(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;
(c) any relevant rules of international law applicable in the relations between the parties.

4. A special meaning shall be given to a term if it is established that the parties so intended.

ARTICLE 32: Supplementary means of interpretation
1. Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: 
(a) leaves the meaning ambiguous or obscure; or 
(b) leads to a result which is manifestly absurd or unreasonable.

ARTICLE 33: Interpretation of treaties authenticated in two or more languages
1.When a treaty has been authenticated in two or more languages, the text is equally authoritative in each language, unless the treaty provides or the parties agree that, in case of divergence, a particular text shall prevail.

2. A version of the treaty in a language other than one of those in which the text was authenticated shall be considered an authentic text only if the treaty so provides or the parties so agree.

3.The terms of the treaty are presumed to have the same meaning in each authentic text.

4.Except where a particular text prevails in accordance with paragraph 1, when a comparison of the authentic texts discloses a difference of meaning which the application of articles 31 and 32 does not remove, the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted.

This said, the Vienna Convention does not in and of itself apply to the Refugee Convention, given that the Vienna Convention applies only to treaties which are concluded by states after the Vienna Convention entered into force on January 27, 1980 (per Article 4 of that Convention).[79] As such, the Vienna Convention does not in and of itself apply to the Refugee Convention of 1951 or the 1967 Protocol to the Convention. That said, as Hathaway notes,[80] the approach to treaty interpretation codified in the Vienna Convention has been recognized by the International Court of Justice as embodying customary norms of treaty interpretation.[81] Those rules are generally regarded as a codification of the public international law rules of treaty interpretation as a matter of general (or customary) international law.[82] As such, Articles 31 to 33 of the Vienna Convention constitute a general expression of the principles of customary international law relating to treaty interpretation.[83] In this way, the norms of treaty interpretation embodied in the Vienna Convention are properly considered when interpreting the Refugee Convention, even if its articles do not sensu stricto apply to the Refugee Convention. For such reasons, in the context of the Refugee Convention, domestic courts in New Zealand,[84] the UK,[85] and Canada[86] have seen fit to apply Arts. 31 and 32 of the VCLT when interpreting the Refugee Convention.

Canada must perform its international legal obligations with respect to refugees in good faith[edit | edit source]

Section 3(2)(b) of the Act specifies that the objectives of the IRPA with respect to refugees are, among other things, to fulfill Canada's international legal obligations with respect to refugees. These obligations must be interpreted in good faith.[87] This is consistent with Art. 31 of the Vienna Convention, supra, which states that "a treat shall be interpreted in good faith". It is also consistent with Article 26 of the Vienna Convention, which requires States to perform their international treaty obligations in good faith. In international law, the concept of good faith, or bona fides, is taken to include duties of honesty, loyalty, and reasonableness.[88] That said, in Britain Lord Bingham has concluded that "there is no want of good faith if a state interprets a treaty as meaning what it says and declines to do anything significantly greater than or different from what it agreed to do."[89] Relatedly, Canada's Federal Court has held that "an unduly textual and restrictive interpretation [of the IRPA]" that "would impose a result that is inconsistent with and contrary to the objectives of the IRPA" must be avoided.[90]

The Refugee Convention should be interpreted in good faith in light of its object and purpose[edit | edit source]

Under Art. 31 of the Vienna Convention on the Law of the Treaties, “a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose”.[91] This raises the question of what the object and purpose of the Refugee Convention are. The principal answer that emerges in the jurisprudence relates to the Convention's humanitarian purposes. The UK House of Lords has held that a ‘good faith’ interpretation of the Refugee Convention is one that works to bolster the effectiveness of its protection purpose, and thus seeks a construction consistent with humanitarian aims and not simply a literal linguistic approach.[92] These humanitarian aims are underscored in the IRPA with the statement at s. 3(2)(d) that "the objectives of this Act with respect to refugees are to grant, as a fundamental expression of Canada’s humanitarian ideals, fair consideration to those who come to Canada claiming persecution". The academic Michelle Foster writes that "one perspective is that the aim of the Refugee Convention is fundamentally to pursue a social and human rights inspired purpose, namely to provide for the international protection of those individuals falling within the refugee definition."[93] The Supreme Court of Canada has noted the human rights purpose of the Refugee Convention, for example remarking upon its "obvious human rights purpose" in Németh v. Canada.[94] Similarly, in Ezokola v Canada the court refers to the "overarching and clear human rights object and purpose [of the Refugee Convention]".[95] This is articulated as follows by the Supreme Court of Canada in Canada v. Ward: the underlying objective of the 1951 Convention is "the international community's commitment to the assurance of basic human rights without discrimination."[96]

That said, the following words of caution from the Australian courts are apposite: "the demands of language and context should not be departed from by invoking the humanitarian objectives of the Convention, without an appreciation of the limits placed by the Convention upon achievement of such objectives."[97] Indeed, Lord Bingham in the UK has emphasized that the 1951 Convention was "a compromise between competing interests, in this case between the need to ensure humane treatment of the victims of oppression on the one hand and the wish of sovereign states to maintain control over those seeking entry to their territory on the other."[89] Foster suggests that it is possible to reconcile these two approaches by emphasizing that the 1951 Convention's focus is on "the need for co-operation in order adequately to deal with the humanitarian problem".[98] Drawing on Klabbers' view that if a treaty's substantive provisions deal with a particular topic, then it may be surmised that that topic is the treaty's object and purpose, Foster argues that the 1951 Convention's overwhelming purpose is a human rights one. In essence the treaty provides for refugees' rights and entitlements under international law.[98]

The Refugee Convention does not explicitly prescribe any particular Refugee Status Determination procedure[edit | edit source]

The objectives of this Act include fulfilling Canada's international legal obligations with respect to refugees. How does that relate to refugee procedure? Canada's refugee status determination process reflects Canada's international obligations, including those stemming from the Convention Relating to the Status of Refugees of 1951. The challenge of refugee status determination is determining who is a “refugee” and, conversely, who is not. As to the process by which this task should be accomplished, neither the treaty nor the statute is of much direct assistance: there are 46 articles in the Refugee Convention and 22 paragraphs in the Statute of the Office of the United Nations High Commissioner for Refugees, none of which address the issue of Refugee Status Determination (RSD).[99] In the words of the UNHCR’s Handbook on Procedures and Criteria, “the Convention does not indicate what type of procedures are to be adopted for the determination of refugee status.”[100]

The procedures used by Canada must ensure the effectiveness of the substantive provisions in the Refugee Convention[edit | edit source]

Section 3(2)(b) of the Act specifies that the objectives of the IRPA with respect to refugees include fulfilling Canada's international legal obligations with respect to refugees. In ratifying the Refugee Convention, Canada has made a number of commitments, the most important of which is arguably the principle of non-refoulement enshrined in Article 33 of the Refugee Convention. How do such commitments relate to the procedures Canada selects for refugee status determination? Hofmann and Löhr write that, with respect to the 1951 Convention, it might be stated that the Convention does not necessitate (or prohibit) any specific procedure as such, but obliges states not to introduce procedures which would result in applicants for asylum being denied the rights that Canada undertook to respect when signing the Convention. This flows from the foundational principle of international law pacta sunt servanda, the rule that agreements must be kept,[101] in this case Canada's agreement to abide by the terms of the Convention. With respect to procedures, international courts have established the principle that a state's procedural rules must ensure the effectiveness of the substantive provisions of its international commitments. This has been held by, among others, the International Court of Justice in the LaGrand (Germany v. United States of America) case, where it ruled that the duty incumbent on states to ensure that their international obligations be fully respected implies that domestic procedural law must be construed in such a way as to give full effect to the a purposive interpretation of the state's international legal commitments.[102] For example, if a state uses deficient procedures, which lead to prohibited refoulement, the introduction of such procedures constitutes per se a violation of Article 33 of the Refugee Convention and its prohibition on non-refoulement.[103] This has implications for the procedures that a state selects; for example, UNHCR states that a consequence of a state’s non-refoulement obligation is a ‘duty of independent inquiry’.[104] Such a duty requires states to identify individuals in need of protection before returning or transferring them to a third country.[105]

The Refugee Convention should be regarded as a living instrument that evolves to meet contemporary needs[edit | edit source]

States have expressly recognized the Refugee Convention as “the foundation of the international protection regime [with] enduring value and relevance in the twenty-first century”.[106] The UK House of Lords has concluded that "It is clear that the signatory states intended that the Convention should afford continuing protection for refugees in the changing circumstances of the present and the future world. In our view the Convention has to be regarded as a living instrument."[107] This is consistent with statements from the Supreme Court of Canada that "international conventions must be interpreted in light of current conditions".[108] Indeed, the Vienna Convention on the Law of Treaties delierately does not constrain the meaning of terms in a treaty to their meaning at the time of the treaty's conclusion. A limitation to this effect was deleted from an earlier draft of Art. 31, para. 3(c), of that Convention on the basis that this could restrict the evolution of the law and that, in any event, the correct meaning of the provision would be derived from an "interpretation of the term 'in good faith'".[109]

There can only be one true interpretation of the Refugee Convention[edit | edit source]

See below: Canadian Refugee Procedure/Principles for the interpretation of refugee procedure#The Act should be interpreted in a way that is coherent with interpretations by other states party to the Convention.

Canada does not have a binding legal obligation to accept refugees from abroad for resettlement[edit | edit source]

Section 3(2)(b) of the Act provides that the objectives of this Act with respect to refugees include 1) fulfilling Canada’s international legal obligations with respect to refugees, and 2) affirming Canada’s commitment to international efforts to provide assistance to those in need of resettlement. Resettlement falls into the second category, as opposed to the first, insofar as Canada does not have an international legal obligation to resettle refugees from abroad. When negotiating the Refugee Convention, the international community recognized the importance of burden sharing and prominently placed it in the preamble to the Convention, but burden sharing was not made into a binding legal obligation.[110] Indeed, as Hathaway notes, when negotiating the Refugee Convention, governments were emphatic in their rejection of a duty to reach out to refugees located beyond their borders, accepting only the more constrained obligation not to force refugees back to countries in which they might be persecuted.[111] Subsequent international efforts to articulate an individual right of asylum at international law have been unsuccessful - for example, the 1967 UN General Assembly Declaration on Territorial Asylum is non-binding and a proposed Convention on Territorial Asylum never materialized.[112] For more details on burden sharing, see: Canadian Refugee Procedure/Principles for the interpretation of refugee procedure#"Burden sharing" between states is a fundamental principle of the Refugee Convention.

IRPA Section 3(2)(c) - Fair consideration is to be granted to those who come to Canada claiming persecution[edit | edit source]

Objectives — refugees
(2) The objectives of this Act with respect to refugees are
(c) to grant, as a fundamental expression of Canada’s humanitarian ideals, fair consideration to those who come to Canada claiming persecution;

The importance of Board procedures being fair to the public perception of the refugee program[edit | edit source]

In addition to ensuring overall fairness and facilitating the giving of evidence, procedural fairness is also about maintaining the integrity of the refugee determination process in the eyes of the public. For example, stakeholders may come to question the integrity of the system if they observe unfair, biased, stereotyped, arbitrary, or otherwise inappropriate processes that do not provide fair consideration to those who come to Canada and file a claim. As the legal philosopher Patricia Mindus argues, arbitrariness undermines legitimacy and erodes trust in the law in a deep way that is not easy to remedy.[113] Ensuring procedural fairness is in this way integral to maintaining the reliability of the hearing and refugee determination process and public support therefor.

Part of the Board's role in ensuring that fair consideration is provided to those who come to Canada claiming persecution relates to the nature of the reasons that are offered in their cases. As Thériault argues, "reasons encourage the acceptance of decisions and reinforce confidence in the judicial system. The act of writing reasons helps to ensure that decisions are arrived at rationally and imposes on judges a form of self-discipline. Reasons allow parties to understand why a case was decided a certain way. Reasons allow appeal judges to assess the merits of decisions under review. Reasons are also necessary for the proper development of the common law through the principle of stare decisis, and serve an educational purpose by informing both the legal community and those outside it of the content and evolution of legal rules."[114]

This provision relates to the Canadian Bill of Rights[edit | edit source]

Section 3(2)(c) of the IRPA provides that the objectives of this Act with respect to refugees are to grant fair consideration to those who come to Canada claiming persecution. This tracks Section 2(e) of the Canadian Bill of Rights, which states that no law of Canada shall be construed or applied so as to "abrogate, abridge or infringe or to authorize the abrogation, abridgement or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to ... (e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations."[115]

This provision relates to Canada's international obligations[edit | edit source]

Section 3(2)(c) of the IRPA provides that the objectives of this Act with respect to refugees are to grant fair consideration to those who come to Canada claiming persecution. As to the scope of this concept of this "fair consideration", see Canadian Refugee Procedure/Principles for the interpretation of refugee procedure#The objectives of this Act with respect to refugees include the establishment of procedures that will uphold Canada's respect for the human rights and fundamental freedoms of all human beings.

The focus of this provision is on those who are claimants when coming to Canada[edit | edit source]

Section 3(2)(c) of the IRPA provides that the objectives of this Act with respect to refugees are to grant fair consideration to those who come to Canada claiming persecution. This provision is focused on those who come to Canada claiming protection (asylum seekers) as opposed to those who are abroad (awaiting resettlement) given that resettled refugees do not come to Canada "claiming" protection as their claim has generally been accepted prior to that point. See also: Canadian Refugee Procedure/Principles for the interpretation of refugee procedure#Canada does not have a binding legal obligation to accept refugees from abroad for resettlement.

IRPA Section 3(2)(d) - Offering safe haven[edit | edit source]

Objectives — refugees
(2) The objectives of this Act with respect to refugees are
(d) to offer safe haven to persons with a well-founded fear of persecution based on race, religion, nationality, political opinion or membership in a particular social group, as well as those at risk of torture or cruel and unusual treatment or punishment;

The objective of this Act is to offer safe haven to specified persons and this is an enduring commitment unless an asylee's status ceases[edit | edit source]

The objectives of this Act with respect to refugees include offering safe haven to persons with a well-founded fear of persecution for a Convention reason, as well as those at risk of torture or cruel and unusual treatment of punishment. This obligation, which partly tracks the criteria of the Refugee Convention, reflects the fact that the 1951 Convention can be viewed as a third party agreement: a treaty whereby the contracting States take on obligations towards each other for the benefit of a third party, namely the refugees who are, per the terms of the treaty, provided with refugee rights.[116] As Haddad writes, the refugee is someone who has exited their state of origin by crossing an international border and hence has become an issue of concern on the international agenda and a ward of international society.[117]

The "safe haven" that is to be offered to refugees is independent of other types of tenuous immigration status that Canada offers such as permanent residence. An applicant’s asylum status is not affected because their permanent residence status was lost or because their application for permanent residence was refused.[118] Even where a refugee moves onward from a state which has granted international protection, that state bears ongoing obligations towards the individual, unless their status has ceased.[119] Indeed, even those who are granted status as protected persons by the IRB may not meet the criteria to become permanent residents or citizens in Canada: Canadian Refugee Procedure/Exclusion, Integrity Issues, Inadmissibility and Ineligibility#Other grounds of inadmissibility in the IRPA do not render claimants ineligible for a refugee hearing, but may nonetheless have consequences even where a claim is accepted. That said, it is clear that refugee status ends with the application of the cessation clauses in the Convention.[120] For example, Article 1(C)(3) of the Refugee Convention provides that refugee status is terminated upon naturalization, i.e. a situation where a refugee “acquire(s) a new nationality, and enjoys the protection of the country of his new nationality.”[121] Once the criteria in one of the cessation clauses in the Refugee Convention are met, then 'refugeehood' can rightfully be regarded as having ceased. Until then, it may be observed that refugeehood is inherently characterized by a temporal uncertainty; indeed, as Agier notes, that the word ‘refuge’ itself ‘denotes a temporary shelter, while waiting for something better.’[122]

IRPA Section 3(2)(e) - Fair and efficient procedures that maintain integrity and uphold human rights[edit | edit source]

Objectives — refugees
(2) The objectives of this Act with respect to refugees are
(e) to establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system, while upholding Canada’s respect for the human rights and fundamental freedoms of all human beings;

The objectives of this Act with respect to refugees include the establishment of efficient procedures[edit | edit source]

Section 3(2)(e) of the IRPA provides that the objectives of the Act with respect to refugees include the establishment of fair and efficient procedures. Section 162(2) of the IRPA provides that each Division shall deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit; for further discussion of this, see: Canadian Refugee Procedure/Board Jurisdiction and Procedure#IRPA Section 162(2) - Obligation to proceed informally and expeditiously. The reality of having largely unstoppable flows of desperate people who do not have a legal right to enter or remain in Canada has been one that the refugee determination system has had to repeatedly contend with. In this way, Hathaway writes when describing the situation that spawned one of the Refugee Convention’s historical antecedents, the credibility of border controls and of the restriction of socioeconomic benefits to nationals is at stake with refugee programs: by legitimating and defining a needs-based exception to the norm of communal closure, refugee law can sustain the protectionist norm. In this way, “so long as the admission of refugees [is] understood to be formally sanctioned by states, their arrival [ceases] to be legally destabilizing.”[123] This motivation has a number of implications. The Federal Court of Appeal has stated that “there is compelling public interest, in Canada, in having refugee status determined as soon as is practically possible after a claim is made.”[124] As the Canadian Bar Association has submitted, a lack of expeditiousness "leads to legitimate claims languishing in the system and encourages the proliferation of unmeritorious claims."[125] These goals are reflected in the structures and procedures enshrined in the Act, including:

  • The control over proceedings that has been granted to decision makers: To increase the efficiency of hearings, procedures were amended following passage of the Balanced Refugee Reform Act (2010) and the Protecting Canada's Immigration System Act (2012) to give decision makers greater control over refugee protection proceedings.[126]
  • Ways that duplicative processes have been excised from the Act: The Refugee Appeal Division, when considering issues of efficiency, has observed that an interpretation of the Act which would reduce duplication of work and having an additional, unnecessary, hearing is to be preferred.[127] This principle can be seen in the legislative history of section 97 of the Act. Section 97 was introduced with the transition from the Immigration Act to the IRPA, and in this way expanded the scope of asylum protection to include persons who are at risk of torture and to persons who are at risk of cruel and inhumane treatment upon deportation to their country of nationality or former habitual residence. Rebecca Hamlin writes that there is no evidence to suggest that Parliament considered the introduction of section 97 to be monumental when it discussed IRPA before voting on it in 2002. When the bill was being debated, Minister of Citizenship and Immigration Elinor Caplan assured members of Parliament the IRPA "gives us the ability to streamline our procedures, so that those who are in genuine need of our protection will be welcomed in Canada more quickly and those who are not in need of protection will be able to be removed more quickly. That streamlining is extremely important." Immediately after IRPA went into force, the IRB Legal Services division produced a guide for decision-makers on how to make section 97 decisions; the guide states that these decisions were subsumed under the IRB mandate to avoid the "delays and inconsistencies" of the previous "fragmented" and "multilayered approach".

