References

1. ↑ Jenny Poon, A Legal Pluralist Approach to Migration Control: Norm Compliance in a Globalized World, 34 Emory Int'l L. Rev. Recent Dev. 2037 (2020). Available at: https://scholarlycommons.law.emory.edu/eilr-recent-developments/4 at page 2039.
2. ↑ High Commissioner's Forum, Resettlement and Convention Plus Initiatives, discussion paper, Doc FORUM/2003/02 (18 June 2003), para. 13.
3. ↑ Troper, Harold. The Canadian Encyclopedia, s.v. "Immigration in Canada", Last Edited September 19, 2017, https://www.thecanadianencyclopedia.ca/en/article/immigration
4. ↑ Encyclopedia, The Canadian. "Canadian Refugee Policy".  The Canadian Encyclopedia, 10 November 2020, Historica Canada. https://www.thecanadianencyclopedia.ca/en/article/canadian-refugee-policy. Accessed 30 December 2020.
5. ↑ Mindus, P. (2020). Towards a Theory of Arbitrary Law-making in Migration Policy. Etikk I Praksis - Nordic Journal of Applied Ethics, 14(2), 9-33. https://doi.org/10.5324.eip.v14i2.3712

Acronyms

Common acronyms used herein:^[1]

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

Terms

• Asylum seeker: individuals whose request for sanctuary has yet to be processed.^[4]
• Country of origin information (COI) is defined as "Information about the situation in a country that is relevant to the refugee determination process and obtained from publicly available sources that are viewed as, whenever possible, reliable and objective" in the Board's Policy on National Documentation Packages in Refugee Determination Proceedings.^[2]
• Identity: for commentary on the meaning of the term "identity" as it is used in the IRPA and the RPD Rules, see: Canadian Refugee Procedure/Information and Documents to be Provided#"Identity" as the term is used in the Act and the Rules refers to personal/national identity.
• Inland office: Any office of Immigration, Refugees and Citizenship Canada (IRCC) or the Canada Border Services Agency (CBSA) inside Canada.^[5]
• Jurisprudential Guide (JG) is defined as "A decision identified by the Chairperson as a JG pursuant to section 159(1)(h) of the Immigration and Refugee Protection Act (IRPA)" in the Board's Policy on National Documentation Packages in Refugee Determination Proceedings.^[2]
• Landed Immigrant: this is an old term that was used under the previous immigration Act and has been replaced by the term "permanent resident".^[6]
• Member: Decision maker on the RAD or RPD.^[3]
• National Documentation Package (NDP) is defined as "A selection of COI documents on a given country from which refugee claims originate, compiled by the RD based on information that is, whenever possible, accurate, balanced, and corroborated" in the Board's Policy on National Documentation Packages in Refugee Determination Proceedings.^[2]
• Non-refoulement is the legal principle banning expulsion and non-admittance of refugees at the border of States Parties^[7] where they would be returned to a country in which they face serious threats to their life or freedom.^[8]
• Permanent resident: The right to live, work, study and remain in Canada under specific residency obligations.

Definitions

• Interpretation refers to the oral transfer of meaning between languages.^[9] See, in contrast, translation.
• Translation refers to the written transfer of meaning between languages.^[9] See, in contrast, interpretation.

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

References

1. ↑ Refugee Hearing Preparation: A Guide for Refugee Claimants, 2019, Page 1 <https://refugeeclaim.ca/wp-content/themes/refugeeclaim/library/guide/rhpg-vancouver-en.pdf>
2. 1 2 3 4 5 6 Immigration and Refugee Board of Canada, Policy on National Documentation Packages in Refugee Determination Proceedings, Effective date: June 5, 2019, <https://irb-cisr.gc.ca/en/legal-policy/policies/Pages/national-documentation-packages.aspx> (Accessed August 30, 2020).
3. 1 2 3 Legal Aid Ontario, Refugee Case Law Toolkit <https://www.legalaid.on.ca/wp-content/uploads/Refugee-Case-Law-toolkit-EN.pdf>, page 7 (Accessed January 25, 2020).
4. ↑ United Nations High Commissioner for Refugees, Asylum-Seekers, <https://www.unhcr.org/en- us/asylum-seekers.html> (Accessed May 9, 2020).
5. ↑ Immigration and Refugee Board of Canada, Claimant's Guide (Print version), Version 5 - 2018 <https://irb-cisr.gc.ca/en/refugee-claims/Pages/ClaDemGuide.aspx> (Accessed January 25, 2020).
6. ↑ Woo v. Canada (Citizenship and Immigration), 2007 CanLII 69120 (CA IRB), par. 2, <http://canlii.ca/t/20z95#2>, retrieved on 2020-02-05.
7. ↑ Atle Grahl-Madsen, Commentary on the Refugee Convention 1951, Articles 2–11 (Division of International Protection of the United Nations High Commissioner for Refugees 1997), 13–37.
8. ↑ UN General Assembly, “Convention Relating to the Status of Refugees.”
9. 1 2 Tess Acton, Understanding Refugee Stories: Lawyers, Interpreters, and Refugee Claims in Canada, 2015, Master of Laws Thesis, <https://dspace.library.uvic.ca/bitstream/handle/1828/6213/Acton_Tess_LLM_2015.pdf>, page 39 (Accessed January 23, 2020).

Early refugee policies

Globally, the first record of the term ‘refugee’ is popularly credited in application to French Huguenots who relocated to neighbouring European territories around Louis XIV’s revocation of the Edict of Nantes in 1695.^[1] One million Huguenots left France and settled across the European continent around this time. It is no coincidence that the term "refugee" emerged at this time in the 17th century, shortly after the Peace of Westphalia that birthed key concepts in modern international relations, including the inviolability of borders and non-interference in the domestic affairs of sovereign states. Indeed, Harsha Walia labels the concept of an "asylum seeker" as a "state-centric taxonomy only possible because of a prevailing assumption of the border as a legitimate institution of governance".^[2]

Despite this, related concepts, including those of migration, exodus, asylum, and refuge long pre-date the modern usage of the term "refugee". (Im)migration and refugee processes, of a sort, have long been present in the territory of Canada. For example, some First Nations would absorb war captives and refugees from neighbouring First Nations, as with the Haudenosaunee (Iroquois) who are said to have pursued an ancient ideal that they “extend the rafters of the longhouse” by absorbing their neighbours into one nation, thereby producing a universal peace.^[3] Warfare between First Nations also created what could be called refugees who would flee to new regions, for example, with the coming of the fur trade in the 16th century, the Haudenosaunee embarked on campaigns to subjugate or disperse neighbouring groups and the French-allied Huron-Wendat were dispersed from their homeland after several villages were destroyed in 1649; such dispersal campaigns would also impact the Petun, Neutral and Erie in the following decade.^[4] Forced displacement of indigenous persons also resulted from the actions of the colonial regimes that emerged in Canada, for example, with the physical displacement inherent in the reserve system, which abrogated many relationships with traditional territories, as well as related social, cultural, and political displacements.^[5] In the words of the section of the final report of the Royal Commission on Aboriginal Peoples on Displacement and Assimilation:

[The impact of colonialism on indigenous populations was profound.] Perhaps the most appropriate term to describe that impact is 'displacement'. Aboriginal peoples were displaced physically — they were denied access to their traditional territories and in many cases actually forced to move to new locations selected for them by colonial authorities. They were also displaced socially and culturally, subject to intensive missionary activity and the establishment of schools — which undermined their ability to pass on traditional values to their children, imposed male-oriented Victorian values, and attacked traditional activities such as significant dances and other ceremonies. In North America they were also displaced politically, forced by colonial laws to abandon or at least disguise traditional governing structures and processes in favour of colonial-style municipal institutions.^[6]

In the 1700s and 1800s, the British instituted policies to encourage immigration to British North America, including by those who would rightfully be termed refugees today. For example, 50,000 United Empire Loyalists, supporters of the British in the American revolution, migrated north in response to American republicanism.^[7] Many of them migrated northward not by choice but by default, either because they did not wish to become citizens of the new American republic or because they feared retribution for their public support of the British during the War of Independence.^[8] The retribution meted out to loyalists in the United States included beatings, imprisonment, and other forms of harassment.^[9] Among these loyalists who migrated northward were an estimated 2000 members of the aboriginal peoples bordering the Thirteen Colonies who had supported the British cause, believing that an alliance offered the best hope for preserving their independence and protecting their territories from land-hungry colonists.^[10] The loyalists also included thousands of free black persons, some of whom had heeded a British proclamation issued early in the war offering freedom to any slave who deserted his (sic) American master during the Revolution and volunteered to serve with the King's forces. Most of the new black arrivals responded to an offer of freedom made late in the conflict that guaranteed that all slaves who made formal claim to protection behind British lines would receive their freedom.^[11] Upon arrival, many of these black loyalists faced the scourge of racism and dismal agricultural prospects in Nova Scotia, and, bitterly disappointed, 1,200 sailed for Sierra Leone to start afresh on the west coast of Africa in 1792.^[11] Nonetheless, over the next century an estimated 30,000 African Americans came to Canada as the final stop on the underground railroad, seeking protection from slavery in that country.^[12]

Overall, from the point of view of western states, before the First World War (WWI) people used to enjoy a certain freedom of movement in the world and, as such, defining a refugee was not a major concern for the reigning powers.^[13] In the 19th and early 20th centuries, displaced, persecuted, and poor populations in Europe and North America simply moved to new jobs and opportunities in other regions.^[14] Passports, for example, were not generally required for European and North American travel until the First World War.^[15] There were also explicit efforts to entice refugees to choose to come to Canada. For example, John Graves Simcoe, the first lieutenant-governor of Upper Canada, issued a proclamation in 1792 inviting Americans to emigrate to Upper Canada. This included a special appeal to the members of pacifist religious communities, including Quakers, Mennonites, and Dunkards, which promised them an exemption from military service.^[16] A century later, in the 1870s and 1880s the Canadian government specifically sought to entice Mennonites to settle in western Canada. The Mennonite search for a new home was precipitated by the introduction of a policy of Russification in the schools of the Ukraine, where they lived, and by the implementation of universal conscription, which went against their pacifist beliefs.^[17] The Canadian government not only offered them freedom from military service, but also freedom from swearing the oath of allegiance, a requirement which conflicted with their religious beliefs.^[17] Other people who immigrated to Canada during this time period included 138,000 Jews who immigrated between 1900 and 1921, many of them refugees fleeing pogroms in Czarist Russia and Eastern Europe,^[18] as well as the arrival of Doukhobors from Russia, where they suffered persecution.^[18]

Not all migrants, however, were similarly welcomed by Canadian society. Canada's first Immigration Act, passed in 1869, initially reflected the laissez-faire philosophy of the time by saying nothing about which classes of immigrants should be admitted and which categories should be proscribed.^[19] Subsequent amendments to the legislation, however, specifically discriminated against people on the grounds of class, race, and disability.^[20] Through policies such as the Chinese head tax at the turn of the century, and the internment of Ukrainians,^[21] the government selectively excluded certain groups of migrants.^[12] As Jan Raska describes it, the Canadian government admitted refugees based on prevailing sociocultural, economic, and political views of the ‘desirable’ immigrant.^[22] The government amended the Immigration Act in 1910 to prohibit all "charity cases" who had not received written authority to emigrate to Canada from the superintendent of immigration at Ottawa or the assistant superintendent of emigration for Canada in London. As Valerie Knowles writes, this clause was inspired by the large number of impoverished British immigrants who had arrived in Canada with the assistance of charitable organizations eager to rid Britain of paupers and to provide them with a new start in Canada.^[23] Facially neutral legislative provisions were also employed in discriminatory ways; for example, while nothing in the Immigration Act specifically barred black Americans, any immigrant could effectively be denied access to Canada for health reasons under the Act's medical provisions. The government in 1911 instructed immigration inspectors along the American border to reject all black persons as unfit for admission on medical grounds. As Harold Troper notes, "There was no appeal."^[8] Canada also turned away ships bearing refugees, such as the 376 passengers, most of whom were Sikhs, on the SS Komagata Maru in 1914, which was not allowed to dock in Vancouver. After a two-month stalemate, the Komagata Maru was forced to turn around and sail back across the Pacific Ocean, only to have some of its passengers massacred by the British Indian police upon arrival in India.^[12] For a three-year period starting in 1919, Doukhobors, Mennonites, and Hutterites were specifically prohibited entry into Canada because of, in the words of the relevant order-in-council, "their peculiar customs, habits, modes of life and methods of holding property, and because of their probable inability to become readily assimilated or to assume the duties and responsibilities of Canadian citizenship within a reasonable time after their entry."^[24] Canada, like many states at the beginning of the 20th century, also implemented a requirement that travellers to Canada carry passports. As Kaprielian-Churchill writes, the passport requirement appears to have been implemented for the purposes of exclusion.^[25]

