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CHAPTER 1

1. CONDUCT OF REFUGEE DIVISION PROCEEDINGS

1. CONDUCT OF REFUGEE DIVISION PROCEEDINGS

1.1 INTRODUCTION

This chapter provides an overview of the procedures for Refugee Division proceedings. Later chapters in this Handbook provide more detail about specific issues.

The Immigration Act (the Act) sets out who is entitled to have a Refugee Division hearing and identifies certain minimum requirements of the hearing. The Convention Refugee Determination Division Rules (the CRDD Rules) supplement the Act with various procedural requirements.

Neither the Act nor the CRDD Rules, however, set out a detailed blueprint of how proceedings are to be conducted. Members may, therefore, follow the suggestions contained in this chapter, while keeping in mind that they have the authority to vary their procedures in accordance with the necessities of a particular case and their sense of what fairness requires. The CRDD Rules themselves provide:

39. These Rules are not exhaustive and, where any matter that is not provided for in these Rules arises in the course of any proceeding, the Refugee Division may take whatever measures are necessary to provide for a full and proper hearing and to dispose of the matter expeditiously.

The Chairperson of the Immigration and Refugee Board has issued Instructions Governing Extra-Hearing Communication Between Members of the Refugee Division and Refugee Claim Officers and Between Members of the Refugee Division and Other Employees of the Board and Instructions for the Acquisition and Disclosure of Information for Proceedings in the Refugee Division.

In addition, Practice Notices provide information to the parties about proceedings in the Refugee Division, and the Refugee Division has adopted certain policies, such as the Treatment of Unsolicited Information in the Refugee Division (policy no. 1998-01).

1.2 NATURE OF A REFUGEE DIVISION HEARING

1.21 Overview

The Immigration Act created the Immigration and Refugee Board in 1989. The Board now consists of three divisions: the Refugee Division, the Appeal Division and the Adjudication Division [ Immigration Act, s. 57(1)]. The Board is made up of the Chairperson and the members of each Division [ Immigration Act, s. 57(2)].

The Refugee Division is not a "court" [see Immigration Act, s. 67(2)], unlike the Appeal Division which has been constituted as a "court of record" [ Immigration Act, s. 69.4(1)]. The Refugee Division is required by the Act to "deal with all proceedings before it as informally and expeditiously as the circumstances and the considerations of fairness permit" [ Immigration Act, s. 68(2)].

The Refugee Division has been given authority under the Immigration Act to conduct two types of hearings: a hearing into a claim under section 69.1 and a hearing into a Minister's application under section 69.2 [subsection 69.2(1) for cessation hearings; subsection 69.2(2) for reconsideration for fraud]. Almost all of the work of the Refugee Division concerns hearings into claims under section 69.1 of the Act.

1.2.2 Process of Inquiry

The practices introduced by the Instructions for the Acquisition and Disclosure of Information (CRDD - Instructions 96-01) and the Instructions Governing Extra-Hearing Communication Between Members of the Refugee Division and Refugee Claim Officers and Other Employees of the Board (CRDD - Instructions 96-02) enhanced the existing refugee determination practices.

Among the general principles of the Instructions for the Acquisition and Disclosure of Information are that the Refugee Division will acquire information through an accountable and consistent process that is managed and structured to ensure fairness in decision-making and that the Refugee Division will acquire "Specific Information" (i.e., claimant-specific information) only where it is satisfied that acquisition of this information will not result in a serious possibility that the life, liberty or security of the claimant or any other person would be endangered. (Please see Appendix 1D for the complete Instructions.)

The Instructions Governing Extra-Hearing Communication Between Members of the Refugee Division and Refugee Claim Officers and Other Employees of the Board provide among other things, that subject to certain restrictions, Members may communicate with RCOs and with other employees of the Board outside the hearing in the absence of the parties with respect to a case that has not been concluded. The restrictions include that the communication shall not involve the offering or the soliciting an opinion on the merits of the case and that at Team Meetings communication on questions of law and on country conditions is encouraged but communication with respect to the application of law pertaining to a particular case that has not been concluded or with respect to questions of fact to be determined in a particular case that has not been concluded is prohibited. With respect to extra-hearing communication conducted in the absence of the parties pertaining to a case that has not been concluded, the Member shall ensure that, among other things, the following is forthwith disclosed to the parties: the issues identified as relevant to the case, documentary material that is identified as being of particular relevance to the issues raised by the case, and any other matter which the Member believes should be disclosed to comply with the rules of natural justice and to facilitate the fair and expeditious conclusion of the case. (Please see Appendix 1E for the complete Instructions.)

