Canadian Refugee Procedure/The right to be heard and the right to a fair hearing

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. An applicant must be given a full, fair opportunity to know and respond to the case before the decision-maker. 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. In considering whether a hearing was fair, the question is whether each party was able to fully and fairly present their case. The following are some of the considerations that emerge in this respect.

The extent of the procedural fairness owed in refugee proceedings is high

For all refugee claimants, the stakes are high. This fact, as well as the fact that Charter rights are at play in Board proceedings, means that the extent of procedural fairness owed to claimants is high: Canadian Refugee Procedure/Principles for the interpretation of refugee procedure#The fact that Charter rights are at play in Board proceedings means that the extent of procedural fairness owed to claimants is high. This is true as well for refugee vacation proceedings. The Federal Court has recognized that stakes may be even higher in proceedings under Article 1F(a), as they could result in a refugee claimant being labelled a “war criminal”.

As to what this means in any given case, it is well established that the requirements of the duty of fairness are eminently variable and must be determined on a case-by-case basis. The general rule is that a duty of fairness applies, but this general rule will yield to clear statutory language or a necessary implication to the contrary where such language is constitutional. However, generally speaking, when confronted with silent or ambiguous statutes, the courts will be slow to conclude that the legislature intended to dispense with a principle of procedural fairness.

The Board must provide the parties with the opportunity to be heard

Notice of the hearing

A person affected by a decision has a right to be given adequate notice of the proceedings. The notice must be sufficient to enable preparation and presentation of the case. This requirement is enshrined in the IRPA: Canadian Refugee Procedure/170 - Proceedings#IRPA Section 170(c) - Must notify the person who is the subject of the proceeding and the Minister of the hearing. A related principle is the provision of adjournments necessary to allow the preparation and presentation of one's case.

Turning to the Minister, the Board must notify the Minister where the RPD rules require it, and this protects the Minister's right to be heard:

• 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."
• 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."

A failure on the part of the RPD to inform the Minister, as required, results in an unfair hearing where the Minister has a right to be involved and where the outcome of the claim could have been different as a result of the Minister’s involvement. See Canadian Refugee Procedure/RPD Rules 26-28 - Exclusion, Integrity Issues, Inadmissibility and Ineligibility for a more fulsome discussion of this issue.

Parties are entitled to the opportunity to attend an oral hearing

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. 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". However, this does not mean that all who claim refugee protection require an oral hearing; individuals whose claims are not referred to the IRB, for example those who already have protection elsewhere, are not seen to be so entitled.

Where, for example, the Board prevents a party from speaking on multiple occasions during a hearing, denies a party a reasonable opportunity to cross-examine a witness, refuses to receive evidence, prevents a party from calling witnesses, or refuses to hear submissions from a party, 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 untrammelled 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.

Moreover, this principle should not be interpreted to constrain the Board's procedural flexibility. The Board’s procedure "should not be confined in a model of due process that draws exclusively on the judicial paradigm and discourages innovation." For example, the IRB gender guidelines provide that "when a party to a joint proceeding wishes to testify in the absence of a co-party, ... the request should be decided on a case-by-case basis." In Baig v. Canada, the court upheld a decision that the RPD did not breach procedural fairness when it questioned an adult applicant in the absence of the minor applicant, since there was an explicit exchange about, and consent from, the principal applicant regarding the absence of the minor claimant while very sensitive issues were being discussed. In that case, the RAD was held to be reasonable in finding that the RPD was alert and sensitive to ensuring the proceedings were conducted in accordance with the best interests of the child and with the then-Chairperson Guideline 3: Child Refugee Claimants: Procedural and Evidentiary Issues. See: Canadian Refugee Procedure/164 - Presence of parties and use of telecommunications for hearings#A hearing may be conducted either in the presence of the person, or by live telecommunication, but not normally in their absence. Furthermore, common law principles of procedural fairness recognize that tribunals have power to bar an individual from being present at their hearing where the party is so disruptive that it is impossible for the tribunal to conduct the hearing with the party present.

Finally, while parties are entitled to the opportunity to attend an oral hearing, non-parties do not necessarily have any such right. For example, in Metz v. Canada the spouse of a woman who obtained refugee status on the basis of his domestic violence objected that his right to be heard had been violated by his non-inclusion in the RPD proceeding. The court rejected this argument, concluding that the relief sought in such an immigration matter, that is the refugee status granted, will not affect the legal rights, impose legal obligations or cause prejudice in a direct way to such a person.

A party is entitled to a hearing without unreasonable delay that causes unfairness or serious prejudice

A party is entitled to a hearing without unreasonable delay that causes unfairness or serious prejudice. Remedies may include mandamus, an order from the Federal Court that the tribal or other actor advance a proceeding, or abuse of process, which generally has the remedy of striking or setting aside the proceeding. The following concerns the law regarding abuse of process as a result of delay.

Fundamental justice may be violated when there is an unreasonable delay in hearing a claim that causes unfairness or serious prejudice to the person concerned. The law in Canada may provide relief where there is such an inordinate delay that it offends the community’s sense of fairness and amounts to an "abuse of process". Decision makers have, as a corollary to their duty to act fairly, the power to assess allegedly abusive delay. Relevant delays may arise either from the actions of a party (for example, where the Minister delays in bringing an application to vacate refugee status) as well as actions of the Board (where an application is properly made but the Board delays in setting the matter down for hearing).

Abuse of process because of delay in administrative proceedings may be established by demonstrating that the fairness of the process was compromised by the delay, or, in the absence of compromised fairness, that significant prejudice has arisen as a result of the delay. There is a three-part test for whether delay that does not affect hearing fairness nonetheless amounts to an abuse of process:

1. First, the delay must be inordinate - this is determined on an assessment of the context overall;
2. Second, the delay itself must have directly caused significant prejudice; and
3. When these two requirements are met, the court or tribunal should conduct a final assessment as to whether abuse of process is established. This will be so when the delay is manifestly unfair to a party to the litigation or in some other way brings the administration of justice into disrepute.

The threshold for establishing abuse of process as a result of delay is high.

1) Inordinate delay

When conducting an assessment as to what constitutes an inordinate delay, the sole fact of the delay is not determinative since various contextual factors must also be taken into account. Whether the delay is inordinate is to be determined on an assessment of the context overall, including the nature and purpose of the proceedings, the length and causes of the delay, and the complexity of the facts and issues in the case, and whether the respondent contributed to the delay or waived the delay.

When it comes to proceedings at the IRB's Immigration Division, the Federal Court has held that for delay to qualify as an abuse of process under particular provisions of the IRPA, any delay must have been part of an administrative or legal proceeding that was already under way, and where delay pre-dated the commencement of proceedings, it did not qualify as an abuse of process. While it used to, this rule does not any more apply to the RPD or RAD. Abuse of process may be alleged regarding delay prior to an application being made to the Board. The RPD can decide whether it would be an abuse of process for it to hear an application in light of inordinate delay in bringing the application. This is because the RPD could bring the administration of justice into disrepute by proceeding with such a delayed application. The Division can consider whether a party has delayed in bringing an application, for example whether the Minister has delayed in commencing vacation proceedings at the Board. In Ganeswaran v. Canada, the RPD concluded that even without evidence or an allegation that the Minister was acting in bad faith or making some sort of calculated move, a period of approximately nine years before the Minister brought an application to vacate refugee status constituted delay that was unacceptable. A 14–20-year delay in initiating vacation proceedings was held to constitute an abuse of process in Vukaj v. Canada. In contrast, the court in Ati v. Canada concluded that Mr. Ati had contributed to a six-year delay in his case with his inaccurate representations about his time spent in Iraq in both his permanent resident card renewal application and his citizenship application, and that this pointed against the delay being inordinate.

Abuse of process may also be alleged regarding delay in the Board scheduling a matter after an application was made. 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. 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. 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.

Issues of delay may also arise where a decision has been made, but there is a delay in communicating it. In Singh, the Court found no breach of procedural fairness from a 21-month period between the date of the PRRA decision, and the date the decision was communicated.

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". 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. 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. Indeed, globally the average duration of a refugee situation is now 20 years. 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, though such times have subsequently decreased.

2) Significant prejudice or compromised fairness of the process

Inordinate delay on its own is insufficient to find an abuse of process. Either unfairness or significant prejudice to an individual that is a direct result of the delay is also required. For the "significant prejudice" branch, the test is whether the delay caused actual prejudice of such a magnitude that the public’s sense of decency and fairness is affected. Evidence establishing significant prejudice may relate not only to the hearing process but to factors such as significant psychological harm, disruption to family life, and loss of work or business opportunities. Such factors can be directly caused by the delay or exacerbated by it.

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. The Federal Court of Appeal in Torre v Canada noted that the applicant in that case had not made out an abuse of process because he “had to do more than make vague allegations that the delay endangered his physical and psychological integrity and drained his ability to submit a full and complete defence, without providing any evidence to support them” and because he “never tried to show how he was prejudiced by the passage of time.” In Khan v. Canada the court noted that while a five-year delay between service of the Minister’s initial application in 2013 and the initiation of the proceedings before the RPD in 2019 may appear, at first impression, significant, there was not evidence before the tribunal that the delay was inordinate in the sense of offending the community’s sense of fairness in that case, taking into account the specific evidence on file about the prejudice to the person concerned.

The fact that waiting for a hearing can be traumatic for claimants has been discussed extensively in literature about refugee status determination processes. The uncertainty inherent in the asylum process can be a source of significant stress and anxiety for many claimants. Scholars have emphasized the consequences of slowness and waiting in the governance of migrants. 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" have all been identified contributors to a condition labelled Prolonged Asylum Seeker Syndrome, a condition characterized by powerlessness, depression, and identity crises. 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.

When assessing prejudice, the Board and courts have considered, among others, the following factors:

• Destruction of the original file:
  • Examples of lack of prejudice: In Badran v. Canada the applicant argued that his cessation proceeding occurred after his refugee claim file had been destroyed as a result of the Board's normal document retention and disposal practices. The RPD found this was not an abuse of process, as the lack of access to the refugee claim file did not prejudice him given the RPD’s ability to consider his summary of the claim. The Federal Court agreed, holding that an Applicant must show more than the destruction of files to sustain an abuse of process argument. As an illustration of the way that potential prejudice can be addressed, in Selvakumaran v Canada, the applicants’ refugee claims were accepted by way of an expedited procedure. Later, when the Minister brought an application to vacate the applicants’ refugee status, it was impossible to know what evidence was before the original decision-maker. Out of caution, and to ensure the fairness of the process, the Board in that case allowed the applicants to compile a package of documents that represented a “facsimile” of the evidence that supported their original refugee claim.
  • Example of prejudice: In contrast, in Vukaj v. Canada the court held that the delay had the effect of denying the applicant access to evidence which could have been relevant to the accusation of misrepresentation because the original RPD file had been deleted and the applicant had consistently maintained that his previous name could possibly have been canvassed at his hearing - a key issue for the case.
  • Legislative requirement: In Vukaj v. Canada the court held that an additional basis of unfairness related to the destruction of documentary evidence establishing risk from the initial RPD hearing, concluding that "without access to that full record, there was no ability for the vacation panel to carry out its statutory duty to be “satisfied that other sufficient evidence was considered at the time of the first determination to justify refugee protection” (IRPA, s 109(2)).
• Unavailability of a witness: In Polgar v. Canada, the applicant argued that delay had caused him prejudice because an essential witness had passed away before the admissibility hearing. The Immigration Division rejected this argument in the circumstances on the basis that Mr. Polgar had the opportunity to present his evidence by other means.
• Legislative change: In Ganeswaran v. Canada the Applicants argued that they were deprived of a procedural safeguard due to a legislative change during the delay period. In 2012, Parliament amended section 25 of IRPA to impose a one-year bar on applications for permanent residence based on humanitarian and compassionate grounds following a negative refugee determination. The Applicants argued that they could be at risk of removal in that one-year period and that prior to the legislative amendments in 2012 they could have accessed an H & C Application without waiting the one-year period. The court rejected this argument, finding that it did not amount to significant prejudice in the circumstances as the one-year bar on applying for a Pre-Removal Risk Assessment does not apply to those whose refugee status is vacated.
• An Applicant's apparent willingness to delay proceedings: In Singh v. Canada, factors that could undermine evidence of hardship included the Applicant’s willingness to further delay the proceedings with an abandonment application, his application for a postponement, and his apparent silence in the interim period prior to the cessation hearing being scheduled. In Polgar v. Canada, the Immigration Division noted that it was relevant that an individual had not informed the Board of a change of address, something that the Minister submitted made the individual responsible for the delay in convening a hearing.
• Prejudice faced by children: Where children are impacted by an administrative actor’s inordinate delay, their vulnerabilities as children need to be considered in evaluating whether the delay caused significant prejudice. In R v Wong, 2018 SCC 25, Chief Justice Wagner described the “serious life-changing consequences” facing those who are at risk of deportation after years of living in a country: “They may be forced to leave a country they have called home for decades. They may return to a country where they no longer have any personal connections, or even speak the language, if they emigrated as children. If they have family in Canada, they and their family members face dislocation or permanent separation” In contrast, in Ahmad v. Canada, the RPD noted that "the minor respondents were already 17 ½ and 15 ½ by the time the Minister discovered the concerns which led to the vacation application. Thus the six year delay between when this information came to the Minister’s attention and the filing of the vacation application before the RPD occurred largely outside the ‘formative years’ which may reasonably be construed as ending at eighteen."
• Whether having been able to reside in Canada in the interim should be considered a benefit: This issue was considered in Ganeswaran v. Canada as follows: "The Principal Applicant misrepresented in order to obtain status in Canada and the Minister’s delay in proceeding with the vacation application allowed her and her children to remain in Canada. The complexity here is that the benefit and the prejudice are tied together and directly proportional. As explained above, the family’s integration into Canada is the very basis of the prejudice they are claiming. The more the family becomes integrated in Canada, which could be considered a benefit to them, the greater the prejudice associated with their risk of deportation. The benefits to the family of remaining in Canada cannot be considered in isolation from the impact of the Minister’s delay and the resulting prejudice. Each case has to be examined on its own facts. In these circumstances, the inordinate delay resulting in the prejudice complained of by the Applicants cannot simply be deemed as beneficial to them." In Ahmad v. Canada, the court concluded that the applicants' integration into Canada was built off a foundation of fraud and "it would be perverse that the Applicants be permitted to continue to enjoy that which they fraudulently obtained”.
• Stress during the period of delay: In Ahmad v. Canada, the court noted that there was no evidence that the applicants suffered harm as a result of the delay between the date that the Minister could have made the Vacation Application and when the Vacation Application was made, concluding that "it appears that they simply went on living their lives during this period."
• Psychological issues as a result of the delay: In Vukaj v. Canada, the evidence was that the applicant tendered psychological evidence diagnosing him as severely depressed with multiple symptoms including suicidal ideation with a moderate-high risk of suicide, and clear deficits in occupational and general adaptive function. The court noted that his symptoms have worsened throughout the proceedings to the point of jeopardizing his business in Canada and accepted that this evidence established significant prejudice. This appears to be an example of the court finding a connection between psychological issues and delay even where the psychological issues did not arise during the period of delay, but only once the application was filed. The court found that the applicant’s significant psychological harm was caused or at least exacerbated by the delay.