The objectives of this Act with respect to refugees include the establishment of procedures that will maintain the integrity of the Canadian refugee protection system[edit | edit source]

Section 3(2)(e) of the IRPA provides that the objectives of the Act with respect to refugees include the establishment of fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system. As Harold Troper notes, a concern that the refugee program must seek to address is the worry that "many of the refugee claimants, including some who successfully made it through the determination process, were not really legitimate refugees but individuals looking for a way around tough Canadian immigration regulations."[128] Indeed, fraudulent applications are said to have "plagued" a number of Canada's immigration programs, and are not simply a concern with the in-Canada asylum system.[129] For example, under the former source country class in the IRPA for resettlement, the ICRC indicated that individuals used fraudulent referrals allegedly from the ICRC at the Canadian embassy.[130] In 2004, a scheme was discovered by Colombian authorities in which substantial bribes were being paid to civil servants employed by the Colombian National Senate for documents identifying individuals as victims of death or abduction threats from either the guerrillas or the paramilitaries. The documents were reportedly used at the Canadian embassy in Bogota to achieve source country class resettlement for at least fifty people.[129]

When the IRB came into existence, the government programme delivery strategy stated that the removal of non-credible refugee claimants was the law’s "cornerstone".[131] This necessarily involves a balancing, one which Jennifer Bond and David Wiseman discuss when they write that the procedural framework governing Canada's asylum system contains a number of mechanisms aimed at enabling both flexibility and rigour.[132] These considerations also relate to what the Supreme Court of Canada refers to as the importance of maintaining "the dignity of refugee status".[133]

The objectives of this Act with respect to refugees include the establishment of procedures that will uphold Canada's respect for the human rights and fundamental freedoms of all human beings[edit | edit source]

Section 3(2)(e) of the IRPA provides that the objectives of the Act with respect to refugees are to establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system, while upholding Canada's respect for the human rights and fundamental freedoms of all human beings. This can be considered in conjunction with section 3(2)(c) of the IRPA, which provides that the objectives of this Act with respect to refugees are to grant fair consideration to those who come to Canada claiming persecution. As to the scope of this concept of "fair consideration", it should be considered in conjunction with s. 3(3)(f) of the IRPA, which provides that the Act is to be construed and applied in a manner that complies with international human rights instruments to which Canada is signatory. When considering such human rights instruments, regard may properly be had of the provision of the International Covenant on Civil and Political Rights that provides individuals with extensive rights relating to a fair trial in the determination of a person's "rights and obligations in a suit at law",[134] which, as Macharia-Mokobi argues, may fairly be held to cover refugee status determination procedures.[135] This also reflects the preamble to the Refugee Convention, which reads:

The High Contracting parties, ... considering that the Charter of the United Nations and the Universal Declaration of Human Rights approved on 10 December 1948 by the General Assembly have affirmed the principle that human beings shall enjoy fundamental rights and freedoms without discrimination ... have agreed as follows: ...[136]

For more information on fair procedures for refugee status determination, see: Canadian Refugee Procedure/The right to be heard and the right to a fair hearing.

IRPA Section 3(2)(g) - Protecting the health and safety of Canadians and maintaining the security of Canadian society[edit | edit source]

Objectives - refugees
(2) The objectives of this Act with respect to refugees are ...
(g) to protect the health and safety of Canadians and to maintain the security of Canadian society; and

This is worded identically to s. 3(1)(h) of the Act[edit | edit source]

Section 3(1)(h) of the IRPA is worded identically, stating that "the objectives of this Act with respect to immigration are (h) to protect the health and safety of Canadians and to maintain the security of Canadian society". That provision was considered in Medovarski v Canada, in which the Supreme Court of Canada noted that "the objectives as expressed in the IRPA indicate an intent to prioritize security":

The objectives as expressed in the IRPA indicate an intent to prioritize security. This objective is given effect by preventing the entry of applicants with criminal records, by removing applicants with such records from Canada, and by emphasizing the obligation of permanent residents to behave lawfully while in Canada. This marks a change from the focus in the predecessor statute, which emphasized the successful integration of applicants more than security: e.g., see s. 3(1)(i) of the IRPA versus s. 3(j) of the former Act; s. 3(1)(e) of the IRPA versus s. 3(d) of the former Act; s. 3(1)(h) of the IRPA versus s. 3(i) of the former Act. Viewed collectively, the objectives of the IRPA and its provisions concerning permanent residents, communicate a strong desire to treat criminals and security threats less leniently than under the former Act.[137]

This objective is implemented through the grounds of inadmissibility found in ss. 34-42 of the IRPA.[138]

IRPA Section 3(3)(b) - This Act is to be applied in a manner that promotes accountability and transparency by enhancing public awareness of immigration and refugee programs[edit | edit source]

Application
(3) This Act is to be construed and applied in a manner that
(b) promotes accountability and transparency by enhancing public awareness of immigration and refugee programs;

It is important that the public perceive the determinations made under the Act as being legitimate[edit | edit source]

Section 3(3)(b) of the Act provides that that it is to be construed and applied in a manner that enhances public awareness of immigration and refugee programs. As the Court held in Rezaei, the Board's stakeholders "include not only the claimants who appear before the Board and its Divisions, but also the Canadian public at large, which is served by effective mechanisms for the application of immigration policy.”[139] The Board must seek to maintain the support of both groups of stakeholders. The Supreme Court of Canada has linked preserving "the integrity and legitimacy of the refugee protection system" to "the necessary public support for [the system's] viability".[133] Refugee lawyer David Matas speaks to a policy concern related to this when he states that if the public lacks confidence in the refugee determination system “people will eventually give up all hope in the system. ... [T]hose concerned with protecting refugees will adopt extra-legal rather than legal strategies - a Canadian sanctuary movement is possible”.[140] Refugees pose a problem for the Canadian government quite different from that of other foreigners and it is necessary that decisions on asylum clearly communicate either why an individual should be entitled to stay in Canada or else why they can be returned to their state.[141] This said, it does not appear to be an objective of the refugee system to denounce foreign states.

IRPA Section 3(3)(c) - This Act is to be applied in a manner that facilitates cooperation between the Government of Canada, provincial governments, foreign states, international organizations, and non-governmental organizations[edit | edit source]

Application
(3) This Act is to be construed and applied in a manner that
(c) facilitates cooperation between the Government of Canada, provincial governments, foreign states, international organizations and non-governmental organizations;

Canada has an obligation to cooperate with the UNHCR and the IRPA should be construed and applied in a manner that facilitates and respects this obligation[edit | edit source]

Section 3(3)(c) of the Act provides that it is to be construed and applied in a manner that facilitates cooperation between the Government of Canada and international organizations. This provision of the Act relates to Canada's international obligations. Opinions and interpretations by the UNHCR are of particular interest because of Article 35 of the Refugee Convention, which provides that member states have an obligation to facilitate the duty of UNHCR in supervising the application of the provisions of the Convention. Article 35 of the Refugee Convention and Article 2(1) of the 1967 Protocol stipulate that “[t]he States Parties to the present Protocol undertake to co-operate with the Office of the United Nations High Commissioner for Refugees [...] in the exercise of its functions, and shall in particular facilitate its duty of supervising the application of the provisions of the present Protocol”.[142] Furthermore, the preamble to the Refugee Convention reads:

The High Contracting parties, ... noting that the United Nations High Commissioner for Refugees is charged with the task of supervising international conventions providing for the protection of refugees, and recognizing that the effective co-ordination of measures taken to deal with this problem will depend upon the co-operation of States with the High Commissioner, ... have agreed as follows: ...[136]

As such, statements emanating from the UNHCR, such as those in its handbook, are considered highly influential in how refugee adjudication should be approached, even if its clauses are not, in and of themselves, law in Canada.[143] The Federal Court of Appeal noted as much in Rahaman v. Canada, holding:

in Article 35 of the Geneva Convention the signatory states undertake to co-operate with the Office of the United Nations High Commissioner for Refugees (UNHCR) in the performance of its functions and, in particular, to facilitate the discharge of its duty of supervising the application of the Convention. Accordingly, considerable weight should be given to recommendations of the Executive Committee of the High Commissioner's Programme on issues relating to refugee determination and protection that are designed to go some way to fill the procedural void in the Convention itself.[144]

That said, the UNHCR's supervisory role does not include a mandate to provide an authoritative interpretation of the Refugee Convention.[145] Accordingly, the UNHCR can only issue guidance on the 1951 Convention's interpretation. In the words of the Federal Court of Appeal from Jayasekara v Canada, UNHCR’s statements "cannot override the functions of the Court in determining the words of the Convention."[146]

Furthermore, there are also a multitude of pronouncements emanating from the UNHCR, with different levels of persuasiveness. Specifically, pronouncements of the UNHCR Executive Committee have been held to warrant greater weight than publications merely penned by UNHCR staff, such as the “Guidelines on International Protection” issued by the UNHCR’s Department of International Protection.[147] That said, even the UNHCR Executive Committee Conclusions are not binding on States, even if they may be instructive in interpreting and applying the 1951 Convention.[145]

Responsibility sharing and burden sharing between states are fundamental principles of the Refugee Convention[edit | edit source]

Section 3(3)(c) of the Act provides that this statute is to be construed and applied in a manner that facilitates cooperation between the Government of Canada and foreign states. This provision reflects the importance of "burden sharing" and "responsibility sharing" in the refugee regime. It is said that the Refugee Convention is based on two principles: non-refoulement, the rule that asylum seekers cannot be turned away or forced to return to their countries of origin; and responsibility sharing, the idea that member nations should share the costs, labour, and risks of refugee aid.[148] While the first principle is explicitly outlined in the operative clauses of the Convention, the second is implicit in the preamble to the Refugee Convention, which reads:[149]

The High Contracting parties, ... considering that the grant of asylum may place unduly heavy burdens on certain countries, and that a satisfactory solution of a problem of which the United Nations has recognized the international scope and nature cannot therefore be achieved without international co-operation, ... have agreed as follows: ...[136]

James Hathaway writes in The Law of Refugee Status that burden sharing was historically one of the core motivations for the Refugee Convention:

... the majority of the states that drafted the Convention sought to create a rights regime conducive to the redistribution of the post-war refugee burden from European shoulders. The Europeans complained that they had been forced to cope with the bulk of the human displacement caused by the Second World War, and that the time had come for all members of the United Nations to contribute to the resettlement of both the remaining war refugees and the influx of refugees from the Soviet bloc. Refugees would be more inclined to move beyond Europe if there were guarantees that their traditional expectations in terms of rights and benefits would be respected abroad. The Convention, then, was designed to create secure conditions such as would facilitate the sharing of the European refugee burden.[150]

Today, most refugees reside not in Europe, but in low-income states; the world’s six richest countries host under 10% of the world’s refugee population, while 80% of the world’s refugee population live in countries neighbouring their own.[151] The majority of these countries are low-income ones, with significant resource and governance challenges of their own.[152] As an example, Canada has welcomed 1,088,015 refugees since 1980[153] through both the resettlement and in-Canada asylum processes. Between 1979 and 2018, a total of 707,421 refugees were resettled to Canada, including 313,401 refugees who came through the private sponsorship program, 385,014 through the Government-Assisted Refugee program, and 9,006 through the Blended Visa Office Referred (BVOR) program.[154] The remainder came through the in-Canada asylum system. All together, these refugee numbers represent about 3% of the current Canadian population. In comparison, Jordan today hosts refugees equivalent to 9% of its current population and Lebanon hosts refugees equivalent to more than 20% of its current population, all with substantially fewer financial resources than Canada has.[155]

Responsibility sharing, as a concept, has been said to refer to the 'sharing' of people, while burden sharing refers to the sharing of financial resources and other costs related to refugees.[156] These principles have a number of implications. First, it is to this end that the UNHCR Executive Committee has encouraged states to continue to promote, where relevant, regional initiatives for refugee protection and durable solutions.[157] The Federal Court has noted that "in principle, international refugee law does not confer upon refugees the right to choose their country of asylum".[158] The Federal Court also notes that international refugee law "does not authorize their irregular movement between successive countries solely in order to benefit from more favourable conditions."[23] The Federal Court has also cited with approval the UNHCR document Guidance on Responding to Irregular Onward Movement of Refugees and Asylum-seekers (2019) which includes a related discussion.[23] One manifestation of this principle in the IRPA is through the responsibility sharing arrangement between the "Five Eyes" countries established by s. 101(c.1) of the Act: Canadian Refugee Procedure/100-102 - Examination of Eligibility to Refer Claim.

All this said, it should be noted that under international law refugees are under no obligation to apply for asylum in any particular state at any specific stage of their flight from danger.[159] Indeed, the 1951 Convention at the time of its adoption was seen as an instrument of responsibility sharing and, to this end, binding obligations upon states were considered a requirement for effective international cooperation, as well as more equal commitments and sharing of responsibility with regard to refugee problems.[160] In this way, in-country asylum systems have come to be seen as durable methods of responsibility sharing. Shauna Labman writes about the comparative "fragility and vulnerability" of state resettlement programs in contrast to asylum when she notes the fact that politicians have more control over resettlement levels than they do asylum numbers, and in fact resettlement programs can simply disappear.[161] See also: Canadian Refugee Procedure/Principles for the interpretation of refugee procedure#Canada does not have a binding legal obligation to accept refugees from abroad for resettlement. In contrast, the “non-refoulement” rule has been called "the only binding principle for allocating refugee responsibilities in international law".[162]

States should do everything in their power to prevent the problem of refugees from becoming a cause of tension between states[edit | edit source]

Section 3(3)(c) of the Act provides that it is to be construed and applied in a manner that facilitates cooperation between the Government of Canada and foreign states. This provision can be seen to reflect the preamble to the Refugee Convention, which reads:

The High Contracting parties, ... expressing the wish that all States, recognizing the social and humanitarian nature of the problem of refugees, will do everything within their power to prevent this problem from becoming a cause of tension between States, ... have agreed as follows: ...[136]

Relatedly, in 1967, the UN General Assembly adopted a Declaration on Territorial Asylum directed toward States. The Declaration states that granting asylum is a peaceful and humanitarian act that cannot be regarded as unfriendly by any other State.[163] Indeed, the modern refugee regime can be seen as one institution that supports the stability of states and their borders in that it provides a mechanism for individuals to be recognized after they cross a border and arguably may thereby reduce calls for borders to be reconfigured to reflect shifting ethnic or political differences.[164]

The Act should be interpreted in a way that prevents the possibility of “refugees in orbit”[edit | edit source]

Section 3(3)(c) of the Act provides that this statute is to be construed and applied in a manner that facilitates cooperation between the Government of Canada and foreign states. Canada’s Senate, in amending relevant bills, has been said to have tried to ensure that the safe third country provisions in the IRPA do not result in “refugees in orbit”, refugees forced to travel from country to country in search of protection.[165] A “refugee in orbit” situation is constituted when:

country A designates country B as a safe third country, thereby entitling country A to refuse to adjudicate the claim of an asylum seeker who arrived in country A via country B. However, in the absence of a readmission agreement, country B may refuse to re-admit the asylum seeker, and send the person to country C, who may in turn bounce the person concerned to country D, and so on.[166]

For more details, see Canadian Refugee Procedure/Safe Third Countries, and in particular Article 3 of the Safe Third Country Agreement, which exists to prevent this.

The Act should be interpreted in a way that is coherent with interpretations by other states party to the Convention[edit | edit source]

Section 3(3)(c) of the Act provides that this statute is to be construed and applied in a manner that facilitates cooperation between the Government of Canada and foreign states. In this way, the IRPA should be interpreted in a way that avoids fragmentary jurisprudence which undermines the coherence of the international protection system.[167] Courts in the UK have phrase this obligation thusly: "in principle there can only be one true interpretation of a treaty".[168] As such, decisions from the UK frequently stress that each State "must search, untrammelled by notions of its national legal culture, for the true autonomous and international meaning of the treaty".[168] For the same reason, decisions in Canada frequently canvass jurisprudence from other countries when interpreting the meaning of the Refugee Convention and the IRPA.[169] See also: Canadian Refugee Procedure/The right to be heard and the right to a fair hearing#Decision-making should be predictable and consistent across the Board.

IRPA Section 3(3)(d) - The Act is to be applied in a manner that complies with the Charter of Rights and Freedoms[edit | edit source]

Application
(3) This Act is to be construed and applied in a manner that
(d) ensures that decisions taken under this Act are consistent with the Canadian Charter of Rights and Freedoms, including its principles of equality and freedom from discrimination and of the equality of English and French as the official languages of Canada;

The fact that Charter rights are at play in Board proceedings means that the extent of procedural fairness owed to claimants is high[edit | edit source]

The court has stated that “The independence of the Board, its adjudicative procedure and functions, and the fact that its decisions affect the Charter rights of claimants, indicate that the content of the duty of fairness owed by the Board, including the duty of impartiality, falls at the high end of the continuum of procedural fairness.”[3]

Charter issues should generally be raised before the Division[edit | edit source]

Under most circumstances in the immigration context an applicant is required to raise Charter issues before the relevant administrative tribunal within the respective proceeding. In the present context, for example, the IRB is competent to address Charter issues. If unsuccessful, the claimant would then be able seek leave for judicial review of that decision before the Federal Court.[170] For further discussion on this, see: Canadian Refugee Procedure/Notice of Constitutional Question.

Decisions taken under this Act are to be consistent with the principles of equality and freedom from discrimination[edit | edit source]

Section 3(3)(d) of the IRPA provides that the Act is to be construed and applied in a manner that ensures that decisions taken under the Act are consistent with the Canadian Charter of Rights and Freedoms, including its principles of equality and freedom from discrimination. This provision tracks the obligation in Article 3 of the Refugee Convention, which provides that the "Contracting States shall apply the provisions of this Convention to refugees without discrimination as to race, religion or country of origin".[171]

One can observe a transformation over the past century in the nature of international migration, including that it has an increasingly multiethnic and global character. When the 1951 Refugee Convention was being negotiated, it had a primarily European orientation, and the prospect of refugees coming in significant numbers from further afield was thought to be nil. For example, the UK delegate to the conference of plenipotentiaries that negotiated the 1951 Convention, asserted there that "[the risk of European states facing] a vast influx of Arab refugees was too small to be worth taking into account."[172] This thinking about the makeup and source of refugees seeking asylum has shifted dramatically to the point where today it is recognized that most refugees are in low income countries and that individuals claim asylum in Canada against countries throughout the world. Indeed, it can be observed that while “asylum seeker” is not on its face or de jure a racial category, in the contemporary Canadian migration regime, it is a de facto racialized category, comprised largely of non-White persons.[173]

Board Members are to exercise their discretion without discrimination or reliance on stereotype, as doing so, in the words of the Federal Court, “reveals a level of ignorance and prejudice which is not only unusual in general, but is particularly astonishing on the part of a decision maker who is in a position to adjudicate sensitive claims.”[174] See also: Canadian Refugee Procedure/The right to an unbiased decision-maker#Where a member pursues questioning with a discriminatory attitude.

Decisions taken under this Act are to be consistent with the equality of English and French as the official languages of Canada[edit | edit source]

Section 3(3)(d) of the Act states that it is to be construed and applied in a manner that ensures that decisions taken under this Act are consistent with the Canadian Chart of Rights and Freedoms, including its principle of the equality of English ad French as the official languages of Canada. For a discussion of this, see: Canadian Refugee Procedure/The right to be heard and the right to a fair hearing#Language of proceedings.

IRPA Section 3(3)(f) - The Act is to be applied in a manner that complies with international human rights instruments Canada has signed[edit | edit source]

Application
(3) This Act is to be construed and applied in a manner that
(f) complies with international human rights instruments to which Canada is signatory.

