Canadian Refugee Procedure/Proceedings must be held in the absence of the public

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Section 166 of the IRPA[edit]

The legislative provision reads:

166 Proceedings before a Division are to be conducted as follows:
(a) subject to the other provisions of this section, proceedings must be held in public;
(b) on application or on its own initiative, the Division may conduct a proceeding in the absence of the public, or take any other measure that it considers necessary to ensure the confidentiality of the proceedings, if, after having considered all available alternate measures, the Division is satisfied that there is
   (i) a serious possibility that the life, liberty or security of a person will be endangered if the proceeding is held in public,
   (ii) a real and substantial risk to the fairness of the proceeding such that the need to prevent disclosure outweighs the societal interest that the proceeding be conducted in public, or
   (iii) a real and substantial risk that matters involving public security will be disclosed;
(c) subject to paragraph (d), proceedings before the Refugee Protection Division and the Refugee Appeal Division must be held in the absence of the public;
(c.1) subject to paragraph (d), proceedings before the Immigration Division must be held in the absence of the public if they concern a person who is the subject of a proceeding before the Refugee Protection Division or the Refugee Appeal Division that is pending or who has made an application for protection to the Minister that is pending;
(d) on application or on its own initiative, the Division may conduct a proceeding in public, or take any other measure that it considers necessary to ensure the appropriate access to the proceedings if, after having considered all available alternate measures and the factors set out in paragraph (b), the Division is satisfied that it is appropriate to do so;
(e) despite paragraphs (b) to (c.1), a representative or agent of the United Nations High Commissioner for Refugees is entitled to observe proceedings concerning a protected person or a person who has made a claim for refugee protection or an application for protection; and
(f) despite paragraph (e), the representative or agent may not observe any part of the proceedings that deals with information or other evidence in respect of which an application has been made under section 86, and not rejected, or with information or other evidence protected under that section.

Commentary[edit]

The requirement that proceedings be conducted in the absence of the public requires the facilities in which they are held to be private[edit]

The requirement in s. 166(c) that refugee proceedings be conducted in the absence of the public tracks Canada’s international obligations. The UNHCR Executive Committee has outlined certain basic requirements for fair and effective status determination procedures.[1] These requirements ensure that people seeking protection are provided with “necessary facilities,” which is defined to include an interview space that respects the privacy of the individuals being assessed.[2]

The information on a claim file must be protected[edit]

Furthermore, the personal information in refugee claim files is generally accorded "Protected B" status. This is defined as "Information where unauthorized disclosure could cause serious injury to an individual, organization or government. Examples include: medical information, information protected by solicitor-client or litigation privilege, and information received in confidence from other government departments and agencies."[3] Persons who have access to this information within the government must have "Reliability Status". This is defined as "The minimum standard of security screening required for individuals to have unsupervised access to Protected government information, assets or work sites. Security screening for Reliability Status appraises an individual's honesty and whether he or she can be trusted to protect the government's interests."[3] The legal standards requiring the protection of information also stem from the Privacy Act, see: Canadian Refugee Procedure/Joining or Separating Claims or Applications#Once claims are joined, information on one claim is properly available to the other joined claimants.

To what standard must the Board protect information on a claim file when it is being carried out of the office?[edit]

When being handled outside of an operational zone, Protected B files must not be "in the open" but carried in an envelope or comparable mechanism.[4]

Should a panel admit copies of decisions from other claims?[edit]

As section 166(c) of the Act provides, refugee proceedings are to be conducted in the absence of the public. Some decisions are anonymized and are posted on CanLII by the Board. At times, counsel will want to provide decisions to a panel of the Board from other panels of the Board. It is common practice that counsel will indicate that they have the consent of the claimant in question to provide the decision and that they will anonymize parts of the decision that disclose the claimant's identity. Where this is not done, panels of the Board have declined to admit such information. For example, in one such case Refugee Appeal Division Member Kim Polowek stated that "the RAD notes that proceedings before the Refugee Protection Division and Refugee Appeal Division must be held in the absence of the public and should not be disclosed without the consent of the persons involved in the proceeding (i.e. the claimant). Given that the Appellant has not provided any confirmation which would indicate that each claimant referred to in these RPD decisions has provided consent for disclosure to the RAD, and the fact that despite the partial redactions, many personal details remain in each of the RPD decisions, the Appellant’s Application [] to submit these RPD decisions to the RAD as new evidence fails".[5] That reasoning may be persuasive in similar cases. In contrast where the consent of the claimant has been and/or the decision has been well redacted of personally-identifying information, a panel may decide to admit such decisions.

The Board should not email a claimant information on their claim file[edit]

The Immigration Appeal Division (IAD) has a practice notice on communicating by email. It states that "the IAD will not transmit a document by email if it contains Protected B or higher information or it has been declared confidential or is subject to an order restricting publication, broadcasting or transmission by the IAD or any other competent authority."[6] The same principles should apply to the Refugee Protection Division emailing any such information.

References[edit]

  1. UNHCR ExCom Conclusion No 8, ‘Determination of Refugee Status’ (1975). See also UNHCR, ‘Note on Determination of Refugee Status under International Instruments’, UN doc EC/SCP/5 (24 August 1977), para 16.
  2. Azadeh Dastyari & Daniel Ghezelbash, Asylum at Sea: The Legality of Shipboard Refugee Status Determination Procedures, International Journal of Refugee Law, eez046, <https://doi.org/10.1093/ijrl/eez046>.
  3. a b Government of Canada, Department of Justice Guidelines on Security for Domestic Legal Agents: Protected Information and Assets, Date modified: 2016-09-06, <https://www.justice.gc.ca/eng/abt-apd/la-man/security-securite/a.html> (Accessed March 16, 2020).
  4. Immigration and Refugee Board of Canada, Audit of Information Management Report, February 2014 <https://irb-cisr.gc.ca/en/transparency/reviews-audit-evaluations/Pages/AudVerGesInfMan.aspx> (Accessed March 25, 2020).
  5. X (Re), 2019 CanLII 123992 (CA IRB), par. 16, <http://canlii.ca/t/j4cbg#par16>, retrieved on 2020-03-29.
  6. Immigration and Refugee Board of Canada, Practice notice: communicating by email at the Immigration Appeal Division (IAD), Date modified: 2020-01-31 <https://irb-cisr.gc.ca/en/legal-policy/procedures/Pages/iad-email-communication.aspx> (Accessed March 25, 2020).