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
• Canadian Refugee Procedure/RPD Rule 54 - Changing the Date or Time of a Proceeding#Regulation 159.9(1): The Board will provide priority scheduling for certain types of claims

3) Abuse of process bringing the administration of justice into disrepute

Once inordinate delay and significant prejudice have been established, a final assessment is needed to determine whether an abuse of process can be found. The decision maker needs to decide whether the “delay is manifestly unfair to the party to the proceedings or in some other way brings the administration of justice into disrepute”.

Even where an applicant establishes an abuse of process, a stay, which is only one of other potential remedies, is a discretionary remedy that will not always be warranted. There are special considerations where the remedy sought is a stay of the proceedings: “a stay should be granted only in the ‘clearest of cases’, when the abuse falls at the high end of the spectrum of seriousness” In order to grant a stay on the basis of an abuse of process, the decision maker must be satisfied that, “the damage to the public interest in the fairness of the administrative process should the proceeding go ahead would exceed the harm to the public interest in the enforcement of the legislation if the proceedings were halted”. Ganeswaran v. Canada was an example where this standard was met:

I find the inordinate delay in this case is manifestly unfair to the Applicants and brings the administration of justice into disrepute. This case did not involve complex factual or legal issues, given that approximately five weeks after the Applicants’ claims had been accepted, the Minister had admissions and evidence confirming that there were serious misrepresentations. There was also a notation from an immigration officer at that time indicating that a vacation application would be pursued. The Minister has not explained why it did not proceed sooner; there was no evidence provided of any activity on the file for almost ten years. The Minister brings the administration of justice into disrepute by not proceeding for almost ten years, while the minor Applicants grew up in Canada, and then, based on no new information and without explanation as to the timing, deciding to bring an application to vacate their refugee status. It is unacceptable.

Similarly, in Vukaj v. Canada, the court held that the facts collectively create the reasonable impression that the vacation proceedings at issue had a punitive motivation. However, punishment was not the legislative purpose of vacation proceedings. The court concluded that "a reasonable perception that administrative proceedings are animated by a purpose other than the legislative purpose brings the administration of justice into disrepute."

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
• Canadian Refugee Procedure/The right to be heard and the right to a fair hearing#Abuse of process and actions of parties and the Board

Requests to delay convening a hearing or issuing a decision pending the receipt of new evidence

At times a party will request that the Board delay issuing a decision or postpone a hearing so that it can obtain additional evidence.

For consideration of how this has been dealt with where the request is to delay convening a hearing, see: Canadian Refugee Procedure/RPD Rule 54 - Changing the Date or Time of a Proceeding#Other exceptional circumstances and considerations about whether such circumstances properly qualify as exceptional. This notes that the Chairperson Guideline 6: Scheduling and Changing the Date or Time of a Proceeding states that "If a party requests a change of date or time of the proceedings for the purpose of obtaining documentation, the RPD generally proceeds and will determine at the end of the hearing whether or not it is necessary to grant a delay to obtain and provide the documents."

For consideration of how this has been dealt with where the request is to delay issuing a decision, see: Canadian Refugee Procedure/RPD Rules 31-43 - Documents#Requests to submit a document post-hearing that the claimant does not have in their possession are not made pursuant to Rule 43. The court has held that fundamental justice requires a tribunal to delay its decision if it knows that, given a reasonable time, an applicant can obtain a crucial document. However, procedural fairness requires a meaningful opportunity to present one’s case, not an indefinite one.

The RAD rules require that an application must be made in writing and without delay: Canadian Refugee Procedure/RAD Rules Part 3 - Rules Applicable to All Appeals#RAD Rule 37 - How to Make an Application. In Azizi v. Canada, the RAD acknowledged that the Applicant had stated that he would file a Rule 29(3) application but noted that the application was never received. The court concluded that it was fair to issue a decision in that case without having waited for further evidence more than the almost seven weeks that the RAD did wait. See further: Canadian Refugee Procedure/RAD Rules Part 3 - Rules Applicable to All Appeals#The RAD need not always wait to issue a decision where an appellant notes that they intend to file Rule 29 evidence in future, but have yet to do so.

The Board must take special measures to accommodate vulnerable claimants, including minors and those who cannot appreciate the nature of the proceedings, as well as those who are unrepresented

The right to procedural fairness includes the ability to meaningfully participate in the adjudicative process. The Board is obliged to take special measures to accommodate vulnerable claimants, including minors and those who cannot appreciate the nature of the proceedings, for example by appointing a designated representative to represent their interests during the hearing. See: Canadian Refugee Procedure/The Board's inquisitorial mandate#The Board must ensure that certain claimants are assisted to make their cases.

Concerns about a lack of procedural fairness should be raised at the earliest practical opportunity

A party that knows of a procedural flaw, effect, or irregularity with an administrative process must raise it with the administrative decision-maker as soon as reasonably possible. It must give the first-instance decision-maker a chance to address the matter before any harm is done, to try to repair any harm, or to explain itself. A party, knowing of a procedural problem at first instance, cannot, in the words of Nwokolo v. Canada, "stay still in the weeds and then, once the matter is in the appellate court, pounce." Instead, counsel has a responsibility to object and provide reasons for such an objection, as a lawyer entrusted with representing their client’s interests.

This requirement arises from the common law principle of waiver, which provides that a party should raise allegations about a lack of procedural fairness at the earliest practical opportunity, the earliest reasonable moment, or as soon as reasonably possible. A party’s failure to raise a breach of procedural fairness allegation at the earliest practical opportunity will amount to an implied waiver. In other words, procedural fairness objections cannot be made at a later stage where the party could reasonably be taken to have had the capacity to object before the original administrative decision-maker and did not do so.

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.

As such, where a panel interrupted counsel and provided her with a justification for limiting questioning that it considered irrelevant, the court concluded in Canada v. Tavares Carrera that the Member had "tacitly invited [the counsel] to explain why she wished to ask questions about [the subject the Member considered irrelevant]" and the fact that counsel did not object and articulate the logic of her questioning supported a conclusion that the panel had not acted unfairly.

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. 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. As such, in El Khatib v. Canada, the court accepted that the Federal Court judicial review was the Applicants’ first opportunity to raise their allegation of incompetent representation by former counsel given that the former counsel had represented them before both the RPD and the RAD. In that case, it was not until the applicants retained new counsel for their judicial review that they received advice that their former counsel may have acted incompetently.

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.

The RAD may remedy some procedural fairness violations that occurred during an RPD hearing

A finding that procedural fairness has not been observed will ordinarily result in a determination that the decision of the tribunal is invalid. The usual remedy is to order a new hearing. However, where the RPD takes a step that is procedurally unfair (or debatably so), for example not providing an opportunity to make submissions about the authenticity of documents on file, such unfairness may be remedied by the ability to file submissions and evidence on appeal to the RAD, should the appellant have recourse to the RAD. This is consistent with the long-standing principle that an internal administrative appeal may cure unfairness that arises earlier in an administrative process.

The RAD appeal process may allow for any unfairness in the RPD’s decision-making to be remedied, including through the filing of new evidence and submissions. The RAD may also cure a procedural fairness issue by setting aside some tainted evidence, while continuing to rely on the untainted evidence on the record. However, in some cases, the RAD process will not suffice to cure the procedural fairness violation and the RAD must order a new hearing. Whether a procedural fairness breach will require the RAD to remit the matter to the RPD will depend on the nature of that breach and its impact on the determinative issue before the RAD. The real question is whether the RPD’s breach of procedural fairness will have a material effect on the RAD proceeding; a breach of procedural fairness may be overlooked if it is beyond doubt that it had no material effect on the decision - it is only where an outcome is characterized as inevitable or when the defect was remedied on appeal that a breach of procedural fairness can be considered immaterial.

There are five factors to take into account in determining whether an appellate proceeding has cured earlier procedural defects. They are: (i) the gravity of the error committed at first instance; (ii) the likelihood that the prejudicial effects of the error may also have permeated the rehearing; (iii) the seriousness of the consequences for the individual; (iv) the width of the powers of the appellate body; and (v) whether the appellate decision is reached only on the basis of the material before the original tribunal or by way of rehearing de novo. The fairness of correcting an error on appeal, and not remitting a matter for redetermination, may be assessed by considering these factors:

1. The gravity of the error committed at first instance. For example, is the procedural error a purely technical one that creates no substantial wrong or miscarriage of justice? In Nwosu v. Canada, the RPD did not explicitly rule on Ms. Nwosu’s ability to understand the nature of the proceeding, something required before removing her Designated Representative. The RAD thus conducted its own analysis based on the record and found no evidence that Ms. Nwosu was not able to do so. The RAD reviewed the evidence and found that her testimony was coherent and responsive to the RPD’s questions. The court held that any breach was immaterial as it is clear from the RPD’s decision that despite not explicitly ruling on Ms. Nwosu’s ability to understand the nature of the proceeding, it was implicitly ruled on when the RPD duly considered and assessed her testimony. The court also held that this breach of procedural fairness was remedied on appeal by the RAD’s own assessment of Ms. Nwosu’s ability to appreciate the nature of the proceeding.
2. The likelihood that the prejudicial effects of the error may also have permeated the rehearing. For example, did the procedural issue deny the appellant an opportunity to provide evidence which cannot be cured on appeal? Some procedural fairness violations are not amendable to remedy on appeal. A common example where a matter must be remitted is where interpretation issues or incompetence of counsel have so tainted a proceeding that procedural fairness requires the matter to be redetermined afresh. In order to decline remitting a matter to the first decision maker, it is not even sufficient that a new hearing is unlikely to lead to a different result. The threshold is higher: the result must be inevitable. In Nwosu v. Canada, the court commented that "Ms. Nwosu did not have to show actual prejudice before the RAD; it was sufficient for her to demonstrate that she might have suffered prejudice from the failure of the RPD to provide her a proper notice in accordance with the Guideline that, she claims, prevented her from being able to dutifully prepare her case."
3. The seriousness of the consequences for the individual. For example, ordering a new hearing will not be necessary when the error made by an administrative decision maker is not determinative and the outcome would inevitably have been the same without the breach. In Yang v. Canada, the RAD found that the RPD had breached procedural fairness by failing to confront a claimant with certain credibility concerns. However, given that the determinative issue before the RAD was not whether the applicant was credible, but instead that, even if credible, the applicant had failed to establish a forward-looking risk, the breach of procedural fairness before the RPD had no bearing on the determinative issue before the RAD. The court upheld the RAD's decision not to remit the matter to the RPD.
4. The width of the powers of the appellate body. See the following section on the RAD's authority and power to remit matters to the RPD: Canadian Refugee Procedure/110-111 - Appeal to Refugee Appeal Division#IRPA ss. 111(1)(c) and 111(2): the Refugee Appeal Division may refer the matter to the Refugee Protection Division for re-determination in specified circumstances.
5. Whether the appellate decision is reached only on the basis of the material before the original tribunal or by way of rehearing de novo. The RAD does not conduct a true de novo proceeding. The ability to admit new evidence at the RAD is limited by statute. As such, the extent to which the RAD proceeding may remedy a procedural fairness issue may turn on the extent to which an appellant did submit, or was invited to submit, new evidence on appeal. In Abdelrahman v. Canada, the RPD failed to provide an applicant an opportunity to respond to the RPD’s concerns about the authenticity of a document, thereby denying the applicant procedural fairness. The RAD then relied on this finding and upheld the RPD's credibility conclusion. The Federal Court held that the breach of natural justice was not cured by the ability to provide submissions and new evidence on the appeal to the RAD, concluding that the matter had to be remitted to the RPD for redetermination. See further: Canadian Refugee Procedure/110-111 - Appeal to Refugee Appeal Division#Criteria for presenting new evidence.