League of Nations era

In response to an appeal from the International Committee of the Red Cross,^[26] Member states of the League of Nations approved the creation of a refugee office in 1921 and appointed Fridtjof Nansen as the first High Commissioner for Refugees.^[27] In 1922, Nansen created the so-called 'Nansen Passport' for Russian refugees.^[28] This was an international identity certificate facilitating the movement and resettlement of refugees uprooted by the events of World War I, the Russian revolution, and the Armenian genocide in Turkey. It has also been pinpointed as the beginning of international refugee law.^[29] This institutional innovation provided several million post-WWI European refugees with a forum in which they could seek protection and assistance.^[27] In 1925, the Refugee Service of the International Labor Organization (ILO) took on responsibility for issuing these Nansen Passports. Five years later, the League of Nations entrusted the humanitarian aspect of refugee work to the International Refugee Office^[30] ("Nansen International Office for Refugees").^[31]

Canada refused to endorse any of these international initiatives aimed at aiding refugees. Canada steadfastly refused to recognize the Nansen Passport on the basis that Canada would only accept Nansen Passport bearers if they were returnable to another country in the event that they became criminals or insane, something that Kaprielian-Churchill describes as a smokescreen and means of rejecting refugees.^[32] In fact, even once other countries strove to accommodate the Canadian demand for returnability, Canadian officials continued to refuse refugees, finding other grounds for rejection.^[33] In 1931, Canadian officials spoke with pride that only "a dozen refugees" had been admitted to Canada on the League of Nations' Nansen Passport.^[34] In order to address the fact that the agreements underpinning the Nansen Passport lacked the status of treaty law,^[35] an international conference was convened in 1933 which led to the League of Nations' Convention Relating to the International Status of Refugees. Canada neither attended the conference nor subscribed to the agreement.^[36]

WWII-era refugee policies

Irving Abella and Petra Molnar write that “Xenophobia and Anti-Semitism permeated Canada, and there was little public support for, and much opposition to, the admission of refugees... until after the Second World War.”^[12] For example, in the 1930s, Canada restricted the admission of European Jews who sought safe haven from antisemitism and the emergence of fascism in Germany, but welcomed Sudeten Germans from Czechoslovakia in search of refuge given that they were considered to be more 'desirable' immigrants.^[22] In 1938, the US government brought together 30 countries for a conference on the subject of the worsening refugee situation in Europe. Canada was a reluctant participant, tarrying for months before accepting the US invitation to attend the Evian, France event. Valerie Knowles describes Canada's participation at the summer 1938 conference as having been "minimal" and states that it was to Canada's relief that the delegates at the conference accomplished little more than to produce a statement of lofty principles not actually necessitating more liberal immigration policies.^[37] The Intergovernmental Committee on Refugees (ICGR) that was established in the late 1930s, mandated to assist Jews from Germany and Austria, operated without Canadian involvement.^[38]

A visible manifestation of the antisemitism that marked Canadian policy was the decision to deny admission to 930 Jewish refugees on the SS St. Louis seeking asylum from Nazi Germany. These refugees were instead sent back to what awaited them in Germany. Later in the war, in 1943, Canada did announce that it intended to admit some Jewish refugees who had made their way to the Iberian peninsula. This is said to have "ignited a storm of protest from anti-refugee interests", with Quebec opposition leader Maurice Duplessis holding rallies to charge that that provincial and federal Liberals were set to allow the "International Zionist Brotherhood" to, in his words, settle 100,000 Jewish refugees in Quebec in return for election financing.^[39] Ultimately, Canada admitted 5,000 Jewish refugees during the Second World War. In contrast, the US welcomed 240,000, Britain 85,000, China 25,000, Argentina and Brazil over 25,000 each, and Mexico and Colombia received some 40,000 between them.^[12] When Canadian immigration officials were asked how many Jews the country would admit after the war, their famous response was, “None is too many.”^[40]

Measures were also employed to exclude "enemy aliens" during the Second World War, such as the internment of Japanese persons.^[12] In February 1942 the government ordered the expulsion of some 22,000 Japanese Canadians from a 100-mile swath of the Pacific Coast. The majority were relocated in the interior of British Columbia, often in detention camps in isolated ghost towns. Japanese Canadians were forced to remain in these detention camps until the end of the war. Then, after the conclusion of hostilities, about 4,000 would surrender to pressure and leave Canada for Japan under the federal government's "repatriation" scheme. Of these, more than half were Canadian-born and two-thirds were Canadian citizens.^[37] During the war, the British government also transported 2,500 "enemy aliens" to Canada. For the most part, these were German and Austrian nationals, many of them highly educated Jews, who had been living in Great Britain when the war erupted. Valerie Knowles describes their reception in Canada as follows:

The Canadian government agreed to receive these male civilian internees in the belief that it would be assisting hard-pressed Britain by accepting custody of a number of "potentially dangerous enemy aliens". Canadian authorities were therefore astonished to see a large assortment of teenage boys, university students, priests, and rabbis step ashore at Quebec. Despite their misgivings, however, the Canadians proceeded to place all in camps that resembled maximum security prisons. And it was here that scientists, theologians, musicians, teachers, artists, and writers, among others, would be forced to bide their time for months to come.^[39]

Knowles notes that, fortunately for these prisoners, the British government soon realized that it had done a possibly grave injustice to many of the internees and initiated steps to have them released. In 1945, Canada reclassified these one-time prisoners as "Interned Refugees (Friendly Aliens) from the United Kingdom" and invited them to become Canadian citizens. 972 chose to do so.^[41]

United Nations Relief and Rehabilitation Administration (UNRRA) and the International Refugee Organization (IRO)

In 1943, with the end of World War II in sight, the allied powers began to lay the foundations of a post-war refugee regime. also started to be laid at this point. In that year, they established the United Nations Relief and Rehabilitation Agency (UNRRA) in preparation for the liberation of Europe.^[42] The UNRRA was not a refugee agency, but, rather, was focused on the repatriation of displaced persons. As Shauna Labman writes, it was during this period that the reality shifted from an individual's inability to return home to his or her unwillingness to return home.^[42]

After the Second World War, the Canadian government began to receive more pressure both domestically and internationally to fulfill its humanitarian responsibility of hosting displaced persons.^[43] There were over a million displaced persons and refugees in crowded shelters maintained by United Nations agencies in Europe. Some of these people were concentration camp survivors, others individuals who had been dispatched to labour camps in Germany and Austria, and still others were those refusing to be repatriated to Communist regimes.^[44] Canada started by providing funding to the UNRRA, which distributed about $4 billion worth of goods, food, medicine, and tools, at a time of severe global shortages, and also assisted displaced persons in returning to their home countries in Europe in 1945-46.^[45] In 1946, the Canadian government signed an order-in-council that allowed Canadians to sponsor displaced family members in Europe.^[46]

The activities of the UNRRA began to be enmeshed in Cold War politics. The organization was faced with large numbers of Displaced Persons who were reluctant to be returned to countries where communist parties were taking a firm hold. Many Polish, Ukrainian, and Baltic persons were thus residing in camps, asking to be referred to a non-Communist country, as opposed to their country of citizenship. Soviet officials objected to any willingness to countenance such demands. In response, in December 1946 Western governments decided to create the International Refugee Organization as an instrument of resettlement. Unlike UNRRA, however, the IRO had no Soviet participation.^[27] In 1947, Canada began to accept refugee referrals from the International Refugee Organization.^[47] Canada also deployed Canadian immigration officers overseas for the purposes of selecting from among the displaced persons.^[48] These arrivals comprised what was called the Displaced Persons Movement, which successfully resettled 186,154 refugees to Canada over the course of six years.^[46]

When announcing the government's willingness to allow the movement of war survivors to Canada on May 1 1947, Prime Minister Mackenzie King articulated the government's position as follows: "It is not a 'fundamental human right' of any alien to enter Canada. It is a privilege. It is a matter of domestic policy. Immigration is subject to the control of the parliament of Canada."^[49] This speech was also notable because it can be seen as the beginning of Canada accommodating the concept of human rights enshrined in the then-new United Nations Charter -- in deference to the UN Charter, Mackenzie King announced that the Chinese Immigration Act of 1923 would be repealed and that Chinese residents of Canada would be able to apply for naturalization.^[50] Despite this growing accommodation to human rights rhetoric, King's realpolitik was reflected in Canada's actions; David Corbett wrote in the 1950s that the tens of thousands of displaced persons that Canada accepted during this post-war period were "carefully selected, and most of them would have satisfied our standards if they had been applying as immigrants".^[51]

The founding of the UNHCR, negotiation of the Refugee Convention, and growing refugee intake

When the June 1950 termination date for International Refugee Organization arrived, refugees continued to abound in Europe. Indeed, they were increasingly arriving across Western European borders from the Eastern Bloc.^[52] As a result, on December 14, 1950, the UN General Assembly formed the United Nations High Commissioner for Refugees (UNHCR) and gave it the mandate to provide for the protection of refugees and forcibly displaced people and assist in their voluntary repatriation, local assimilation, or resettlement to a third country.^[53] At this point, the UNHCR was only meant to be temporary, with the UN General Assembly giving the organization a 3-year mandate to address the needs of displaced Europeans from World War II.^[54]

The next year, the foundational treaty for modern refugee protection, the 1951 United Nations Convention Relating to the Status of Refugees, emerged on July 28, 1951 from negotiations spearheaded by the UNHCR. The negotiations took place via an ad hoc committee of the UN Economic and Social Council titled the UN Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons. The treaty that emerged from this process sought to deal with situations arising immediately after World War II, and by its terms was limited to persons who became refugees before January 1, 1951.^[55] During the drafting of the Convention, Canada was seen to be a leader in its creation: Canada was one of twenty-six countries to send a delegate to participate in the conference which negotiated the Convention;^[22] in fact, a Canadian, Leslie Chance, chaired the conference;^[56] Canada was the country in the Americas that presented the most proposals during the process of drafting the Convention, voicing comments during discussions that were otherwise dominated by the European States; and Canada was a part of the working group vested with the responsibility of drafting arguably the key part of the Convention - the definition of a refugee in Art. 1 of the document.^[57] Canadian chairman Leslie Chance reported “we have been regarded throughout as taking a forward attitude.”^[58] As an aside, Chance's statement could be regarded as somewhat self-serving given the shifting positions Canada took at the conference, for example arguing, contra France and the United Kingdom, for the inclusion of temporal and geographical limitations in the Convention, prior to flipping that position and arguing against such restrictions.^[59] In any event, Canada did ultimately advocate at the conference "in favour of the widest possible definition" and took the position that "the purpose of the Convention was to protect refugees, not states."^[60]

In 1951, Canada declined to ratify the resultant Convention. By way of explanation, then Secretary of State for External Affairs Lester B. Pearson announced the government was concerned that the Convention would give the refugee “the right to be represented in the hearing of his appeal against deportation” and, further, that the Convention would “grant rights to communists or to other persons who believed in the destruction of fundamental human rights and freedoms.”^[58] The Canadian government also noted with concern that, "some sections of the convention appeared to prohibit states from deporting 'bona fide' refugees, even on grounds of national security".^[61] Without Canada, the Refugee Convention entered into force on April 22, 1954.^[62] Despite not signing the convention, Canada financially supported the UNHCR from its establishment^[47] and, in 1959, began to sit on the then-new UNHCR Executive Committee, an advisory body of states that gives guidance to the High Commissioner.^[63]

In the years following the UNHCR's creation, Canada also allowed for refugee entry on an ad-hoc basis, ranging from small groups, such as when Canada admitted 39 Palestinian families in the wake of the displacement occasioned by the founding of the State of Israel,^[64] to larger movements, including the 37,000 Hungarian refugees Canada admitted following the Hungarian Revolution in 1956.^[65] By 1962, Canada had also admitted nearly 250,000 displaced persons from Europe,^[66] many of whose journeys to Canada had been subsidized by a Canadian government seeking to recruit more workers for a booming economy.^[67] That said, Canada's overall immigration laws continued to restrict manner persons for reasons of race, class, and health, and "national security" concerns, related to the fear of communism, were used to reject more than 29,000 applications to enter Canada between 1946 and 1958.^[66]

Non-discrimination measures and Canada's ratification of the Refugee Convention

By the 1960s, values were changing across Canada, and around the world, and Canada’s racially-based, Eurocentric approach to immigration and refugee policy was becoming less and less aligned with how the country both viewed itself and wished itself to be seen. Further, this race-based approach clearly contradicted the then-new Canadian Bill of Rights.^[68] Canada began to repeatedly liberalize who it was prepared to admit, for example admitting 325 tubercular refugees and their families around 1960, the first time that Canada had waived its health requirements for refugees.^[18] In 1962, Prime Minister Diefenbaker's Immigration Minister tabled new regulations in the House that eliminated racial discrimination as a major feature of Canada's immigration policy. With this revision, historian Valerie Knowles states that the last vestige of discrimination which remained in the immigration regulations was a provision that allowed immigrants from Europe and the Americas to sponsor a wider range of relatives, something that was inserted at the last moment because of a fear that there would be an influx of sponsorships by persons from India.^[69] Then, in 1966 Lester B. Pearson's government created the Department of Manpower and Immigration and mandated it with the responsibility of processing refugees without “discrimination by race, country or religion”.^[58] That department set to work and in 1967 all vestiges of discrimination were removed from the immigration regulations, if not the statutes themselves, and the government implemented its much-vaunted 'points system' in the regulations to guide the selection of many categories of immigrants.^[23]