In general, in Canada legislation should be presumed to conform to international law[edit | edit source]

Canada is what is referred to as a "dualist state" in that international law and municipal law are treated as separate spheres of law. As such, in order for international obligations undertaken by the state by way of treaty to form part of the national law, these international law rules have to be transformed into national law rules through the use of enabling legislation.[175] That said, it is a well-established principle of statutory interpretation that legislation will be presumed to conform to international law.[176] The presumption of conformity is based on the rule of judicial policy that, as a matter of law, courts will strive to avoid constructions of domestic law pursuant to which the state would be in violation of its international obligations, unless the wording of the statute clearly compels that result.[177] The Supreme Court of Canada articulated this rule in Baker v. Canada when it adopted the following statement from Driedger on the Construction of Statutes:

[T]he legislature is presumed to respect the values and principles enshrined in international law, both customary and conventional.  These constitute a part of the legal context in which legislation is enacted and read.  In so far as possible, therefore, interpretations that reflect these values and principles are preferred.[178]

This provision was added to the IRPA and was not present in the former Immigration Act[edit | edit source]

Sharryn Aiken, et. al., write in Immigration and Refugee Law: Cases, Materials, and Commentary that there was considerable excitement in migrant advocacy circles regarding para 3(3)(f) of the IRPA stating that the Act is to be construed in a manner that "complies with international human rights instruments to which Canada is signatory." They note that this provision seemed to provide a potential shortcut for direct access to international human rights principles.[179] However, on the basis of the Federal Court of Appeal's decision de Guzman v. Canada those authors conclude that "The de Guzman decision ensured that para 3(3)(f) is understood to reflect existing Canadian law with respect to international obligations and therefore to be essentially meaningless window dressing that adds nothing new to the interpretive framework for Canadian immigration law."[180]

International human rights instruments are determinative of the meaning of IRPA, in the absence of a clear legislative intent to the contrary  [edit | edit source]

Section 3(3)(f) of the IRPA goes beyond the general principle of statutory interpretation described above. When interpreting any provision of IRPA, account must be had of Canada’s international human rights obligations and provisions should be interpreted in a manner consistent with Canada’s international obligations, where possible. In De Guzman v. Canada the court commented that the words “shall be construed and applied in a manner that complies with …” are mandatory and appear to direct courts to give the international human rights instruments in question more than persuasive or contextual significance in the interpretation of IRPA. By providing that IRPA “is to be” interpreted and applied in a manner that complies with the prescribed instruments, paragraph 3(3)(f), if interpreted literally, makes them determinative of the meaning of IRPA, in the absence of a clear legislative intent to the contrary.[181] As Bastarache J of the Canadian Supreme Court held in Pushpanathan, the "overarching and clear human rights object and purpose is the background against which interpretation of individual provisions must take place".[182] That said, unambiguous provisions of the IRPA must be given effect even if they are contrary to Canada’s international obligations or international law.[183]

Regard should be had to international human rights instruments that Canada has signed, whether or not Canada has ratified them[edit | edit source]

In de Guzman v. Canada the court commented that the sources of international law described in paragraph 3(3)(f) comprise some that are binding on Canada in international law, and some that are not. The paragraph applies to instruments to which Canada is signatory. An international instrument is not legally binding on a signatory State until it has also ratified it, unless the instrument provides that it is binding when signed. Signature normally evinces an intention to be bound in the future, although it may also impose an immediate obligation on the signatory not to take measures to undermine the agreement.[184]

Being a signatory to a treaty has a particular meaning in international law, in that it is usually a step prior to a party becoming a party to the treaty. Article 18(a) of the Vienna Convention on the Law of Treaties provides that "A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when: (a) It has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; ...".[78] That said, it is apparent that the instruments appropriately covered by this provision are not limited to instruments which Canada has signed, but not ratified. The Supreme Court of Canada has noted, for example, that the Refugee Convention itself is among the instruments appropriately referred to by this provision, see: Canadian Refugee Procedure/Principles for the interpretation of refugee procedure#The refugee system is inextricably linked with the concept of human rights.

What are the international human rights instruments to which Canada is a signatory?[edit | edit source]

As the Federal Court of Appeal has noted, the IRPA "does not list, let alone set out the text of, the measures to which paragraph 3(3)(f) applies."[185] It went on to note that the phrase "international human rights instruments to which Canada is signatory" is "far from self-defining".[185] The Supreme Court of Canada has noted that the Refugee Convention itself is among the instruments appropriately referred to by this provision, see: Canadian Refugee Procedure/Principles for the interpretation of refugee procedure#The refugee system is inextricably linked with the concept of human rights.

The Department of Justice provides the following list, International Human Rights Treaties to which Canada is a Party, which may also serve to inform an interpretation of this provision:[186]

  • Convention on the Prevention and Punishment of the Crime of Genocide (1952)
  • International Convention on the Elimination of All Forms of Racial Discrimination (1970)
  • International Covenant on Economic, Social and Cultural Rights (1976)
  • International Covenant on Civil and Political Rights (ICCPR) (1976)
    • Optional Protocol to the ICCPR (complaint mechanism) (1976)
    • Second Optional Protocol to the ICCPR, aiming at the abolition of the death penalty (2005)
  • Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) (1981)
    • Optional Protocol to CEDAW (complaint mechanism) (2002)
  • Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1987)
  • Convention on the Rights of the Child (CRC) (1991)
    • Optional Protocol to the CRC on the Involvement of Children in armed conflict (2000)
    • Optional Protocol to the CRC on the Sale of Children, Child Prostitution and Child Pornography (2005)
  • Convention on the Rights of Persons with Disabilities (2010)
    • Optional Protocol to the Convention on the Rights of Persons with Disabilities (2018)

This provision does not apply to international humanitarian law instruments, purely regional instruments, and texts which are not signed[edit | edit source]

Section 3(3)(f) of the IRPA provides that it is to be construed and applied in a manner that complies with international human rights instruments to which Canada is signatory. This arguably excludes a number of types of instruments, including:

  • Instruments that are not human rights instruments, but are instead humanitarian law instruments: The Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1949), which at Art. 45, para. 4 prohibits transferring a protected person "to a country where he or she may have reason to fear persecution for his or her political opinions or religious beliefs.".[187] This instrument forms part of international humanitarian law, not international human rights law, and thus does not fall within the ambit of IRPA s. 3(3)(f).
  • Instruments that are not international instruments, but are instead regional ones: Canada is not a party to the American Convention on Human Rights. Nevertheless, as a member of the Organization of American States, it is bound by the terms of the American Declaration of the Rights and Duties of Man (“American Declaration”).[188] This instrument specifies the fundamental rights to which each person is entitled, and which each member State of the Organization of American States (OAS), like Canada, is bound to uphold. The OAS Charter and the American Declaration are a source of legal obligations applicable to Canada.[189] That said, this instrument is arguably not relevant to s. 3(3)(f) of the IRPA given that it provides that the Act “is to be construed and applied in a manner that complies with international human rights instruments to which Canada is signatory”, and the American Declaration, rather than being an international instrument is rather a regional one. Even so, such instruments would nonetheless be relevant to the interpretation of this statute pursuant to general rules of statutory interpretation which involve considering Canada's international legal obligations when conducting statutory interpretation.
  • Instruments that are not signed: For example, the 1948 Universal Declaration of Human Rights is not a treaty, but instead an unenforceable, non-binding (yet aspirational) resolution of the United Nations General Assembly.[190] By its terms the Universal Declaration of Human Rights was not designed to describe binding obligations by only a 'common standard of achievement', as stated in the preamble to the declaration.[191] As such, given that this document was not signed, and as such countries cannot be said to be signatories to this declaration, it should not be regarded as one of the instruments contemplated by s. 3(3)(f) of the IRPA.

The refugee system is inextricably linked with the concept of human rights[edit | edit source]

Section 3(3)(f) of the Act provides that it is to be construed and applied in a manner that complies with international human rights instruments to which Canada is signatory. The Supreme Court of Canada has held that the Refugee Convention itself should be considered a “human rights instrument”, within the meaning of s. 3(3)(f) of the Act:

s. 3(3)(f) instructs courts to construe and apply the IRPA in a manner that “complies with international human rights instruments to which Canada is signatory”. There can be no doubt that the Refugee Convention is such an instrument, building as it does on the right of persons to seek and to enjoy asylum from persecution in other countries as set out in art. 14 of the Universal Declaration of Human Rights.[192] [internal citations omitted]

UNHCR is said to have adopted this approach that sees the Refugee Convention as a part of human rights law and has pronounced that “the human rights base of the Convention roots it quite directly in the broader framework of human rights instruments of which it is an integral part.”[193] The preamble to the Convention itself notes that "The High Contracting parties, considering that the United Nations has, on various occasions, manifested its profound concern for refugees and endeavoured to assure refugees the widest possible exercise of these fundamental rights and freedoms, ... have agreed as follows:".[136] Brennan CJ of the High Court of Australia relied on this preamble when making the following comment about the Refugee Convention: "the preamble places the Convention among the international instruments that have as their object and purpose the protection of the equal enjoyment by every person of fundamental rights and freedoms."[194] In 2018 the Inter-American Court of Human Rights issued an Advisory Opinion entitled “The Institution Of Asylum And Its Recognition As a Human Right In The Inter-American System Of Protection” which concluded that asylum is a human right.[195]

Furthermore, the weight of academic commentary about the place of the Refugee Convention within the corpus of human rights instruments. McAdam argues that refugee law is a specialized area within human rights law.[196] Similarly, Hathaway argues that refugee rights should be understood as a mechanism by which to answer situation-specific vulnerabilities that would otherwise deny refugees meaningful benefit of the more general system of human rights protection. In this way, he states, "refugee rights do not exist as an alternative to, or in competition with, general human rights."[197]

This provision in the IRPA should be read in conjunction with Section 3(2)(e) of the IRPA, which provides that the objectives of this Act with respect to refugees including upholding Canada’s respect for the human rights and fundamental freedoms of all human beings. These legislative provisions speak to the way that the plight of refugees is inextricably linked with human rights violations. In the words of refugee lawyer David Matas, “the plight of refugees and human rights violations are not two problems, but different facets of the same problem. Human rights violations are at the root cause of mass exoduses.”[198]

References[edit | edit source]

  1. Singh, [1985] 1 SCR 177, at 212.
  2. 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 5.
  3. a b Geza v. Canada (Minister of Citizenship and Immigration), 2006 FCA 124, para. 53.
  4. Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137 (Refugee Convention), Article 32.
  5. UN doc CAT/C/34/D/233/2003 (20 May 2005).
  6. a b 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 10.
  7. Benitez v. Canada (Minister of Citizenship and Immigration), 2006 FC 461 (CanLII), [2007] 1 FCR 107, par. 64, <https://canlii.ca/t/1n3nx#par64>, retrieved on 2021-07-17.
  8. Conclusions Adopted by the Executive Committee in the International Protection of Refugees 1975-2009 (Conclusion 1-109). See Conclusion 8 9, <https://www.unhcr.org/en-us/578371524.pdf> (Accessed February 5, 2021).
  9. Sundaram v. Canada (Minister of Citizenship and Immigration), 2006 FC 291 (CanLII), par. 12, <http://canlii.ca/t/1mr2v#par12>, retrieved on 2020-04-11.
  10. Ngyuen v. Canada (Minister of Citizenship and Immigration), 2005 FC 1001, [2005] F.C.J. No. 1244 (QL), at para. 17.
  11. Canada (Citizenship and Immigration) et al. v. The Canadian Council for Refugees et al., 2021 FCA 72, para. 125.
  12. Inter-American Commission on Human Rights (IACHR), Report on the Situation of Human Rights of Asylum Seekers Within the Canadian Refugee Determination System, 2000, Inter-Am. C.H.R., OEA/Ser.L/V/II.106, Doc. 40 rev. (2000), available at: https://www.refworld.org/docid/50ceedc72.html [accessed 18 August 2020], para. 52.
  13. Inter-American Commission on Human Rights (IACHR), Report on the Situation of Human Rights of Asylum Seekers Within the Canadian Refugee Determination System, 2000, Inter-Am. C.H.R., OEA/Ser.L/V/II.106, Doc. 40 rev. (2000), available at: https://www.refworld.org/docid/50ceedc72.html [accessed 18 August 2020], para. 36.
  14. 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.
  15. Huseen v. Canada (Citizenship and Immigration), 2015 FC 845 (CanLII), par. 34, <http://canlii.ca/t/gkmz2#par34>, retrieved on 2020-03-11.
  16. 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 33.
  17. Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), 1998 CanLII 8667 (FC).
  18. J. Ramji‐Nogales et al. (eds), Refugee Roulette (2009), p. 125, citing Immigration Litigation Reduction Hearing before the S. Comm. on the Judiciary, 109th Cong. 5–7 (2006) (statement of Hon. John M. Walker, Jr., C.J., US Court of Appeals for the Second Circuit).
  19. C. Guthrie et al., ‘Blinking on the Bench: How Judges Decide Cases’ (2007) 93 Cornell Law Rev. 1.
  20. Andreoli v Canada (Minister of Citizenship and Immigration), 2004 FC 1111 at para 20.
  21. Perez v. Canada (Citizenship and Immigration), 2020 FC 1171 (CanLII), par. 26, <http://canlii.ca/t/jc9b0#par26>, retrieved on 2021-01-14.
  22. UN General Assembly, Convention relative au statut des réfugiés, 28 July 1951, available at: https://www.refworld.org/docid/48abd59af.html [accessed 21 December 2020] at Article 31.
  23. a b c d e Paulos Teddla v. Canada (Public Safety and Emergency Preparedness), 2020 FC 1109 (CanLII), par. 26, <http://canlii.ca/t/jc709#par26>, retrieved on 2020-12-21.
  24. Sainvry v. Canada (Citizenship and Immigration), 2013 FC 468 (CanLII), par. 16, <https://canlii.ca/t/fxbpj#par16>, retrieved on 2021-06-26.
  25. Immigration and Refugee Board of Canada, Policy on National Documentation Packages in Refugee Determination Proceedings, Effective date: June 5, 2019, <https://irb-cisr.gc.ca/en/legal-policy/policies/Pages/national-documentation-packages.aspx> (Accessed August 30, 2020).
  26. Barrientos v Canada (Ministre de la Citoyenneté et de l’Immigration), 1997 CanLII 5278.
  27. a b c 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 13 of the article.
  28. a b Ahmed v. Canada (Citizenship and Immigration), 2020 FC 107, at paragraph 34.
  29. Paulos Teddla v. Canada (Public Safety and Emergency Preparedness), 2020 FC 1109 (CanLII), par. 20, <http://canlii.ca/t/jc709#par20>, retrieved on 2020-12-21.
  30. Yang v. Canada (Citizenship and Immigration), 2019 FC 402 (CanLII), par. 40, <https://canlii.ca/t/hzrhk#par40>, retrieved on 2021-04-28.
  31. Jouzichin v Canada (Minister of Citizenship and Immigration) (1994), 52 ACWS (3d) 157, 1994 CarswellNat 1592.
  32. Immigration and Refugee Board of Canada, Basis of Claim Form, November 2012 Version <https://irb-cisr.gc.ca/en/forms/Documents/RpdSpr0201_e.pdf>, Appendix page 2.
  33. Mohammadian v Canada (Minister of Citizenship and Immigration), 2000 CanLII 17118 (FC), [2000] 3 FC 371, 185 FTR 144.
  34. 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 6.
  35. Hambly, J. and Gill, N. (2020), Law and Speed: Asylum Appeals and the Techniques and Consequences of Legal Quickening. J. Law Soc., 47: 3-28. doi:10.1111/jols.12220.
  36. Guylas v. Canada (Citizenship and Immigration), 2015 FC 202 (CanLII), para. 39.
  37. Singh v. Canada, 1985 1 SCR 177.
  38. Hambly, J. and Gill, N. (2020), Law and Speed: Asylum Appeals and the Techniques and Consequences of Legal Quickening. J. Law Soc., 47: 3-28. doi:10.1111/jols.12220.
  39. The Lord Chancellor v. Detention Action [2015] EWCA Civ 840 para. 49. Practical difficulties and complexities of the DFT undermined appellants’ rights to participate fully and effectively in their appeal processes, leading to a finding that the system operated too quickly to be considered lawful, and was ‘systemically unfair and unjust’, as discussed in Hambly, J. and Gill, N. (2020), Law and Speed: Asylum Appeals and the Techniques and Consequences of Legal Quickening. J. Law Soc., 47: 3-28. doi:10.1111/jols.12220.
  40. Pillai v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1417, [2002] 3 FC 481.
  41. Andreoli v. Canada (Minister of Citizenship and Immigration), 2004 FC 1111 (CanLII), para. 16.
  42. Hamel v. Brunelle and Labonté, 1975 CanLII 1 (SCC), [1977] 1 SCR 147.
  43. Huseen v. Canada (Citizenship and Immigration), 2015 FC 845 (CanLII), par. 16, <http://canlii.ca/t/gkmz2#par16>, retrieved on 2020-03-11.
  44. Huseen v. Canada (Citizenship and Immigration), 2015 FC 845 (CanLII), par. 17, <http://canlii.ca/t/gkmz2#par17>, retrieved on 2020-03-11.
  45. Ahmed v. Canada (Citizenship and Immigration), 2018 FC 1157 (CanLII), para. 44.
  46. Huseen v Canada (Citizenship and Immigration), 2015 FC 845, para. 36.
  47. Immigration and Refugee Board of Canada, Refugee Protection Division: Practice Notice on the resumption of in-person hearings, June 23, 2020, <https://irb-cisr.gc.ca/en/legal-policy/procedures/Pages/rpd-pn-hearing-resumption.aspx> (Accessed August 1, 2020).
  48. Martin David Jones and Sasha Baglay. Refugee Law (Second Edition). Irwin Law, 2017, page 328.
  49. Soares v. Canada (Minister of Citizenship and Immigration), 2007 FC 190, [2007] F.C.J. No. 254 (QL), at para. 22.
  50. Geza v. Canada (Minister of Citizenship and Immigration), [2006] FCJ No 477 at para 1 (CA).
  51. Kozak v. Canada (Minister of Citizenship and Immigration), 2006 FCA 124 (CanLII), [2006] 4 FCR 377, para. 56.
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  187. UNHCR, Refugee Protection: A Guide to International Refugee Law, <https://www.academia.edu/36070452/REFUGEE_PROTECTION_A_Guide_to_International_Refugee_Law?email_work_card=view-paper> (Accessed December 13, 2020), page 14.
  188. Sharryn Aiken, et al, Immigration and Refugee Law: Cases, Materials, and Commentary (Third Edition), Jan. 1 2020, Emond, ISBN: 1772556319, at page 320.
  189. IACtHR, Advisory Opinion OC-10/89 of July 14, 1989, "Interpretation of the American Declaration of the Rights and Duties of Man within the Framework of Article 64 of the American Convention on Human Rights," Ser. A No. 10, paras. 45-46.
  190. UNGA Res. 217A(III), adopted Dec. 10, 1948
  191. The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary. Edited by Andreas Zimmermann. Oxford University Press, 2011, 1799 pp. ISBN 978-0-19-954251-2, Preamble 1951 Convention, by Alleweldt, at p. 232 (para. 28).
  192. B010 v. Canada (Citizenship and Immigration), 2015 SCC 58 (CanLII), [2015] 3 SCR 704, par. 49, <https://canlii.ca/t/gm8wn#par49>, retrieved on 2021-04-25.
  193. 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.
  194. Applicant A v Minister for Immigration and Ethnic Affairs (n 86) 231–232 (per Brennan CJ).
  195. Advisory Opinion OC-25/18, as cited in Esraa Adnan Fangary, A Peculiar Leap in the Protection of Asylum Seekers: The Inter-American Court of Human Rights' Jurisprudence on the Protection of Asylum Seekers, The Age of Human Rights Journal, 16 (June 2021) pp. 31-53 ISSN: 2340-9592 DOI: 10.17561/tahrj.v16.6134 at page 35.
  196. McAdam, J. 2010. Status anxiety: Complementary protection and the rights of non-convention refugees. University of New South Wales Faculty of Law Research Series, working paper 1, University of New South Wales, Sydney.
  197. Hathaway, James C. The Rights of Refugees under International Law. 2nd ed., Cambridge University Press, 2021, page 10.
  198. David Matas with Ilana Simon, Closing the Doors: The Failure of Refugee Protection, Summerhill Press Ltd., Toronto, 1989, ISBN 0-920197-81-7, page 274.

The Board's inquisitorial mandate[edit | edit source]

Refugee Status Determination is said to be among the most difficult forms of adjudication, involving as it does fact-finding in regard to foreign conditions, cross-cultural and interpreted examination of witnesses, ever-present evidentiary voids, and a duty to prognosticate potential risks rather than simply to declare the more plausible account of past events.[1] Within this context, RPD Members have to make high-stake decisions on the basis of scarce and uncertain information, they need to strike a balance between the goals of protection and control, and Canadian refugee law is ambiguous and provides limited guidance, with credibility often being a key point in any given case.[2] The process for Refugee Status Determination adopted in Canada that seeks to address these challenges is one where the Board has an inquisitorial mandate. The following are some of the contours of that mandate.