See also:

• Canadian Refugee Procedure/110-111 - Appeal to Refugee Appeal Division#IRPA ss. 111(1)(c) and 111(2): the Refugee Appeal Division may refer the matter to the Refugee Protection Division for re-determination in specified circumstances
• Canadian Refugee Procedure/RPD Rules 69-71 - General Provisions#RPD Rule 71 - Failure to follow a rule
• Canadian Refugee Procedure/RPD Rules 62-63 - Reopening a Claim or Application#Once reopened, is a claim to be heard de novo or as a redetermination based on the previous record?

Language of proceedings

A claimant has a right to proceedings in the official language of Canada of their choice

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. For more details about this right see: Canadian Refugee Procedure/RPD Rules 31-43 - Documents#Claimants need not provide documents in the language of the proceeding, only in English or French and Canadian Refugee Procedure/Official Languages Act.

A claimant has a right to interpretation where it is necessary

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/RPD Rule 19 - 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.

Providing information about the status determination process in a range of languages

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. 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/RPD Rules 14-16 - 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

Disclosure rights and obligations for the claimant

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. 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/RPD Rules 3-13 - Information and Documents to be Provided#RPD 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/RPD Rules 31-43 - Documents#What documents does a party need to provide when?. See also "Parties will cooperate with the asylum process and supply all pertinent information" at Canadian Refugee Procedure/Principles for the interpretation of refugee procedure#Principles about the expectations that one reasonably has of claimants and counsel.

In some cases, counsel will make an inadvertent error and as a result an important document will not have been submitted to the decision-maker; this does not necessarily amount to a breach of procedural fairness. However, it may; in Jahan Sumi v. Canada, the applicants produced relevant evidence in a timely manner, and they understood their lawyer sent said evidence to the government. It was not sent and, as a result, the court found that the applicants’ right to be heard had been compromised. See further: Canadian Refugee Procedure/RPD Rules 14-16 - Counsel of Record#A hearing will be unfair where counsel incompetence results in a miscarriage of justice and Canadian Refugee Procedure/The right to be heard and the right to a fair hearing#Decision makers are obliged to alert applicants to obvious errors in their application where a near-complete record with a single obvious technical flaw has been provided.

The court has held that fundamental justice may require a tribunal to delay its decision if it knows that, given a reasonable time, an applicant can obtain a crucial document. See: Canadian Refugee Procedure/RPD Rules 31-43 - Documents#Requests to submit a document post-hearing that the claimant does not have in their possession are not made pursuant to Rule 43.

Disclosure rights and obligations for the Minister

While the Minister has no obligation to become a party to a proceeding (see: Canadian Refugee Procedure/RPD Rule 29 - Intervention by the Minister#The Minister is permitted to intervene in proceedings, but is not required to do so), once it does so and provides disclosure, its disclosure must be "complete" and cannot be selective:

In the words of the Federal Court, "At a bare minimum, if the Minister chooses to disclose evidence, that disclosure must be complete." The Federal Court states that frankness can be expected of the Minister and that the Minister has a duty of candour. As pointed out by Justice Sebastien Grammond, full disclosure benefits the justice system as a whole because it facilitates the search for truth, allowing access to information and the testing of assertions. Zubair v. Canada is an example of the application of these principles:

In this case, the Minister chose to disclose some but not all evidence regarding the steps taken by the CBSA to obtain information from the Kattankudy police. The CBSA Declaration confirmed a letter was sent from the CBSA, with an attachment, to the Kattankudy police by way of electronic message. Yet the Minister failed to disclosure either of these documents. At the minimum, fairness would require the Minister to disclose the documents that the CBSA’s request was based on and referred to in the CBSA Declaration.

In contrast, however, Ministerial disclosure does not need to be "complete" in proceedings before the Immigration Division. As general matter, the Stinchcombe principles [regarding providing disclosure in criminal cases] do not apply in the administrative context; that said, a heightened disclosure obligation akin to Stinchcombe may be afforded in the administrative context where the potential consequences of the tribunal’s decision are sufficiently serious. For example, a heightened disclosure obligation applies at the Immigration Division where an individual is detained: "The need for detainees to know the case against them creates a disclosure obligation. To be meaningful, the disclosure obligation cannot be limited to information on which the Minister intends to rely. All relevant information must be disclosed, including information that is only to the advantage of the detainee." Similarly, at the Immigration Division the CBSA may have an obligation to make reasonable inquiries of the RCMP to obtain all records, including exculpatory records, that may be relevant to an inadmissibility hearing, and to produce those records to the person subject to the proceedings.

Where complete disclosure has not been provided by the Minister, procedural fairness may oblige the RPD to require the Minister to make inquiries of relevant Canadian law enforcement agencies to obtain documents, for example. There is a distinction in law between first party and third party disclosure in administrative proceedings; separate principles apply to information held by a third party, for example where CBSA is involved in a case but the RCMP has also conducted an investigation.

On appeal to the RAD, the rules and regulations create a regime which Waldman describes as "asymmetrical", where there are "severe restrictions placed on the claimant versus substantial flexibility for the Minister". By way of example, Waldman notes that the Minister can generally file documents at any time, is not limited in the types of evidence to be filed, and, aside from the filing of Minister's appeals, would not appear to be affected by many timelines.

See further:

• Canadian Refugee Procedure/RPD Rules 31-43 - Documents#What documents does a party need to provide when?
• Canadian Refugee Procedure/110-111 - Appeal to Refugee Appeal Division#IRPA Section 110(3): Procedure

Disclosure rights and obligations for the Board

Parties should have access to the complete record before the decision-maker, though there may be limited permissible exceptions to this principle

UNHCR affirms that a fair asylum system is one where parties will have access to the complete record that is before the decision-maker. Fundamental justice requires the Board provide complete disclosure so as to allow parties to know the case and meet their obligations. In this way, the Board must generally provide disclosure of documents that it relies upon and provide parties with an opportunity to reply. Where the Division relied upon a document that was not on the record or in the NDP to evaluate country conditions (and was actually contradicted by documents on the record) the Federal Court held that it had acted unfairly. Where an incomplete record is provided on judicial review, this also amounts to a breach of procedural fairness justifying setting aside the decision. See also: Canadian Refugee Procedure/The Board's inquisitorial mandate#The Board should consider the most up-to-date country conditions evidence. As a general matter, the Refugee Protection Division states that if a document before a panel contains hyperlinks to other documents, parties can expect that the RPD will only consider the information in the original document and not the other documents which are linked.

The panel may conduct research and disclose the results of that research onto the record. In any research it conducts, the RPD is to follow the Instructions for Gathering and Disclosing Information for Refugee Protection Division Proceedings. These principles apply to how to Division has committed to collecting information regarding a claim, including that the RPD will gather information through a transparent and standard process to ensure fairness in decision-making. See: Canadian Refugee Procedure/The Board's inquisitorial mandate#The Member's power to conduct research and find facts. The above instructions commit that "if a member identifies country-of-origin information supplemental to that contained in the NDPs that is to be used in a refugee protection hearing, it will be disclosed to the parties by the RPD adjudicative support team in accordance with the RPD Rules." Accordingly, in Byarugaba v. Canada, the court held that, as a quasi-judicial body that deals with the fundamental rights of those appearing before it, the Board has developed well-defined procedural rules and, if the member sees it necessary to conduct their own research and wants to rely on that research, they have a duty to disclose it to the parties and give them an opportunity to respond. The member’s failure to do this amounts to a breach of procedural fairness that taints the process.

However, extrinsic evidence this is not specifically disclosed onto the record may be used in particular circumstances. Perhaps the most straightforward example of this is with facts which may be the subject of judicial notice and generally recognized facts: Canadian Refugee Procedure/RPD Rule 22 - Specialized Knowledge#IRPA s. 170: The Division may take notice of any facts that may be judicially noticed. A panel need not disclose and invite comment, for example, of the fact that rain makes roads wet or that the capital of Mexico is a large city.

Another example of where the courts have upheld the use of extrinsic evidence without explicit disclosure is set out in Mancia v Canada, which holds that while "extrinsic evidence" must be disclosed prior to the decision being rendered, a decision maker is not required to provide notice of their reliance on material that is (1) generally available to the public and (2) not novel and significant information that may affect the disposition of a case. This test has been applied extensively in non-IRB immigration caselaw, but also in refugee claims before the RPD and RAD. I will discuss each set of caselaw in turn.

Starting with the non-IRB caselaw, in Ashiru v Canada, a judicial review of a decision on a humanitarian and compassionate application, Justice Kane noted that in the recent application of the "novel and significant" test courts have adopted a contextual approach which includes consideration of the nature of the decision and the possible impact of the evidence on the decision. This contextual approach was demonstrated in Alves v. Canada, another judicial review of a decision in a humanitarian and compassionate application, in which the court held that in assessing whether the duty of fairness required the disclosure of extrinsic documents that a decision-maker has consulted, the Court is to consider factors such as (i) the source, including its reputability; (ii) the public availability of the documents and the extent to which the applicant could be reasonably expected to know of them; (iii) the novelty and significance of the information, including the extent to which it differs from other evidence; and (iv) the nature of the decision, including the applicant’s allegations and the evidentiary burden. Decisions of the Federal Court have also determined that there are circumstances in which PRRA officers cannot be criticized for relying upon country documentation that is publicly available but not specifically disclosed to a claimant. Similarly, in Pizarro Guiterrez v. Canada the court concluded that the fact that a Citizenship and Immigration Canada officer consulted public documents available on the internet about the situation in a country, and referred to them without advising the applicant, was not a breach of the duty of procedural fairness. This was so as the applicant was well aware that the issue was being considered, the documents were easily accessible on the internet, the documents originated from credible and known sources, and the applicant had had an interview in which related information had been put to him.

In terms of IRB caselaw, the Federal Court of Appeal held in a decision involving the IRB's predecessor Immigration Appeal Board that not every situation where a decision-maker does their own research and fails to disclose it prior to providing their reasons will be considered a breach of procedural fairness. In Dubow-Noor v. Canada, the Federal Court held that information obtained independently by the Board (a Google Maps search used to identify distances between particular points) did not need to be disclosed prior to the decision because it was publicly available and not novel. In Sylain-Pierre v. Canada the court relied on this test to conclude that it was not a breach of procedural fairness for the RAD to find news articles indicating that the agent of persecution had died, and consider this when assessing the claimant's prospective risk. In Ibarra Hernandez v. Canada, the court concluded that it was fair for the RAD to rely on a Mexican government website for information as to the population of the proposed IFA, without disclosing the website beforehand:

Considering the factors identified in Alves, I find the RAD did not breach its duty of procedural fairness to the Applicants. The website appears to be from an official source (the Mexican government), which would reasonably be expected to have reliable census information, and the information was publicly available. The information does not appear to be highly significant, as the RAD notes that the population of the IFA is not a determinative factor on its own, although it is relevant to the Applicants’ arguments that the proposed IFA is not viable. I am not satisfied that the principles of procedural fairness required the RAD to disclosure to the Applicants its intent to rely on the information on the Website as to the population of the IFA.

In contrast, Byarugaba v. Canada is an example where the RAD Member's reliance on extrinsic information on a website was held to be unfair. The RAD impugned the appellant's credibility because information in a letter that the appellant submitted from an organization called Justice Care Uganda was inconsistent with the organization's website. The court held that in not disclosing the content of the research and allowing the appellant an opportunity to respond, the RAD member breached the principles of natural justice. This was so as this further attack on the applicant’s credibility, one that the member relies on in her reasons, was not peripheral to a case where the member has identified credibility as the only determinative issue. Justice Azmudeh of the Federal Court has also called into question the applicability of the Mancia v Canada line of caselaw to the RPD and RAD:

Secondly, the Respondent relies on cases decided by immigration or visa officers, and not the IRB, which as a quasi-judicial body has developed well-defined procedural rules and deals with the fundamental rights those appearing before it (Baker). If the member sees it necessary to conduct her own research and wants to rely on that research, they have a duty to disclose it to the parties and give them an opportunity to respond. The member’s failure to do this amounts to a breach of procedural fairness that taints the process.

The Board's requirement to disclose evidence is more exacting than that which applies to visa officers. In the visa application context the jurisprudence is that procedural fairness does not require disclosure of all relevant extrinsic documents, but rather that the applicant be given an adequate understanding of the “gist of the concerns”. Disclosing "the gist of a concern" requires that the facts that led to the concern be disclosed, not just the conclusion. This standard, and jurisprudence, is not applied to matters involving the IRB and this represents one of the disctinctions between a government officer and the expectations of what a fair process before a tribunal involves.

However, Justice Grant has concluded that the Mancia v Canada line of caselaw is applicable to the RAD, writing that where the RAD relies on evidence that is external to the record, and where this evidence is novel, significant, and demonstrates some change in the general country conditions that may affect the decision, such evidence should typically be disclosed to the refugee claimant, and specifically citing Mancia for this principle.

See also the following RPD rule regarding the disclosure of documents by that Division: Canadian Refugee Procedure/RPD Rules 31-43 - Documents#RPD Rule 33 - Disclosure and use of documents by the Division. Judicial notice may also be invoked to relieve parties from having to prove facts that are not in dispute. As such, given the nature of facts that may be judicially noticed, prior disclosure will not generally be required. See: Canadian Refugee Procedure/RPD Rule 22 - Specialized Knowledge#IRPA s. 170: The Division may take notice of any facts that may be judicially noticed.