In the late 1960s, negotiations were underway to expand the temporal and geographic scope of the 1951 Refugee Convention. As articulated by the UNHCR, one of the motivations behind this initiative was to ensure that the de facto racial distinctions built into the 1951 Convention yielded to a growing anti-discrimination postcolonial zeitgeist:

The Convention had led to an unfortunate discrimination among the different groups of refugees, in particular with regard to the African refugees. Such discrimination conflicted with the Statute of his Office and was contrary to the universal spirit of the Convention itself.^[70]

Canada refused to commit to the initiative to negotiate a protocol to the Refugee Convention while it was preparing what it termed its White Paper on Immigration.^[71] In 1966, the government released the White Paper to, in researcher Clare Glassco's words, "test the waters" for making more fundamental changes to the immigration regime. Among many initiatives, the White Paper committed to the establishment of an immigration admissions policy that was free from discrimination on the grounds of race, religion, or ethnicity. Further, the Paper proposed both the introduction of a refugee determination process within Canada’s borders, as well as the ratification of the 1951 UN Refugee Convention. As immigration official E.P. Beasley noted in 1966, in reference to the need for a clear refugee policy, in his view Canada had “become a country of first asylum,” and, thus, “the time may have come to set forth in legislation machinery and a methodology for determining these individual cases more precisely and more fairly.”^[72] The concept of a "first country of asylum" in this context refers to a situation where Canada is the first country that grants protection to an individual, as opposed to resettling individuals who have already found effective protection elsewhere.^[73] At this time, Canada was increasingly seeing itself as a country of first asylum as Cold War crises caused thousands to seek safe haven in the West.^[22]

In June 1969 Canada ratified the Convention Relating to the Status of Refugees (signed at Geneva in 1951) as well as the Protocol Relating to the Status of Refugees (signed at New York in 1967),^[74] which extended the territorial and temporal scope of the Refugee Convention to cover refugees outside of Europe and those displaced for newly emerging reasons.^[75] Despite these ratifications, no statute-based, official refugee policy existed in Canada until the implementation of the 1976 Immigration Act.^[76] Instead, Canada issued a “Guideline for Determination of Refugee Status” in 1970 to give immigration officers criteria for selecting refugees overseas.^[77] In 1973, the Canadian government established its first formal administrative structure to deal with refugee claimants. An interdepartmental committee comprised of representatives from the Departments of External Affairs and Manpower and Immigration met to assess individual claims and forward their recommendations to the Minister of Manpower and Immigration who had the authority to decide whether a refugee claimant would remain in Canada or be deported.^[22] At this point, inland claims occurred at the level of hundreds per year. Individual orders-in-council granted a person status in Canada at the minister’s discretion and were based in part on humanitarian, economic, and political considerations.^[22]

Founding of the Immigration Appeal Board

In 1967, the Immigration Appeal Board Act was passed, giving anyone ordered deported the right to appeal to the Board on grounds of law or compassion.^[18] This Board had emerged from what was called the Sedgwick Report, drawn up by Joseph Sedgwick, Q.C., a one-man board of inquiry which had been commissioned by the government to study a series of highly controversial deportations. Chief among the recommendations was the establishment of a completely independent immigration appeal board.^[78] Almost immediately, the Board was swamped with a backlog that, at existing case processing rates, was expected to take more than 20 years to go through.^[79] As a result, in 1973 the government amended the Immigration Appeal Board Act to abolish the universal right of appeal for all persons in Canada. In order to clear the backlog, the government also instituted a one-time amnesty program, which more than 39,000 people availed themselves of, including a significant number of US draft dodgers.^[80]

1976 Immigration Act

The revised Immigration Act introduced into Parliament in 1976, and brought into force two years later, was a watershed moment for Canadian immigration policy. It overhauled the statute for the first time more than two decades, expunged the last vestiges of open discrimination in the statute, for example by lifting a ban prohibiting gay men and women from immigrating,^[22] and, after a broad national debate, introduced a series of objectives into the statute which largely remain to this day. It was with the introduction of the 1976 Immigration Act into Parliament that the government reinforced its willingness to assume its international share in refugee resettlement.^[34] It was this legislation that, for the first time, incorporated Canada's Refugee Convention obligations into statutory form.^[81] The refugee status determination program that the legislation created for asylum seekers already within or arriving in Canada set up a new process where the claims began to be decided by the Minister of Immigration. The program was very small: it processed only a few hundred claims per year throughout the late 1970s, mostly in the form of paper applications.^[82] In the year that the revised Immigration Act came into force, for example, 4,130 refugees were admitted to Canada, all of whom were fleeing communism.^[83] The system did include limited appeal rights to the Immigration Appeal Board;^[84] under this system, in its last year of operation, about nine percent of claimants determined by the Minister not to be refugees were determined by the Board to be refugees.^[85]

At the same time that Canada incorporated its obligations under these international treaties into domestic law, a series of (ultimately fruitless) international efforts to expand the scope of those treaties were underway. In 1967 the United Nations adopted a Declaration on Territorial Asylum^[86] which provided, in Article 3, that no person entitled to invoke Article 14 of the Universal Declaration of Human Rights should be subjected to measures such as rejection at the frontier. A conference was then held in 1977 to embody this and other provisions in a revised convention, a proposed UN Convention on Territorial Asylum,^[87] and while a draft was produced,^[88] the conference ended in failure.^[89]

In the 1970s, most refugees that Canada accepted came via overseas resettlement, not an in-Canada asylum process. In the early 1970s Canada accepted its first non-European refugees by resettling a group of 228 Tibetan refugees and developing a “Tibetan Refugee Program” to host them.^[90] Tibetan refugee hosting opened the doorway to other refugee resettlement, as Canada accepted about 7,000 ethnic South Asians expelled from Uganda under the dictatorship of Idi Amin in 1972-73, 7,000 Chilean refugees fleeing Pinochet’s regime in 1973, and about 10,000 Lebanese refugees fleeing the Lebanese Civil War between 1975 and 1978.^[91] In the 1970s, the U.S. was the largest source country of immigration, in part because of the large numbers of draft dodgers and deserters unwilling to fight in Vietnam who found refuge in Canada.^[18] Historian Valerie Knowles states that it is impossible to arrive at hard numbers for the number of draft resister and deserters who escaped to Canada during the Vietnam War, but estimates range from 30,000-40,000 from the Canadian Council for Refugees to between 80,000-200,000 according to Mark Fruitkin, a "draft resister" and author.^[92] Later that decade, from 1978 and 1981, 60,000 refugees from Southeast Asia were accepted - a figure that represents 25 percent of the number of immigrants admitted in these years.^[66] During this time, Canada resettled more refugees from overseas than any other country on a per capita measurement.^[93]

That said, decisions to accept these groups of individuals were ad-hoc and highly political; for example, fearing that most of the Chilean political refugees were too left wing, and not wishing to alienate either the American or new Chilean administrations, the Canadian government restricted the numbers, which is what limited Canada to only accepting about 7,000 Chileans during that 30-year conflict.^[12] Similarly, while Canada accepted some Ugandan Asian refugees, there was marked public opposition to the move, with a poll in 1972 indicating that only 45 percent of Canadians approved of the government's decision; some in the government came to view this initiative as having cost the government seats in that year's election.^[94] To address demands from civil society to have more of a role in refugee sponsorship, and criticism about government refugee sponsorship decisions, in 1978 Canada established a Private Sponsorship Program through which citizens could assist fully or partially in privately sponsoring new refugees.^[95]

Background to the founding of the Immigration and Refugee Board

The background to the creation of the Immigration and Refugee Board of Canada lies in the growing number of refugee claims that were being made during the 1980s. Rebecca Hamlin states that Canada signed the above-noted international treaties making commitments to refugee protection before it began to consider itself to be a country of first asylum and before asylum seekers started coming to its shores in significant numbers.^[96] In 1980 Canada received what today looks like a very modest 1,488 refugee claims.^[84] By the middle of the 1980s, however, such a large number of people were making in-country asylum claims that the system had become completely overloaded, with 8,260 claims being made in 1985.^[84] This increase in Canada mirrored similar increases elsewhere in the world, for example, while in 1976 Western European nations received 20,000 asylum seekers, in 1980 there were 158,000 such applicants and by 1986, more than 200,000 annually.^[97]

In response to these growing numbers, as well as concerns about political interests potentially affecting decision-making on claims, in 1982 decision-making was transferred to the newly created Refugee Status Advisory Committee.^[98] This system involved only written submissions, assessed by the committee in private, with the committee ultimately making recommendations to the Minister of Immigration,^[99] although in 1983 having an oral hearing began as a pilot project in Toronto and Montreal.^[22] The Committee consisted equally of members from private life, the Department of Immigration, and the Department of External Affairs.^[100] The reasons offered for decisions on claims at this point were scanty; as refugee lawyer David Matas describes it, the reasons often consisted of "merely a few sentences" which "seldom relate the findings of fact on which their conclusions are based".^[101] In short, he states, what were offered were conclusions, as opposed to reasons.

The government also commissioned a series of major studies, specifically the Robertson Report (1983) entitled Illegal Migrants in Canada, the Ratushny Report (1984) entitled A New Refugee Status Determination Process for Canada, and a report by Rabbi Gunther Plaut (1985) entitled Refugee Determination in Canada, to recommend approaches for a new asylum determination system that would address both the need to be heard, and balance the competing interests of fairness and efficiency.^[84] This impetus for change was bolstered by a 1985 decision from the Supreme Court of Canada, Singh, which established that where the credibility of a claimant is at stake, an oral hearing before the then-Immigration Appeal Board must be held. In so ruling, the court set aside the previous system under which an application for an oral hearing had to be made.^[102] The Singh decision is often seen as a watershed that enforced Canadian Charter of Rights and Freedoms protections for migrants on arrival on Canadian soil, thereby requiring an overhaul of the then-extant refugee determination process to ensure that fair oral hearings started to be offered.^[84] At the same time, concerns about the integrity of the then-extant system were being expressed; for example, in their 1988 platform, the Reform Party invoked what has been labelled "inflammatory language" about "immigration abuses, bogus refugees, [and] improper selection of immigrants".^[103]

The Canadian government of the day proposed a tribunal model for the new asylum system. The relevant legislation, Bill C-55, or the Refugee Reform Act, was introduced in the House of Commons in 1986. There was lengthy debate about the legislation and it was not passed until 1988.^[84] One concern raised by civil society about the bill was with the Safe Third Country Regime that it introduced. In response to public criticism of the Safe Third Country Regime, Barbara McDougall, who as then minister of employment and immigration, became persuaded that the United States might send refugee claimants deported from Canada back to Central America where their lives would be in jeopardy. As a result, she announced in December 1988 that she was "prepared to proceed with no country on the safe third country list ... We think the new system will be able to function without it."^[104]

The Immigration and Refugee Board of Canada emerged from this legislation, and it represented a fresh start for asylum policy-making in Canada. It came into existence as an independent administrative tribunal on January 1, 1989 with 115 members.^[105] At that time, it consisted of only two divisions: the Convention Refugee Determination Division and the Immigration Appeal Division. Gordon Fairweather, a former Attorney General of New Brunswick and the first Chief Commissioner of the Canadian Human Rights Commission, was appointed the first Chairman of the IRB.^[22]

As part of the transition to the new system, the government instituted a one-time expedited review program that amounted to a general amnesty for people with pending asylum applications. While under the previous system, overall, 30% of applicants had been accepted,^[106] under the expedited review program, acceptance rates were much higher - approximately 85% of the 28,000 applicants processed in 1986, for example, were accepted. The amnesty was designed to clear the decks and allow for a fresh start in asylum policy-making.^[82] It essentially amounted to an amnesty for refugee claimants who had entered Canada before 21 May 1986 where individuals were permitted to stay in Canada and become permanent residents if they were already employed or likely to secure employment in the near future and had no medical, security, or criminal concerns.^[22]

Growing numbers of claims and increased resources

Deterrence and efficiency measures

There was a time when the refugee "problem" was thought to be solvable.^[119] The Office of the United Nations High Commissioner for Refugees (UNHCR) was originally set up for only three years. The office was renewed by the United Nations General Assembly thereafter, but only for successive five-year periods. This UNHCR's temporary nature, and repeated renewals, continued until December 2003. At that time, the UNGA removed the limitation and created a framework for refugee protection that is set to continue indefinitely, "until the refugee problem is solved"^[119] In Shauna Labman's words, the removal of the temporal limitation on UNHCR's mandate speaks to the recognition of the increasing unlikelihood of such a resolution.^[119] Ebbing expectations of any permanent solution to refugee issues have come at the same time as refugee numbers have grown, asylum claimants have come from further afield, and concomitant refugee status determination costs have increased. In response, in Bríd Ní Ghráinne's words, states have begun to employ increasingly "creative" means to constrain refugee flows and restrict the number of individuals they recognize as refugees.^[120] Such measures have included curtailing the entry of refugees onto their territories through what she terms “relatively invisible—and hence politically expedient—non-entrée measures”^[120] such as the following, which have been deployed by Canada to an increasing extent in recent decades:

• Restrictive Visa Policies: Limited access to visas for entry into Canada restricts access to the asylum process.^[118]
• Carrier sanctions: Carrier sanctions refer to obligations placed on airlines and other transportation services to take care that they not transport anybody without a visa, if they are required to have one.^[121]
• Biometric requirements: In the early 1990s, the Mulroney government introduced a requirement that asylum applicants be fingerprinted.^[122]
• First country of asylum principles: Canadian immigration legislation has permitted the designation of safe countries since 1998.^[123] This provision has been used to authorize the safe third country agreement between Canada and the United States.
• Stricter port-of-entry interviews and security screening: In the early 1990s, the Mulroney government introduced deterrence measures design to push down the number of refugee claims, including stricter port-of-entry interviews.^[122] Then, in the wake of the 9/11 attacks, the then Immigration Minister announced that there would be much greater utilization of the strategy of "Front-End Security Screening" (FESS) of refugees as they arrive in Canada.^[124]
• Pushback operations: For example, in 1998 Canadian officials arranged for the interception by the Senegalese navy of a boat carrying 192 Tamil persons from Sri Lanka, individuals who were then returned to Colombo before they could arrive in Canada.^[125]
• Limitations on appeal: In the early 1990s, the Mulroney government introduced limitations on the ability to appeal decisions.^[122] To this day, there are a number of restrictions on the ability to appeal negative decisions, including that claims by designated foreign nationals (DFNs) do not have a right of appeal.^[126]
• Stricter enforcement: CBSA employees called migration integrity officers work overseas, ensuring that individuals who are travelling to Canada have proper travel documentation.^[127] Canada's interdiction programs abroad are a component of what is termed its Multiple Borders Strategy (MBS). Under the MBS, liaison officers are tasked with preventing persons who lack Canadian authorization or other required documents from boarding planes or boats bound for Canada.^[128] In 2012 the government reported that there were 63 such officers in 49 locations worldwide.^[129] Between 2001 and 2014, such liaison officers intercepted over 86,000 persons offshore.^[130]
• Restrictions on employment for claimants: In the early 1990s, the government prevented refugee claimants from working. This was changed later in the 1990s.

Such measures have often been implemented in Canada in recent decades in response to claim backlogs and perceived crisis situations. An example of such a crisis emerged in the late 1980s the federal government recalled Parliament for an emergency session to amend the Immigration Act after 174 Sikh persons arrived by lifeboat near the fishing village of Charlesville, Nova Scotia.^[22] At that time, the Canadian Employment and Immigration Advisory Council reported that most business and labour leaders felt the government had "lost control of the border".^[131] Parliament's resultant law, Bill C-84, the Refugee Deterrents and Detention Act, was considered to be a restrictive piece of legislation.^[132]

A later piece of legislation, Bill C-86, passed by the Senate in December 1992, was perceived to be more concerned with efficiency. It eliminated a screening system for claims at the IRB and transferred authority for determining whether an applicant was eligible to claim refugee status from the Board to senior immigration officers at the immigration department.^[133] Specifically, the legislation previously included a procedure whereby all applicants had a hearing before a panel of two in which a claimant had the burden of proving that they were eligible to have their claim determined and that there was a credible basis for the claim.^[134] If either of the two panel members were persuaded, then the claim would be heard by the Refugee Division of the Board. In the name of efficiency, Bill C-86 transferred the eligibility determination step to the department and abandoned the screening process designed to eliminate claims with “no credible basis”.^[135]

One efficiency measure that was implemented at the time of the IRB's founding was that refugee claimants no longer had the ability to appeal a refusal of their claim under this revised system. This aspect of the new process was much criticized by legal counsel for refugees at the time.^[136] That said, during the 1990s, refugee claimants appeared before panels of two decision-makers, only one of whom needed to accept their claim for their application to be successful (a cost-saving initiative announced in March 1995 to move to one-person panels was not implemented until the next decade).^[137] Furthermore, unsuccessful refugee claimants were able to apply for post-determination review by an immigration official to evaluate whether removal would result in compelling personal risk. This review assessed "risk to life, inhumane treatment, or extreme sanctions," and could provide protection to persons not covered by the 1951 Convention and Protocol.^[138] Approximately 2-3% of such applications were accepted.^[139] As discussed below, this process eventually became the foundation for what is now s. 97 of the IRPA.

Rebecca Hamlin situates the rise of this regime to deter asylum claims in the following way: "the rise of the regime of deterrence is, in part, a story of unintended consequences, because international commitments made by each country in a particular political moment came back to haunt future generations of policymakers. Had these countries' leaders anticipated the financial, security, and political challenges of the present-day situation, they might not have been as willing to make commitments that, at the time, were largely an abstraction."^[96]

The 2002 move from the Immigration Act to the IRPA

In the late 1990s, the federal government began a process to overhaul the then-Immigration Act, including with a lengthy public consultation period.^[140] It commissioned a report entitled Not Just Numbers: A Canadian Framework for Future Immigration which set out priorities for the reformed system. The resulting Immigration and Refugee Protection Act (“IRPA”) was an entirely new statute and represented the first complete revision of immigration legislation in Canada since 1978.^[141] The shift from the Immigration Act to the IRPA in June 2002 also marked a new era of asylum policy in Canada - one that has been described as being focused on relieving administrative burdens. In the drafting and development of the IRPA, considerable public attention had been devoted to the question of whether to have one act governing immigration matters and a separate act governing refugee law. The idea, motivated by concern about the fundamental differences between immigration and refugee law, and advocated for in the Not Just Numbers report, was ultimately rejected; however, the Act's new title and the establishment of a separate division of the legislation devoted to refugees reflect this concern.^[142] Highlights of the new legislative framework include the following:

• Creation of the RAD: The IRPA created the Refugee Appeal Division (RAD), which would review negative decisions on their merits, though this took ten years to fully implement.^[143] Specifically, after the Act was passed, Citizenship and Immigration Canada announced that as a result of “pressures on the system” implementation of the RAD would be delayed.^[144]
• Shift from the CRDD to the RPD: The Convention Refugee Determination Division (CRDD) became the Refugee Protection Division (RPD), to reflect the fact that it now had jurisdiction over the consolidated grounds for refugee protection and, because the IRB backlog was a huge concern, the staff time required to support the RAD was created through a shift from two-member panels to single-member hearings so that half the number of Board members would be required for each case.^[145]
• Consoliated grounds for refugee protection: The IRPA also expanded the categories of persons who are entitled to refugee protection. Under the former immigration legislation, the only category of person who was clearly entitled to protection was a person who fell within the definition of “Convention refugee”. IRPA expanded the scope of coverage to include persons who are at risk of torture and to persons who are at risk of cruel and inhumane treatment upon deportation to their country of nationality or former habitual residence.^[146] Canada had ratified the Convention against Torture on June 24, 1987, but did not implement it directly in Canadian domestic law until this point.^[147] Rebecca Hamlin writes that there is no evidence to suggest that Parliament considered the introduction of s. 97 to be monumental when it discussed IRPA before voting on it in 2002. When the bill was being debated, Minister of Citizenship and Immigration Elinor Caplan assured members of Parliament the IRPA "gives us the ability to streamline our procedures, so that those who are in genuine need of our protection will be welcomed in Canada more quickly and those who are not in need of protection will be able to be removed more quickly. That streamlining is extremely important."^[148] Immediately after IRPA went into force, the IRB Legal Services division produced a lengthy guide for decision makers on how to make Section 97 decisions; the guide states that these decisions were subsumed under the IRB mandate to avoid the "delays and inconsistencies" of the previous "fragmented" and "multilayered approach".^[148]
• PRRA: The IRPA transitioned from the Post-Determination Refugee Claimants in Canada Class (PDRCC) to the Pre-Removal Risk Assessment (PRRA) process.^[149] When the government announced the creation of CBSA in 2003, originally the plan was to transfer PRRA responsibility to them, but in the wake of pressure from NGOs, PRRA responsibility remained with Citizenship and Immigration Canada.^[150]
• Increased security provisions: Sharryn Aiken, et. al., write that the most significant shift signalled by the IRPA is that it demonstrates a marked security turn in Canadian immigration law. They note that "this is hardly surprising in legislation that was passed in the immediate aftermath of the September 11, 2001 attacks in the United States.^[140]

Over the next decade, there were several attempts by some members of Parliament to pass another act forcing the implementation of the RAD, including a very near success in summer 2008.^[151] While the above overhaul of the system represented considerable change, it is also notable that some of the changes argued for in the Not Just Numbers report were ultimately rejected. For example, that report had recommended that the processing of overseas and inland refugee claims be unified within a single system with shared decision-makers for both of them. Having a single system reflected a desire for more consistent decision-making on refuge status, but, in Shauna Labman's words, "[brushed over] the additional necessity of the selection aspect in overseas resettlement."^[152] The proposal was not adopted.

Safe Third Country Agreement

A provision for safe third country agreements was included in Canada's Immigration Act in the 1980s. Canada attempted to negotiate such an agreement with the United States in the decades following, and it was only in the wake of 9/11 that Canada was able to successfully conclude such an agreement.^[153] Specifically, on December 5, 2002, Canada signed its Safe Third Country Agreement (STCA) with the United States.^[154] That agreement came into effect on December 29, 2004 when the hitherto dormant safe third country regime in Canada's immigration legislation was first utilized.^[155] The immediate impact of the STCA was to significantly lower the number of inland refugee claims in Canada; there was a 40 percent drp in claims made at the Canada-US border after the agreement came into effect. This trend, however, did not last.^[156]

2010 and 2012 refugee reform

Two pieces of legislation made significant changes to the refugee system in 2010 and 212, the Balanced Refugee Reform Act (BRRA, 2010) and the Protecting Canada’s Immigration System Act (PCISA, 2012). As Neil Yeates describes it, the thrust of these reforms was for faster processing of claims, with a view that bona fide claimants would be more quickly approved, and failed claimants, after access to the new Refugee Appeal Division (RAD) of the IRB, would be more quickly removed from Canada.^[157] Various changes were made to assist this, including:

• Legislated timelines for hearings.
• Implementation of the Refugee Appeal Division (RAD). As part of this reform, the RAD came into being on December 15, 2012.^[158]
• Public servant decision-makers: Shifting from Governor-in-Council appointees to public servants as first-level decision makers at the IRB’s Refugee Protection Division. The shift away from Governor-in-Council appointees reflected a key recommendation from the government's own immigration-law advisory committee, namely that qualified public servants should be named to the Immigration and Refugee Board, not political appointees.^[159]
• Creating a list of Designated Countries of Origin (DCOs), countries that were not generally considered to be refugee-producing, and where claimants therefrom consequently received an expedited hearing.^[160] The Designated Country of Origin list was introduced in 2012 by the Conservative government as part of the Protecting Canada’s Immigration System Act. The implications for asylum seekers coming from DCOs included an expedited hearing process with shortened timelines, no access to the Refugee Appeal Division, no automatic stay of removal for failed claimants, limited access to PRRA, and no eligibility for a work permit or associated benefits while awaiting a decision on their claim. Designation as a safe country was dependent on a combination of qualitative observations of countries’ levels of democratic process and human rights records and two quantitative thresholds, including when 75 percent or more of previous claims by nationals of a country had been rejected by the IRB or 60 percent or more of previous claims by nationals of a country had been withdrawn. The initial DCO list included 25 countries and was eventually expanded to include 42 countries.^[161]
• Mandatory detention for Designated Foreign Nationals (DFNs): The PCISA reforms established a mandatory detention regime for DFNs.^[162]
• The IRB doing PRRA: The Balanced Refugee Reform Act also transferred authority over the PRRA from the Minister to the IRB, although this transfer has never actually been brought into force.^[163]
• Limitations on the Interim Federal Health Program: A strategy to create disincentives for refugee claimants to come to Canada was a 2012 policy decision to cut access to health care for some categories of claimants.^[164] This policy was declared unconstitutional by the Federal Court in 2015, with the court concluding that the resultant regime amounted to "cruel and unusual treatment" prohibited by the Canadian Charter of Rights and Freedoms.^[67]

The current version of the Refugee Protection Division rules came into force on October 26, 2012 following the coming-into-force of this legislation.^[165] The Immigration and Refugee Board, in its public comments, emphasized these rules and the importance of decisions being guided by them. This aligned with comments at the time from the Immigration Minister Jason Kenney of this sort: "I think most Canadians intuitively understand that broad public support for immigration, and, frankly, diversity in our society is contingent on having a well-managed, rules-based, fair immigration system. I think they understand that we all have a stake in maintaining such a system".^[103]

Resettlement programs

Canada actively resettles thousands of refugees per year within a voluntary burden-sharing scheme. This act places Canada near the top of a small group of approximately thirty countries worldwide willing to offer refugee protection through resettlement in addition to the promise of non-refoulement in the Refugee Convention.^[166] Three states have traditionally been the leaders in resettlement: Canada, Australia, and the United States. Combined, they have tended to receive approximately 90 percent of the UNHCR's resettlement referrals.^[167] By way of example, in the 2017 calendar year, the United States resettled 33,400 refugees, while Canada resettled 26,600 refugees, and Australia resettled 15,100 refugees.^[168] In line with this tradition, Canada launched a program to resettle more than 25,000 Syrian refugees in 2015.