The Refugee Protection Division has an inquisitorial mandate[edit | edit source]

The Board generally uses an inquisitorial, as opposed to adversarial, approach to decision-making. Rebecca Hamlin describes the contrast between these two decision-making approaches this way:

The adversarial style takes the shape of a triad: two disputants arguing their respective cases before a passive judge, who must resolve the dispute by deciding which case is more persuasive. In an adversarial process, justice is based on the premise that an impartial judge decides between competing versions of this story after hearing both sides argued forcefully. Unlike this courtroom-like setting, inquisitorial hearings are designed to be non-adversarial and non-legalistic, taking the form of a dyad between the person whose fate is to be decided and the person deciding it. The inquisitorial decision-maker is engaged in a conversation with the parties, and the facts must be discovered through a collaborative process of research and questioning. Justice is demonstrated through the decision-maker's commitment to an active investigatory process.[3]

The Refugee Protection Division has an inquisitorial mandate. The Board's Chairperson Guideline 7 describes a Member's inquisitorial mandate this way:

A member's role is different from the role of a judge. A judge's primary role is to consider the evidence and arguments that the opposing parties choose to present; it is not to tell parties how to present their cases. Case law has clearly established that the RPD has control of its own procedures. The RPD decides and gives directions as to how a hearing is to proceed. The members have to be actively involved to make the RPD's inquiry process work properly.[4]

Refugee Status Determination is declaratory, not constitutive[edit | edit source]

Recognizing someone as a refugee does not make the person a refugee. This is because refugee status determination is a declaratory, not constitutive act.[5] As refugee lawyer David Matas writes, “a declaratory act recognizes someone to be what he is or always was. A constitutive act makes a person something he was not before. An asylum government cannot constitute someone to be a refugee, because he already is one.”[6] As the refugee law academic James Hathaway puts it, refugee status arises out of the refugee's predicament, rather than from a formal determination of status.[7] In this way, a decision-maker errs when they fail to recognize a genuine refugee as such, and a decision-maker also errs when they do the converse by wrongly recognizing someone who is not a refugee as such. While, in principle, a state may grant asylum to anyone that it may so choose, regardless of whether or not they meet the criteria enshrined in the Refugee Convention, or any other international treaty,[8] such a wide-ranging power has not been delegated to Immigration and Refugee Board Members, who are restricted to recognizing cases where the applicable criteria in either s. 96 or s. 97 of the IRPA have been met.

This modern conception of the refugee regime stands in contrast to pre-20th century views of asylum, where diplomatic and territorial asylum were considered to be constitutive acts such that it was the decision that made the person asking for asylum an asylee.[9] This move away from a constitutive view of asylum to a declaratory one reflects the emergence of a rights-based view of the institution of asylum and refugee status. In Canada, this takes the form of the concrete legal obligation on the Canadian state to recognize as refugees those who meet the criteria in ss. 96 and 97 of the IRPA. Recognition of such is not a discretionary charitable act by Canada, but instead a personal right that individuals have pursuant to the IRPA, and, as recognized by the Inter-American Court of Human Rights, the Refugee Convention. In their words in their decision in Pacheco Tineo v. Bolivia:

Even if the 1951 Convention does not explicitly establish the right to asylum as a right, it is considered to be implicitly incorporated into its text, which mentions the definition of a refugee, the protection against the principle of non-refoulement, and a list of rights to which refugees have access.... With the protection provided by the 1951 Convention and its 1967 Protocol, the institution of asylum assumed a specific form and mechanism at the global level: that of refugee status.[10]

Shauna Labman writes about the significance of this conception of asylum:

The benefit of a rights-based stance in law is that it adds a concrete assertion of legal obligation and accountability to refugee protection. It is equality between the parties. Stuart Scheingold defines this as "the call of the law." He suggests that the assertion of a right implies a legitimate and dignified reciprocal relationship that is societal and not personal. The current alternative calls in refugee protection are for compassion, humanitarianism, and morality. Such claims lack reciprocity and are founded on personal need. As Catherine Dauvergne explains, "a claim for compassion does not effectively function as a right because rights are grounded in equality but compassion is grounded in generosity and inequality."[11]

All this said, the assertion that refugee status determination procedures are declaratory and not constitutive, and its implicit representation of ‘refugeehood’ as an objective identity given by law, appears to be tendentious. It is belied by the large variations in the way different individuals and systems answer the question of "who is a refugee?", even where they are all interpreting the same Convention provisions, evidence, and laws. That said, in the words of Tone Liodden, "the idea of the refugee as a non-negotiable identity across time and space may largely be fictional, but [it] is a ‘crucial fiction’ that has very real consequences for those who are granted – or denied – refugee status."[2] For more on this point, see: Canadian Refugee Procedure/The right to be heard and the right to a fair hearing#Decision-making should be predictable and consistent across the Board.

A hearing becomes adversarial where the Minister is involved[edit | edit source]

While the Division's mandate is primarily conceived of as inquisitorial and non-adversarial,[12] in some cases the Minister intervenes in a claim and the process becomes an adversarial one. This properly constrains the Member's role. Madam Justice Tremblay-Lamer observed in Rivas v. Canada that in some situations, such as where exclusion is at issue, “it may be problematic for the tribunal to proceed without the Minister since the Minister usually has the burden of proof. As the applicant argues, it is a situation that can force the member to [translation] ‘descend into the arena’.”[13] As Lorne Waldman states in his looseleaf: “… Since the burden of proof falls squarely on the Minister, it is certainly arguable that it is not appropriate for tribunal members themselves to engage in an investigation with respect to the exclusion matters. For the tribunal members to do so would result in their becoming prosecutors seeking to establish if the claimant falls within the exclusion clauses.”[14] Despite all of this, the jurisprudence recognizes that the Board may make a decision on the issue of exclusion without the Minister’s participation,[15] and indeed that it may have an obligation to do so even where the Minister does not participate in a case. But once the Minister becomes involved, the hearing is seen to become an adversarial process, with both the Minister’s Hearings Officer and the refugee claimant presenting evidence to establish or rebut the allegation of exclusion.[16] This may entail some limits on the Member's proper role, and this relates to the requirement in the RPD Rules that the hearing be suspended immediately upon notification to the Minister of possible exclusion (which see: Canadian Refugee Procedure/Exclusion, Integrity Issues, Inadmissibility and Ineligibility).

A situation can arise where the Minister concedes a point or makes a recommendation in the claimant's favour; this does not bind the Division and does not relieve a claimant from their obligation to make their case: Fong v Canada.[17] That said, while a joint submission is not binding on the Division, the caselaw establishes that it should be given serious consideration: Nguyen v Canada.[18]

The Member has wide latitude to question claimants in an inquisitorial process[edit | edit source]

The text Judicial Review of Administrative Action in Canada provides that particular latitude will be given to tribunals to question where the matter is not adversarial, as with most refugee proceedings:

Extensive and "energetic" questioning alone by tribunal members will not in itself give rise to a reasonable apprehension of bias. And particular latitude is likely to be given to tribunals operating in a non-adversarial setting, such as refugee determination hearings, where there is no one appearing to oppose the claim.[19]

The nature of the mandate that decision-makers have in inquisitorial RSD processes is summarized by Rebecca Hamlin as follows:

The inquisitorial form requires much more active decision makers. Instead of placing the responsibility for the collection of evidence and the presentation of arguments on the disputing parties themselves, the inquisitorial process combines the role of investigator and decision-maker into one. RSD is inquisitorial if the asylum seeker goes before a decision maker who both researches and decides the claim.[20]

That said, there are limits on appropriate questioning where a Member approaches questioning with a discriminatory or hostile attitude: Canadian Refugee Procedure/The right to an unbiased decision-maker#The tone and tenor of the decision-maker’s involvement in the hearing.

A Member should be adequately trained[edit | edit source]

A decision-maker should be adequately trained on issues of law and fact. While the training of Members of the Refugee Protection Division has generally been well regarded, in contrast, this has not always been seen to be the case with overseas visa officers deciding applications for resettlement from abroad. For example, in Ghirmatsion v. Canada, the Federal Court concluded that the visa officer's "lack of adequate training and support" were evident on cross-examination.[21]

There are also limits on a Member's training and competency. This is reflected in the additional services available to Members, for example the statement in the Instructions for Gathering and Disclosing Information for Refugee Protection Division Proceedings that where, after consulting with the responsible member manager, the assigned member forms the opinion that forensic verification is necessary, they may direct the RPD adjudicative support team to send the document to the RCMP Forensic Laboratory Services for verification.[22]

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

The Federal Court affirms that the burden of proof rests on a claimant to show that they meet the definition of a Convention Refugee or 'person in need of protection' in the Act.[23] The Irwin Law text Refugee Law notes that this burden flows from the general proposition in international law that an individual seeking admission to a state must justify their admission.[24] The UNHCR is of the view that this principle properly applies in the refugee context, stating that "the burden of proof in principle rests on the applicant".[25] The burden of proof was previously allocated differently in Canadian refugee law, but in 1988 Canada's legislature modified the immigration legislation to shift the burden of proof for making a claim onto the asylum seeker.[26]

The UNHCR Handbook provides that those examining a refugee claim should "ensure that the applicant presents his case as fully as possible and with all available evidence."[25] This does not mean that the Board member is obliged to undertake a freestanding inquiry into a claim; the Refugee Appeal Division has held that the following principles apply in the refugee determination context: "a decision-maker [is] entitled to proper notice as to what exactly [is] being advanced. It is not up to the decision-maker to ferret out points which might possibly assist an applicant."[27] Similarly, Member Railton of the Refugee Protection Division has noted that "The role of the Division hearing an application to re-open does not include a fact-finding mission on behalf of the applicants".[28] One of the reasons for this is about judicial economy; indeed, it is said that “states have a right to a fair and efficient asylum procedure”.[29]

Finally, in the Canadian system there exist legal issues where the burden of proof does not fall on the claimant, for example the Minister (or the Board, if the Minister is not participating in a hearing) bears the onus to establish a refugee claimant comes within one of the Convention's exclusion clauses.[30]

There is a shared duty of fact-finding in refugee matters[edit | edit source]

The United Nations High Commissioner for Refugees states in their handbook that there is a shared duty of fact-finding between a claimant and the examiner: "In most cases a person fleeing from persecution will have arrived with the barest necessities and very frequently even without personal documents. Thus, while the burden of proof in principle rests on the applicant, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner."[31] States must consider persons exercising their right to asylum honestly and with due diligence so as to not violate their obligation of non-refoulement.[32]

One of the ways that this principle is implemented in practice is through packages of information that states compile on the countries of origin against which claimants are filing claims. It is an international norm that states ensure that precise and up-to-date information from various sources, such as the UNHCR and knowledgeable NGOs, is made available to the personnel responsible for examining applications and taking decisions.[33] This information will concern the general situation prevailing in the countries of origin against which applications of asylum are being made. 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".[34]

Another way that Canada fulfils this obligation is through claimant-specific research; the Board has committed to using the following process when engaging in such research pre-hearing: Canadian Refugee Procedure/The right to a fair hearing#Disclosure rights and obligations for the Board. When it comes to whether the Board is obliged to do such research, or to reach out to a potential witness during a hearing, there is a split in the Federal Court jurisprudence about whether and in what circumstances the Board has any such obligation. One line of jurisprudence is represented by the Decision of Justice Russell in Paxi v Canada wherein he commented that "for the Board to take issue with the authenticity of the document yet make no further inquiries despite having the appropriate contact information to do so is a reviewable error."[35] This appears to place a higher onus on the Board to inquire into a claim and solicit independent evidence. A contrasting line of jurisprudence is exemplified by the decision of Mr. Justice Roy in Lutonadio v. Canada that endorsed the following statement:

I disagree that an administrative tribunal has an obligation to contact a witness to obtain information. This is not its role. The onus rests with the Applicant to bring forward evidence it intends to rely upon and in doing so, always to put the best foot forward. It is not up to the RPD to chase down evidence from a witness to be satisfied that the document is authentic and that a person exists who has sworn to the truth of its contents before someone authorized to confirm that fact. This onus rests with the Applicant who should provide the necessary information authenticating the author and the document.[36]

Furthermore, there are limits to the Board's onus to inquire into matters. In Ramirez v. Canada, the claimant argued on judicial review that the Board Member should have considered whether counselling in the proposed IFA location would be likely to adequately address the applicant’s mental health issues. The court rejected this argument, concluding that "such an analysis would have been speculative and well beyond the RAD’s expertise."[37]

The Board must ensure that certain claimants are assisted to make their cases[edit | edit source]

The United Nations High Commissioner for Refugees states in their handbook that the scope of the shared duty of fact-finding between a claimant and the examiner will vary depending on the nature of the case: "While the burden of proof in principle rests on the applicant, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner. Indeed, in some cases, it may be for the examiner to use all the means at [their] disposal to produce the necessary evidence in support of the application."[31] What are those cases in which an examiner is to go to greater lengths to produce such evidence?

There is widespread recognition that certain types of claimants may be particularly prejudiced in presenting their cases and that in such circumstances this may affect the onus that is placed on the claimant to provide corroboration of their claim. Indeed, the Code of Conduct for Members of the Immigration and Refugee Board of Canada provides that "Members must take reasonable measures to accommodate all participants in a proceeding so that they may participate effectively."[38] The UNHCR stipulates that "procedures should be in place to identify and assist asylum seekers with specific needs."[39]

Minors and the mentally incompetent[edit | edit source]

One such category of claimants is those whose ability to appreciate the nature of the proceedings is severely impaired, either because they are incompetent or a minor. The failure to appoint a designated representative in a refugee protection proceeding, when one is required by the rules, is a violation of procedural fairness. As the court stated in Kurija v. Canada, “I place the proper representation of young immigrant claimants in refugee proceedings on the same plane as concerns over bias of a decision-maker. By this I mean that it is a ‘knock-out’ issue requiring the decision to be set aside, and furthermore an issue on which new evidence is admissible after the fact for the purpose of determining the partiality of the decision-maker, or in this case, the age of the claimant.”[40] For further discussion of this, see: Canadian Refugee Procedure/Designated Representatives.

Furthermore, the UNHCR states that determining the claim of a minor "may call for a liberal application of the benefit-of-the-doubt principle".[41]

Claimants in detention[edit | edit source]

Another category of claimant which may require special assistance is those who are in detention at the time that they are preparing for, or attending, their refugee hearing. There are particular access to justice issues for claimants in detention, who have consistently been identified as being among those who have the greatest difficulty accessing legal counsel.[42] The UN Committee Against Torture, in its General Comment on non-refoulement, has listed this as one situation in which the burden of proof should reverse, and it should fall on the state to rebut the claimant's assertions where the author of the complaint has faced difficulties in obtaining evidence to substantiate their claim:[43]

[W]hen the complainant is in a situation where he/she cannot elaborate on his/her case, for instance, when the complainant has demonstrated that he/she has no possibility of obtaining documentation relating to his/her allegation of torture or is deprived of his/her liberty, the burden of proof is reversed and it is up to the State party concerned to investigate the allegations and verify the information on which the communication is based.[44]

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

Evidence is primarily presented in written form in the Canadian process[edit | edit source]

The purpose of an oral hearing before the Division is not for a claimant to repeat everything that is in their Basis of Claim form. The form is already to include "everything important for [their] claim" (as stated on the form) and as per the Chairperson Guidelines 7: Concerning Preparation and Conduct of a Hearing in the Refugee Protection Division, "questions that are answered by the claimant just repeating what is written in the BOC Form do not help the Member."[45] Instead, if the information on the form reliably establishes that the claimant meets the criteria to receive protection, then an oral hearing need not be held (See Rule 23: Canadian Refugee Procedure/Allowing a Claim Without a Hearing). The purpose of an oral hearing is to test the evidence presented, or lack thereof, where it is necessary to do so. This is in contrast to the practice in some other jurisdictions; for example, in Finland the practice is to have a portion of their asylum interviews in which the claimant is expected to state the grounds for claiming asylum and disclose evidence to support that claim through free narration.[46]

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

  • The panel is obliged to test the evidence where this is necessary in order to ascertain the truth: Where evidence is provided by a claimant, there is an obligation on the Board to test that evidence. As the Board's legal services department puts it in its paper on Assessment of Credibility in Claims for Refugee Protection, RPD members have a duty to get at the truth concerning the claims they hear.[47] As Justice Nadon stated in Maksudur v. Canada, "In most refugee claims, the prime issue, if not the only issue, is whether the story related by the [claimant] is true. Consequently, Board members have a duty to the [claimant] and to Canada to employ their best endeavours in the pursuit of that goal to discover the truth."[48] Justice Mosley concluded that "a close examination of the merits of the claim is consistent with the nature of the process and the role[] of the member".[49]
  • The panel should confront a claimant and probe where it harbours credibility concerns: When it comes a Member's obligations with respect to the acquisition of information necessary for the fair and expeditious determination of a refugee claim, the court has commented on a Member's duty to enquire by stating that "the RPD has a responsibility to prompt and probe" where it harbours a concern about credibility in certain circumstances:

[I]t was unreasonable for the RAD to draw an adverse inference from the Applicant’s bare “no” in this second brief exchange. This was an issue where considerably more questioning was required in order to assess the true depth of the Applicant’s knowledge. Indeed, the RPD has a responsibility to prompt and probe where it harbours a concern like this and the RAD has a corresponding responsibility to hold the RPD to that interrogatorial standard.[50]

  • A panel is not required to tell the applicant that their evidence is insufficient or ask the applicant to provide additional evidence, but it may elicit information where this is necessary to determine whether the claimant is a refugee: While there are a number of policy statements indicating that it may be advisable for Members to solicit additional information in particular cases, the law appears to be adequately captured by the Federal Court's statement in Mbengani v. Canada that a panel is not required to tell the applicant that his evidence is insufficient or ask the applicant to provide him with additional evidence.[51] While that decision involved a PRRA proceeding, the principle would apply with equal force to the RPD. That said, there are policy statements made to the effect that where there is a lack of evidence in a particular case, a Member may have a duty to elicit it. The Member's inquisitorial role means that they have a duty not only to hear whatever evidence comes before them, but, ultimately, according to the academic Hathaway, that they must inform themselves sufficiently to "determine whether or not the [claimant] is a Convention refugee."[52] To this end, in 1990s the IRB developed what was sometimes called the “Specialized Board of Inquiry Model”, in which the CRDD members were proactive in pre-hearing file review, preliminary issue identification, claim screening, scheduling hearings, and the acquisition of information necessary for the fair and expeditious determination of a refugee claim.[53] Indeed, to this day the Code of Conduct for Members of the Immigration and Refugee Board of Canada provides that "Members shall make each decision on the merits of the case, based on thorough preparation, the assessment of evidence properly before the member and the application of the relevant law."[54]
  • The panel has a duty to enquire into matters related to the fairness of the proceedings if there is an indication of a procedural fairness issue: For example, in Gallardo v. Canada the Federal Court commented that the Division should have inquired into the claimant's capacity to represent himself given counsel’s statements that the claimant had not been properly prepared and the claim had been inadequately put together without the assistance of counsel.[55] The Court held that the Division erred in not so inquiring.

The Board should consider the most up-to-date country conditions evidence[edit | edit source]

Where a new National Documentation Package is released by the Board's research unit prior to a panel rendering a decision, the panel should consider it. In Zhao v. Canada, the court held that the Board should consider the most recent information on country conditions. The parties should have an opportunity to present submissions and evidence on the new documents if they include material new information.[56] As the Federal Court held in that case, "as a matter of procedural fairness, the [Board] simply had a duty to disclose the most recent NDP and to give the Applicants an opportunity to respond and make submissions on this matter."[57] That said, the RPD is not generally required to look for evidence on its own in these documents to support either the claimant's or Minister's arguments and propositions.[34] For an additional discussion of this issue, see: Canadian Refugee Procedure/Documents#The panel should consider the most recent National Documentation Package.