Fairness can relate to the timing of disclosure, as well: in Moran v. Canada the court held that "confronting the Applicant at the hearing with the seized statement without prior disclosure was a breach of procedural fairness." In Ola v. Canada, the court held that the RAD’s failure to provide the applicants with an opportunity to make submissions in response to the information provided in an updated NDP before the RAD amounted to a breach of procedural fairness. In Lopez Aguilar v. Canada, the Federal Court concluded that procedural fairness had been breached where extrinsic evidence (a narrative from another related claim) was in a party's claim file, and was discussed by the Member, in circumstances where the party did not have a sufficient opportunity to respond to the evidence. See also: Canadian Refugee Procedure/The right to be heard and the right to a fair hearing#Claimants should have a fair opportunity to respond to a panel's concerns.

Not every failure to disclose information will require setting aside a decision. Failure to disclose information can only be fatal to the fairness of a proceeding if that information is material to the decision-maker’s findings. In Afzal v. Canada, the Court accepted that the RPD’s failure to disclose the POE notes was a minor breach because the content of the notes was set out accurately in the Minister’s notice of intervention and the notes did not contain any additional information. Furthermore, in that case the RAD remedied the breach by providing the applicant with the notes and inviting submissions. Additionally, there may be cases where there is information before a decision-maker which cannot be disclosed to the parties due to privacy or information sharing legislation, and where a document cannot be disclosed with appropriate redactions, and in such circumstances the decision-maker may proceed without relying upon the information when making the decision. See also: Canadian Refugee Procedure/The right to be heard and the right to a fair hearing#The Board must not rely on evidence that is not on the record or otherwise properly available to the Member.

Finally, while UNHCR affirms that a fair asylum system is one where parties will have access to the complete record that is before the decision-maker, it does not appear to follow this rule in how it conducts its own refugee status determination. UNHCR’s procedural standards stipulate confidentiality in order to ensure the safety of the applicants themselves, their families, and UNHCR staff, and the information and evidentiary materials used in examining applications are disclosed only under strict conditions. Even when the applicant herself makes a request for disclosure, only materials submitted by her will be disclosed, but the records of interviews and surveys conducted during the examination process will not be disclosed as a general rule.

The Board may consider caselaw other than that relied upon by the parties

In terms of the law, the tribunal is not bound to rely solely on the law as presented by the parties. Accordingly, the tribunal can rely on its own research and if that differs from what has been presented at the hearing, it is bound to apply the law as found. Ordinarily there is no obligation to disclose to the parties the fruits of the tribunal's research as to the law, although it is a salutary practice to obtain their views in respect of an authority which has come to the tribunal's attention and which may have an important influence on the case.

The Minister, even when not a party, has a right to some disclosure at the Refugee Appeal Division

The Refugee Appeal Division has issued a practice notice entitled Providing post-perfection documents to the Minister when not a party to the appeal. It specifies that the division will provide to the Minister all evidence and written submissions that it receives from the refugee a​ppellant following the perfection of the appeal, whether or not in response to any notice or request from the RAD. See: Canadian Refugee Procedure/RPD Rule 1 - Definitions#Commentary on the definition of "party".

Decision makers are obliged to alert applicants to obvious errors in their application where a near-complete record with a single obvious technical flaw has been provided

There is an obligation on decision makers to alert applicants and allow them to correct obvious errors in their applications. This obligation, however, is constrained by the burden on an applicant to supply all documentation necessary to establish their claim. This obligation applies where a near-complete record with a single obvious, technical flaw has been submitted. Factors that the courts look to are whether the omission from the applicants’ supporting documents was immediately obvious and whether the document a requirement of the application.

See also: Canadian Refugee Procedure/The right to be heard and the right to a fair hearing#Disclosure rights and obligations for the claimant.

The record on a court-ordered redetermination

Before the Court-Ordered Rehearings Policy came into effect in 1999, the IRB traditionally interpreted court-ordered redeterminations as a requirement for a new hearing or a hearing de novo. It removed from the redetermination case file all documentary evidence except for the originating or jurisdictional document, and the order and reasons of the Court. The IRB also ensured that, where possible, the matter was reheard by decision-makers other than those who made the original decision, unless ordered by the Court otherwise. That changed in 1999 when the IRB adopted a more flexible procedure in conducting court-ordered redeterminations with the introduction of the Court-Ordered Rehearings Policy. That policy is referred to as the "Policy on Court-Ordered Redeterminations", last updated in 2013. The IRB states that "The guiding principle of the policy [is] to ensure that the use of evidence from previous hearings will not lead to a reasonable apprehension of bias, or affect the right to be heard." That document is now referred to as the IRB Policy on Court-Ordered Redeterminations.

In short, this policy provides that where the Court has determined that there was a denial of natural justice in the original hearing and provides specific directions, the IRB will comply with those directions. Where the Court has not given specific directions, the only documents that must, in every case, be included in the redetermination case file are the Court order and the jurisdictional documents (for example: notice of appeal, referral to the RPD, etc.). Where the Court has provided no specific directions and has made no determination that there was a denial of natural justice in the original hearing, the redetermination case file will contain the documents set out at section 5.1 of that policy, namely:

• jurisdictional documents (for example: notice of appeal, referral to the RPD, request for admissibility hearing or detention review);
• the Court order and any reasons;
• the original decision(s) of the IRB and any reasons;
• administrative documents (for example: notices to appear);
• exhibits filed at the previous hearing(s);
• any transcripts of the previous hearing (if available); and
• other evidence on the original file.

The inclusion of the Court order and any reasons in every case is consistent with jurisprudence that "it goes without saying that an administrative tribunal to which a case is referred back must always take into account the decision and findings of the reviewing court, unless new facts call for a different analysis.”

See also:

• Canadian Refugee Procedure/The right to an independent decision-maker#The tribunal must follow explicit instructions stated in a judgment or direction from a reviewing court
• Canadian Refugee Procedure/The right to an impartial decision-maker#A Member considering prior testimony during a redetermination of a claim is not, in itself, indicative of bias
• Canadian Refugee Procedure/RPD Rules 62-63 - Reopening a Claim or Application#Once reopened, is a claim to be heard de novo or as a redetermination based on the previous record?
• A question can also arise about the application of RAD Rule 29 concerning "Documents or Written Submissions not Previously Provided" applies to redeterminations. See: Canadian Refugee Procedure/RAD Rules Part 3 - Rules Applicable to All Appeals#RAD Rule 29: Documents or Written Submissions not Previously Provided.

The record on a RAD-ordered redetermination

Similar to the above regarding matters remitted by the Federal Court, once a matter is remitted from the RAD to the RPD, it is to follow the process set out in the IRB Policy on Redeterminations Ordered by the Refugee Appeal Division. For a discussion of directions that the RAD may provide on remittal to the RPD, see: Canadian Refugee Procedure/110-111 - Appeal to Refugee Appeal Division#IRPA 111(1)(c): the Refugee Appeal Division may give the directions to the Refugee Protection Division that it considers appropriate when referring a matter for re-determination.

The right to know the case to be met and the right of response

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

To ensure that proceedings are accessible and comprehensible, it is expected that an RPD 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 in play, the panel would err if it subsequently rejected the claim on that basis. Furthermore, when a hearing is conducted by way of reverse-order questioning (i.e. the Board asking questions first and the claimant's counsel questioning them afterwards), the person with the onus is no longer in control of the process and there is an increased burden on the Board to ensure that issues which are determinative of the claim are raised at the hearing. 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. Similarly, notice should normally be given before a hearing if multiple nationality is an issue, so as to avoid taking claimants by surprise and allow them an opportunity to obtain evidence relating to that matter. It is generally sufficient for a panel of the Board to raise those issues at the start of the hearing; for example, there is no obligation on the RPD to raise an IFA and proposed locations before the RPD hearing, as it suffices to do so at the beginning of the hearing.

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, identity, and the objective basis of the claim. 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. 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 their claim.

Where a panel identifies an issue, for example potential exclusion pursuant to Article 1E of the Refugee Convention, the Board does not have to advise the claimant of all the ins and outs that flow from that issue and relevant caselaw, such as the sub-issue in 1E exclusion cases of whether the appellant is at risk or not in their country of residence that is being considered during the exclusion analysis. It is not the Board's role to provide legal advice to claimants and an administrative tribunal has no obligation to act as the attorney for a claimant. The Board states that the hearing should be expeditious, and members should not spend time unnecessarily covering such points. See: Canadian Refugee Procedure/Principles for the interpretation of refugee procedure#Principles about the expectations that one reasonably has of the Board.

The rules at the RAD differ as RAD Rule 7 provides for when the Division may provide a decision without further notice to the parties, with exceptions for situations where the RAD raises a new issue and it would be procedurally unfair not to provide notice: Canadian Refugee Procedure/RAD Rules Part 1 - Rules Applicable to Appeals Made by a Person Who Is the Subject of an Appeal#Rule 7 provides that the Division may, without further notice, decide the appeal, but further notice is required if the appeal is decided on a new ground.

Furthermore, cases should be decided based on all of the law that binds the Board. This obliges a panel to apply relevant statutory principles and follow relevant caselaw. For example, panels have an obligation to consider certain issues, such as whether the "compelling reasons" doctrine for granting refugee status despite a change in circumstances applies, whether or not the claimant expressly invokes the relevant subsection of the Act. See: Canadian Refugee Procedure/The Board's inquisitorial mandate#To what extent does a panel of the Division have a duty to inquire into the claim?. Similarly, the Board “has a duty to consider all potential grounds for a refugee claim that arise on the evidence, even when they are not raised by the applicant”: Canadian Refugee Procedure/The Board's inquisitorial mandate#The Refugee Protection Division has an inquisitorial mandate. However, it is not the role of the RAD to address concerns relating to the reasonableness of an IFA when such concerns are not raised by applicants.

Where a claimant is unrepresented at a hearing, the RPD has a more onerous obligation to indicate what issues are in play and explain the case to be met. However, as the Court noted in Khosa v. Canada, it has not identified "any case that sets a minimum standard for what must be explained about an IFA to a self-represented claimant before the RPD". However, in Olifant, which the Court noted was a “unique case … with unusual circumstances”, the Court found that it was procedurally unfair for the RPD not to have taken at least some positive steps to ensure that the applicant understood what it meant if his claim was found to have “no credible basis” and the implications of such a finding, which were things that the applicant would not necessarily have known. In Kerqeli v. Canada, the court commented that setting out the basic process is a "bare minimum" which must be explained to a self-represented claimant – including the hearing of evidence, the sequence of evidence and cross-examination and the conduct and timing of argument. See: Canadian Refugee Procedure/RPD Rules 14-16 - Counsel of Record#The Board has a heightened duty of procedural fairness when dealing with self-represented claimants and see also Canadian Refugee Procedure/Decorum#The panel will use accessible language to explain the procedure.

Claimants should have a fair opportunity to respond to a panel's concerns

Procedural fairness entitles those who are to be subjected to a decision affecting their rights, privileges, or interests to know the case against them. 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." 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. 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. The court has held that what is required of the Board is analogous to what is required by the evidentiary rule established in Browne v Dunn.

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, such as potential inconsistencies between their evidence and the objective country condition documents. As a general principle, the rules of procedural fairness do not require refugee claimants to be confronted about information that they are aware of and which they have, in addition, provided themselves. The rationale for this is that the claimant, having produced the documents, could have addressed any facial inconsistencies in them at the time of submission. Furthermore, the RPD is not obligated to put an obvious inconsistency between a claimant's narrative and the material evidence provided in the NDP to the claimant for an explanation:

I turn then to the Tribunal's discussion of the evidence concerning the D.M.L.G. I am not convinced that the Tribunal erred in the procedure which it followed. I do not think it was required to inform the Applicant, before finally rendering its decision, that it doubted the existence of the D.M.L.G. and give the Applicant an opportunity to respond to that conclusion. I think this is a different kind of situation from conflicting evidence coming out of the Applicant's own mouth. In this latter situation, the Tribunal is expected generally to confront the Applicant with the contradictions.

As well, the Board “is not required to bring to a claimant’s attention every reservation held or implausibility found in reflecting upon the [claimant’s] testimony as a whole, before its decision is made.” The Board need not always confront a claimant over a contradiction in their testimony, but there may still be circumstances where a discrepancy should be brought to the attention of a refugee claimant. When determining whether explicitly confronting the claimant was required, the courts have endorsed the following factors:

1. Was the contradiction found after a careful analysis of the transcript or recording of the hearing, or was it obvious?

2. Was it in answer to a direct question from the panel?

3. Was it an actual contradiction or just a slip?

4. Was the applicant represented by counsel, in which case counsel could have questioned him on any contradiction?

5. Was the applicant communicating through an interpreter? Using an interpreter makes misunderstandings due to interpretation (and thus, contradictions) more likely.

6. Is the panel's decision based on a single contradiction or on a number of contradictions or implausibilities?

As well, a claimant is not entitled to a running list of deficiencies in their evidence at the end of their hearing before the RPD.

For the RAD context, see the following discussion of what is a new issue requiring notice to the parties, and sometimes additionally to the Minister: Canadian Refugee Procedure/RAD Rules Part 1 - Rules Applicable to Appeals Made by a Person Who Is the Subject of an Appeal#What is a new issue requiring notice?