Irregular border crossing controversy

The number of asylum claims worldwide has grown in recent years; states and UNHCR rendered 1.5 million decisions on individual asylum claims in 2017^[169] and as of 2018 there were 3.5 million asylum seekers in the world.^[170] The issue of persons crossing irregularly from the United States into Canada became a significant political issue starting around 2017 and controversy has continued in years subsequent.^[103] Such crossings occurred primarily at Roxham Road on the Quebec-New York border and Emerson, Manitoba. Since 2017 more than 59,000 people have crossed the Canada-US border in an irregular manner and claimed asylum in Canada,^[171] including 20,593 claimants in 2017, 19,419 claimants in 2018, and then 16,077 claimants in 2019.^[171] As of 2017, polls indicated that 70 percent of Canadians felt that security along the Canada-US border should increase.^[172] This increase in border crossings between the United States and Canada has triggered calls and legal action to suspend or end the Safe Third Country Agreement, and a challenge to the agreement is now before the Federal Court of Appeal.^[173] In their 2019 platform, the Conservative Party of Canada reiterated a commitment to prioritizing "economic migration" and favouring those facing "true persecution" over "bogus" refugee claimants.^[103]

Covid-19

In 2020, in response to the Covid-19 virus, fifty-seven countries shut their borders to asylum seekers.^[176] At first, the Canadian government announced that all claimants arriving outside ports of entry would be screened for the virus and then quarantined if the test results were positive. The Canadian government changed its position days later, announcing that all claimants would be deflected back into the United States.^[177] As part of this, the two countries reached a temporary agreement which allows Canada to send back to the US individuals entering Canada from the US to make an asylum claim.^[178] The agreement applies between official ports of entry along the land border and at air and marine ports of entry. The Refugee Protection Division also shut down all hearings for several months as a result of the pandemic.

References

Procedural fairness interpretation principles as derived from caselaw

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

IRPA ss. 3(2) and 3(3): Interpretation principles as derived from the Act

This section will set out the objectives and application provisions in the Act and then provide commentary on some specific ones. In the words of Sharryn Aiken, et. al., one of the enduring features of Canadian immigration law since the 1976 Immigration Act has been "a complex and contradictory set of objectives".^[56] Those objectives, in so far as they concern refugees, read as follows in the current IRPA:

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

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

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

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

There is a statutory interpretation convention to the effect that statements of objectives in legislation serve to constrain executive discretion in implementing the law. In the words of Sharryn Aiken, et. al., however, the objectives of the IRPA "are so plentiful and far-ranging that they arguably serve to support any potential discretionary implementation choice."^[57] Shauna Labman writes that the twenty-five separate paragraphs addressing the objectives and application of the act add to the IRPA's "contradictions and confusions".^[58]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

References

The Refugee Protection Division has an inquisitorial mandate

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

The adversarial style takes the shape of a triad: two disputants arguing their respective cases before a passive judge, who must resolve the dispute by deciding which case is more persuasive. In an adversarial process, justice is based on the premise that an impartial judge decides between competing versions of this story after hearing both sides argued forcefully. Unlike this courtroom-like setting, inquisitorial hearings are designed to be non-adversarial and non-legalistic, taking the form of a dyad between the person whose fate is to be decided and the person deciding it. The inquisitorial decision-maker is engaged in a conversation with the parties, and the facts must be discovered through a collaborative process of research and questioning. Justice is demonstrated through the decision-maker's commitment to an active investigatory process.^[2]

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

A member's role is different from the role of a judge. A judge's primary role is to consider the evidence and arguments that the opposing parties choose to present; it is not to tell parties how to present their cases. Case law has clearly established that the RPD has control of its own procedures. The RPD decides and gives directions as to how a hearing is to proceed. The members have to be actively involved to make the RPD's inquiry process work properly.^[3]

A Member's role is inquisitorial since they not only hear whatever evidence comes before them, but, ultimately, must inform themselves sufficiently to "determine whether or not the [claimant] is a Convention refugee."^[4]

Refugee Status Determination is declaratory, not constitutive

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

This modern conception of the refugee regime stands in contrast to pre-20th century views of asylum, where diplomatic and territorial asylum were considered to be constitutive acts such that it was the decision that made the person asking for asylum an asylee.^[8] This move away from a constitutive view of asylum to a declaratory one reflects the emergence of a rights-based view of asylum. In Canada, this takes the form of the concrete legal obligation on the Canadian state to recognize as refugees those who meet the criteria in ss. 96 and 97 of the IRPA. Recognition of such is not a discretionary charitable act by Canada, but instead a personal right that individuals have pursuant to the IRPA. Shauna Labman writes about the significance of this conception of asylum:

The benefit of a rights-based stance in law is that it adds a concrete assertion of legal obligation and accountability to refugee protection. It is equality between the parties. Stuart Scheingold defines this as "the call of the law." He suggests that the assertion of a right implies a legitimate and dignified reciprocal relationship that is societal and not personal. The current alternative calls in refugee protection are for compassion, humanitarianism, and morality. Such claims lack reciprocity and are founded on personal need. As Catherine Dauvergne explains, "a claim for compassion does not effectively function as a right because rights are grounded in equality but compassion is grounded in generosity and inequality."^[9]

A hearing becomes adversarial where the Minister is involved

While the Division's mandate is primarily conceived of as inquisitorial, in some cases the Minister intervenes in a claim and the process becomes an adversarial one. This properly constrains the Member's role. Madam Justice Tremblay-Lamer observed in Rivas v. Canada that in some situations, such as where exclusion is at issue, “it may be problematic for the tribunal to proceed without the Minister since the Minister usually has the burden of proof. As the applicant argues, it is a situation that can force the member to [translation] ‘descend into the arena’.”^[10] As Lorne Waldman states in his looseleaf: “… Since the burden of proof falls squarely on the Minister, it is certainly arguable that it is not appropriate for tribunal members themselves to engage in an investigation with respect to the exclusion matters. For the tribunal members to do so would result in their becoming prosecutors seeking to establish if the claimant falls within the exclusion clauses.”^[11] Despite all of this, the jurisprudence recognizes that the Board may make a decision on the issue of exclusion without the Minister’s participation,^[12] and indeed that it may have an obligation to do so even where the Minister does not participate in a case. But once the Minister becomes involved, the hearing is seen to become an adversarial process, with both the Minister’s Hearings Officer and the refugee claimant presenting evidence to establish or rebut the allegation of exclusion.^[13] This may entail some limits on the Member's proper role, and this relates to the requirement in the RPD Rules that the hearing be suspended immediately upon notification to the Minister of possible exclusion (which see: Canadian Refugee Procedure/Exclusion, Integrity Issues, Inadmissibility and Ineligibility).

The Member has wide latitude to question claimants in an inquisitorial process

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

Extensive and "energetic" questioning alone by tribunal members will not in itself give rise to a reasonable apprehension of bias. And particular latitude is likely to be given to tribunals operating in a non-adversarial setting, such as refugee determination hearings, where there is no one appearing to oppose the claim.^[14]

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

The inquisitorial form requires much more active decision makers. Instead of placing the responsibility for the collection of evidence and the presentation of arguments on the disputing parties themselves, the inquisitorial process combines the role of investigator and decision-maker into one. RSD is inquisitorial if the asylum seeker goes before a decision maker who both researches and decides the claim.^[15]

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

A Member should be adequately trained

A decision-maker should be adequately trained on issues of law and fact. While the training of Members of the Refugee Protection Division has generally be well regarded, in contrast, this has not always been seen to be the case with overseas visa officers deciding applications for resettlement from abroad. For example, in Ghirmatsion v. Canada, the Federal Court concluded that the visa officer's "lack of adequate training and support" were evident on cross-examination.^[16]

A claimant has an onus to show that they meet the criteria to be recognized as a refugee

The Federal Court affirms that the burden of proof rests on a claimant to show that they meet the definition of a Convention Refugee or 'person in need of protection' in the Act.^[17] The Irwin Law text Refugee Law notes that this burden flows from the general proposition in international law that an individual seeking admission to a state must justify their admission.^[18] The UNHCR is of the view that this principle properly applies in the refugee context, stating that "the burden of proof in principle rests on the applicant".^[19] The burden of proof was previously allocated differently in Canadian refugee law, but in 1988 Canada's legislature modified the immigration legislation to shift the burden of proof for making a claim onto the asylum seeker.^[20]

The UNHCR Handbook provides that those examining a refugee claim should "ensure that the applicant presents his case as fully as possible and with all available evidence."^[19] This does not mean that the Board member is obliged to undertake a freestanding inquiry into a claim; the Refugee Appeal Division has held that the following principles apply in the refugee determination context: "a decision-maker [is] entitled to proper notice as to what exactly [is] being advanced. It is not up to the decision-maker to ferret out points which might possibly assist an applicant."^[21] One of the reasons for this is about judicial economy; indeed, it is said that “states have a right to a fair and efficient asylum procedure”.^[22]

Finally, in the Canadian system there exist legal issues where the burden of proof does not fall on the claimant, for example the Minister (or the Board, if the Minister is not participating in a hearing) bears the onus to establish a refugee claimant comes within one of the Convention's exclusion clauses.^[23]

There is a shared duty of fact-finding in refugee matters

The United Nations High Commissioner for Refugees states in their handbook that there is a shared duty of fact-finding between a claimant and the examiner: "In most cases a person fleeing from persecution will have arrived with the barest necessities and very frequently even without personal documents. Thus, while the burden of proof in principle rests on the applicant, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner."^[24] States must consider persons exercising their right to asylum honestly and with due diligence so as to not violate their obligation of non-refoulement.^[25]

One of the ways that this principle is implemented in practice is through packages of information that states compile on the countries of origin against which claimants are filing claims. It is an international norm that states ensure that precise and up-to-date information from various sources, such as the UNHCR and knowledgeable NGOs, is made available to the personnel responsible for examining applications and taking decisions.^[26] This information will concern the general situation prevailing in the countries of origin against which applications of asylum are being made. That said, it is generally expected that a claimant will bring the passages that they are relying on to the attention of the decision maker; the Federal Court has held that the RPD "is not obliged to comb through every document listed in the National Document Package in the hope of finding passages that may support the claim and specifically address why they do not, in fact, support the claim".^[27]

Another way that Canada fulfills this obligation is through claimant-specific research; the Board has committed to using the following process when engaging in such research pre-hearing: Canadian Refugee Procedure/The right to a fair hearing#Disclosure rights and obligations for the Board. When it comes to whether the Board is obliged to do such research, or to reach out to a potential witness during a hearing, there is a split in the Federal Court jurisprudence about whether and in what circumstances the Board has any such obligation. One line of jurisprudence is represented by the Decision of Justice Russell in Paxi v Canada wherein he commented that "for the Board to take issue with the authenticity of the document yet make no further inquiries despite having the appropriate contact information to do so is a reviewable error."^[28] This appears to place a higher onus on the Board to inquire into a claim and solicit independent evidence. A contrasting line of jurisprudence is exemplified by the decision of Mr. Justice Roy in Lutonadio v. Canada that endorsed the following statement:

I disagree that an administrative tribunal has an obligation to contact a witness to obtain information. This is not its role. The onus rests with the Applicant to bring forward evidence it intends to rely upon and in doing so, always to put the best foot forward. It is not up to the RPD to chase down evidence from a witness to be satisfied that the document is authentic and that a person exists who has sworn to the truth of its contents before someone authorized to confirm that fact. This onus rests with the Applicant who should provide the necessary information authenticating the author and the document.^[29]

The Board must ensure that certain claimants are assisted to make their cases

The United Nations High Commissioner for Refugees states in their handbook that the scope of the shared duty of fact-finding between a claimant and the examiner will vary depending on the nature of the case: "While the burden of proof in principle rests on the applicant, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner. Indeed, in some cases, it may be for the examiner to use all the means at [their] disposal to produce the necessary evidence in support of the application."^[24] What are those cases in which an examiner is to go to greater lengths to produce such evidence?

There is widespread recognition that certain types of claimants may be particularly prejudiced in presenting their cases and that in such circumstances this may affect the onus that is placed on the claimant to provide corroboration of their claim. Indeed, the Code of Conduct for Members of the Immigration and Refugee Board of Canada provides that "Members must take reasonable measures to accommodate all participants in a proceeding so that they may participate effectively."^[30] The UNHCR stipulates that "procedures should be in place to identify and assist asylum seekers with specific needs."^[31]

Evidence is primarily presented in written form in the Canadian process

The purpose of an oral hearing before the Division is not for a claimant to repeat everything that is in their Basis of Claim form. The form is already to include "everything important for [their] claim" (as stated on the form) and as per the Chairperson Guidelines 7: Concerning Preparation and Conduct of a Hearing in the Refugee Protection Division, "questions that are answered by the claimant just repeating what is written in the BOC Form do not help the Member."^[37] Instead, if the information on the form reliably establishes that the claimant meets the criteria to receive protection, then an oral hearing need not be held (See Rule 23: Canadian Refugee Procedure/Allowing a Claim Without a Hearing). The purpose of an oral hearing is to test the evidence presented, or lack thereof, where it is necessary to do so. This is in contrast to the practice in some other jurisdictions; for example, in Finland the practice is to have a portion of their asylum interviews in which the claimant is expected to state the grounds for claiming asylum and disclose evidence to support that claim through free narration.^[38]

The Board should consider the most up-to-date country conditions evidence

Where a new National Documentation Package is released by the Board's research unit prior to a panel rendering a decision, the panel should consider it. In Zhao v. Canada, the court held that the Board should consider the most recent information on country conditions. The parties should have an opportunity to present submissions and evidence on the new documents if they include material new information.^[39] As the Federal Court held in that case, "as a matter of procedural fairness, the [Board] simply had a duty to disclose the most recent NDP and to give the Applicants an opportunity to respond and make submissions on this matter."^[40] That said, the RPD is not generally required to look for evidence on its own in these documents to support either the claimant's or Minister's arguments and propositions.^[27] For an additional discussion of this issue, see: Canadian Refugee Procedure/Documents#The panel should consider the most recent National Documentation Package.