References[edit | edit source]

  1. Hathaway, James C., Rebuilding trust: a report of the Review of Fundamental Justice in Information Gathering and Dissemination at the Immigration and Refugee Board of Canada, Refugee Studies Centre, Publisher: Osgoode Hall Law School, 01/12/1993 <http://repository.forcedmigration.org/show_metadata.jsp?pid=fmo:1136> (Accessed April 14, 2020), page 6.
  2. a b Tone Maia Liodden, Who Is a Refugee? Uncertainty and Discretion in Asylum Decisions, International Journal of Refugee Law, Advance Article, 29 April 2021 <https://doi-org.peacepalace.idm.oclc.org/10.1093/ijrl/eeab003> (Accessed May 1, 2021).
  3. Let Me Be a Refugee: Administrative Justice and the Politics of Asylum in the United States, Canada, and Australia. By Hamlin, Rebecca. New York: Oxford University Press,  2014, p. 18.
  4. Immigration and Refugee Board of Canada, Chairperson Guidelines 7: Concerning Preparation and Conduct of a Hearing in the Refugee Protection Division, Amended December 15, 2012 <https://irb-cisr.gc.ca/en/legal-policy/policies/Pages/GuideDir07.aspx#FailureA4> (Accessed January 26, 2020), section 2.2.
  5. UNHCR, Note on Determination of Refugee Status under International Instruments EC/SCP/5 (UNHCR, 24 August 1977).
  6. David Matas with Ilana Simon, Closing the Doors: The Failure of Refugee Protection, Summerhill Press Ltd., Toronto, 1989, ISBN 0-920197-81-7, page 196.
  7. JC Hathaway, The rights of refugees under international law (2005), Cambridge University Press, page 278.
  8. Roman Boed, The State of the Right of Aslyum in International Law, Duke Journal of Comparative & International Law, 5, 1-34 (1994), <https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1342&context=djcil>, page 4.
  9. 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, Regional Developments: Americas, written by Piovesan and Jubilut, at p. 213 (para. 29).
  10. Pacheco Tineo v. Bolivia, Ser. C No. 272 (IACtHR, Nov. 25, 2013), at 139.
  11. Shauna Labman, Crossing Law’s Border: Canada’s Refugee Resettlement Program, 2019, UBC Press: Vancouver, page 117.
  12. Benitez v. Canada (Minister of Citizenship and Immigration), 2006 FC 461 (CanLII), [2007] 1 FCR 107, par. 62, <https://canlii.ca/t/1n3nx#par62>, retrieved on 2021-07-17.
  13. Reyes Rivas v. Canada (Citizenship and Immigration), 2007 FC 317 (CanLII), para. 39.
  14. Immigration Law and Practice, Vol. 1, looseleaf (Markham, Ont.: Butterworths, 1992), at paragraph 8.511.
  15. Reyes Rivas v. Canada (Citizenship and Immigration), 2007 FC 317 (CanLII), para. 40.
  16. Jennifer Bond, Nathan Benson, Jared Porter, Guilt by Association: Ezokola’s Unfinished Business in Canadian Refugee Law, Refugee Survey Quarterly, hdz019, https://doi-org.ezproxy.library.yorku.ca/10.1093/rsq/hdz019, footnote 35.
  17. Fong v Canada (Public Safety and Emergency Preparedness), 2010 FC 1134 at para 31.
  18. Nguyen v Canada (Minister of Citizenship and Immigration), 2000 CanLII 16488 (FC) at para 14.
  19. Judicial Review of Administrative Action in Canada (Brown and Evans, Toronto : Canvasback Publishing, 1998) at pages 11-31 and 11-32.
  20. Let Me Be a Refugee: Administrative Justice and the Politics of Asylum in the United States, Canada, and Australia. By Hamlin, Rebecca. New York: Oxford University Press,  2014, p. 19.
  21. Ghirmatsion v Canada (Minister of Citizenship and Immigration), 2011 FC 773, para. 4.
  22. 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> (Accessed November 28, 2021).
  23. Lugunda v. Canada (Minister of Citizenship and Immigration), 2005 FC 467 (CanLII), par. 17, <http://canlii.ca/t/1k43l#par17>, retrieved on 2020-04-15.
  24. Lassa Oppenheim, Oppenheim's International Law, 7th ed by Hersch Lauterpacht (London: Longmans Green, 1952) at 616, as cited in Martin David Jones and Sasha Baglay. Refugee Law (Second Edition). Irwin Law, 2017, page 144.
  25. a b UN High Commissioner for Refugees (UNHCR), Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, April 2019, HCR/1P/4/ENG/REV. 4, available at: https://www.refworld.org/docid/5cb474b27.html [accessed 26 January 2020], page 45.
  26. 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 49.
  27. X (Re), 2016 CanLII 107938 (CA IRB), para. 28.
  28. X (Re), 2013 CanLII 97437 (CA IRB), par. 25, <https://canlii.ca/t/ggdpl#par25>, retrieved on 2021-06-26.
  29. 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 14 of the article.
  30. Ramirez v. Canada (Minister of Employment and Immigration), 1992 CanLII 8540 (FCA), [1992] 2 F.C. 306 (C.A.).
  31. a b United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status 47 (1992).
  32. Kipras Adomaitis, The Right to Liberty in the Context of Migration, Masters Thesis, Mykolas Romeris Law School, <https://vb.mruni.eu/object/elaba:64888610/64888610.pdf> (Accessed July 19, 2020), page 21.
  33. 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. 1119 (para. 101).
  34. a b Giraldo v. Canada (Citizenship and Immigration), 2020 FC 1052, para. 19.
  35. Paxi v. Canada (Citizenship and Immigration), 2016 FC 905 (CanLII).
  36. Lutonadio, Marcelina v. M.C.I., (FC, No. IMM-7709-19), Roy, January 6, 2021; 2021 FC 18.
  37. Vilchis Ramirez v. Canada (Citizenship and Immigration), 2021 FC 265.
  38. 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 10.
  39. 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.
  40. Kurija v. Canada (Citizenship and Immigration), 2013 FC 1158 (CanLII), par. 23, <http://canlii.ca/t/g1tm3#par23>, retrieved on 2020-03-15.
  41. UNHCR and Inter-Parliamentary Union, Refugee Protection: A Guide to International Refugee Law, <https://www.academia.edu/36070452/REFUGEE_PROTECTION_A_Guide_to_International_Refugee_Law?email_work_card=view-paper> (Accessed December 13, 2020).
  42. BC Public Interest Advocacy Centre, Refugee Reform Paper, <https://bcpiac.com/wp-content/uploads/2015/09/LFBC-Refugee-Reform-Paper-Final-July-30-2015-2.pdf>, page 3.
  43. Çalı, B., Costello, C., & Cunningham, S., Hard Protection through Soft Courts? Non-Refoulement before the United Nations Treaty Bodies, German Law Journal, 21(3) (2020), 355-384. doi:10.1017/glj.2020.28 (Accessed April 11, 2020), page 375.
  44. CAT, General Comment No. 4 (2017) on the Implementation of Article 3 of the Convention in the Context of Article 22, Paragraphs 15 and 16, U.N. Doc. CAT/C/GC/4 (Sep. 4, 2018), at para. 38.
  45. Immigration and Refugee Board of Canada, Chairperson Guidelines 7: Concerning Preparation and Conduct of a Hearing in the Refugee Protection Division, Amended December 15, 2012 <https://irb-cisr.gc.ca/en/legal-policy/policies/Pages/GuideDir07.aspx#FailureA4> (Accessed January 26, 2020), section 5.7.
  46. Eeva Puumala, Riitta Ylikomi & Hanna-Leena Ristimäki, Giving an account of persecution: The dynamic formation of asylum narratives, Journal of Refugee Studies 31(2), pp. 197-215 (2018) <https://s3.amazonaws.com/academia.edu.documents/61879698/Refugee_Studies_Puumala__Ylikomi_and_Ristimaki_accepted_version.pdf> (Accessed February 10, 2020), at page 7.
  47. Immigration and Refugee Board of Canada, Assessment of Credibility in Claims for Refugee Protection, January 31, 2004, <https://irb-cisr.gc.ca/en/legal-policy/legal-concepts/Pages/Credib.aspx2> (Accessed January 27, 2020), section 2.6.4.
  48. Maksudur v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 8826 (FC), <https://canlii.ca/t/466k>.
  49. Benitez v. Canada (Minister of Citizenship and Immigration), 2006 FC 461 (CanLII), [2007] 1 FCR 107, par. 98, <https://canlii.ca/t/1n3nx#par98>, retrieved on 2021-07-17.
  50. Zeng v. Canada (Citizenship and Immigration), 2021 FC 318 (CanLII), par. 11, <https://canlii.ca/t/jfb1q#par11>, retrieved on 2021-06-07.
  51. Mbengani v. Canada (Citizenship and Immigration), 2017 FC 706 (CanLII), par. 15, <https://canlii.ca/t/hqpcm#par15>, retrieved on 2021-07-05.
  52. Hathaway, James C., Rebuilding trust: a report of the Review of Fundamental Justice in Information Gathering and Dissemination at the Immigration and Refugee Board of Canada, Refugee Studies Centre, Publisher: Osgoode Hall Law School, 01/12/1993 <http://repository.forcedmigration.org/show_metadata.jsp?pid=fmo:1136> (Accessed April 14, 2020), page 5.
  53. David Vinokur, 30 Years of Changes at the Immigration and Refugee Board of Canada, CIHS Bulletin, Issue #88, March 2019, <https://senate-gro.ca/wp-content/uploads/2019/03/Bulletin-88-Final.pdf> (Accessed May 13, 2021), page 8.
  54. 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 33.
  55. Gallardo v. Canada (Citizenship and Immigration), 2021 FC 441 (CanLII), par. 15, <https://canlii.ca/t/jg7pv#par15>, retrieved on 2021-06-08.
  56. Zhao v. Canada (Citizenship and Immigration), 2019 FC 1593 (CanLII), par. 12, <http://canlii.ca/t/j48rf#par12>, retrieved on 2020-04-01.
  57. Zhao v. Canada (Citizenship and Immigration), 2019 FC 1593 (CanLII), par. 31, <http://canlii.ca/t/j48rf#par31>, retrieved on 2020-04-01.

The right to be heard and the right to a fair hearing[edit | edit source]

The Supreme Court of Canada states that the principle that 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 a reasonable opportunity to attend an oral hearing in the adjudication of a refugee claim 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 a notice requirement to procedural fairness 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 heard[edit | edit source]

Parties are entitled to the opportunity to attend an oral hearing[edit | edit source]

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] hears evidence from one party while another party is not present,[7] denies a party a reasonable opportunity to cross-examine a witness,[8] refuses to receive evidence,[9] or prevents a party from calling witnesses,[10] 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.[11]

A party is entitled to a hearing without unreasonable delay that causes serious prejudice[edit | edit source]

Fundamental justice may be violated when there is an unreasonable delay in hearing a claim that causes serious prejudice to the person concerned.[12] The law in Canada may provide relief where there is such an inordinate delay that it offends the community’s sense of fairness.[13] Such delay may amount to an "abuse of process". That said, the Federal Court recognizes that practically, a hearing cannot be convened as of the date when a claimant perfects their claim. There will always be some gap of time.[14] In Vera v. Canada the Federal Court concluded that a delay of about six years from the time the applicants sought refugee protection in Canada until the RPD initially heard and determined the matter did not meet this threshold.[14] Similarly, in Chabanov v Canada, the Federal Court deemed a delay of eleven years as not reaching the threshold of abuse of process because the applicant failed to provide sufficient proof of significant prejudice resulting directly from the delay.[15] Furthermore, in Seid v. Canada, the court held that in assessing whether there was an abuse of process, the RPD can only consider the delay related to the administrative procedures before the RPD, not delay related to another process like the citizenship regime.[16]

The fact that waiting for a hearing can also be traumatic for claimants has been discussed extensively in literature about refugee status determination processes. Scholars have emphasized the consequences of slowness and waiting in the governance of migrants.[17] They point towards the painful state of limbo that waiting can induce in people with undetermined immigration status. 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"[18] have all been identified contributors to a condition labelled Prolonged Asylum Seeker Syndrome, a condition characterized by powerlessness, depression, and identity crises.[19] The length of time that refugees ‘wait in limbo’ for a decision on their asylum claim also impacts on their subsequent economic integration - a 2016 study by Hainmueller, Hangartner and Lawrence found that one additional year of waiting reduces the subsequent employment rate by 4 to 5 percentage points.[20]

Taking a comparative approach to the question of timeliness, 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".[21] That said, the reality is that 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 have waited more than 1,000 days to be granted asylum.[22] Similarly, it usually takes several years for refugees in Malaysia to go through official status determination and be recognized as a refugee by the UNHCR.[23] Indeed, globally the average duration of a refugee situation is now 20 years.[24] In Canada, the timelines for convening hearings with the in-Canada asylum system are generally much shorter than how long it takes to process a privately-sponsored overseas refugee application - in 2001, it was taking up to 17 months to process 80% of such overseas cases and that number grew to 35 months by 2005 and 54 months by 2015,[25] though such times have subsequently decreased.[26]

The uncertainty inherent in the asylum process can be a source of significant stress and anxiety for many claimants.[27] For more discussion of this, see: Canadian Refugee Procedure/The right to be heard and the right to a fair hearing#Hearings should be conducted in a trauma-informed manner and Canadian Refugee Procedure/Changing the Date or Time of a Proceeding#Regulation 159.9(1): The Board will provide priority scheduling for certain types of claims. See also: Canadian Refugee Procedure/The right to be heard and the right to a fair hearing#Parties are entitled to timely decisions and reasons therefor.

The Board must notify the Minister where the Board's rules require it and this protects the Minister's right to be heard[edit | edit source]

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.[28] See Canadian Refugee Procedure/Exclusion, Integrity Issues, Inadmissibility and Ineligibility for a more fulsome discussion of this issue.

Concerns about a lack of procedural fairness should be raised at the earliest practical opportunity[edit | edit source]

The common law principle of waiver provides that a party should raise allegations about a lack of procedural fairness at the earliest practical opportunity,[29] or the earliest reasonable moment.[30] This is so for the policy reason that even where procedural unfairness occurs in a hearing, it may be correctable. The rationale for why an applicant must raise a violation of natural justice or apprehension of bias at the earliest practical opportunity was articulated in Mohammadian v. Canada as follows:

There is a powerful argument in favour of such a requirement arising from judicial economy. If applicants are permitted to obtain judicial review of adverse decisions by remaining silent in the face of known problems of interpretation, they will remain silent. This will result in a duplication of hearings. It seems a better policy to provide an incentive to make the original hearing as fair as possible and to avoid repetitious proceedings. Applicants should be required to complain at the first opportunity when it is reasonable to expect them to do so.[31]

That said, for any waiver to be effective it must be made freely and with full knowledge of all the facts relevant to the decision whether to waive or not.[32] As the Federal Court held in Benitez v. Canada, the earliest practical opportunity arises when the applicant is aware of the relevant information and it is reasonable to expect him or her to raise an objection.[33] See also: Canadian Refugee Procedure/The right to an unbiased decision-maker#Allegations of an apprehension of bias must be raised at the earliest opportunity.

Language of proceedings[edit | edit source]

A claimant has a right to proceedings in the official language of Canada of their choice[edit | edit source]

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.[34] 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 necessary[edit | edit source]

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.[35]

Providing information about the status determination process in a range of languages[edit | edit source]

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.[36] 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 information[edit | edit source]

Disclosure rights and obligations for the Claimant[edit | edit source]

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.[37] 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 Minister[edit | edit source]

While the Minister has no obligation to become a party to a proceeding (see: Canadian Refugee Procedure/Intervention by the Minister#The Minister is permitted to intervene in proceedings, but is not required to do so), 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 Board[edit | edit source]

Fundamental justice will require 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.[38] 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.[39]

Furthermore, in any research it conducts, the RPD is to follow the Instructions for Gathering and Disclosing Information for Refugee Protection Division Proceedings.[40] 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.[41] 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.

...

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. ...[40]

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.[42]

The right to know the case to be met and the right of response[edit | edit source]

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 issue[edit | edit source]

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 legal 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.[43] Similarly, where a panel listed a series of issues that were of concern, but did not list the objective basis of the claim as being 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.[44]

An exception to this principle 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,[45] identity,[46] and the objective basis of the claim.[47] 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.[48]

Claimants should have a fair opportunity to respond to a panel's concerns[edit | edit source]

Procedural fairness entitles those who are to be subjected to a decision affecting their rights, privileges, or interests to know the case against them.[49] 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."[50] 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.[51] 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.[52] 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,[53] such as potential inconsistencies between their evidence and the objective country condition documents.

Parties should also have a fair opportunity to respond to concerns that a panel has, even where they concern 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".[54] In that case, the Federal Court concluded "clearly, this was procedurally unfair."[55]

Ministerial Notification rules ensure that a claimant will have advance notice of particular types of issues[edit | edit source]

Rule 26(1) of the RPD Rules stipulates 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 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."[56]

Similarly, a claimant is entitled to 10 days of advance notice where the Minister will be intervening in person and 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 unnecessary[edit | edit source]

To be fair, the Board's conduct must not violate a party's legitimate expectations. In this way, the Board is bound by its own undertakings and, once an undertaking is given by a Board Member, failure to comply with it (or provide notice that it will not be complied with and an opportunity to respond[57]) will constitute a breach of natural justice.[58] The Supreme Court of Canada described this principle, and the related doctrine of legitimate expectations, in Agraira v Canada:

If a public authority has made representations about the procedure it will follow in making a particular decision, or if it has consistently adhered to certain procedural practices in the past in making such a decision, the scope of the duty of procedural fairness owed to the affected person will be broader than it otherwise would have been. Likewise, if representations with respect to a substantive result have been made to an individual, the duty owed to him by the public authority in terms of the procedures it must follow before making a contrary decision will be more onerous.[59]

The specific conditions which must be satisfied in order for the doctrine of legitimate expectations to apply are summarized in the looseleaf Judicial Review of Administrative Action in Canada:

The distinguishing characteristic of a legitimate expectation is that it arises from some conduct of the decision-maker, or some other relevant actor. Thus, a legitimate expectation may result from an official practice or assurance that certain procedures will be followed as part of the decision-making process, or that a positive decision can be anticipated. As well, the existence of administrative rules of procedure, or a procedure on which the agency had voluntarily embarked in a particular instance, may give rise to a legitimate expectation that such procedures will be followed. Of course, the practice or conduct said to give rise to the reasonable expectation must be clear, unambiguous and unqualified.[60]

There are additional qualifications to the applicability of the doctrine of legitimate expectations, including that it does not apply where the promise conflicts with a statutory duty.[61] This is so as the doctrine of legitimate expectations does not create substantive rights and cannot hinder the discretion of the decision­maker responsible for applying the law.[62] As such, even where an undertaking has been made by the tribunal, it remains free to change its mind while seized with a case, so long as fair notice is provided to the parties. While the court has indicated that it is preferable to provide notice of issues as far in advance as possible,[63] so long as the tribunal provides an adequate opportunity to respond to the issue, procedural fairness is respected[64] - even if notice of an issue is provided at some point during the hearing, not at the start of, or prior to, the hearing.[65]

These principles have been applied in the refugee context:

  • Where the tribunal indicates that it is not concerned about an issue, it should not find against a party on that issue without providing notice and an opportunity to respond: 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.[66]
  • Where the tribunal indicates that it is not necessary to adduce particular evidence, it should not find against a party for failing to provide such evidence: 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:  

    [T]he 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.[67]

  • The fact that the tribunal asks for submissions on an issue does not create a legitimate expectation that the issue will be canvassed in the reasons if it is not determinative: In Rodriguez v. Canada, the court considered an argument that the fact that the tribunal had asked for submissions on an issue created a legitimate expectation that the issue was of significance and would be assessed by the tribunal in its reasons.[68] The court rejected this argument, holding that the fact that submissions have been requested on an issue does not oblige the tribunal to consider it if that issue is irrelevant. See also: Canadian Refugee Procedure/The right to be heard and the right to a fair hearing#Decisions may focus on the determinative issue.

Fairness considerations related to the manner of conducting the hearing[edit | edit source]

The right to counsel[edit | edit source]

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 privately[edit | edit source]

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 evidence[edit | edit source]

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,[8] refuses to receive evidence,[9] or prevents a party from calling witnesses,[10] 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.