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". In that case, the Federal Court concluded "clearly, this was procedurally unfair." See also: Canadian Refugee Procedure/The right to be heard and the right to a fair hearing#Disclosure rights and obligations for the Board.

This principle was not always operative in the Canadian refugee determination system; prior to the mid-1980s, the Federal Court held that the Minister was not bound to comply with the rules of natural justice and could more generally consider information without giving the claimant an opportunity to respond.

There are further principles that are related to this one, for example, refugees should have a full opportunity to challenge the evidence in their proceeding, which in turn entails the provision of information to refugees regarding the source and methodology used to obtain the evidence being used against them.

Further, where prior evidence is put to a witness as a contradiction, what is put to them must be a fair and accurate statement of their evidence. For further details, see: 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. The Refugee Appeal Division has set out the following recommended questioning approach where a potential discrepancy has emerged in a witness's testimony:

A recommended questioning approach is not to immediately flag a problem, but instead 1) to back up and ask an open question on the general area that includes the point where the discrepancy arose to see if the discrepancy is spontaneously resolved, 2) if the claimant repeats the discrepant evidence, a Member should summarize their understanding of the testimony – “so you are saying that he was a brother of your employee and they had the same parents?”, and 3) if the claimant confirms the Member’s understanding of the testimony, put the discrepancy to the claimant and ask for an explanation – “could you please explain why you said….”

As the RAD explains, the results of the above approach can be far more useful in assessing credibility than where a Member immediately flags a problem. Apparent discrepancies which were caused merely by faulty translations or ambiguous terms often resolve themselves in a helpful and satisfying manner as the claimant restates the evidence without a motive to reconcile contradictions. Furthermore, if the discrepancy does not resolve itself on its own, the record will include a firmer foundation for assessing any explanation by the claimant. Should the RPD fail to apply such principles, this may decrease the weight properly attributed to the credibility issue that arose.

The right to provide submissions on the law and the facts prior to a decision being reached

Failing to provide a party with an opportunity to make submissions prior to a decision being reached is a breach of procedural fairness. For more detail, see:

• For how this applies at the RPD, see: Canadian Refugee Procedure/IRPA Section 170 - Proceedings#IRPA Section 170(e) - Must provide an opportunity to present evidence, question witnesses and make representations.
• For the RAD, the provisions are different, but there rights of the Minister and the person who is the subject of the appeal are similarly protected: Canadian Refugee Procedure/IRPA Section 171 - Proceedings.
• See also: Canadian Refugee Procedure/165 - Powers of a Member#These powers must be employed fairly, which will generally require providing notice to the Minister.

Parties, including the Minister and a claimant, have a right to provide submissions prior to a decision being reached by the RPD or RAD. At times, it is argued that a prior decision, whether of another part of the IRB or another decision-maker of the RPD or RAD has already decided an issue, and hence a new panel should consider itself bound by the prior decision. For how this applies to application to reopen a matter, see: Canadian Refugee Procedure/RPD Rules 62-63 - Reopening a Claim or Application. In the case where a different Division of the Board, for example, the Immigration Division, has previously issued a decision involving the same applicant, this will not generally give rise to the application of the doctrine of res judicata. Res judicata prevents the re-litigation of the same legal issue as between the same parties. For the reasons articulated in Ndungu v. Canada, that will not ordinarily arise as between a proceeding before the Immigration Division and then the Refugee Protection Division:

In this case, the ID was required to determine whether the Applicant was inadmissible for involvement in organized criminality, in proceedings brought under the authority of the Minister of Public Safety and Emergency Preparedness. In contrast to this, the RPD was required to determine whether the Applicant had established his claim for asylum, in proceedings involving the Minister of Citizenship and Immigration. These are different legal questions, involving different parties.

For the related issue of the justification of factual findings that may differ from those of a previous panel, 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.

Ministerial notification rules ensure that a claimant will have advance notice of particular types of issues

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."

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.

For issues that are not noted in the above rule, it is generally sufficient for a panel of the Board to raise those issues at the start of the hearing. For example, there is no obligation on the RPD to raise the IFA issue and proposed locations before the RPD hearing as it suffices to do so at the beginning of the hearing.

The Board is bound by its own undertakings where it indicates that something is not at issue, that particular evidence is unnecessary, or that a particular procedure will be followed

To be fair, the Board's conduct must not violate a party's legitimate expectations. A legitimate expectation arises when a government official makes “clear, unambiguous and unqualified” representations within the scope of their authority to an individual about an administrative process that the government will follow. Legitimate expectations may arise from promises, representations, conduct, and established practices of the administrative decision maker. 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) will constitute a breach of natural justice. 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.

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.

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. This is so as the doctrine of legitimate expectations does not create substantive rights and cannot hinder the discretion of the decision-­maker responsible for applying the law.

Furthermore, 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. In the Federal Court's words, it is recognized that when an administrative body changes its procedures in a way that affects applicants, procedural fairness may require that those affected be notified of the changes and given a chance to adapt or comply with the new procedures—particularly if the changes could have significant or “fatal” consequences for their applications. While the court has indicated that it is preferable to provide notice of issues as far in advance as possible, so long as the tribunal provides an adequate opportunity to respond to the issue, procedural fairness is respected - even if notice of an issue is provided at some point during the hearing, not at the start of, or prior to, the hearing. In other words, officials are not obliged to follow “steps” in a policy to the letter, strictly and without flexibility or alteration, because they are “self-imposed” conditions, even where the operational context frustrates the Policy’s intended functioning. See also: Canadian Refugee Procedure/The right to an independent decision-maker#Members are not bound by previous interlocutory decisions on a file.

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.
• 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.

• Where the tribunal publishes a policy which indicates that it will follow a particular practice, parties may rely on it: Applicants are entitled to rely on established procedures and publicly accessible policies of the administrative body, even if they are not generally legally binding. Member Edward Bosveld of the RAD has held that the RPD’s actions in creating, publishing, and committing to follow its Front End Security Screening Instructions give rise to a legitimate expectation that those instructions will be followed.
• 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. 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.
• The Board is not bound by the arguments raised by the parties in the proceedings, for example by an argument by the Minister that focuses on some issues, but not others.

The RAD is to conduct its own independent review of the file, including on issues of credibility, without necessarily holding a new oral hearing

The RAD has the power to set aside a determination made by the RPD and substitute its determination that, in its opinion, should have been made. This requires the RAD to conduct its own assessment of the evidence de novo. The Federal Court of Appeal commented on the meaning of the word "de novo" in this context:

I also conclude that an appeal before the RAD is not a true de novo proceeding. Recognizing that there may be different views and definitions, I need to clarify what I mean by “true de novo proceeding”. It is a proceeding where the second decision‑maker starts anew: the record below is not before the appeal body and the original decision is ignored in all respects. When the appeal is a true de novo proceeding, standard of review is not an issue. This is clearly not what is contemplated where the RAD proceeds without a hearing.

This may involve a re-assessment of the credibility of the evidence without entitling an appellant to a second oral hearing. However, the RAD cannot be faulted for not having considered and addressed arguments that were not raised on appeal. See: Canadian Refugee Procedure/110-111 - Appeal to Refugee Appeal Division#IRPA s. 111(1)(b): the Refugee Appeal Division may set aside the determination of the RPD and substitute a determination that, in its opinion, should have been made.

Fairness considerations related to the manner of conducting a hearing

The right to counsel

The right to retain and instruct counsel is a principle of natural justice. For considerations of the right to counsel and incompetence of counsel, see the commentary to s. 167 of the Act: Canadian Refugee Procedure/RPD Rules 14-16 - Counsel of Record#IRPA s. 167 - Right to counsel.

Hearings shall normally be conducted privately

See the commentary on section 166 of the Act: Canadian Refugee Procedure/166 - Proceedings must be held in the absence of the public.

The right to present evidence

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. 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, denies a party a reasonable opportunity to cross-examine a witness, refuses to receive evidence, or prevents a party from calling witnesses, 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.

The failure to allow a witness to testify or discouraging a witness from testifying could constitute a breach of procedural fairness

Where the Board denies a party a reasonable opportunity to cross-examine a witness, refuses to receive evidence, prevents a party from calling witnesses, or discourages a witness from testifying, this may amount to a denial of the right to be heard and to a breach of natural justice. As the court stated in Kamtasingh v. Canada: "the place to control excessive or repetitive evidence on issues of controversy which are central or determinative is generally not at the entrance to the witness box, but once the witness is testifying". 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. In the Federal Court's words in Ahmad v. Canada, "fairness does not require that an applicant be permitted to call multiple redundant witnesses to give repetitive evidence". See more: Canadian Refugee Procedure/RPD Rules 3-13 - Information and Documents to be Provided#Rule 10(6) provides that the Division may limit the questioning of witnesses.

A panel can establish principled rules regarding the manner in which a witness testifies

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. Examples of such principled limitations include:

• Having witnesses put away notes: The Board states that witnesses should not generally be permitted to give their testimony by reading from notes. The Refugee Appeal Division has held that whether a hearing is in person or virtual, a refugee protection claimant must not read their Basis of Claim Form (BOC Form) or their notes during the hearing without obtaining the member’s authorization. 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.
• 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 a 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/RPD Rules 44-48 - Witnesses#44(1)(f): If a party wants to call a witness, the party must provide information on whether the party 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. More detail on this is provided at RPD 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/RPD Rules 3-13 - Information and Documents to be Provided#RPD 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 necessary for the claimant’s counsel to question first in order to ensure that evidence is properly presented in particular hearings, 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.
• Not allowing leading questions on direct examination: The Board has stated that a Member should not ordinarily allow leading questions in examination-in-chief, except for non-contentious basic information. However, the court notes that such guidance does not constrain the Board when it is questioning, and a panel is in fact free to ask leading questions, though having done so, this may affect the weight properly ascribed to any answer.
• Limiting the matters that may be raised by a claimant's counsel on redirect questioning: Where counsel has had an opportunity to ask a witness questions, and then they ask additional questions following the Member and other party's questions, counsel is not ordinarily at that point entitled to go into new areas of testimony with the claimant because counsel has already had a reasonable opportunity to present evidence on behalf of the claimant. For example, in Lokhande v. Canada, when counsel for the applicants stated at the second sitting of the hearing that he had some questions for the principal applicant, the RPD reminded counsel that they were “already finished with him.” The RAD found that the applicants had not established a breach of procedural fairness and this decision was upheld by the court.

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

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. 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. Furthermore, a panel may determine that counsel will only be given a specified amount of time in order to ask questions in a case; in Ramachandiran v. Canada, the RAD noted "Counsel was given more than 40 minutes for questions, which is generally considered ample time". 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. See: Canadian Refugee Procedure/The right to an unbiased decision-maker#The tone and tenor of the decision-maker’s involvement in the hearing.

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

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." It is important for a decision-maker to be aware of their tone and their reactions when they are hearing evidence. Intrusive and intimidating interventions by a Board member may be found to interfere with an applicant's ability to present his case. 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". 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. Similarly, in Farkas v. Canada a Board ruling was set aside because of persistent and aggressive questioning by one of the Board members. That said, the fact that a panel acted in a manner the lacked sensitivity will not in itself suffice to overturn a decision; for example, in Miranda v. Canada the court concluded that the panel was "abrupt and indifferent, which suggests, at worst, that the RPD was not welcoming or sensitive to the applicant while he was talking about difficult experiences", but nonetheless went on to uphold the decision. This general issue is related to issues of bias and prejudgment of the evidence, which see: Canadian Refugee Procedure/The right to an unbiased decision-maker#Bias and the Member's Inquisitorial Role.

In some cases, evidence may only be admitted where it is credible and trustworthy

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. For further discussion of this, see: Canadian Refugee Procedure/170 - Proceedings#IRPA Section 170(h) - May receive and base a decision on evidence considered credible or trustworthy.

The RPD and RAD have rules on submitting evidence post-hearing and post-perfection of an appeal

The RPD and RAD have rules on submitting evidence post-hearing and post-perfection of an appeal, respectively. Which see: Canadian Refugee Procedure/RPD Rules 31-43 - Documents#RPD Rule 43 - Additional documents provided as evidence after a hearing and Canadian Refugee Procedure/RAD Rules Part 3 - Rules Applicable to All Appeals#RAD Rule 29: Documents or Written Submissions not Previously Provided.

In Abiola v. Canada, near the end of the RPD hearing, the Associate Applicant addressed the RPD member with additional, new evidence that he had procured on his phone regarding the presence of Ijaw militants in Benin City, originally one of the IFA locations under consideration. In response, the RPD member told the Associate Applicant that she would consider only one article as part of her decision and would not accept any others: "So, are you -- I am not going to accept kind of every article that you can Google – certainly, but that first article on Benin State (sic), if you send that to Counsel, I will accept that first article on Benin State, okay?" The court concluded that, despite the appellant's submission that this RPD statement was procedurally unfair because it dissuaded the appellants from presenting new evidence during the hearing, the appellants had not provided evidence that demonstrated that they were prevented from submitting new evidence post-hearing as they had not attempted to do so.

Members are expected to act honestly and in good faith and are precluded from "setting traps" for claimants

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." 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. In international law, the concept of good faith, or bona fides, is taken to include duties of honesty, loyalty, and reasonableness. The Federal Court observes that the Member's role "calls for exemplary probity and integrity." 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.