References

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

Language of proceedings

Fairness considerations related to providing complete disclosure of information

Fairness considerations related to providing notice of what is at issue in a hearing

Fairness considerations related to the manner of conducting the 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. The Supreme Court of Canada has held that fundamental justice requires an oral hearing when issues of credibility are being determined in the refugee context.^[4] This hearing process must ensure that parties have an opportunity to present and respond to evidence and to make representations. Where, for example, the Board prevents a party from speaking on multiple occasions during a hearing,^[6] denies a party a reasonable opportunity to cross-examine a witness,^[7] refuses to receive evidence,^[8] or prevents a party from calling witnesses,^[9] 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.

Fairness considerations related to decisions

References

Allegations of an apprehension of bias must be raised at the earliest opportunity

A person alleging an apprehension of bias on the part of the decision-maker must raise it at the earliest opportunity to allow the decision-maker to recuse themselves, if necessary.^[5] Failure to do so will generally amount to an implied waiver of the right to invoke bias in subsequent proceedings, such as an appeal or an application for judicial review.^[5]

The test for a reasonable apprehension of bias

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

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

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

Additional comment on each of these factors follows.

Factors that are commonly assessed when determining whether a reasonable apprehension of bias exists in a given case

References

The right to an independent decision-maker

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

Deliberative Secrecy

The principle of deliberative secrecy prevents disclosure of how and why adjudicative decision-makers make their decisions. The "how and why" of decision-making are kept secret to protect the decision-maker and the decision-making process.^[26]

References

1. ↑ Bourbonnais v. Canada (Attorney General), 2004 FC 1754, [2005] 4 F.C.R. 529 at paras. 49-57, 267 F.T.R. 169.
2. ↑ Immigration and Refugee Board of Canada, Code of Conduct for Members of the Immigration and Refugee Board of Canada, Effective Date: April 9, 2019, <https://irb-cisr.gc.ca/en/members/Pages/MemComCode.aspx> (Accessed May 3, 2020), at section 34.
3. ↑ UN doc CCPR/C/88/D/1416/2005 (10 November 2006).
4. ↑ I.W.A. v. Consolidated Bathurst Packaging Ltd., [1990] 1 S.C.R. 282.
5. 1 2 Whitaker, Kevin, Consistency in Tribunal Decision Making: What Really Goes On Behind Closed Doors..., Essays in Adminitrative and Justice (2001-2007) <https://ciaj-icaj.ca/wp-content/uploads/documents/2016/09/pub2007-8.pdf?id=7973&1577812348> (Accessed January 18, 2020).
6. ↑ Iwa v. Consolidated-Bathurst Packaging Ltd., 1990 CanLII 132 (SCC), [1990] 1 SCR 282, para. 84.
7. ↑ Canadian Association of Refugee Lawyers v. Canada (Immigration, Refugees and Citizenship), 2020 FCA 196 (CanLII), par. 75, <http://canlii.ca/t/jblsl#par75>, retrieved on 2020-11-17.
8. ↑ Barrantes v. Canada (Minister of Citizenship and Immigration), 2005 FC 518.
9. ↑ Daly, Paul, Judges Talking to other Judges: Judicious Consultation?, Administrative Law Matters Blog <https://www.administrativelawmatters.com/blog/2015/05/22/judges-talking-to-other-judges-judicious-consultation/> (Accessed January 19, 2020).
10. 1 2 3 Iwa v. Consolidated-Bathurst Packaging Ltd., 1990 CanLII 132 (SCC), [1990] 1 SCR 282.
11. ↑ Tremblay v. Quebec (Commission des affaires sociales), 1992 CanLII 1135 (SCC), [1992] 1 S.C.R. 952
12. 1 2 Bovbel v. Canada (Minister of Employment and Immigration), 1994 CanLII 3465 (FCA), [1994] 2 FC 563
13. 1 2 Mullan, David, Administrative Law (Irwin Law), page 301.
14. ↑ Canadian Association of Refugee Lawyers v. Canada (Immigration, Refugees and Citizenship), 2020 FCA 196 (CanLII), par. 45, <http://canlii.ca/t/jblsl#par45>, retrieved on 2020-11-17.
15. ↑ Stemijon Investments Ltd. v. Canada (Attorney General), 2011 FCA 299.
16. ↑ Houle, F. (2008). Thamotharem and Guideline 7 of the IRB: Rethinking the Scope of the Fettering of Discretion Doctrine. Refuge: Canada’s Journal on Refugees, 25(2), 103-118. Retrieved from https://refuge.journals.yorku.ca/index.php/refuge/article/view/26034, page 105.
17. ↑ Thamotharem v. Canada (Minister of Citizenship and Immigration), 2007 FCA 198 (CanLII), [2008] 1 FCR 385, par. 78, <http://canlii.ca/t/1rmr4#par78>, retrieved on 2020-12-23.
18. ↑ Rodriguez Lopez v. Canada (Citizenship and Immigration), 2021 FC 66 (CanLII), par. 10, <https://canlii.ca/t/jcq6v#par10>, retrieved on 2021-02-05.
19. ↑ Badal v Canada (Minister of Citizenship and Immigration), 2003 FCT 311 at para 25.
20. ↑ Immigration and Refugee Board of Canada, Code of Conduct for Members of the Immigration and Refugee Board of Canada, Effective Date: April 9, 2019, <https://irb-cisr.gc.ca/en/members/Pages/MemComCode.aspx> (Accessed May 3, 2020), at section 13.
21. ↑ Mackenzie, Ian, Mentoring for Adjudicators: The Need for Guidelines, Slaw: Canada's online legal magazine, July 6, 2016, <http://www.slaw.ca/2016/07/06/mentoring-for-adjudicators-the-need-for-guidelines/> (accessed January 18, 2020).
22. ↑ Canadian Association of Refugee Lawyers v. Canada (Immigration, Refugees and Citizenship), 2020 FCA 196 (CanLII), par. 98, <http://canlii.ca/t/jblsl#par98>, retrieved on 2020-11-17.
23. ↑ X (Re), 2013 CanLII 76391 (CA IRB), <https://canlii.ca/t/g23dh>, retrieved on 2021-02-20.
24. ↑ Demirtas v. Canada (Minister of Employment and Immigration), 1992 CanLII 2425 (FCA), [1993] 1 F.C. 602 (C.A.).
25. ↑ Manalang v. Canada (Minister of Public Safety and Emergency Preparedness), 2007 FC 1368 (CanLII), [2008] 4 FCR 440, <https://canlii.ca/t/1vbp6>, retrieved on 2021-02-20.
26. ↑ Summitt Energy Management Inc. v. Ontario Energy Board, 2012 ONSC 2753 (CanLII), as discussed in Cass, Fred D,; Thoms, Zoe, Deliberative Secrecy in the Context of Decision-Making by Administrative Tribunals, Advocates' Quarterly 44 Advoc. Q. (2015) <https://heinonline.org/HOL/P?h=hein.journals/aqrty44&i=177>, page 169 (Accessed January 18, 2020).
27. ↑ Tunian v. Chairman of the Immigration and Refugee Board, 2004 FC 849 (CanLII).
28. ↑ Canada (Privacy Commissioner v. Canada (Labour Relations Board) (2000), 257 N.R. 66 (F.C.A.), [2000] F.C.J. No. 617 (C.A.) (QL)).
29. ↑ Kosko c. Bijimine, 2006 QCCA 671 at para. 40.
30. ↑ Commission scolaire de Laval v. Syndicat de l’enseignement de la région de Laval, 2016 SCC 8, at para. 64.
31. ↑ West Moberly First Nations v British Columbia, 2018 BCSC 1835 (CanLII), para. 159.
32. ↑ Ermina v. Canada (Citizenship and Immigration) (1998), 1998 CanLII 8969 (FC), 167 D.L.R. (4th) 764 (F.C.).
33. ↑ Agnew v. Ontario Association of Architects (1987), 1987 CanLII 4030 (ON SC), 64 O.R. (2d) 8 (Div. Ct.) at 14.
34. ↑ Office of the Privacy Commissioner of Canada, Inappropriate monitoring of employees' e-mail accounts, Date modified: 2003-01-29, <https://www.priv.gc.ca/en/opc-actions-and-decisions/investigations/investigations-into-federal-institutions/2001-02/pa_200102_05/> (Accessed August 16, 2020).

The claimant should be received and introduced to the hearing room by a Board staff member

Claimants should be properly received at the beginning of the hearing. The IRB commissioned a report on its use of videoconference and the resultant report stated that "From a justice system perspective, it seems to me wrong that claimants attending a hearing in which their future is to be decided by an adjudicator in what is effectively a judicial proceeding, should not be received in the hearing room at the outset by a real person with official status, who can address the claimants by name, confirm that they are in the right place, introduce them to the equipment, explain what to expect, and so on."^[1] That report, which is published on the Board's website, identifies this as an important step in the creation of a receptive and comfortable hearing environment.

Proceedings will be recorded

Audio of refugee proceedings before the Board will, as a matter of course, be recorded. Indeed, there is some legal risk where the Board does not record the hearing: Canadian Refugee Procedure/Print version#The Board is not obliged to record hearings, but a lack of such a recording may constitute grounds for setting aside the decision. International law regarding refugee determination provides that States may record a refugee claimant's oral statements, but the claimant should be given due notice that this may be required.^[2] Such notice is a common way to begin proceedings at the RPD, where the member will, as part of an introductory spiel, inform the claimant that they are now "on the record".

Proceedings are a mix of formal and informal

Section 162(2) provides that each Division must deal with proceedings as informally and quickly as circumstances permit, taking into account the requirements of fairness and natural justice. This provision implies that the Division is not bound by formal rules of procedure that would apply in a court or more formal quasi-judicial tribunal.^[3] The Irwin Law text Refugee Law notes that "despite the Board's own description of its hearing process as 'informal,' the reality for claimants is that it is decidedly formal."^[4] Similarly, the Law Reform Commission of Canada, in its report The Determination of Refugee Status in Canada: A Review of the Procedure states that "Hearings are conducted...in a fairly formal atmosphere, in a quasi-judicial context which many claimants appeared to find intimidating. This formality flows from both the setting and the behaviour of the participants. The hearing room is laid out like a court room, with a raised desk and high-back chairs for Members. The style of proceedings is typical of that for a quasi-judicial tribunal."^[5]

In operation, a refugee hearing is not dissimilar to any other administrative hearing: the parties are present, witnesses are examined, and submissions are made.^[4] Some of the expectations for conduct at such hearings follow:

References

1. ↑ S. Ronald Ellis, Q.C., Videoconferencing in Refugee Hearings, Published by Immigration and Refugee Board of Canada, Date October 21, 2004 <https://irb-cisr.gc.ca/en/transparency/reviews-audit-evaluations/Pages/Video.aspx> (Accessed January 26, 2020).
2. ↑ Andreas Zimmermann (editor), The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary. Oxford University Press, 2011, ISBN 978-0-19-954251-2, Introduction to Chapter V, written by Hofmann & Löhr, at p. 1119 (para. 102).
3. ↑ Waldman, Lorne, Canadian Immigration & Refugee Law Practice, Markham, Ont.: LexisNexis Butterworths, 2018, ISBN 9780433478928, ISSN 1912-0311, <https://search.library.utoronto.ca/details?5022478> (Accessed April 1, 2020) at page 201 of the PDF.
4. 1 2 Martin David Jones and Sasha Baglay. Refugee law (Second Edition). Irwin Law, 2017, page 297.
5. ↑ Hathaway, James C., Rebuilding trust: A Report of the Review of Fundamental Justice in Information Gathering and Dissemination at the Immigration and Refugee Board of Canada, Refugee Studies Centre, Publisher: Osgoode Hall Law School, York University, December 1993, page 73.
6. ↑ University of Ottawa Refugee Assistance Project, UORAP Hearing Preparation Kit, Guide 3: Preparing Evidence for your Hearing <https://ccrweb.ca/sites/ccrweb.ca/files/hearing_preparation_kit.pdf>, page 21.
7. ↑ Martin David Jones and Sasha Baglay. Refugee law (Second Edition). Irwin Law, 2017, page 302.
8. ↑ Wysozki v. Canada (Public Safety and Emergency Preparedness) (F.C., No. IMM-4958-19), Strickland, March 31, 2020; 2020 FC 458.
9. ↑ Immigration and Refugee Board of Canada, Interpreter Handbook, December 2012, Government of Canada, online: Immigration and Refugee Board <https://irb-cisr.gc.ca/en/interpreters/Pages/Interpret.aspx> (Accessed May 30, 2020).