A panel can establish principled rules regarding the manner in which a witness testifies[edit | edit source]

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.[69] Examples of such principled limitations include:

  • Having witnesses put away notes: 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.[70]
  • Requiring a witness to take steps to verify their identity: 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.
  • Limiting repetitive testimony: A decision-maker is entitled to limit repetitive testimony and to not allow testimony that is not central to the claim.[71] More detail on this is provided at Rule 10(6): "The Division may limit the questioning of witnesses, including a claimant or a protected person, taking into account the nature and complexity of the issues and the relevance of the questions" (Canadian Refugee Procedure/Information and Documents to be Provided#Rule 10 - Order of questioning in hearings, oral representations, oral decisions, limiting questioning).
  • Having the panel question the claimant prior to a claimant's counsel asking questions: While the Federal Court allows that it may be that in a particular refugee determination hearing it could be necessary for the claimant’s counsel to question first in order to ensure that his or her evidence is properly presented,[72] it is permissible for the tribunal to establish as a default that the panel questions the witness first, a default that can be deviated from in appropriate circumstances.

Where a witness is interrupted while providing testimony, this may establish that their right to present oral testimony was interfered with[edit | edit source]

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.[73] 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.[74]

Where a panel or opposing counsel acts in an intimidating way, this may establish that the right to present oral testimony was interfered with[edit | edit source]

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."[75] Intrusive and intimidating interventions by a Board member may be found to interfere with an applicant's ability to present his case.[76] 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".[77] 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 stated 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.[78] Similarly, in Farkas v. Canada a Board ruling was set aside because of persistent and aggressive questioning by one of the Board members.[79] 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 trustworthy[edit | edit source]

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.[80] 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 claimants[edit | edit source]

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."[81] 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.[82] In international law, the concept of good faith, or bona fides, is taken to include duties of honesty, loyalty, and reasonableness.[83] 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.[84] This will also preclude more subtle actions that do not demonstrate good faith, such as "setting traps" for claimants.[85] 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".[86] 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."[87] 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.[88] In Herrera v. Canada the Federal Court concluded that the RPD had effectively set a trap for the applicant at the outset of the hearing by misdescribing the issues to be addressed, which has held to be unfair.[89]

Abuse of process and actions of parties[edit | edit source]

The doctrine of abuse of process may be invoked in refugee proceedings, usually where the Minister has tarried in brining an application to vacate status.[90]

A hearing should be conducted in a way that upholds the dignity of the individual[edit | edit source]

Members who preside over refugee hearings should have appropriate skills and understanding.

Hearings should be conducted in a trauma-informed manner[edit | edit source]

Refugee Status Determination processes can have negative psychological effects on asylum-seekers. Despite their diverse cultural backgrounds and nationalities, refugees and asylum seekers often share common experiences, including the loss or separation of family members, the hardships of flight, as well as stigma, discrimination, social isolation, financial insecurity, and protracted asylum determination processes.[91] Indeed, IRB Member Railton has noted that "most claimants are suffering some trauma or stress when they arrive in Canada".[92] The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status recognizes that decision-makers assessing refugee status must be sensitive to the mental health of asylum seekers and be prepared to adjust their decision-making strategy:[93]

207. It frequently happens that an examiner is confronted with an applicant having mental or emotional disturbances that impede a normal examination of his case. A mentally disturbed person may, however, be a refugee, and while his claim cannot therefore be disregarded, it will call for different techniques of examination.[94]

Having a trauma-informed adjudication process has implications both for the manner in which any refugee status determination hearing is conducted, as well as the timeliness of the process. The fact that hearings can have significant deleterious psychological effects for claimants is well documented. A study conducted by Katrin Schock, an expert in clinical psychology, 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.[95] 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 when conducting hearings involving 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.

The fact that waiting for a hearing can also be traumatic for claimants has been discussed extensively in literature about refugee status determination processes. For more detail, see: Canadian Refugee Procedure/The right to be heard and the right to a fair hearing#A party is entitled to a hearing without unreasonable delay that causes serious prejudice.

Hearings should be conducted with appropriate skill in inter-cultural communication[edit | edit source]

Members should be taught the inter-cultural skills required to conduct interviews in a non-discriminatory and meaningful manner.[96] The Federal Court has held that a Member's findings must be "duly sensitive to cultural differences".[97] Mary Crock, et. al., note that 'cultural competence' can range from understanding the impact that religious belief systems might have on behaviour to acknowledging the impact of the dissonance caused by cultural and social dislocation to understanding the expectations that a person might have of a government official in a position of authority and acknowledging the type of education and experiences that a person likely has (or has not) had.[98] The general view is that cultural competence is likely to be context-specific, given the heterogeneity of refugee populations;[99] in the words of Riggs, "there may not be one ‘model’ of best practice . but a suite of strategies that are flexible and adaptable and are reflective of the clients’ cultures, languages, existing social groups and re- sources of local service providers—both mainstream and culturally-specific."[100]

Hearings should be conducted in manner that appropriately considers gender[edit | edit source]

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."[101] Most staff who work at refugee status determination bodies in western countries are women - for example 70% of those at Norway's body are female[102] and the percentage is similar in Canada. For more detail, see: Canadian Refugee Procedure/Guideline 4 - Women Refugee Claimants Fearing Gender-Related Persecution.

Videoconferencing is not per se unfair, but may be inappropriate in certain circumstances[edit | edit source]

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 decision[edit | edit source]

There is no statutory right to a recording of RPD proceedings. A lack of a recording is not by itself a ground for allowing an appeal of a decision. However, if an issue of natural justice is raised, 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 prevent 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).[103]

This is consistent with international jurisprudence. For example, in the UK the Court of Appeal has found that in the interests of fairness, claimants have the right to request that their interview be electronically recorded in the absence of having a legal representative present.[104]

The Board is not obliged to provide a transcript of an RPD proceeding, regardless of whether or not a recording of the proceeding was made[edit | edit source]

The Federal Courts Citizenship, Immigration and Refugee Protection Rules provide that the tribunal must prepare a record containing a transcript "if any". Essentially, the transcript must be provided to the parties if it has been prepared, but the Board is not obliged to produce such a transcript of its own accord: Zhang v. Canada.[105]

Fairness considerations related to decisions[edit | edit source]

Parties are entitled to timely decisions and reasons therefor[edit | edit source]

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."[106] 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. Where a decision has been reserved and is not being issued in a timely manner, a party can apply to the Federal Court for mandamus to require that the decision be provided.[107] That said, the fact that there has been a delay in providing a decision will not generally justify setting aside the decision, as the Federal Court of Appeal has stated, “the 'unreasonable delay' argument cannot be perceived as a fertile basis for setting aside decisions of tribunals. It is probably closer to legal reality for one to presuppose that rarely, if ever, will the argument be successfully invoked.”[108]

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.

Decision-making assigned to a Member must be done by the Member and shall not be delegated[edit | edit source]

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."[109]

Each claim should be considered individually, while overall decision-making should be predictable and consistent[edit | edit source]

There are two fundamental principles that have some tension with one another: each claim should be considered individually, and yet, overall decision-making should be consistent. The following sections explicate these principles.

Each claim should be considered individually[edit | edit source]

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. See Rule 55: Canadian Refugee Procedure/Joining or Separating Claims or Applications#Rule 55.

This principle is in play where one RPD panel relies upon fact-finding conducted by another panel. Generally speaking, one panel of the RPD can rely on fact-finding conducted by another.[110] This usually occurs uncontroversially in the context of documentary evidence about conditions in the country in question. That said, the Federal Court has stated that this must be done "sparingly"[111] and cautions that a panel cannot “blindly” or “blithely” adopt another panel’s findings and that “reliance on the findings of another panel must be limited, careful and justified”.[112] For example, in Lopez v. Canada, the RPD noted that the father’s claim was found not to be credible. The RPD recognized that it was not bound by the prior decision and had to arrive at a conclusion based on the evidence before it. However, given that Ms Rodriguez Lopez’s claim was based on the facts alleged by her father, the RPD found on a balance of probabilities that the credibility of her own claim had been undermined. The court held that this was unreasonable in the circumstances:

The RPD relied on credibility findings made by the panel in Ms Rodriguez Lopez’s father’s claim to draw conclusions about her own credibility. This was not a reasonable or fair use of the fact-finding of another panel. Ms Rodriguez Lopez was ill-placed to rehabilitate her father’s claim, not knowing what evidence might have overcome the panel’s concerns in his case. … There was little that Ms Rodriguez Lopez could do to sustain the veracity of her own claim once the RPD had determined, based on her father’s claim, that there had been no persecution by the ELN. Accordingly, having erred by applying the credibility findings of another panel to the claim before it, the RPD’s decision cannot stand.[113]

Another way that this issue can arise is with the use of boilerplate language that has been used in past decisions. The Federal Court has held that "While use of boilerplate text in some cases provides sufficient grounds to believe the decision was not personalized, it is acceptable when the boilerplate used addresses historic documents and actions taken by a country provided that it is clear the decision-maker put their mind to the actual issues and made an independent decision based on the evidence".[114]

Decision-making should be predictable and consistent across the Board[edit | edit source]

While keeping in mind the principle that each claim should be considered individually, as the Federal Court of Appeal has held, one of Parliament's intentions with the IRPA is also to promote the consistency of decisions.[115] 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.[116] 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."[117] 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.[118] As Neil Yeates writes in his report on the Board‘s operations, "fairness is undermined when decision making is not perceived as consistent".[119] In the pithy words of the philosopher Patricia Mindus, "Arbitrariness is detrimental to the legitimacy of any rule in a deep and decisive way".[120] 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.”[121]

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”.[122] Indeed, decisions on claims appear to be affected by factors as diverse as the decision-maker and the zeitgeist. For example, 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.”[123] Research in the United States compared asylum recognition rates in the pre- and post-9/11 environments, observing that between 2002 and 2004, asylum claims were about 7 percent less likely to be accepted than before the September 11 attacks in 2001.[124] 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.[125] 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".[125] 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 that seen in other regimes.[126]

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.[127] 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.[128] 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”.[129] 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.[130]

Finally, in the words of Tone Liodden, it is worth keeping in mind that while equal treatment contributes to consistency and predictability, it is a normatively empty concept; as Liodden notes, "it is entirely possible that decisions are 100 per cent consistent, but substantially wrong". She cautions that "although a focus on consistency is important in order to avoid the outcome of a case depending mainly upon the decision maker, it is equally important to ensure that equal treatment does not contribute to perpetuating patterns of practice that are no longer valid."[102] In this respect, see: Canadian Refugee Procedure/Principles for the interpretation of refugee procedure#The procedures used by Canada must ensure the effectiveness of the substantive provisions in the Refugee Convention.

To avoid the prospect of duelling administrative interpretations of a provision, and to ensure that an interpretation of a provision is correct, at any stage during proceedings, a “federal board, commission or other tribunal”, such as the Refugee Protection Division, may “refer any question or issue of law…to the Federal Court for hearing and determination”: s. 18.3(1) of the Federal Courts Act, R.S.C. 1985, c. F-7. In such a reference, the Federal Courts would not have to defer to any administrative decision-making, could receive all necessary evidence and submissions, and could pronounce the correct state of the law.[131]

Parties are entitled to reasoned decisions[edit | edit source]

Parties are entitled to reasoned decisions on applications they make to the Board. This is so both as a result of Canada's international law obligations,[132] and also Canada's domestic law.[133] The requirement to provide reasons for a decision is a fundamental part of due process. It ensures that the inquiry processes is meaningful and assures the applicant that their representations have been given due consideration and a decision was taken on the factual and legal merits of their application.[134] Whether or not reasons for decisions must be in writing or may be provided 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 are raised by a party.

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.[135] 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.[136]

See also: Canadian Refugee Procedure/The right to be heard and the right to a fair hearing#Reasons should be sufficiently clear and provide a rational chain of reasoning.

A panel must make a decision based on evidence on the record or evidence that is otherwise available to them[edit | edit source]

The Board must not ignore evidence that is validly before a panel[edit | edit source]

If the Board fails to receive and consider evidence properly submitted to it, 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. As the Federal Court held in Mannan v. Canada, the Board has a duty to receive and consider evidence submitted by the parties at any time until a decision is rendered.[137] This duty is subject to the specific provisions of the RPD Rules, such as Rule 43 which concerns additional documents provided as evidence after a hearing: Canadian Refugee Procedure/Documents#Rule 43 - Additional documents provided as evidence after a hearing.

That said, a decision-maker is entitled to place principled limits on the evidence that can be adduced in a case. This applies both to oral evidence, for example, a decision-maker is entitled to limit repetitive testimony, and to written evidence. For a description of how this principle applies to oral evidence, see: Canadian Refugee Procedure/The right to be heard and the right to a fair hearing#A panel can establish principled rules regarding the manner in which a witness testifies. For a description of how this principle applies to written 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. Ultimately, while there may be valid grounds for a panel to refuse to admit evidence in particular circumstances, 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.[138] 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."[139] 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.

The Board's findings of fact should accurately reflect the evidence[edit | edit source]

Misapprehending evidence that may have impacted the outcome of a decision constitutes a reviewable error.[140] 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"[141] 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".[142]

The Board must not rely on evidence that is not on the record or otherwise properly available to the Member[edit | edit source]

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. As stated in Regina v. Barthe, and cited with approval in the refugee context, "The ability to judge a case only on the legal evidence adduced is an essential part of the judicial process."[143] Where a Member “fills in the gaps” in a refugee's account by making false assumptions, they err.[144] 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.

The Board's reasons should show that the panel meaningfully grappled with the key elements of the case[edit | edit source]

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.[145]

Decisions must follow the law[edit | edit source]

The Board's decision-makers are obliged to follow the law. If a claimant fulfils the criteria set out in the IRPA for receiving protection, they are to be granted protection – at this point in the process, there is no space for discretion.[102] For further discussion of this, see: Canadian Refugee Procedure/The Board's inquisitorial mandate#Refugee Status Determination is declaratory, not constitutive. For more detail on how Board members must follow the law, see: Canadian Refugee Procedure/Principles for the interpretation of refugee procedure#Principles about the expectations that one reasonably has of the Board and Canadian Refugee Procedure/Principles for the interpretation of refugee procedure#Principles about the manner in which the Board is to exercise its discretion.

Reasons should be sufficiently clear and provide a rational chain of reasoning[edit | edit source]

The Federal Court holds that reasons should be "sufficiently clear, precise and intelligible" on all key points.[146] For example, credibility determinations should be made in “clear and unmistakable terms”.[147] Furthermore, decisions should provide a rational chain of reasoning and should not be irrational.[148] For example, in Samra v Canada, Favel J found a decision unreasonable because it “lacked analysis”: “the officer’s decision is merely a recitation of the evidence before him followed by a conclusion”.[149] The Board Member must especially engage with evidence that, on its face, appears to contradict their key findings about the case.[150] 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. In the words of refugee lawyer David Matas, "reasons must be more than just stock phrases and conclusions. They should manifest reasoning. They should relate refugee law to the claim, deal with the substantial points raised, and relate the facts to the conclusion."[151]

Decisions may focus on the determinative issue[edit | edit source]

Decision-makers are not required to explicitly respond to each and every argument raised by the parties,[152] but may instead focus on the determinative issues in the case.[153] That said, the Division has the discretion to engage in analyses of alternative issues that are not essential to resolve the matter, for example, the Federal Court has encouraged the Division to carry out an inclusion analysis even where a claimant has been found to be excluded.[154]

Use of templates and precedents[edit | edit source]

Where a panel's reasons are taken virtually word for word from its earlier decision, this can suggest to the unsuccessful party that the decision was written without due care and attention to the record; as such, the Federal Court comments that this practice is not to be encouraged.[155]

Decisions must be non-discriminatory[edit | edit source]

Section 3(3)(d) of the IRPA provides that the Act is to be construed and applied in a manner that ensures that decisions are consistent with the principles of equality and freedom from discrimination in the Canadian Charter of Rights and Freedoms: Canadian Refugee Procedure/Principles for the interpretation of refugee procedure#IRPA Section 3(3)(d) - The Act is to be applied in a manner that complies with the Charter of Rights and Freedoms.

See also: 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.

References[edit | edit source]

  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. Lopez Aguilar v. Canada (Citizenship and Immigration), 2011 FC 908 (CanLII), par. 10, <https://canlii.ca/t/fn552#par10>, retrieved on 2021-06-26.
  8. a b Cheung v. Canada (Minister of Employment & Immigration), [1981] F.C.J. No. 43, 122 D.L.R. (3d) 41 (F.C.A.).
  9. a b Gonzalez v. Canada (Minister of Employment & Immigration), [1991] F.C.J. No. 408, 14 Imm. L.R. (2d) 51 (F.C.A.).
  10. a b Konadu c. Canada (Minister of Employment & Immigration), [1991] A.C.F. No. 330 (C.F.A.).
  11. 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.
  12. Canada (Minister of Citizenship and Immigration) v. Parekh, [2010] F.C.J. No. 856, 2010 FC 692 (F.C.).
  13. Bernataviciute v Canada (Citizenship and Immigration), 2019 FC 953 at para 34.
  14. a b Vera v. Canada (Citizenship and Immigration), 2021 FC 189 (CanLII), par. 12, <https://canlii.ca/t/jdz99#par12>, retrieved on 2021-04-21.
  15. Chabanov v Canada (Citizenship and Immigration), 2017 FC 73 at para 65.
  16. Seid v Canada (Citizenship and Immigration), 2018 FC 1167.
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  82. 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.
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  107. Nyamoya v. Canada (Citizenship and Immigration), 2016 FC 642 (CanLII), <https://canlii.ca/t/gs1b2> is an example of a decision which considered the remedy of mandamus in the refugee context, albeit in the context of scheduling a hearing, not providing a decision.
  108. Hernandez v. M.C.I. (1993), 154 N.R. 231.
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  125. 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.
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  127. 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.
  128. Domtar Inc. v. Québec (Commission d'appel en matière de lésions professionnelles), [1993] 2 S.C.R. 756 (S.C.C.) at para. 93.
  129. Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (CanLII), paras. 129-131, <http://canlii.ca/t/j46kb#par129>, retrieved on 2020-08-08.
  130. Alyafi v Canada (Citizenship and Immigration), 2014 FC 952 at para 45.
  131. Canada (Citizenship and Immigration) v. Mason, 2021 FCA 156 (CanLII), at para 77, <https://canlii.ca/t/jh8ch#par77>, retrieved on 2021-08-24.
  132. 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).
  133. Canada (MCI) v Vavilov, 2019 SCC 65.
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  136. Naeem v Canada (Citizenship and Immigration), 2016 FC 1073, ACWS (3d) 382.
  137. Mannan v. Canada (Citizenship and Immigration), 2015 FC 144 (CanLII), para. 45.
  138. Tung v Canada (Minister of Employment and Immigration), [1991] FCJ No 292, 124 NR 388 (FCA).
  139. Immigration and Refugee Board of Canada, Policy on National Documentation Packages in Refugee Determination Proceedings, Effective date: June 5, 2019, <https://irb-cisr.gc.ca/en/legal-policy/policies/Pages/national-documentation-packages.aspx> (Accessed August 30, 2020).
  140. Tamayo Valencia v Canada, 2018 FC 1013.
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  146. Mehterian v. M.E.I. (A-717-90, 17 June 1992, F.C.A.).
  147. Hilo v Canada (Minister of Employment and Immigration), [1991] FCJ No 228 (CA).
  148. 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.
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  152. Benavides, Nixon Conde v. M.C.I., (F.C., No. IMM-7207-19), Pamel, January 12, 2021, 2021 FC 43.
  153. Correa Rodriguez v. Canada (Citizenship and Immigration), 2021 FC 937 (CanLII), at para 10, <https://canlii.ca/t/jj24b#par10>, retrieved on 2021-09-29.
  154. Moreno v Canada (Minister of Employment and Immigration), [1994] 1 FC 298, 1993 CanLII 2993 (FCA).
  155. Zeng v. Canada (Citizenship and Immigration), 2021 FC 318 (CanLII), par. 5, <https://canlii.ca/t/jfb1q#par5>, retrieved on 2021-06-07.