This will also preclude more subtle actions that do not demonstrate good faith, such as "setting traps" for claimants. 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". In Yahaya v. Canada, the court concluded that the panel had breached procedural fairness as follows: "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." 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. 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 mis-describing the issues to be addressed, which has held to be unfair. Similarly, in Sivaguru v. Canada the Federal Court of Appeal quashed a decision in a case where a panel member, after hearing evidence on the claimant’s knowledge of the LTTE’s violent activities in Sri Lanka, and doubting his credibility, initiated a search for further evidence, and upon resuming the hearing, did not disclose this contradicting evidence until he had questioned the claimant further, in a way that was described by the court as the setting of a trap.

Abuse of process and actions of parties and the Board

Abuse of process “aims to prevent unfairness by precluding ‘abuse of the decision-making process’”. Abuse of process is strictly procedural, intended to prevent the misuse of a decision-maker’s own proceedings in a way that is manifestly unfair to a party or that would bring the administration of justice into disrepute. Pursuant to this doctrine, RPD Members have the ability to refuse to hear an application that was brought in an unjust or unfair manner. The doctrine of abuse of process may be invoked in refugee proceedings, usually where the Minister has tarried in bringing an application to vacate status. For considerations related to delay in the tribunal convening a hearing, unrelated to the actions of any party, 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. However, the doctrine may apply in other ways, too, for example where a claimant fails to disclose a significant event, like a substantially identical past application, in an attempt to re-litigate a question while hiding unfavourable evidence. In Canada v. Shen, the court accepted that the Minister breached their duty of candour to the RPD and that this breach rose to the level of an abuse of process.

The type of abuse of process that the Board generally has jurisdiction to consider is that which involves misconduct that directly impacts the fairness and integrity of the Board's own process, such as protracted scheduling delays or unjustified withholding of evidence. The Immigration Division lacks the jurisdiction to review abuses of process beyond those that impact its internal processes, such as allegations of abuse of process related to the Minister's motivations for bringing a case.

A hearing should be conducted in a way that upholds the dignity of the individual

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

Hearings should be conducted in a trauma-informed manner

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. Indeed, IRB Member Railton has noted that "most claimants are suffering some trauma or stress when they arrive in Canada". 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. A fair hearing process is one that takes these concerns into account and seeks to minimize them.

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: "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." The IRB's gender guidelines state that members shall “conduct the hearing and their questioning in a trauma-informed manner. Members should, to the extent possible, prevent individuals from becoming traumatized or re-traumatized by the hearing process. For example, members should avoid any line of questioning at a hearing, or reasoning in a decision, that suggests that a survivor is responsible for the abuse that they suffered.” See: Canadian Refugee Procedure/Guideline 4 - Gender Considerations in Proceedings Before the Immigration and Refugee Board.

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:

• Priority processing should be available for some claimants: 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.
• Questions should be appropriate for the claimant: 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. Furthermore, since the nature of a hearing is not adversarial, the panel should control the scope of any cross-examination where it is liable to traumatize a claimant. A panel should limit cross-examination when it believes that the proposed questioning would add little to the knowledge of the decision-maker and would unduly prejudice the claimant or cause unwarranted emotional strain.
• Members should adopt an appropriate demeanour: See: Canadian Refugee Procedure/The right to an unbiased decision-maker#A passive or distant countenance is not required of Board members.

As Rehaag and Verman observe, the occasional problematic, insensitive, or insufficiently trained decision-maker has a disproportionate effect beyond the claimants appearing before them. This is so because counsel, concerned that their clients might be assigned an IRB member who adopt an invasive, stereotypical, and over-medicalized approach to their clients, feel that they have to marshal evidence and prepare clients for this potential. In other words, Rehaag argues, conscientious lawyers still needed to prepare clients for the worst-case scenario. This process, he set out, required digging into intimate personal information, condensing complex identities into digestible narratives, preparing to discuss traumatic experiences with a hostile authority figure, and practicing insensitive scrutiny of performed gender identities and expressions.

Hearings should be conducted with appropriate skill in inter-cultural communication

In most cases, a claimant's evidence will be given through interpreters, usually different at each proceeding. The process is fraught with the possibility of innocent misunderstanding. Members should be aware of this in how they interpret testimony. See: Canadian Refugee Procedure/RPD Rule 19 - Interpreters#What should be done if there are concerns about the quality or accuracy of interpretation?.

The Federal Court has held that a Member's findings must be "duly sensitive to cultural differences" and that the Board "must be careful not to review evidence unduly with a North American lens". The court also states that "the Board should not be quick to apply the North American logic and reasoning to the claimant's behaviour: consideration should be given to the claimant's age, cultural background and previous social experiences". In Justice Harrington's words, "sometimes it can be difficult to realize that many of our attitudes derive from our own culture and may not be universally shared. If these attitudes, or biases if you will, are not recognized, it is impossible to cast them aside and try to walk a mile in someone else’s shoes." Each person reacts in their own way when recounting their experiences; there should not be an expectation refugee claimants behave or express themselves in a certain way when testifying about their experiences.

The Federal Court has spoken positively of the RAD being "clearly alert to the risks of unconscious or implicit racial bias". The RAD has also emphasized that this has implications for who should be selected to serve on the tribunal, stating: "It is desirable and, arguably, necessary that the composition of the tribunal reflect the composition of Canadian society and, in particular, the immigrant community which it has been created to serve."

The court also states that every application for protection in Canada presents its own unique and distinct anatomy, and demands that attention be paid to cultural, historical, socio-political and socio-economic factors. International standards provide that decision-makers should be taught the inter-cultural skills required to conduct interviews in a non-discriminatory and meaningful manner. 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. The general view is that cultural competence is likely to be context-specific, given the heterogeneity of refugee populations; 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 resources of local service providers—both mainstream and culturally-specific." For example, the UN High Commissioner for Human Rights states that their officials doing interviews need to be aware that some interviewees may use different temporal references or do not pay attention to dates and time. Staff should understand how they relate to time (e.g., by linking facts to remarkable events, seasons, holidays and festivities) to trace back possible dates of human rights incidents. Rehaag and Verman observe that claimants may use concepts that are unfamiliar to IRB members or counsel, necessitating a degree of complicated cultural translation.

See also: Canadian Refugee Procedure/Principles for the interpretation of refugee procedure#Decisions taken under this Act are to be consistent with the principles of equality and freedom from discrimination.

Hearings should be conducted in manner that appropriately considers gender

If a Member acts in a way that does not appropriately consider gender, they may be raising a reasonable apprehension of bias. For example, the Federal Court of Appeal commented as following in Yusuf v. Canada:

In my opinion, these sexist, unwarranted and highly irrelevant observations by a member of the Refugee Division are capable of giving the impression that their originator was biased. The day is past when women who dared to penetrate the male sanctum of the courts of justice were all too often met with condescension, a tone of inherent superiority and insulting "compliments". A judge who indulges in that now loses his cloak of impartiality. The decision cannot stand.

See further: Canadian Refugee Procedure/The right to an impartial decision-maker.

Gender should also 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." 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 and the percentage is similar in Canada. For more detail, see: Canadian Refugee Procedure/Chairperson Guidelines.

Kaur v. Canada provides another type of example. In that case, the person concerned had not made a refugee claim at an inquiry because of threats and duress by her husband. Kaur has been taken for the proposition "that an immigration inquiry, held at a moment when the person concerned was under the direct influence of a third party (her husband) and not free to bring up facts as they were, could be seen as having breached the rules of natural justice, with the result that the decision that followed was a nullity under the Charter and the adjudicator could reconsider his decision."

Videoconferencing is not per se unfair, but may be inappropriate in certain circumstances

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/164 - 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

There is no statutory right to a recording of a Division's 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 can be made on the basis of evidence established through other means, the principles of natural justice will not be infringed. To succeed, the onus rests on an applicant to raise an issue that “affects the outcome of the case that can only be determined on the basis of a record of what was said at the hearing such that the absence of a transcript prevents the Court from addressing the issue properly”.

As such, in Popoola v. Canada the court concluded that the fact that the recording included inaudible portions in the testimony about which credibility findings were made was not a basis for setting aside the decision. This was so because the inaudible portions were "minimal in nature and often [were] illuminated by follow-up questions from the RPD", and as such, the case was one where the record permitted the court to determine whether the RAD’s findings were reasonable on the evidence before it. The fact that a hearing was not recorded whatsoever will also not be a basis for setting aside the decision where an applicant does not explain how this failure to record the hearing is determinative in resolving an issue central to the claim. Furthermore, in cases where no recording has been made, it remains open to the decision-maker to provide their notes of what was said at the hearing, which may be sufficient. The Board may also provide a summary of the claimant's evidence and this may provide an adequate record.

On the other hand, 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 prevents 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). However, the applicant retains the burden of proving that a breach of procedural fairness occurred. They may do this by, for example, submitting an affidavit with sufficient particulars to establish this. It is relevant to consider, for example, whether the claimant states that they did not remember their testimony and need the recording to verify what was said, and whether they are alleging that the Board has misconstrued their testimony, or that there were other material factual errors in the RPD Decision. Where an applicant relies on gaps in the recording of the hearing, the applicant must show a “serious possibility” that the gaps have denied the applicant a means of appeal.

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.

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

The Federal Courts Citizenship, Immigration and Refugee Protection Rules provide that the tribunal must prepare a record containing a transcript "if any". Essentially, at the judicial review stage of proceedings, 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. It used to be the case that transcripts were produced as a matter of course in the Canadian refugee protection system; for example in the Refugee Status Advisory Committee system that existed prior to the establishment of the IRB, a senior immigration officer would examine the claimant under oath, a stenographer would be present, and then that transcript would be forwarded to the RSAC. This was abandoned as the regime developed, decision-makers were now face-to-face with claimants as a legal requirement, and audio recordings of hearings became the norm. That said, transcripts are frequently prepared for hearings of more than two hours in duration that are appealed to the RAD. See: Canadian Refugee Procedure/RAD Rules Part 1 - Rules Applicable to Appeals Made by a Person Who Is the Subject of an Appeal#Rule 3(3)(b): The appellant's record must contain all or part of the transcript of the Refugee Protection Division hearing if the appellant wants to rely on the transcript in the appeal. The court held in Abdi v. Canada that it was procedurally fair for the RAD to rely on such a transcript which had not been provided to the appellant. This was so as the evidence in question was the applicant’s own and he had been provided with a recording of that testimony.

Fairness considerations related to decisions

Parties are entitled to timely decisions and reasons therefor

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." Ordinarily, RPD decisions are to be provided orally at the end of the hearing: Canadian Refugee Procedure/RPD Rules 3-13 - Information and Documents to be Provided#RPD Rule 10 - Order of questioning in hearings, oral representations, oral decisions, limiting questioning. 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.

The fact that there has been a delay in providing a decision will not generally justify setting aside the decision, once issued. Delay in itself does not amount to a breach of procedural fairness. 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.” However, if the delay is excessive, and that the delay causes prejudice or harm to the Applicant, then relief could be available. For a discussion of this test, see: 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

The Supreme Court of Canada has long recognized that an administrative decision-maker is not required to personally perform all tasks entrusted to them by law and that they may delegate to administrative staff the task of performing certain duties on which informed decision-making necessarily depends, such as, for example, the gathering and analysis of evidence. This said, what is essential is that the person designated by the statute or regulation to make a decision be the one who makes the decision, after personally addressing the file and becoming sufficiently acquainted with all aspects of the issue in dispute, even if they ultimately adopt recommendations that may have been made to them.

In short, the principle that delegata potestas non potest delegari applies to matters at the IRB and 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."

Each claim should be considered individually, while overall decision-making should be predictable and consistent

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

Each claim should be considered individually

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. That said, where claims are joined and they rely on a similar version of events, the panel's factual determinations may reasonably apply to each joined claim. In Pedige v. Canada, the court wrote as follows:

[T]he Applicants argue that the RAD erred by failing to consider the Associate Applicant’s case independently by improperly importing findings from the Principal Applicant’s claim. Each of the Applicants’ claims in this case relied on a similar version of events. Namely, Sri Lankan authorities had pursued and abused them and their family following an environmental protest instigated by the Principal Applicant. The RAD rejected this version of events. It was reasonable for the RAD to import those findings into the analysis of the Associate Applicant’s claim.

See also RPD Rule 55: Canadian Refugee Procedure/RPD Rules 55-56 - Joining or Separating Claims or Applications.

This principle that each claim should be considered individually is also in play where one RPD panel relies upon fact-finding conducted by another panel. As a starting point, "an individual case does not establish binding factual precedents or eliminate the necessity of proving facts in each [subsequent] individual case." That said, there are circumstances in which one panel of the RPD can rely on fact-finding conducted by another. This usually occurs uncontroversially in the context of documentary evidence about conditions in the country in question, where both panels had the same record before them from the same National Documentation Package. That said, the Federal Court has stated that relying on fact-finding conducted by another panel must be done "sparingly" 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”. This is so for a number of reasons, including that the information before another panel generally cannot be verified, as the record in another case is generally not before the new panel that is deciding what weight to place on another panel's factual findings. Even where a party submits that the record in the case at bar is similar to that in another case, the Federal Court has noted that "this does not establish that it was". Furthermore, credibility determinations have been described as constituting "the core of the discretionary power of triers of fact", and Members should not fetter their own discretion when making such determinations.