Rule 1

The text of the relevant rule reads:

Interpretation

Definitions
1 The following definitions apply in these Rules.

Act means the Immigration and Refugee Protection Act. (Loi)

Basis of Claim Form means the form in which a claimant gives the information referred to in Schedule 1. (Formulaire de fondement de la demande d’asile)

contact information means, with respect to a person,
(a) the person’s name, postal address and telephone number, and their fax number and email address, if any; and
(b) in the case of counsel for a claimant or protected person, if the counsel is a person referred to in any of paragraphs 91(2)(a) to (c) of the Act, in addition to the information referred to in paragraph (a), the name of the body of which the counsel is a member and the membership identification number issued to the counsel. (coordonnées)

Division means the Refugee Protection Division. (Section)

officer means a person designated as an officer by the Minister under subsection 6(1) of the Act. (agent)

party means,
(a) in the case of a claim for refugee protection, the claimant and, if the Minister intervenes in the claim, the Minister; and
(b) in the case of an application to vacate or to cease refugee protection, the protected person and the Minister. (partie)

proceeding includes a conference, an application or a hearing. (procédure)

registry office means a business office of the Division. (greffe)

Regulations means the Immigration and Refugee Protection Regulations. (Règlement)

vulnerable person means a person who has been identified as vulnerable under the Guideline on Procedures with Respect to Vulnerable Persons Appearing Before the IRB issued under paragraph 159(1)(h) of the Act. (personne vulnérable)

working day does not include Saturdays, Sundays or other days on which the Board offices are closed. (jour ouvrable)

References

1. 1 2 Duale v. Canada (Minister of Citizenship and Immigration), 2004 FC 150 (CanLII), par. 5, <http://canlii.ca/t/1gcff#par5>, retrieved on 2020-01-27
2. ↑ Cui v. Canada (Citizenship and Immigration), 2007 FC 945 (CanLII), par. 6, <http://canlii.ca/t/1t1sc#par6>, retrieved on 2020-08-16.

The Rule

The text of the relevant rule reads:

Communicating with Division

2 All communication with the Division must be directed to the registry office specified by the Division.

Commentary

The registry offices are specified on the IRB website, including in the Board's Claimant's Guide. The only registries are in Vancouver, Toronto, and Montreal. While the IRB has offices in other cities, such as Ottawa, Winnipeg, and Calgary, these offices do not have registries and are not registry officers "specified by the Division" to receive communications within the meaning of this rule.^[1]

References

1. ↑ Immigration and Refugee Board of Canada, Claimant's Guide, <https://irb-cisr.gc.ca/en/refugee-claims/Pages/ClaDemGuide.aspx> (Accessed April 14, 2020).

Rule 3(1)-(3) - Fixing date, time and location of hearing

The text of the relevant rule reads:

Information and Documents to Be Provided

Claims for Refugee Protection

Fixing date, time and location of hearing
3 (1) As soon as a claim for refugee protection is referred to the Division, or as soon as possible before it is deemed to be referred under subsection 100(3) of the Act, an officer must fix a date, time and location for the claimant to attend a hearing on the claim, within the time limits set out in the Regulations, from the dates, times and locations provided by the Division.

Date fixed by officer
(2) Subject to paragraph 3(b), the officer must select the date closest to the last day of the applicable time limit set out in the Regulations, unless the claimant agrees to an earlier date.

Factors
(3) In fixing the date, time and location for the hearing, the officer must consider
(a) the claimant’s preference of location; and
(b) counsel’s availability, if the claimant has retained counsel at the time of referral and the officer has been informed that counsel will be available to attend a hearing on one of the dates provided by the Division.

Rule 3(4)-(6) - Information an officer must provide to the claimant

Providing information to claimant in writing
(4) The officer must
(a) notify the claimant in writing by way of a notice to appear
    (i) of the date, time and location of the hearing of the claim; and
    (ii) of the date, time and location of any special hearing on the abandonment of the claim under subrules 65(2) and (3);
(b) unless the claimant has provided a completed Basis of Claim Form to the officer in accordance with subsection 99(3.1) of the Act, provide to the claimant the Basis of Claim Form; and
(c) provide to the claimant information in writing
    (i) explaining how and when to provide a Basis of Claim Form and other documents to the Division and to the Minister,
    (ii) informing the claimant of the importance of obtaining relevant documentary evidence without delay,
    (iii) explaining how the hearing will proceed,
    (iv) informing the claimant of the obligation to notify the Division and the Minister of the claimant’s contact information and any changes to that information,
    (v) informing the claimant that they may, at their own expense, be represented by legal or other counsel, and
    (vi) informing the claimant that the claim may be declared abandoned without further notice if the claimant fails to provide the completed Basis of Claim Form or fails to appear at the hearing.

Providing information in writing and documents to Division
(5) After providing to the claimant the information set out in subrule (4), the officer must without delay provide to the Division
(a) a written statement indicating how and when the information set out in subrule (4) was provided to the claimant;
(b) the completed Basis of Claim Form for a claimant referred to in subsection 99(3.1) of the Act;
(c) a copy of each notice to appear provided to the claimant in accordance with paragraph (4)(a);
(d) the information set out in Schedule 2;
(e) a copy of any identity and travel documents of the claimant that have been seized by the officer;
(f) a copy of the notice of seizure of any seized documents referred to in paragraph (e); and
(g) a copy of any other relevant documents that are in the possession of the officer.

Providing copies to claimant
(6) The officer must provide to the claimant a copy of any documents or information that the officer has provided to the Division under paragraphs (5)(d) to (g).

Rule 4 - Claimant's contact information

Claimant’s contact information
4 (1) The claimant must provide their contact information in writing to the Division and to the Minister.

Time limit
(2) The claimant’s contact information must be received by the Division and the Minister no later than 10 days after the day on which the claimant receives the information provided by the officer under subrule 3(4).

Change to contact information
(3) If the claimant’s contact information changes, the claimant must without delay provide the changes in writing to the Division and to the Minister.

Information concerning claimant’s counsel
(4) A claimant who is represented by counsel must without delay, on retaining counsel, provide the counsel’s contact information in writing to the Division and to the Minister and notify them of any limitations on the counsel’s retainer. If that information changes, the claimant must without delay provide the changes in writing to the Division and to the Minister.

Rule 5 - Declaration where counsel is not acting for consideration

Declaration — counsel not representing or advising for consideration
5 If a claimant retains counsel who is not a person referred to in any of paragraphs 91(2)(a) to (c) of the Act, both the claimant and their counsel must without delay provide the information and declarations set out in Schedule 3 to the Division in writing.

Representation or advice for consideration
91 (1) Subject to this section, no person shall knowingly, directly or indirectly, represent or advise a person for consideration — or offer to do so — in connection with the submission of an expression of interest under subsection 10.1(3) or a proceeding or application under this Act.

Persons who may represent or advise
(2) A person does not contravene subsection (1) if they are
(a) a lawyer who is a member in good standing of a law society of a province or a notary who is a member in good standing of the Chambre des notaires du Québec;
(b) any other member in good standing of a law society of a province or the Chambre des notaires du Québec, including a paralegal; or
(c) a member in good standing of a body designated under subsection (5).

...

Designation by Minister
(5) The Minister may, by regulation, designate a body whose members in good standing may represent or advise a person for consideration — or offer to do so — in connection with the submission of an expression of interest under subsection 10.1(3) or a proceeding or application under this Act.

SCHEDULE 3
(Rules 5 and 13)

Information and Declarations — Counsel Not Representing or Advising for Consideration

Item	Information
1	IRB Division and file number with respect to the claimant or protected person.
2	Name of counsel who is representing or advising the claimant or protected person and who is not receiving consideration for those services.
3	Name of counsel’s firm or organization, if applicable, and counsel’s postal address, telephone number, fax number and email address, if any.
4	If applicable, a declaration, signed by the interpreter, that includes the interpreter’s name, the language and dialect, if any, interpreted and a statement that the interpretation is accurate.
5	Declaration signed by the claimant or protected person that the counsel who is representing or advising them is not receiving consideration and the information provided in the form is complete, true and correct.
6	Declaration signed by counsel that they are not receiving consideration for representing or advising the claimant or protected person and that the information provided in the form is complete, true and correct.

Rule 6 - Basis of Claim Form

Basis of Claim Form

Claimant’s declarations
6 (1) The claimant must complete a Basis of Claim Form and sign and date the declaration set out in the form stating that
(a) the information given by the claimant is complete, true and correct; and
(b) the claimant understands that the declaration is of the same force and effect as if made under oath.

Form completed without interpreter
(2) If the claimant completes the Basis of Claim Form without an interpreter’s assistance, the claimant must sign and date the declaration set out in the form stating that they can read the language of the form and understand what information is requested.

Interpreter’s declaration
(3) If the claimant completes the Basis of Claim Form with an interpreter’s assistance, the interpreter must sign and date the declaration in the form stating that
(a) they are proficient in the language and dialect, if any, used, and were able to communicate effectively with the claimant;
(b) the completed Basis of Claim Form and all attached documents were interpreted to the claimant; and
(c) the claimant indicated that the claimant understood what was interpreted.

Rule 7 - Providing BOC Form

Providing Basis of Claim Form — inland claim
7 (1) A claimant referred to in subsection 99(3.1) of the Act must provide the original and a copy of the completed Basis of Claim Form to the officer referred to in rule 3.

Providing Basis of Claim Form — port of entry claim
(2) A claimant other than a claimant referred to in subsection 99(3.1) of the Act must provide the original and a copy of the completed Basis of Claim Form to the Division.

Documents to be attached
(3) The claimant must attach to the original and to the copy of the completed Basis of Claim Form a copy of their identity and travel documents, genuine or not, and a copy of any other relevant documents in their possession. The claimant does not have to attach a copy of a document that has been seized by an officer or provided to the Division by an officer.

Documents obtained after providing Basis of Claim Form
(4) If the claimant obtains an identity or travel document after the Division has received the completed Basis of Claim Form, they must provide two copies of the document to the Division without delay.

Providing Basis of Claim Form — port of entry claim
(5) The Basis of Claim Form provided under subrule (2) must be
(a) received by the Division within the time limit set out in the Regulations, and
(b) provided in any of the following ways:
(i) by hand,
(ii) by courier,
(iii) by fax if the document is no more than 20 pages long, unless the Division consents to receiving more than 20 pages, or
(iv) by email or other electronic means if the Division allows.

Original Basis of Claim Form
(6) A claimant who provides the Basis of Claim Form by fax must provide the original to the Division at the beginning of the hearing.

Rule 8 - Application for an extension of time to provide BOC Form

Application for extension of time
8 (1) A claimant who makes an application for an extension of time to provide the completed Basis of Claim Form must make the application in accordance with rule 50, but the claimant is not required to give evidence in an affidavit or statutory declaration.

Time limit
(2) The application must be received by the Division no later than three working days before the expiry of the time limit set out in the Regulations.

Application for medical reasons
(3) If a claimant makes the application for medical reasons, other than those related to their counsel, they must provide, together with the application, a legible, recently dated medical certificate signed by a qualified medical practitioner whose name and address are printed or stamped on the certificate. A claimant who has provided a copy of the certificate to the Division must provide the original document to the Division without delay.

Content of certificate
(4) The medical certificate must set out the particulars of the medical condition, without specifying the diagnosis, that prevent the claimant from providing the completed Basis of Claim Form in the time limit referred to in paragraph 7(5)(a).

Failure to provide medical certificate
(5) If a claimant fails to provide a medical certificate in accordance with subrules (3) and (4), the claimant must include in their application
(a) particulars of any efforts they made to obtain the required medical certificate, supported by corroborating evidence;
(b) particulars of the medical reasons for the application, supported by corroborating evidence; and
(c) an explanation of how the medical condition prevents them from providing the completed Basis of Claim Form in the time limit referred to in paragraph 7(5)(a).

Providing Basis of Claim Form after extension granted
(6) If an extension of time is granted, the claimant must provide the original and a copy of the completed Basis of Claim Form to the Division in accordance with subrules 7(2) and (3), no later than on the date indicated by the Division and by a means set out in paragraph 7(5)(b).

Rule 9 - Changes to BOC Form

Changes or additions to Basis of Claim Form
9 (1) To make changes or add any information to the Basis of Claim Form, the claimant must
      (a) provide to the Division the original and a copy of each page of the form to which changes or additions have been made;
      (b) sign and date each new page and underline the changes or additions made; and
      (c) sign and date a declaration stating that
          (i)  the information given by the claimant in the Basis of Claim Form, together with the changes and additions, is complete, true         
               and correct, and
          (ii) the claimant understands that the declaration is of the same force and effect as if made under oath.