The right to an unbiased decision-maker[edit | edit source]

The Code of Conduct for Members of the Immigration and Refugee Board of Canada provides that "Members shall comply with all procedural fairness and natural justice requirements. Members are expected to approach each case with an open mind and, at all times, must be, and must be seen to be, impartial and objective."[1] IRB members also take an oath of office publicly and formally undertake to carry out their duties impartially.[2] A tribunal’s decision is liable to be set aside for bias if a reasonable person, properly informed of the facts and having thought the matter through in a practical manner, would conclude on a balance of probabilities that the decision maker was not impartial.[3] Furthermore, Board Members are required to be alert to any situation in which there may be a reasonable apprehension of bias and must disqualify themselves from sitting on the case in those circumstances; as provided by the Code of Conduct for Members of the Immigration and Refugee Board of Canada, "Members shall disqualify themselves from any proceeding where they know or reasonably should know that, in the making of the decision, they would be in a conflict of interest, or that their participation may create a reasonable apprehension of bias. In such a case, they shall immediately inform their manager and provide the reason for their self-disqualification."[4] The following are some of the ways that this principle has emerged in refugee decision-making in Canada.

Allegations of an apprehension of bias must be raised at the earliest opportunity[edit | edit source]

A person alleging an apprehension of bias on the part of the decision-maker must raise it at the earliest opportunity to allow the decision-maker to recuse themselves, if necessary.[5] Failure to do so will generally amount to an implied waiver of the right to invoke bias in subsequent proceedings, such as an appeal or an application for judicial review.[5] See also: Canadian Refugee Procedure/The right to be heard and the right to a fair hearing#Concerns about a lack of procedural fairness should be raised at the earliest practical opportunity.

The test for a reasonable apprehension of bias[edit | edit source]

Members are bound by the Code of Conduct for Members of the IRB which has a section on bias stipulating that "Members shall conduct themselves in a manner that will not cast doubt on their ability to perform their duties objectively."[6] Most cases concerning bias do not involve actual bias being demonstrated (or admitted) but are instead cases where a party alleges that a reasonable apprehension of bias exists on the facts. The test for determining reasonable apprehension of bias is whether an informed person, viewing the matter realistically and practically and having thought the matter through, would conclude that the decision-maker, either consciously or unconsciously, would not decide fairly. This well-established test originates from the case Committee for Justice and Liberty v Canada.[7] As stated by the Supreme Court of Canada in Arsenault-Cameron v. Prince Edward Island, “The test for apprehension of bias takes into account the presumption of impartiality. A real likelihood of bias must be demonstrated.”[8] The Supreme Court reiterated this principle in Wewaykum v. Canada: “The standard refers to an apprehension of bias that rests on serious grounds, in light of the strong presumption of judicial impartiality.”[9] The burden of proof where an allegation of bias is made is on the party making the allegation and “the threshold to be met is high.”[10]

In applying this test and deciding whether a panel’s conduct gives rise to a reasonable apprehension of bias, a holistic view of the proceeding should be taken. As the Ontario Court of Appeal noted in a decision on this issue, it is normally necessary to examine the record in its entirety in order to assess whether a decision-maker’s conduct gave rise to a reasonable apprehension of bias.[11] Factors to assess when considering the record include:

  • Any relationship, past or present, between the decision-maker and the party/parties or those who may benefit from the decision;[12]
  • Whether or not a full and fair opportunity is provided to present arguments and evidence;[13]
  • Whether there is a pattern of decisions that suggests influences other than the applicable law and available evidence;
  • Statements or conduct that might indicate a predisposition on the part of the decision-maker;[14]
  • The tone and tenor of the decision-maker’s involvement in the hearing;[15] and
  • The institutional arrangements that pertain to the freedom and independence of the decision-maker.

Additional comment on each of these factors follows.

Factors that are commonly assessed when determining whether a reasonable apprehension of bias exists in a given case[edit | edit source]

Any relationship, past or present, between the decision-maker and the party/parties or those who may benefit from the decision[edit | edit source]

The fact that the decision-maker has (or has had) a relationship with one of the parties who may benefit from the decision can mean, in appropriate cases, that there is a reasonable apprehension of bias regarding them presiding over the case.[12] The Code of Conduct for Members of the IRB also provides that "Members shall not, during the course of a proceeding, have any social contact with a party, counsel, witness, interpreter or other non-IRB participant, if such social contact may create a reasonable apprehension of bias." Furthermore, it stipulates that Members may only take part in outside activities that are not inconsistent or incompatible with their official duties and responsibilities, or that do not cast doubt on their ability to perform their duties objectively.[6] Members are also bound by the terms of the Conflict of Interest Act.[16]

The predecessor to the RPD at the IRB, the Refugee Status Advisor Committee, used to include members included from the Department of Immigration and the Department of External Affairs. All were part time, while also maintaining regular departmental responsibilities. This arrangement was criticized, and a report was issued in 1982 recommending that those affiliated with a department sever ties therewith during their time serving on the committee. The Minister of Employment and Immigration announced in 1982 that departmental appointees would be required to serve full time and be free of departmental responsibilities during the term of their appointment.[17]

The fact that a member of the Board previously worked for a party, whether it be a law firm appearing before the Board, CBSA, or IRCC does not automatically mean that the Member should not sit on cases where that organization is a party. In Ahumada v. Canada the Federal Court of Appeal considered this question. Specifically, they considered the following certified question: "would a reasonable apprehension of bias be created by the fact that a member of the Convention Refugee Determination Division (CRDD) of the Immigration and Refugee Board is an employee on leave of absence from a position as an immigration officer in the Enforcement Branch of CIC?" They held that such a member should not be restricted from sitting on cases where the Minister intervenes:

The Minister's role in the refugee determination process is primarily oriented towards detecting and opposing claims that the Minister or her officials believe should not be allowed. Accordingly, cases holding that an employment relationship between a member of an adjudicative tribunal and a party may give rise to a reasonable apprehension of bias were in principle relevant. The suggestion that an employee of CIC would only be disqualified from sitting on a CRDD panel when the Minister intervened would enable the Minister to ensure the exclusion of the employee from the panel by exercising the power to intervene. To enable the Minister to so influence the composition of a panel would clearly compromise the CRDD's independence from CIC in a manner inconsistent with the scheme of the Act.[18]

That said, the ultimate holding in that case was that a reasonable apprehension of bias was made out where an appeals officer on temporary leave from the Branch of Citizenship and Immigration Canada that advises the Minister on whether an intervention is appropriate and represents the Minister when the Minister does intervene in IRB proceedings became an IRB member.[18] That employee was obliged to resign from their employment with CIC if they wished to continue working as a decision-maker at the IRB.

Exposure to political and bilateral relations considerations[edit | edit source]

Decision-makers in refugee matters must not be beholden to any political or bilateral relations considerations. As Neil Yeates writes in his report on the Board, “decision makers must be able to hear cases in an environment within which their decisions are not seen to be fettered by external considerations, such as the foreign policy positions of the government of the day.”[19] The importance of an independent mechanism for asylum adjudication is illustrated when considering other countries’ systems that are said to be subject to the vicissitudes of politics and hence to “[leave] people seeking protection promised by international treaty to the whims of a politically responsive enforcement agency”.[20] Refugee lawyer David Matas recounts the example of Belgian refugee policy in the 1980s, wherein government authorities apparently had a tacit policy that Zairois were not to be recognized as refugees. He writes about the apparent basis for this policy as follows: “for political and economic reasons, Belgium does not want to incur the anger of the present regime governing Zaire, a former a Belgian colony. There remain substantial economic ties between Belgium and Zaire. The countries are on friendly terms politically. [Hence,] UNHCR representatives in Belgium presumed that Zairois were not bona fiderefugees.”[21]

Whether or not a full and fair opportunity is provided to present arguments and evidence[edit | edit source]

Questions about impartiality tend to come into play where a reviewing body is persuaded that the decision-maker has mistakenly come to a conclusion without giving due regard to the possibility that a full consideration of the evidence might lead to a different result, for example where a matter is pre-judged. Where parties are not provided a full and fair opportunity to present arguments and evidence, this may point towards a conclusion that the matter was pre-judged, and hence that there is a reasonable apprehension that the decision-maker did not approach the case impartially. The opposite is also true - evidence which indicates that the parties had such a full and fair opportunity to present evidence and provide submissions tends to indicate that the matter was not pre-judged and that it is not reasonable to apprehend bias in the circumstances.[13] For example, where over-intrusive questioning by a Board member, including "constant interruptions", amounts to a “hijacking” of the case and grossly interferes with the orderly presentation of a claimant's case, the panel may have interfered with a claimant's right to be heard and it may be concluded that the panel did not approach the case impartially.[22] For further discussion of this, see: Canadian Refugee Procedure/The right to a hearing and the right to be heard#Where a witness is interrupted while providing testimony, this may establish that their right to present oral testimony was interfered with.

Whether there is a pattern of decisions that suggests influences other than the applicable law and available evidence[edit | edit source]

A pattern of decisions that suggests influence other than the applicable law and available evidence may serve to establish a reasonable apprehension of bias in a particular case. That said, this is but one factor that should be assessed along with the totality of the evidence and caution is appropriate in drawing any conclusions of this sort:

Deciding against a claimant on an interlocutory matter does not, in and of itself, create a reasonable apprehension of bias[edit | edit source]

Niyonkuru v. Canada was a case in which the panel provided notice to the Minister that the claimant was possibly excluded from refugee protection. The claimant argued that, by adjourning the hearing to allow the Minister to intervene and present arguments regarding the applicant's possible exclusion, the panel had demonstrated bias and loss of impartiality. The court rejected this argument, stating that it is well settled that the mere fact that in an earlier proceeding a decision-maker rendered judgment against the party does not compromise his or her ability to be impartial.[23]

Statistics about a member's past refusal rate do not in and of themselves establish a reasonable apprehension of bias[edit | edit source]

No claimant (or, indeed, Minister's representative) has succeeded on bias motions based on statistics alone.[24] Fenanir v. Canada was a case in which the claimant noted that the average number of refugee claim refusals by the member hearing his matter (99%) was higher than the average of 45% for all of the other members.[25] The claimant submitted that there was a reasonable apprehension of bias on this basis. The court held that the data filed did not in itself support a finding of bias. It noted that the data can be "explained by a certain number of factors which are unrelated to any bias".[26] The comments of Justice Zinn in Turoczi v. Canada are illustrative of the judicial approach to such applications:

Although the statistical data presented by the applicants may raise an eyebrow for some, the informed reasonable person, thinking the matter through, would demand to know much more, including:

•                     Were all of the figures, including, importantly, the weighted country origin averages, properly compiled?

•                     Did the RPD randomly assign cases within each country of origin?  If not, how did the RPD assign cases?

•                     Can factors affecting the randomness of case assignment be reliably adjusted for statistically?

•                     If so, what are the adjusted statistics, and what is their significance?

•                     If the RPD did randomly assign cases, what is the statistical significance of the Member’s rejection rate?

•                     Beyond the Member’s relative performance within the RPD, is there anything objective impugning the Member’s decisions (i.e. that suggests they are wrongly decided)?

•                     Accounting for appropriate factors (if that is possible), are the Member’s decisions more frequently quashed on judicial review than would be expected?

•                     Has the Member made recurring errors of a certain type, e.g. on credibility, state protection, etc., that bear a semblance to the impugned decision?

In short, the informed reasonable person, thinking the matter through, would demand a statistical analysis of this data by an expert based upon and having taken into consideration all of the various factors and circumstances that are unique to and impact on determinations of refugee claims before he or she would think it more likely than not that the decision-maker would not render a fair decision.[27]

Statements or conduct that might indicate a predisposition on the part of the decision-maker[edit | edit source]

A Board member must approach each case impartially. The Code of Conduct for Members of the Immigration and Refugee Board of Canada provides that "Members shall comply with all procedural fairness and natural justice requirements. Members are expected to approach each case with an open mind and, at all times, must be, and must be seen to be, impartial and objective."[28] Statements or conduct that might indicate a predisposition on the part of the decision-maker may point towards a conclusion that there is a reasonable apprehension of bias in a particular case.[14] For example, in Hernandez v Canada (Citizenship and Immigration) the court held that the Member seemed to have "a preconceived idea of the outcome of the case, ... cutting Ms. Hernandez's explanations short." The court concluded that counsel had aggressively dismissed justified objections from counsel regarding the member's questions and errors in the translation.[29] Similarly, issues can arise where a decision-maker has previously expressed strong views regarding a matter on which they must decide.[30]

That said, the inquisitorial nature of refugee hearings must be considered when interpreting this type of requirement. The Board's procedures should not be restricted to the judicial paradigm.[31] Refugee hearings are not adversarial; instead, the generally involve a panel of the Board appropriately investigating a particular case. In an inquisitorial proceeding, it is the role of the Member to investigate and/or probe factual matters.[32] This means that a member of the Board will have a more active role in the hearing than is common in other judicial contexts. As the Federal Court held in Gebreyesus v. Canada, raising or renewing the consideration of a potential issue based on evidence that arises during a hearing, without more, is simply an indicator that a panel is performing this appointed function, not that the panel is biased.[33] For a more fulsome discussion of this, see: Canadian Refugee Procedure/The Board's inquisitorial mandate. Similarly, as the court concluded in Habimana v. Canada, the fact that a tribunal member evidently became frustrated with a claimant's manner of presenting their testimony does not mean that they have prejudged the outcome before hearing all of the evidence.[34]

A Member rendering an oral decision at the end of the hearing is not, in and of itself, indicative of bias[edit | edit source]

A Member should approach a case impartially and not with an open mind. This does not mean that the Member is required to reserve their decision after a hearing and consider the case for days afterwards. In fact, Rule 10(8) 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. In Pajarillo v. Canada, the claimant argued that the RPD was biased against her because the member made up her mind to reject the Applicant’s claim prior to hearing. The sole basis for making this allegation against the member was that the member returned after a lunch break and proceeded to render a lengthy oral decision. The court rejected this argument, noting that the claimant had failed to establish that the facts or issues in the case were so substantial or complex it was not reasonably practicable to comply with Rule 10(8) of the RPD Rules. The court stated: "The mere fact that the RPD was able to draft a decision and render it orally shortly 50 minutes after the conclusion of the hearing does not prove bias. A review of the transcript of the hearing discloses that the RPD member took into account the Applicant’s testimony and counsel’s arguments in reaching her decision."[35] For more details about this rule, see Canadian Refugee Procedure/Information and Documents to be Provided#Rule 10 - Order of questioning in hearings, oral representations, oral decisions, limiting questioning.

The tone and tenor of the decision-maker’s involvement in the hearing[edit | edit source]

The tone and tenor of the decision-maker’s involvement in the hearing may be considered as part of a holistic assessment of whether there is a reasonable apprehension of bias in any particular case. A starting point, as noted in the text Judicial Review of Administrative Action in Canada, is that particular latitude is given to tribunals to question where the matter is not adversarial, as with most refugee proceedings:

Extensive and "energetic" questioning alone by tribunal members will not in itself give rise to a reasonable apprehension of bias. And particular latitude is likely to be given to tribunals operating in a non-adversarial setting, such as refugee determination hearings, where there is no one appearing to oppose the claim. Nor will an expression of momentary impatience or loss of equanimity by a tribunal member result in disqualification, particularly where it was merely an attempt to control the manner of proceeding. Similarly, a sarcastic comment when a party refused to give evidence, or an ill-chosen and insensitive phrase, will not, without more, lead to disqualification.[36]

A summary of the law on this point may be found in Mahmoud v Canada:

… intrusive and intimidating interventions by a Board member may be found to interfere with an applicant's ability to present his case. However, 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".[37]

However, there are limits on this latitude, including in the types of circumstances that follow.

Where a member pursues questioning with a discriminatory attitude[edit | edit source]

The Code of Conduct for Members of the Immigration and Refugee Board of Canada provides that "Members shall exercise their duties without discrimination."[38] The Federal Court affirms that a member may not pursue questioning derived from a discriminatory attitude.[39] Members must exhibit appropriate sensitivity and the Federal Court holds that the member must at all times be attentive and sensitive to claimants.[40] UNHCR writes in their document on Procedural Standards for Refugee Status Determination that "RSD applications must be processed on a non-discriminatory basis".[41] In Baker v. Canada, for example, an apprehension of bias was found to have arisen from the stereotypical assumptions about persons suffering from mental illness in the officer's notes.[42] Relatedly, the Federal Court holds that it is an error for IRB adjudicators to make inferences based on stereotypes.[43] For additional commentary on this, see: Canadian Refugee Procedure/Principles for the interpretation of refugee procedure#IRPA Section 3(2)(c) - Fair consideration is to be granted to those who come to Canada claiming persecution.

Where a member pursues questioning with a hostile or antagonistic attitude, or where the member takes on the role of a prosecutor[edit | edit source]

The Refugee Appeal Division has held that "constant interruption" and "flagrant intervention in the presentation of a claimant’s case" can amount to procedural unfairness.[44] International standards recommend that state officials adopt a collaborative, non-adversarial approach in investigating a person’s claim.[45] The Federal Court has held that a member may not pursue questioning derived from a hostile attitude.[39] For example, as Waldman puts it in his text Canadian Immigration & Refugee Law Practice, if, during the course of the hearing, the tribunal “descends into the arena” to such an extent that the decision-maker assumes the role of a prosecutor, they risk of losing their impartiality.[15] Furthermore, where hearings are hostile or confrontational, claimants may be discouraged from providing information that may be crucial to their claim.[46] For additional detail about the appropriate limits of a Board member's questioning in this inquisitorial process, see Canadian Refugee Procedure/The Board's inquisitorial mandate and also the following discussion of limits on questions that the Board may pose: Canadian Refugee Procedure/The right to be heard and the right to a fair hearing#Members are expected to act honestly and in good faith and are precluded from "setting traps" for claimants.

A passive or distant countenance is not required of Board members[edit | edit source]

It may be noted that it is common for government officials conducting asylum interviews to have a passive and distanced countenance during hearings. For example, in one empirical study of Finish asylum officers, the researchers noted that the officers did not detectably react to the claimants’ narrations of events. The researchers stated that although an officer may think that a passive and distanced attitude guarantees neutrality, from a claimant’s perspective it can be interpreted as negative feedback. They argue that:

Traumatised individuals are prone to feel threatened and perceive the other’s intentions as intimidating, unless they receive clear and constant messages of the safety of a situation. A successful narration of traumatic events, for instance, is known to require a safe atmosphere characterized by a feeling of being connected to another person. [citations omitted][47]

Indeed, the legal academic Hathaway has gone as far as to say that “the maintenance of 'judicial distance' is for some members a convenient way of concealing a tendency to cynicism and negativism.”[48] As such international guidelines, such as those from the EU, prescribe that asylum interviews should be marked by trust, respect, and empathy.[49] The Member may consider this advice in order to have an appropriately trauma-informed approach to hearings. Indeed, the Refugee Appeal Division has held that "insensitivity to the claimant’s particular situation and disinterest in the claim" can constitute procedural unfairness.[44] Conversely, the fact that a Member is engaged and may be encouraging a claimant's testimony should not be taken as the Member having accepted the credibility of that testimony, lest it leave Members with the impression that only a detached demeanour is permissible. Additionally, while Members should adopt a trauma-informed approach marked by trust, respect, and empathy, they must also maintain the proper role of a tribunal. For example, referring to a claimant by their first name in a decision has been held to be "inappropriate" and an indicia of lack of respect for the claimant.[50]

The institutional arrangements that pertain to the freedom and independence of the decision-maker[edit | edit source]

Institutional bias[edit | edit source]

Decisions are liable to be set aside for bias if a reasonable person would conclude, a balance of probabilities, that the decision-maker was not impartial.[51] Such partiality can occur either because of factors specific to a particular decision-maker of the sort discussed above (e.g. statements they have made or their past actions or relationships) or for institutional reasons. Specifically, institutional bias is found where a reasonable apprehension exists in a substantial number of cases.[52] The test for institutional (im)partiality is generally stated as follows:

The determination of institutional bias presupposes that a well‑informed person, viewing the matter realistically and practically—and having thought the matter through—would have a reasonable apprehension of bias in a substantial number of cases. In this regard, all factors must be considered, but the guarantees provided for in the legislation to counter the prejudicial effects of certain institutional characteristics must be given special attention.[53]

Institutional bias will be found where a well‑informed person would have a reasonable apprehension in a substantial number of cases. Failing that, allegations of an apprehension of bias cannot be brought on an institutional level but must be dealt with on a case‑by‑case basis.[54]

In and of itself, legal review of members' decisions does not create a reasonable apprehension of bias[edit | edit source]

In Weerasinge v. Canada the Federal Court of Appeal considered whether Members of the Board having their reasons reviewed by a legal advisor created a reasonable apprehension of bias. The court rejected this argument, commenting as follows:

The Refugee Division consists of such number of full and part-time members as the Governor in Council may decide. They are appointed for terms of up to seven years. A minimum of one-tenth are required to be barristers or advocates of at least five years' standing. It would be pure coincidence if either member of a panel hearing a particular claim were legally qualified.