A panel may not rely on fact-finding done by another panel where the same evidence is not before the new panel; in Smith v. Canada, the RPD found that 94 percent of U.S. military deserters are dealt with administratively based on a finding made by a previous panel. The Federal Court held that such a finding of fact cannot be the subject of “judicial notice” and no notice was given of the use of specialized knowledge. Furthermore, importing this finding of fact was “clearly not acceptable” because a finding of fact must be based on the evidence submitted to the decision maker. See: Canadian Refugee Procedure/The right to be heard and the right to a fair hearing#The Board must not rely on evidence that is not on the record or otherwise properly available to the Member.

Such concerns apply equally to more case-specific factual findings. 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.

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". For further detail on this point, see: Canadian Refugee Procedure/The right to be heard and the right to a fair hearing#Use of templates and precedents.

Moreover, this issue can arise on appeal where the RAD does not engage in an independent assessment of the case. A RAD Member may not dispose of an appeal in a few sentences by simply stating that they had reviewed the record, done an independent assessment, and agreed with the RPD. In the Federal Court's words in Jeyaseelan v Canada, “An overly obsequious support for and reinforcement of all RPD findings can bring into question the independence of the RAD’s analysis”. In Ogbemudia v. Canada, the appellants noted the different font sizes within the RAD Decision and pointed to paragraphs 8 through 10 of the Decision, submitting that the RAD directly copied and pasted that portion of the RPD decision and parroted points made by the RPD. As such, the appellants argued that the RAD failed to conduct an independent assessment of the evidence. The Court concluded that it would only intervene if the RAD’s incorporation of the RPD’s material would lead a reasonable person apprised of all the relevant facts to conclude that the RAD has not put its mind to the issues and made an independent decision based on the evidence and the law. In that case, the court found that what had been copied was simply a background statement of applicable principles and law, and concluded that the applicants had failed to demonstrate that this copying and pasting, on its own, indicated that the RAD had failed to conduct an independent assessment of the applicants’ claims.

Similarly, when a matter is remitted for redetermination, the new panel should not copy and paste from the prior decision in a way that calls into question whether they considered new evidence at all: Canadian Refugee Procedure/The right to be heard and the right to a fair hearing#Use of templates and precedents.

A separate issue can arise about the necessity to determine where an individual's family members will likely reside in future and how that could affect their risk upon return: Canadian Refugee Procedure/RPD Rules 55-56 - Joining or Separating Claims or Applications#Even where claims are joined as per RPD Rule 55, each claim is still considered individually.

Decision-making should be predictable and consistent across the Board

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. 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. 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." In short, in the context of this decision-making scheme, from a policy point of view, it is important that like cases be treated alike, and that this be seen to be done. Similarly situated individuals should not have different appeal rights, for example. As Neil Yeates writes in his report on the Board‘s operations, "fairness is undermined when decision making is not perceived as consistent". In the pithy words of the philosopher Patricia Mindus, "arbitrariness is detrimental to the legitimacy of any rule in a deep and decisive way". Furthermore, in the evocative words of refugee lawyer David Matas, consistency and accuracy in the system’s determinations are important, lest, “real refugees seeking protection in Canada [] evade authorities rather than submit themselves to a deadly game of Russian roulette.”

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”. 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.” 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. 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. Yet it can be difficult to know how similar the facts are given that, immigration cases, like any administrative decision, are heavily fact dependent and arise out of uniquely personal circumstances. 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". 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, including those in Australia and the United States.

Moreover, 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. 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. As per the Federal Court, Canadian administrative law does not recognize inconsistency in a tribunal’s decisions as a stand-alone ground of review. Potential disparity of outcomes is said to be "the natural consequence of the framework established by the Supreme Court of Canada in Canada v Vavilov" and "where there is evidence on both sides of the issue, decision makers may well reach opposite decisions that are equally reasonable." Furthermore, as the Federal Court recognized in Arumaithurai v. Canada, Members are not even bound by their own past decisions as "the principle of stare decisis does not apply horizontally with respect to decisions of administrative tribunals such as the RPD". In the words of the Supreme Court of Canada, "the mere fact that some conflict exists among an administrative body’s decisions does not threaten the rule of law." Legal philosophers have criticized the emptiness of the principle that like cases should be treated alike, as ‘any two items can be deemed alike in some respects and unalike in others, thus making the mere idea of likeness or unlikeness singularly unhelpful’.

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. It is said that the starting point for tribunals is that while they should try to follow their earlier decisions, they are not bound by them. The principle of judicial comity provides that judges of the same court should follow earlier decisions rendered by judges of that court, although those earlier decisions are not binding on the judge and the principle applies to questions of law, not findings of fact. The principle of judicial comity can also be articulated as the principle that judges treat fellow judges’ decisions with courtesy and consideration. The same principle applies to decisions made by members of the same Division of the IRB. 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”. The court observes that consistency is a particularly important concern in areas such as assessments of NDP evidence. If another decision is brought to the attention of a panel, for example that of a family member or other similarly situated persons, the panel should review the similarities and explain why a different result is being reached from earlier decisions based on the same or very similar circumstances and country condition documentation, if that is what is happening. As stated by Justice Norris, “where … there are substantial similarities between the circumstances of the claimant and those of others whose claims have been accepted, if a different outcome is to be reasonable, the decision maker must provide a reasoned explanation distinguishing the earlier positive decisions”. For example, in the case of Arumaithurai v. Canada, cited in the previous paragraph, the court has noted that there were material differences between the earlier findings in respect of the two brothers and the case of the applicant in that matter. Justice Mosley stated specifically that the “Member implicitly took into account the distinguishing characteristics between the Applicant’s case and those of his brothers”. Furthermore, it is important that the reasoning within decisions be consistent and that inconsistent reasoning not be employed in different sections of a single decision.

In choosing to follow, or distinguish, another decision, Federal Court judges 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. While recognizing that the standards applicable to courts and tribunal differ, regard may also be had to what are known as the Spruce Mills criteria for when a judge of a court may depart from horizontal stare decisis: (1) the rationale of an earlier decision has been undermined by subsequent appellate decisions; (2) the earlier decision was reached per incuriam (“through carelessness” or “by inadvertence”); or (3) the earlier decision was not fully considered, e.g. taken in exigent circumstances. Looking at jurisprudence specific to the IRB, it is held that the Board is not bound by the result in another claim, even if the claim involves a relative, because refugee status is determined on a case by case basis, and because it is possible that the other decision was incorrect.

However, it will not always be necessary for a panel to articulate how a previous decision of the RPD differed from the previous case; in Arumaithurai v. Canada the court concluded that in the circumstances "the RPD was not required to engage in such an analysis" and "any flaw or shortcoming in the reasons of the RPD in this regard was not 'sufficiently central or significant to render the decision unreasonable'”. Similarly, in Vanam v Canada the court concluded that "the prior IFA decisions cited by the Applicants are distinguishable and are not the type of decisions imposing a 'justificatory burden' on the RAD to explain a departure from its previous decisions". In Paljor v. Canada, the court held that the RAD was not required to review and cite all prior decisions of the Board that were provided by the applicant because "assessing claims for refugee protection is individualized to the claimant" and "The fact that the IRB assessed other Tibetan individuals in a separate claim differently is not necessarily relevant to the reasonableness of the RAD’s decision". Furthermore, from a practical perspective, it is effectively impossible for each member of the RAD to be aware of every decision issued by every other member. It is unrealistic to impose on the RAD any obligation to be aware of all of its other decisions, let alone cite them or distinguish them, particularly in a case where they have not been raised.

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." The Board has stated that "it would be wrong to take a position only on the basis that the member previously took that position or that other panels have done so. Where fairness suggests a change in approach, it may be more important to be flexible than to be consistent." Goodwin-Gill notes that there are tens of thousands of published refugee decisions and "the judicial and administrative material could possibly be distilled quantitatively, but even then a clear outcome favouring one or other interpretation seems unlikely, and there is no doctrine of binding precedent by numbers". 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.

From an institutional point of view, one of the key tools that a large tribunal like the IRB uses to achieve consistency in decision-making is the guidelines issued by the Chairperson. For more information on which, see: Canadian Refugee Procedure/159 - Duties of Chairperson#159(1)(h) The Chairperson may issue guidelines in writing to members of the Board and identify decisions of the Board as jurisprudential guides. See also the ability of a Division's Deputy Chairperson to designate particular decisions as "persuasive": Canadian Refugee Procedure/159 - Duties of Chairperson#The Board has other ways of designating decisions, besides its power to issue jurisprudential guides. The legislation also provides that a decision of a panel of three members of the Refugee Appeal Division has, for the Refugee Protection Division and for a panel of one member of the Refugee Appeal Division, the same precedential value as a decision of an appeal court has for a trial court: Canadian Refugee Procedure/171 - Proceedings#IRPA Section 171(c).

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. 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.

Parties are entitled to reasoned decisions

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, and also Canada's domestic law. 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.

Whether or not reasons for decisions must be in writing or may be provided orally is a question governed by specific provisions of the IRPA; see the commentary to section 169 of the Act: Canadian Refugee Procedure/169 - Decisions and Reasons.

The requirement to provide reasons when an application is made applies equally to refugee claims by claimants, appeals, applications by the Minister, as well as to preliminary matters that are raised by a party. However, the reasons provided for interlocutory matters may be more brief: Canadian Refugee Procedure/RPD Rules 67-68 - Decisions#Section 169 of the IRPA specify circumstances in which written reasons must be provided, circumstances which do not include interlocutory decisions. Furthermore, non-parties, such as a former counsel who provides submissions on their alleged incompetent representation, do not have a statutory entitlement to reasons.

Fairness requires that a party's argument be considered and responded to. 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. 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. In Pardo v. Canada the Federal Court held that the Board erred by not acting on an argument that had been submitted to it and returned to the matter to the Board for redetermination.

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

The Board must not ignore evidence that is validly before a panel

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. 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/RPD Rules 31-43 - Documents#RPD Rule 43 - Additional documents provided as evidence after a hearing. Where there is a question about whether materials were submitted to the Board or not, a bare assertion by the applicant that the document was sent will not generally suffice to meet their burden to show that the document was properly submitted but not placed on the record.

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/RPD Rules 31-43 - 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. 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." That said, there are limitations on this principle, for example article 1E exclusion determinations by the Refugee Appeal Division may be limited to evidence regarding the risk to the claimant at the time of the RPD's determination of the matter, excluding evidence of new risks that emerged subsequently. See also: Canadian Refugee Procedure/RPD Rules 31-43 - Documents#The panel should consider the most recent National Documentation Package.

Furthermore, 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#The duty to find the relevant facts is shared in refugee matters.

The Board's findings of fact should accurately reflect the evidence

Misapprehending evidence that may have impacted the outcome of a decision constitutes a reviewable error. For example, in Varga v. Canada the Federal Court concluded that "The RPD seriously misstates Ms. Varga’s evidence" 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". Similarly, if the RAD misapprehends the RPD's reasons, this will also be a potentially determinative error.

However, in other situations where a misstatement has no effect on the analysis or the outcome of the application, this will not render the decision unreasonable. For example, in Rosu v. Canada, the court commented: "At most, the RAD’s statement that the applicant was “beaten up” at the gym (rather than threatened with a beating) was a minor misstatement. It had no effect on the RAD’s analysis or the outcome of the appeal. It did not render the decision unreasonable".

The requirement that the Board's findings accurately reflect the evidence does not mean that each piece of evidence or source for each statement needs to be cited, though it is preferable for a panel to do so. The court commented in Saidur v. Canada, "It would have been preferable if the IAD had cited the articles and reports in the country condition documentation from which it drew the language, facts, and figures, however, I do not find that this renders the Decision unreasonable."

The Board must not rely on evidence that is not on the record or otherwise properly available to the Member

A Member 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." Where a Member “fills in the gaps” in a refugee's account by making false assumptions, they err. Inferences drawn by a decision maker must be based on clear and non-speculative evidence.

For more discussion of this, see:

• Canadian Refugee Procedure/The right to be heard and the right to a fair hearing#Disclosure rights and obligations for the Board.
• Canadian Refugee Procedure/RPD Rule 22 - Specialized Knowledge

A panel may also not rely on fact-finding done by another panel where the same evidence is not before the new panel; in Smith v. Canada, the RPD found that 94 percent of U.S. military deserters are dealt with administratively based on a finding made by a previous panel. The Federal Court held that such a finding of fact cannot be the subject of “judicial notice” and no notice was given of the use of specialized knowledge. Furthermore, importing this finding of fact was “clearly not acceptable” because a finding of fact must be based on the evidence submitted to the decision maker. See: Canadian Refugee Procedure/The right to be heard and the right to a fair hearing#Each claim should be considered individually.

The Board's reasons should show that the panel meaningfully grappled with the key elements of the case

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. In the context of a claim for refugee protection, where the impact of the decision on the individual is severe, “the reasons provided to that individual must reflect the stakes”.

Decisions must follow the law

The Board's decision-makers are obliged to follow the law. In the words of the Federal Court, Board Members "must keep up with the case 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. For further discussion of this, see: Canadian Refugee Procedure/The Board's inquisitorial mandate#Refugee Status Determination is declaratory, not constitutive. A corollary of this is that a decision-maker should be fully conversant with refugee law in order to properly assess the claim. 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. The International Court of Justice has held that in international law, a panel is not limited to the arguments submitted by the parties and the panel is deemed to take judicial notice of the law and is therefore required to consider on its own initiative all rules which may be relevant.