Time limit
(2) The documents referred to in subrule (1) must be provided to the Division without delay and must be received by it no later than 10 days before the date fixed for the hearing.

Rule 10 - Order of questioning in hearings, oral representations, oral decisions, limiting questioning

Conduct of a Hearing

Standard order of questioning
10 (1) In a hearing of a claim for refugee protection, if the Minister is not a party, any witness, including the claimant, will be questioned first by the Division and then by the claimant’s counsel.

Order of questioning — Minister’s intervention on exclusion issue
(2) In a hearing of a claim for refugee protection, if the Minister is a party and has intervened on an issue of exclusion under subrule 29(3), any witness, including the claimant, will be questioned first by the Minister’s counsel, then by the Division and then by the claimant’s counsel.

Order of questioning — Minister’s intervention not on exclusion issue
(3) In a hearing of a claim for refugee protection, if the Minister is a party but has not intervened on an issue of exclusion under subrule 29(3), any witness, including the claimant, will be questioned first by the Division, then by the Minister’s counsel and then by the claimant’s counsel.

Order of questioning — application to vacate or cease refugee protection
(4) In a hearing into an application to vacate or to cease refugee protection, any witness, including the protected person, is to be questioned first by the Minister’s counsel, then by the Division and then by the protected person’s counsel.

Variation of order of questioning
(5) The Division must not vary the order of questioning unless there are exceptional circumstances, including that the variation is required to accommodate a vulnerable person.

Limiting questioning of witnesses
(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.

Oral representations
(7) Representations must be made orally at the end of a hearing unless the Division orders otherwise.

Oral decision and reasons
(8) A Division member must render an oral decision and reasons for the decision at the hearing unless it is not practicable to do so.

Rule 11 - Documents Establishing Identity and Other Elements of the Claim

Documents Establishing Identity and Other Elements of the Claim

Documents
11 The claimant must provide acceptable documents establishing their identity and other elements of the claim. A claimant who does not provide acceptable documents must explain why they did not provide the documents and what steps they took to obtain them.

Claimant Without Identification

Credibility

106 The Refugee Protection Division must take into account, with respect to the credibility of a claimant, whether the claimant possesses acceptable documentation establishing identity, and if not, whether they have provided a reasonable explanation for the lack of documentation or have taken reasonable steps to obtain the documentation.

Rule 12 - Supplying contact information after an Application to Vacate or to Cease Refugee Protection

Application to Vacate or to Cease Refugee Protection

Contact information
12 If an application to vacate or to cease refugee protection is made, the protected person must without delay notify the Division and the Minister in writing of
(a) any change in their contact information; and
(b) their counsel’s contact information and any limitations on the counsel’s retainer, if represented by counsel, and any changes to that information.

Rule 13 - Declaration where counsel not representing or advising for consideration

Declaration — counsel not representing or advising for consideration
13 If a protected person retains counsel who is not a person referred to in any of paragraphs 91(2)(a) to (c) of the Act, both the protected person and their counsel must without delay provide the information and declarations set out in Schedule 3 to the Division in writing.

References

1. ↑ Acton, Tess, Understanding Refugee Stories: Lawyers, Interpreters, and Refugee Claims in Canada, 2015, Master of Laws Thesis, <https://dspace.library.uvic.ca/bitstream/handle/1828/6213/Acton_Tess_LLM_2015.pdf?sequence=7&isAllowed=y>, page 37 (Accessed January 23, 2020).
2. ↑ Mendoza Garcia v Canada (Citizenship and Immigration), 2011 FC 924 at paras 8, 14.
3. ↑ Perez v. Canada (Citizenship and Immigration), 2020 FC 1171 (CanLII), par. 30, <http://canlii.ca/t/jc9b0#par30>, retrieved on 2021-01-14.
4. ↑ Perez v. Canada (Citizenship and Immigration), 2020 FC 1171 (CanLII), par. 34, <http://canlii.ca/t/jc9b0#par34>, retrieved on 2021-01-14.
5. ↑ Weerasinge v. Canada (Minister of Employment and Immigration), 1993 CanLII 2996 (FCA), [1994] 1 FC 330.
6. ↑ Immigration and Refugee Board of Canada, Basis of Claim Form, November 2012 Version <https://irb-cisr.gc.ca/en/forms/Documents/RpdSpr0201_e.pdf>, page 9.
7. ↑ Domantay v. Canada (Citizenship and Immigration), 2008 FC 755.
8. ↑ Uwejeyah v. Canada (Citizenship and Immigration), 2020 FC 849 (CanLII), par. 13, <http://canlii.ca/t/jc7vl#par13>, retrieved on 2021-01-08.
9. 1 2 UN High Commissioner for Refugees (UNHCR), Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, April 2019, HCR/1P/4/ENG/REV. 4, available at: https://www.refworld.org/docid/5cb474b27.html [accessed 26 January 2020], page 45.
10. ↑ Law Reform Commission of Canada, The Determination of Refugee Status in Canada: A Review of the Procedure (Draft Final Report) 128 (1992).
11. 1 2 3 Immigration and Refugee Board of Canada, RPD Rules Regulatory Impact Analysis Statement, Date modified: 2018-07-04, Accessed January 3, 2020 <https://irb-cisr.gc.ca/en/legal-policy/act-rules-regulations/Pages/RiasReir.aspx>.
12. ↑ Berger, Max, Refugee Essentials, Canadian Bar Association Immigration Law Conference, Montreal, Quebec, May 2013, <http://www.cba.org/cba/cle/pdf/imm13_paper_berger.pdf>, page 4.
13. ↑ Immigration and Refugee Board of Canada, Practice notice on the temporary extension of time limits for filing the Basis of Claim form, August 28, 2020, <https://irb-cisr.gc.ca/en/legal-policy/procedures/Pages/practice-notice-temporary-extension-boc-form.aspx> (Accessed August 31, 2020).
14. ↑ BC Public Interest Advocacy Centre (BCPIAC), Refugee Reform and Access to Counsel in British Columbia, July 30, 2015, <https://bcpiac.com/wp-content/uploads/2015/09/LFBC-Refugee-Reform-Paper-Final-July-30-2015-2.pdf> (Accessed January 12, 2020), page 33.
15. ↑ Immigration and Refugee Board of Canada, Commentaries to the Refugee Protection Division Rules, Date Modified: 2009-05-22 <https://web.archive.org/web/20100704062357/http://www.irb-cisr.gc.ca/eng/brdcom/references/aclo/pages/rpdcomment.aspx> (Accessed January 28, 2020).
16. ↑ Mariagiulia Giuffré, ‘Access to Asylum at Sea? Non-Refoulement and a Comprehensive Approach to Extraterritorial Human Rights Obligations’ in Violeta Moreno Lax and Efthymios Papastavridis (eds), Boat Refugees and Migrants at Sea: A Comprehensive Approach: Integrating Maritime Security with Human Rights (Brill Nijhoff 2017) 265.
17. ↑ Canadian Council for Refugees, The challenge of fair and effective refugee determination, 23 July 2009 <https://ccrweb.ca/files/fairdetermination.pdf> (Accessed April 24, 2020), page 7.
18. ↑ Immigration and Refugee Board of Canada, Practice notice on the temporary extension of time limits for filing the basis of claim form, Signed March 15, 2020 <https://irb-cisr.gc.ca/en/legal-policy/procedures/Pages/rpd-covid19.aspx> (Accessed March 16, 2020).
19. 1 2 3 4 Immigration and Refugee Board of Canada, Commentaries to the Refugee Protection Division Rules, Date Modified: 2009-05-22 <https://web.archive.org/web/20100704062357/http://www.irb-cisr.gc.ca/eng/brdcom/references/aclo/pages/rpdcomment.aspx> (Accessed January 28, 2020).
20. ↑ X (Re), 2014 CanLII 98260 (CA IRB), par. 8, <http://canlii.ca/t/gm0xt#par8>, retrieved on 2020-03-15.
21. ↑ Community Legal Education Ontario (CLEO), Refugee Rights in Ontario: Answering questions at the hearing, Updated Jan 29, 2014, Accessed January 5, 2020, <https://refugee.cleo.on.ca/en/answering-questions-hearing>.
22. ↑ Immigration and Refugee Board of Canada, Basis of Claim Form, November 2012 version, Accessed January 5, 2020, <https://irb-cisr.gc.ca/en/forms/Documents/RpdSpr0201_e.pdf>.
23. ↑ Immigration and Refugee Board of Canada, Claimant's Guide, Date modified: 2018-08-29, Accessed January 5, 2020, <https://irb-cisr.gc.ca/en/refugee-claims/Pages/ClaDemGuide.aspx>.
24. ↑ X (Re), 2015 CanLII 56636 (CA IRB), para. 43 <https://www.canlii.org/en/ca/irb/doc/2015/2015canlii56636/2015canlii56636.html>.
25. ↑ Martin David Jones and Sasha Baglay. Refugee Law (Second Edition). Irwin Law, 2017, page 293.
26. ↑ Immigration and Refugee Board of Canada, RPD Rules Regulatory Impact Analysis Statement, Date modified: 2018-07-04, Accessed January 3, 2020 <https://irb-cisr.gc.ca/en/legal-policy/act-rules-regulations/Pages/RiasReir.aspx>.
27. ↑ Law Reform Commission of Canada, The Determination of Refugee Status in Canada: A Review of the Procedure (Draft Final Report), 16-17 (1992).
28. ↑ Hathaway, James C., Rebuilding trust: A Report of the Review of Fundamental Justice in Information Gathering and Dissemination at the Immigration and Refugee Board of Canada, Refugee Studies Centre, Publisher: Osgoode Hall Law School, York University, December 1993, page 74.
29. ↑ Thamotharem v. Canada (Minister of Citizenship and Immigration), 2007 FCA 198 (CanLII), [2008] 1 FCR 385.
30. ↑ Immigration and Refugee Board of Canada, Chairperson Guidelines 7: Concerning Preparation and Conduct of a Hearing in the Refugee Protection Division <https://irb-cisr.gc.ca/en/legal-policy/policies/Pages/GuideDir07.aspx> (Accessed January 30, 2020), section 5.8.
31. ↑ Dong v. Canada (Minister of Employment & Immigration), [1991] F.C.J. No. 364, 14 Imm. L.R. (2d) 317 (F.C.T.D.).
32. ↑ Pajarillo, Donna Parcasio v. M.C.I. (F.C., no. IMM-3740-19), Lafreniere, December 20, 2019; 2019 FC 1654.
33. 1 2 3 Immigration and Refugee Board of Canada, Assessment of Credibility in Claims for Refugee Protection, January 31, 2004, <https://irb-cisr.gc.ca/en/legal-policy/legal-concepts/Pages/Credib.aspx#n2452> (Accessed January 27, 2020), section 2.4.5.2.
34. ↑ Pazmandi v. Canada (Citizenship and Immigration), 2020 FC 1094 (CanLII), par. 23, <http://canlii.ca/t/jbv6m#par23>, retrieved on 2020-12-17.
35. 1 2 Immigration and Refugee Board of Canada, Basis of Claim Form, November 2012 Version <https://irb-cisr.gc.ca/en/forms/Documents/RpdSpr0201_e.pdf>, page 2.
36. 1 2 Immigration and Refugee Board of Canada, Basis of Claim Form, November 2012 Version <https://irb-cisr.gc.ca/en/forms/Documents/RpdSpr0201_e.pdf>, Appendix - page 1.
37. ↑ Department of Justice, Immigration and Refugee Legal Aid Cost Drivers, 2002, <https://www.justice.gc.ca/eng/rp-pr/other-autre/ir/rr03_la17-rr03_aj17/p37.html#a310> (Accessed August 23, 2020), at 3.10.
38. 1 2 3 Immigration and Refugee Board of Canada, Commentaries to the Refugee Protection Division Rules, Date Modified: 2009-05-22 <https://web.archive.org/web/20100704062357/http://www.irb-cisr.gc.ca/eng/brdcom/references/aclo/pages/rpdcomment.aspx> (Accessed January 28, 2020).
39. ↑ Kitenga Lunda, Zico c. M.C.I. (C.F., no. IMM-3727-19), Gascon, 18 juin 2020, 2020 CF 704.
40. ↑ Immigration and Refugee Board of Canada, Important instructions for refugee claimants (Print version), Date modified on website: 2018-12-11 <https://irb-cisr.gc.ca/en/refugee-claims/Pages/ClaDemGuideInstruct.aspx> (Accessed January 27, 2020).
41. ↑ Somyk v. Canada (Citizenship and Immigration), 2016 FC 1338 (CanLII), <http://canlii.ca/t/gvx8d>.
42. ↑ Maldonado v Canada (Minister of Employment and Immigration), [1980] 2 FC 302 (CA).
43. ↑ Ahortor v Canada (Minister of Employment and Immigration), [1993] FCJ No 705 at paras 35–37, 45, 50.
44. ↑ Ismaili v Canada (Citizenship and Immigration), 2014 FC 84 at paras 31–35.
45. ↑ Triana Aguirre v. Canada (Citizenship and Immigration), 2008 FC 571 at paragraph 15.
46. ↑ Luo v Canada (Citizenship and Immigration), 2019 FC 823 at paras 18–22.