The Refugee Division is a lay tribunal required to decide claims which, as I have observed, involve the life, liberty and security of the person. It must do so within the framework of extensive, confusing, and sometimes confused, jurisprudence. It is required to give written reasons for decision not favourable to claimants. The desirability of legal review of those reasons is manifest. Having come to a decision on what is essentially a question of fact: whether the claimant has a well-founded fear of persecution for a reason that engages the Convention refugee definition, a tribunal does not, in my opinion, offend any tenet of natural justice by taking advice as to legal matters contained in its reasons.

While the reasons review process, both in the more limited format described in the memorandum and the full review format suggested, could be abused and result in the reviewing lawyers influencing the decisions to which the reasons relate, there is, in my opinion, simply no foundation for a conclusion that it has been, in fact, abused, either in the case before us or generally. Any consultation by a decision maker before publishing a decision, including consultation by a judge with a law clerk, could be abused. As to whether there is an appearance offensive to our notions of natural justice, it seems to me that the question to be asked is, as in dealing with an assertion of a reasonable apprehension of bias, namely, whether an informed person, viewing the matter realistically and practically and having thought it through, would think it more likely than not that the tribunal's decision that a claimant was, or was not, a Convention refugee had been influenced by the review of its reasons by its staff lawyers. In my opinion, that person would not think it likely.[55]

Furthermore, to the extent that members of the tribunal receive legal advice, legal advisors are not to attempt to influence the factual findings, but may have access to the facts and files of the claims in question and offer legal advice in relation to them: Bovbel v. Canada.[56] That said, the interpretation of these questions is fraught and the relevant principles are, in the mind of this author, far from clear. This is illustrated by the fact that in Bovbel v. Canada the Federal Court had initially found that the IRB process was problematic,[57] only for this conclusion to be overturned on appeal to the Federal Court of Appeal. For further discussion of legal review, see: Canadian Refugee Procedure/The right to an independent decision-maker#Legal services review of decisions may discuss issues of fact in the reasons but should not attempt to influence factual findings.

References[edit | edit source]

  1. 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 29.
  2. Oath or Solemn Affirmation of Office Rules (Immigration and Refugee Board of Canada), s. 1.
  3. Committee for Justice and Liberty et al. v. National Energy Board et al., 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, at page 394.
  4. 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 30.
  5. a b Keita v Canada (Citizenship and Immigration), 2015 FC 1115 at para 29, as cited in Sharryn Aiken, et al, Immigration and Refugee Law: Cases, Materials, and Commentary (Third Edition), Jan. 1 2020, Emond, ISBN: 1772556319, at page 196.
  6. a b 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 April 22, 2020).
  7. Committee for Justice and Liberty v Canada (National Energy Board), 1976 CanLII 2 (SCC), [1978] 1 SCR 369.
  8. Arsenault-Cameron v. Prince Edward Island, 1999 CanLII 641 (SCC), [1999] 3 S.C.R. 851 at para. 2.
  9. Wewaykum Indian Band v. Canada, 2003 SCC 45 (CanLII), [2003] 2 S.C.R. 259 at para. 76.
  10. Alcina Rodriguez v. Canada (Citizenship and Immigration), 2018 FC  995 (CanLII), para. 35.
  11. Hazelton Lanes Inc. v. 1707590 Ontario Limited, 2014 ONCA 793, 326 OAC 301.
  12. a b Langstaff v. Marson, 2014 ONCA 510.
  13. a b Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25.
  14. a b Hughes, J., & Bryden, P. (2017). Implications of Case Management and Active Adjudication for Judicial Disqualification. Alberta Law Review, 54(4). https://doi.org/10.29173/alr780 at page 855.
  15. a b Waldman, Lorne, Canadian Immigration and Refugee Law Practice (2018), page 59.
  16. Conflict of Interest Act, S.C. 2006, c. 9, s. 2.
  17. David Matas, Fairness in Refugee Determination, 1989 18-1 Manitoba Law Journal 71, 1989 CanLIIDocs 150, <https://canlii.ca/t/spb3>, retrieved on 2021-01-24, page 95.
  18. a b Ahumada v. Canada (Minister of Citizenship and Immigration), 2001 FCA 97 (CanLII), [2001] 3 FC 605.
  19. Neil Yeates, Report of the Independent Review of the Immigration and Refugee Board, Government of Canada, April 10, 2018, <https://www.canada.ca/content/dam/ircc/migration/ircc/english/pdf/pub/irb-report-en.pdf> (Accessed April 27, 2020), page 25.
  20. Sweeney, Maureen. (2019). “Enforcing/Protection: The Danger of Chevron in Refugee Act Cases.” Administrative Law Review, Volume 71, Issue 1, Page 127.
  21. David Matas with Ilana Simon, Closing the Doors: The Failure of Refugee Protection, Summerhill Press Ltd., Toronto, 1989, ISBN 0-920197-81-7, page 246.
  22. Reginald v. Canada (Minister of Citizenship & Immigration), [2002] F.C.J. No. 741, 22 Imm. L.R. (3d) 60 (F.C.T.D.).
  23. Niyonkuru v. Canada (Minister of Citizenship and Immigration), 2005 FC 174 (CanLII), para. 19.
  24. Sharryn Aiken, et al, Immigration and Refugee Law: Cases, Materials, and Commentary (Third Edition), Jan. 1 2020, Emond, ISBN: 1772556319, at page 927.
  25. Fenanir v. Canada (Minister of Citizenship and Immigration), 2005 FC 150 (CanLII), par. 9, <http://canlii.ca/t/1mrgt#par9>, retrieved on 2020-02-08.
  26. Fenanir v. Canada (Minister of Citizenship and Immigration), 2005 FC 150 (CanLII), par. 17, <http://canlii.ca/t/1mrgt#par17>, retrieved on 2020-02-08.
  27. Turoczi v. Canada (Citizenship and Immigration), 2012 FC 1423 (CanLII), par. 15, <http://canlii.ca/t/fvb4c#par15>, retrieved on 2020-12-19.
  28. 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 29.
  29. Hernandez v Canada (Citizenship and Immigration), 2010 FC 179, as cited in Sharryn Aiken, et al, Immigration and Refugee Law: Cases, Materials, and Commentary (Third Edition), Jan. 1 2020, Emond, ISBN: 1772556319, at page 197.
  30. Sharryn Aiken, et al, Immigration and Refugee Law: Cases, Materials, and Commentary (Third Edition), Jan. 1 2020, Emond, ISBN: 1772556319, at page 198.
  31. Kozak v. Canada (Minister of Citizenship and Immigration), 2006 FCA 124 (CanLII), [2006] 4 FCR 377, para. 56.
  32. Cheon v Altern Properties Inc, 2015 SKQB 23, 468 Sask R 13 at para 31.
  33. Gebreyesus v. Canada (Citizenship and Immigration), 2018 FC 966 (CanLII), paras. 22-23.
  34. Habimana v. Canada (Citizenship and Immigration), 2021 FC 143 (CanLII), par. 26, <https://canlii.ca/t/jddfl#par26>, retrieved on 2021-03-09.
  35. Pajarillo, Donna Parcasio v. M.C.I. (F.C., no. IMM-3740-19), Lafreniere, December 20, 2019; 2019 FC 1654.
  36. Judicial Review of Administrative Action in Canada (Brown and Evans, Toronto : Canvasback Publishing, 1998) at pages 11-31 and 11-32.
  37. Mahmoud v Canada (Minister of Citizenship and Immigration), 2005 FC 1308 at para 10.
  38. 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 10.
  39. a b Mahendran, (1991) 14 Imm. LR (2d) 30.
  40. Hernandez v. Canada (Minister of Citizenship & Immigration), [2010] F.C.J. No. 199, 2010 FC 179 (F.C.), para. 54.
  41. 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.
  42. Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 as cited in Sharryn Aiken, et al, Immigration and Refugee Law: Cases, Materials, and Commentary (Third Edition), Jan. 1 2020, Emond, ISBN: 1772556319, at page 196.
  43. Lekaj v Canada􏰬􏰏􏰏􏰉􏰖􏰍􏰋􏰅􏰉􏰁􏰂􏰣, 2006 FC 909 at para 17.
  44. a b X (Re), 2020 CanLII 101262 (CA IRB), par. 17, <http://canlii.ca/t/jc75m#par17>, retrieved on 2020-12-21.
  45. Mariana Olaizola Rosenblat et al, Good Practices in Nationality Laws for the Prevention and Reduction of Statelessness: Handbook for Parliamentarians No 29 (Inter-Parliamentary Union and UNHCR 2018) 21.
  46. H. Crawley, “‘No One Gives You a Chance to Say What You Are Thinking’: Finding Space for Children’s Agency in the UK Asylum System”, Area, 42(2), 2010, 162–169.
  47. Eeva Puumala, Riitta Ylikomi & Hanna-Leena Ristimäki, Giving an account of persecution: The dynamic formation of asylum narratives, Journal of Refugee Studies 31(2), pp. 197-215 (2018) <https://academic.oup.com/jrs/article-abstract/31/2/197/4158632> (Accessed February 10, 2020), at page 18.
  48. Hathaway, James C., Rebuilding trust: a report of the Review of Fundamental Justice in Information Gathering and Dissemination at the Immigration and Refugee Board of Canada, Refugee Studies Centre, Publisher: Osgoode Hall Law School, 01/12/1993 <http://repository.forcedmigration.org/show_metadata.jsp?pid=fmo:1136> (Accessed April 14, 2020), page 20 of the printed report.
  49. Jessy Carton, Beyond Persecution: Exploring alternative refugee narratives in Jenny Erpenbeck, DiGeSt Journal of Diversity and Gender Studies, Volume 7, Issue 1, <https://www.digest.ugent.be/article/download/16509/13986> (Accessed June 20, 2020), page 25.
  50. Osah v. Canada (Citizenship and Immigration), 2021 FC 492 (CanLII), par. 1, <https://canlii.ca/t/jg3n3#par1>, retrieved on 2021-06-07.
  51. Restrepo Benitez v Canada (Minister of Citizenship and Immigration), 2006 FC 461 at para 6.
  52. R v Lippé, 1990 CanLII 18 (SCC), [1991] 2 SCR 114.
  53. Benitez v. Canada (Minister of Citizenship and Immigration), 2006 FC 461 (CanLII), [2007] 1 FCR 107, par. 194, <https://canlii.ca/t/1n3nx#par194>, retrieved on 2021-07-17.
  54. Benitez v. Canada (Minister of Citizenship and Immigration), 2006 FC 461 (CanLII), [2007] 1 FCR 107, par. 196, <https://canlii.ca/t/1n3nx#par196>, retrieved on 2021-07-17.
  55. Weerasinge v. Canada (Minister of Employment and Immigration), 1993 CanLII 2996 (FCA), [1994] 1 FC 330.
  56. Bovbel v. Canada (Minister of Employment and Immigration), 1994 CanLII 3465 (FCA), [1994] 2 FC 563
  57. Bovbel v. Canada (Minister of Employment and Immigration), 1993 CanLII 3016 (FCA), [1994] 1 FC 340.

The right to an independent decision-maker[edit | edit source]

Parties are entitled to an independent decision maker.[1] A key concern with issues of independence is that a decision-maker must approach and determine the matters in issue freely and in a sufficiently dispassionate and disinterested way. The Code of Conduct for Members of the Immigration and Refugee Board of Canada stipulates that "Members shall not be influenced by extraneous or improper considerations in their decision-making. Members shall make their decisions free from the improper influence of other persons, institutions, interest groups or the political process."[2] Key legal issues that have emerged related to this independence follow.

The right to an independent decision-maker[edit | edit source]

The requirement that decisions in refugee matters be made (or be reviewable) by an independent decision-maker arises from Canada’s international obligations; the UN Human Rights Committee has found, in Alzery v Sweden, that effective, independent review of the decision to expel prior to expulsion is necessitated by the nature of the non-refoulement obligation under article 7 of the International Covenant on Civil and Political Rights, as read with the right to effective remedies under article 2 of that instrument.[3]

Decision-makers must be free of any reasonable apprehension of bias[edit | edit source]

For a discussion of the doctrine of bias, or a reasonable apprehension thereof, as it relates to any relationship, past or present, between the decision-maker and the parties or those who may benefit from the decision, see: Canadian Refugee Procedure/The right to an unbiased decision-maker#Any relationship, past or present, between the decision-maker and the party/parties or those who may benefit from the decision.

Internal discussions between tribunal members on process, law, and policy are encouraged[edit | edit source]

A key issue that arises with respect to independence is the extent of permitted discussions amongst members of the tribunal about a case that is under consideration. The leading case on this subject is the Supreme Court of Canada decision I.W.A. v. Consolidated Bathurst Packaging Ltd.[4] The rules on this subject allow for a broad latitude for internal discussions, within an atmosphere that has been referred to as “assertive collegiality”, provided that the final decision-maker is unencumbered in freely making their own decision. The principles are well captured by this passage from the paper Consistency in Tribunal Decision Making from the Canadian Institute for the Administration of Justice:

This culture of ongoing discussion can be described as a system of “assertive collegiality”—where there can be vigorous debate internally within the complement of adjudicators, but once the discussion is complete, the person hearing the case is free to make their own decision. Discussions also occur regularly between tribunal Chairs and individual adjudicators at any stage in the hearing process. For example, particular types of cases which raise significant or novel issues may be flagged at the intake stage. Once identified, they are brought to the attention of the Chair who will then choose a particular adjudicator to deal with the case. The Chair may have a discussion with the adjudicator before the assignment is made in order to canvass the procedural, law and policy issues that might be presented in the case. During the course of the hearing, the adjudicator and the Chair may continue the discussion, so that the adjudicator understands the issues in the context of the tribunal’s institutional views. Once the hearing is completed, the Chair and the adjudicator may then continue their discussion throughout the decision writing process.[5]

It is entirely permissible, and even desirable for reasons of training and consistency, for members to be encouraged to distribute draft decisions amongst each other for comment: “Most tribunals schedule regular meetings for more formal discussions and it is not unusual where adjudicators are primarily full time and based in one location for there to be weekly or in some cases, daily meetings where drafts are exchanged and where issues of process, law and policy are discussed.”[5] In the words of the Supreme Court of Canada, the “criteria for independence are not absence of influence but rather the freedom to decide according to one’s own conscience and opinions”[6]

Discussions of policy in the context of refugee adjudication may, and indeed should, cover consideration of country conditions. As the Federal Court of Appeal notes when distinguishing the type of factual findings at issue in Consolidated Bathurst, supra, factual issues in refugee adjudication can be of a "special nature to the extent that they go beyond the evidence specific to any particular claimant."[7] As the Federal Court noted in Barrantes v. Canada (Minister of Citizenship and Immigration), “it would not do to have one panel member’s terrorist organization be characterized by another member as a benevolent non-government organization”.[8] As such, in the context of refugee adjudication, discussions between tribunal members on general issues of fact related to a country are not just permissible, but desirable.

Discussions cannot be imposed upon a Member[edit | edit source]

Consolidated-Bathurst involved discussions by members of an administrative tribunal after hearing cases but before reaching final decisions. For the majority, Gonthier J. okayed the practice, but imposed important limitations. In short, discussions could not be coercive and could not delve into the facts of particular cases.[9] The rules for such discussions are enumerated in the eponymous case.[10] The Supreme Court of Canada affirmed this conclusion in Tremblay v. Quebec: “In my view, the mere fact that the president can of his own motion refer a matter for plenary discussion may in itself be a constraint on decision makers. In such circumstances, they may not feel free to refuse to submit a question to the "consensus table" when the president suggests this. Further, the statute clearly provides that it is the decision makers who must decide a matter. Accordingly, it is those decision makers who must retain the right to initiate consultation; imposing it on them amounts to an act of compulsion towards them and a denial of the choice expressly made by the legislature.”[11] As such, where a Member does not wish to consult, either with other members, a supervisor, or legal services, it must be truly free to do so (aside from during special circumstances such as during an initial probationary training period).

Legal services review of decisions may discuss issues of fact in the reasons but should not attempt to influence factual findings[edit | edit source]

Gonthier J. of the Supreme Court of Canada made the following comment (in dissent) in Consolidated-Bathurst:

The determination and assessment of facts are delicate tasks which turn on the credibility of the witness and an overall evaluation of the relevancy of all the information presented as evidence. As a general rule, these tasks cannot be properly performed by persons who have not heard all the evidence and the rules of natural justice do not allow such persons to vote on the result. Their participation in discussions dealing with such factual issues is less problematic when there is no participation in the final decision. However, I am of the view that generally such discussions constitute a breach of the rules of natural justice because they allow persons other than the parties to make representations on factual issues when they have not heard the evidence [emphasis added][10]

The applicability of this comment to the refugee context was considered by the Federal Court of Appeal in Bovbel v. Canada. Specifically, in that case, the court considered whether having legal advisors have access to the files of refugee claimants when providing legal advice to Members, the above principle could be offended. The court rejected this concern as follows:

A fair reading of the documents on the record shows, in our view, that the legal advisors were not expected to discuss the findings of facts made by the members but merely, if there was a factual inconsistency in the reasons, to look at the file in order to determine, if possible, how the inconsistency could be resolved. True, there was always the possibility that the legal advisors might, since they were in possession of the file, exceed their mandate and try to influence the factual findings of the Board. However, as mentioned by Mahoney J.A. in Weerasinge, any policy is susceptible of abuse.[12]

As such, discussions, whether with the Board's legal services team, or otherwise, should not aim to influence the factual findings of Members, but need not eschew all discussion of facts, for example where a Member has made inconsistent factual findings in a decision and that concern should be resolved. Procedural fairness does not demand that Members of the Board never discuss the facts of a file. That said, it is plain that a mandatory policy of legal review in which legal services members attempted to influence or pressure Members to make certain factual findings regarding a hearing that they had never observed would offend principles of independence. Finally, there appears to be a real lack of clarity on exactly how to interpret the statements of Gonthier J. in Consolidated-Bathurst.[10] For example, David Mullan writes in his text Administrative Law that "on the mater of discussion of the evidence, the Court itself is not totally unequivocal even in the context of discussions with colleagues who have not heard the evidence. Where staff have been present at giving of the relevant testimony or where the evidence is written rather than given orally, the constraint on discussion may not have quite the same force."[13]

The IRB may use "soft law" instruments such as policy statements, guidelines, manuals, and handbooks[edit | edit source]

The Federal Court of Appeal holds that administrative agencies do not require an express grant of statutory authority in order to use “soft law” such as policy statements, guidelines, manuals and handbooks to structure the exercise of their discretion.[14] The IRPA also provides an express grant of authority to the Chairperson to issue jurisprudential guides. See the discussion of this authority at the commentary on section 159 of the IRPA: Canadian Refugee Procedure/Duties of Chairperson.

The Board may not fetter the discretion of Members and Members may not fetter their own discretion[edit | edit source]

The Board may not fetter the discretion of Members through policy statements or guidelines that take on a mandatory character