Adherence to well-established jurisprudence and legal rules supports the virtues of uniformity and predictability, two key principles that underlie the rule of law and the rule of vertical stare decisis. The doctrine of binding precedent, or stare decisis, is the “principle by which courts render decisions consistent with those they have already rendered or those that higher courts have already rendered”. Administrative decision makers have the right to make a distinction based on the background facts before them. However, it is not open to them to refuse to follow the decision of a higher court on the ground that they consider the decision of the superior court to be erroneous, that they disagree with it, or that another interpretation should have prevailed. Stare decisis is fundamental to our legal system and remains the presumed starting point for any analysis of the state of the law on a given point. An administrative decision-maker is bound to follow applicable precedents originating from a court; the doctrine of stare decisis calls for no less. Trial courts (and administrative decision makers) may only reconsider settled rulings of higher courts in certain situations, specifically where a new legal issue is raised or where there is a change in the circumstances or evidence that “fundamentally shifts the parameters of the debate”. However, the standard to review and revisit a question that has already been decided by appellate courts is not an easy one to meet. That said, precedents may sometimes be revisited, the doctrine of stare decisis is not inflexible, and courts and administrative decision makers alike may consider whether there are compelling reasons to depart from earlier jurisprudence. 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.

What is binding from a case is the ratio decidendi, that is the reason for the court's decision. This may be contrasted with obiter dictum, remarks made by judges that do not affect the outcome of the case. Obiter may help to illustrate a judge’s reasoning, but obiter is not necessary for the decision reached. In refugee law, when considering what is the ratio of a decision, and what is obiter, caution must be exercised when relying on jurisprudence as refugee claims are fact-specific. Prior decisions of this Court are of particular value where questions of law arise. However, jurisprudence needs to be approached with caution when relied upon to interpret evidence and to support findings of fact.

In certain situations, there will be multiple streams of inconsistent jurisprudence. In such situations, it is justifiable for a member to choose the one they prefer or believe most fits the fact situation. In doing so, members should acknowledge in their decision that the jurisprudence is divergent. However, where where there is divided Federal Court authority on a point of law, the Board is not necessarily required to explain why it has adopted one view over the other. In the Federal Court's words, the "jurisprudence speaks for itself and the Board has no obligation to offer any additional interpretation of the legal authorities that it chooses to rely upon in resolving a point of law." However, this principle only applies where a decision maker fully adopts the reasoning in one line of authority, and by doing so, meets the justificatory burden imposed on it by the interpretive constraints at play.

Furthermore, in some cases an argument will be advanced that a binding court decision was itself incorrectly decided in light of a higher authority, such as a Supreme Court of Canada decision; when faced with such an argument, a panel should grapple with and consider it, not consider itself bound by the lower decision on 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.

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

Parties are entitled to reasoned decisions: Canadian Refugee Procedure/The right to be heard and the right to a fair hearing#Parties are entitled to reasoned decisions. This has a number of implications:

• Decisions should be clear, precise, and intelligible: The Federal Court holds that reasons should be "sufficiently clear, precise and intelligible" on all key points. For example, credibility determinations should be made in “clear and unmistakable terms”. It is a best practice for the reasons to explain the decision and conclusions in a manner that enables affected individuals and their counsel (as well as any reviewing body) to readily understand the Member's reasoning "without having to invest substantial time and effort to connect the bits of relevant evidence, [and any prior decisions and submissions]". In Sreecanthan v. Canada, the court observed that rather than identifying the specific items it was relying on in the NDP, the RPD made vague references to "item 14", which consists of multiple subitems, making it difficult to appreciate both the source and the content of the objective evidence that the RPD was relying on. The court found this to be an example of the lack of transparency that undermined the reasonableness of the decision.
• Decisions should provide a rational chain of reasoning: Decisions should provide a rational chain of reasoning and not contain any fundamental logical flaws, internal inconsistencies or contradictions, or other reasoning errors that can render a decision irrational or arbitrary.
• Decisions must include an analysis of how the legal criteria relate to the facts. 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”. Similarly, in Gedi v. Canada, the RAD accepted that the applicant's identity had not been established because of photographic evidence which the Minister had submitted which, the RAD accepted, tied the applicant to another identity. The Federal Court overturned this decision on judicial review, on the basis that the RAD failed to justify how it reached the conclusion that the photographs were of the same individual as it did not explain what distinguishing features led it to find that the photographs were of the same person.
• Decisions must contend with evidence that appears to contradict key findings. The Board Member must engage with evidence that, on its face, appears to contradict their key findings about the case.

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." One of the policy rationales for this was articulated by Plaut, who observed: "cogent, proper reasons can go a long way in assisting the claimant in accepting the decision and will also assist counsel in determining whether there are grounds for appeal or review."

Decisions may focus on the determinative issue

Decision-makers are not required to explicitly respond to each and every argument raised by the parties, or every line of possible analysis, but may instead focus on the determinative issues in the case. For example, the RPD is entitled to proceed directly to a forward-looking assessment of whether the applicant for refugee protection has a well-founded fear of future persecution, without first making a determination of whether a person has suffered past persecution. A decision-maker has particular latitude not to address an argument that arises on the record where the arguments in question were not made on appeal to the RAD but only earlier in the process, to the RPD. There are two lines of jurisprudence about whether a Division's analysis may stop once a claimant with multiple countries of citizenship has been determined to be safe in one of them, or whether it must proceed to consider the claimant's safety in each and every one of their countries of citizenship.

That said, each Division has the discretion to engage in analyses of alternative issues that are not essential to resolve the matter, for example for reasons of judicial economy in case the panel erred in making a different determination. Parts of the Board's decisions may be considered to be obiter, not ratio. Complications arise, however, with respect to decisions that applicants are excluded from the refugee protection regime. In a 1993 decision, the Federal Court of Appeal encouraged the Division to carry out an inclusion analysis even where a claimant has been found to be excluded. In light of subsequent amendments to the immigration legislation, including with the creation of the Pre-Removal Risk Assessment process in the IRPA, it is arguable that where exclusion is an issue in a claim, that should be analyzed before inclusion, and if the claimant is excluded, the analysis should stop there. The Federal Court of Appeal held in 2004 that to do otherwise is an infringement upon the Minister's responsibilities:

Once the Board found that the exclusion applied, it had done everything that it was required to do, and there was nothing more it could do, for the appellant. The appellant was now excluded from refugee protection, a matter within the Board's competence, and was limited to applying for protection, a matter within the Minister's jurisdiction. The Board's conclusions as to the appellant's risk of torture were gratuitous and were an infringement upon the Minister's responsibilities.

That said, the Federal Court has held that, after concluding that an applicant has been excluded, the Board may continue to carry out an inclusion analysis, but such an analysis may be made only in the alternative, to be considered only if the exclusion decision is overturned in the future. This is so as the scheme of the Act is that there is a restricted PRRA for persons excluded under Article 1F and such inclusion analysis is not carried out by the IRB. See paragraph 112(3)(c) of IRPA: Canadian Refugee Procedure/112-114 - Pre-Removal Risk Assessment. In the words of the court in Binder Singh v. Canada:

The requirement to decide the exclusion issue in priority over the refugee protection issue is also implicitly supported by other provisions of the Act. The applicant points out above in the passage cited from his memorandum that Parliament exempted persons excluded by the Immigration and Refugee Board (I.R.B.) under Article 1F(b) [of the Refugee Convention] from the one-year PRRA bar, reinforcing the understanding that such claims should always have been heard at first instance by the Minister and not by the I.R.B.

See also: 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.

Use of templates and precedents

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. 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". The Federal Court states that the use of "boilerplate passages" in a decision is not unreasonable by default:

[…] the Applicant’s suggestion that the use of “boilerplate passages” in the Board’s decision renders it unreasonable by default. On the whole, the Board’s state protection analysis addresses the correct question of whether a journalist such as the Applicant would be at risk. It is self-evident that much of the analysis will be the same for any given country. Provided that the “boilerplate” is based on the documentary evidence and addresses the particular evidence and position of a claimant, the Board’s repetition of certain passages from other decisions is not, in and of itself, an error.

The Federal Court states that an immigration officer can never use reasons that were set aside in a new decision:

The applicant had a new interview upon consent of the parties. A new decision must be a new decision. If the officer takes the liberty of using the old reasons, the decision is not new. A decision that follows reasons that have been set aside, whether or not on consent, can never be based on the reasons that were set aside. The fear must be addressed de novo by the new officer.

In a case where a claim had been remitted for a de novo hearing, and the new decision largely copied and pasted from the first, the Federal Court held that this issue was "so severe" that it amounted to an "unquestionable breach of the Applicant’s right to a de novo hearing". In that case, the RAD discussed the issue as follows:

In my review of both RPD Decisions and the oral testimony, I agree with Appellant’s Counsel that the second RPD Decision is seriously deficient. To a large extent, it appears that the second RPD Decision is “[copied] and pasted” from the first RPD Decision. As Appellant’s Counsel submits, paragraphs 4-21 of the second RPD Decision have the same wording as paragraphs 3-23 and paragraphs 26-30 of the earlier RPD Decision. Additionally, the references to Exhibits in the second RPD Decision follows the numbering of the original RPD Record as reflected in the first RPD Decision. The second RPD Panel does not refer anywhere to the oral testimony that the Appellant gave during the hearing that took place before the second RAD, thus making it unclear whether that testimony was assessed. I agree with Appellant’s Counsel that, considering all the evidence, this amounts to a substantive breach of the Appellant’s right to a de novo hearing.

See also:

• Canadian Refugee Procedure/The right to be heard and the right to a fair hearing#Each claim should be considered individually
• Canadian Refugee Procedure/The right to be heard and the right to a fair hearing#Decision-making assigned to a Member must be done by the Member and shall not be delegated.

Decisions must be non-discriminatory

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 - Gender Considerations in Proceedings Before the Immigration and Refugee 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.

Appeals

UNHCR states that an appeal stage is a standard feature of any refugee status determination procedure. The Executive Committee of the UNHCR has stated that applicants that are not recognized should be given a reasonable time to appeal for a formal reconsideration of the decision. The Federal Court holds that the deprivation of an appeal on the merits represents a departure from international legal standards designed to protect against non-refoulement.

The United Nations Committee Against Torture (CAT) has also emphasized the need for an appeal mechanism for people facing deportation to ensure that states do not violate the principle of non-refoulement. The CAT expressed the specific view that Canada should provide a review on the merits, rather than just a review of reasonableness, when a decision results in the expulsion of an individual to a place where they may face a risk of torture.

Regionally, Canada is subject to the jurisdiction of the Inter-American Commission on Human Rights (IACHR) which generates visit reports and thematic reports as an organ of the Organization of American States. In its 2000 report on the Canadian refugee determination system, prior to the operational implementation of the RAD, the IACHR found that Canada lacked a merit-based appeal process, and that Canadian judicial review and administrative processes did not have sufficient authority to reassess critical findings of fact for error. The IACHR stated “given that even the best decision-makers may err in passing judgment, and given the potential risk to life which may result from such an error, an appeal on their merits of a negative determination constitutes a necessary element of international protection” for which judicial review with limited leave provisions is not sufficient.

The concept of an appeal has been part of the Immigration and Refugee Board process since its founding. Originally, this was focused on the Federal Court's judicial review function, with the Immigration and Refugee Board writing in 1989:

The Right to Appeal Throughout all stages of this refugee determination process, the claimant is entitled to appeal negative decisions to the Federal Court of Canada. However, the claimant must obtain leave of a Federal Court judge to initiate such a review, which will only consider questions of law or ‘capricious’ findings of fact. The Federal Court will not consider the merits of the refugee claim.

Later, the Refugee Appeal Division was instituted: Canadian Refugee Procedure/History of refugee procedure in Canada#Refugee reform in 2010 and 2012.

Policy reports have urged that as a matter of fairness, parties should be given reasonable time to appeal a decision that they receive, whether to the Refugee Appeal Division or the Federal Court. That said, a full right of appeal on law and fact, as opposed to a more limited judicial review, has not been recognized as a principle of fundamental justice in Canada. Furthermore, effect cannot be given to unincorporated international norms that are inconsistent with the clear provisions of an Act of Parliament.

The Federal Court of Appeal has found the existence of an international norm that signatory states to the Geneva Convention should normally permit refugee claimants to remain in their territory until they have exhausted any right of appeal or review. However, it is also recognized in international instruments that states may derogate from the normal rule by providing more limited review and appeal rights to unsuccessful claimants whose claims have been held to be "manifestly unfounded". Thus, the UNHCR Executive Committee has indicated a consensus on the problem created by the increase in applicants who "clearly have no valid claim" or whose claims are "manifestly unfounded", and that states must create separate national procedures to address this problem. Consequently, the Executive Committee has recommended that, while refugee claimants must be given an opportunity to have a negative decision reviewed before their forcible removal, "this review possibility can be more simplified than that available in the case of rejected applications which are not considered manifestly unfounded or abusive." See more on manifestly unfounded claims: Canadian Refugee Procedure/107 - Decision on Claim for Refugee Protection#IRPA Section 107.1: Manifestly unfounded claims.

For the role and standard of review to be applied by the RAD when determining an appeal, see: Canadian Refugee Procedure/110-111 - Appeal to Refugee Appeal Division#IRPA s. 111(1)(b): the Refugee Appeal Division may set aside the determination of the RPD and substitute a determination that, in its opinion, should have been made.