The implementation of these changes has had an effect on the roles of Members and Refugee Claim Officers (RCOs) as well as on the process and procedures governing the Convention refugee determination process. These changes reflect the fact that the decision-maker is mandated to play a more engaged role in the process. The following are the highlights of the refugee determination process, with these changes included:

• Refugee determination as a process of inquiry requires that Members of the Refugee Division ensure that they are adequately informed in order to determine whether the claimant is a Convention refugee as defined in subsection 2(1) of the Immigration Act.

• Members are fully responsible for the conduct of the refugee determination process and examination of the claim from the time of screening, through to assessing the evidence adduced and determining the claim.

• In fulfilling their role as examiners of the claim, Members are engaged and active throughout the refugee determination process and are given carriage of a file shortly after the initial screening of the claim into one of the refugee determination process streams by the RCO (i.e., the expedited hearing process or the full hearing process)

• Members often receive port-of-entry (POE) notes and inland reports prepared by Citizenship and Immigration Canada (CIC) and made available to the IRB pursuant to an agreement with CIC. The claimant is given the opportunity to make comments on this information in advance of the hearing.

• Members are encouraged to demonstrate flexibility in their direction of the refugee determination process both in the pre-hearing and hearing phases, adopting those procedures and levels of formality which best meet the requirements for a full, fair and expeditious hearing for any particular claim, while at all times complying with the principles of fundamental justice and the rules of natural justice.

• RCOs effectively act as agents of the Members. In that capacity, RCOs provide counsel, information and assistance to the Members, when required, throughout the refugee determination process.

• The Members' active and engaged role in issue identification and acquisition of information prior to the commencement of the hearing makes communication between Members and RCOs necessary during the refugee determination process. All such communications are subject to the provisions of the Instructions Governing Extra-Hearing Communications Between Members of the Refugee Division and Refugee Claim Officers and Between Members of the Refugee Division and Other Employees of the Board.

• Groups of Members and RCOs are assigned to Case Management Teams (CMT) which are responsible for the management of resources to ensure the timely processing of an assigned case load. These CMT usually specialize in cases coming from a limited number of countries.

• Within each CMT, Members and RCOs are assigned as hearing teams to specific claims that have been screened into the regular hearing processes. However, their roles remain distinct. The Member alone remains responsible for assessing the evidence and making a determination, while the RCO is responsible for ensuring that relevant available evidence is brought to the Members attention.

• In the pre-hearing as well as in the hearing phase of the refugee determination process, Members have the benefit of enhanced information gathering procedures as set out in the Instructions for the Acquisition and Disclosure of Information.

• RCOs are expected to assemble, from available public sources, general information on conditions in the country against which a refugee claim is made, including information on human rights issues in that country ("Public Source Information").

• In addition to the general information gathered from public sources, the Refugee Division also has the capacity to acquire additional claim-specific information ("Special Source Information"). All Special Source acquisition activities by the Refugee Division are conducted in a transparent manner with full and timely disclosure of any draft request affording the claimant and counsel the opportunity to comment in writing or at a conference prior to a Member's authorization to conduct the research. Any information acquired is disclosed and the claimant and counsel are provided with the opportunity to make comments on that information, in writing, in advance of the hearing.

• The claimant and counsel are able to participate and provide input into the assessment of the claim from the outset of the refugee determination process through the timely filing of all identity, travel and personal documents in the possession of the claimant; the completion of the revised Addendum to the Personal Information Form by counsel; the pre-filing of information; and where necessary, by participating in conferences in advance of the hearing.

• The timely filing of information by the claimant and counsel may affect the processing and scheduling of the claim and the requirements for acquisition of information by the Refugee Division.

• When the Minister's representatives choose to intervene in the refugee determination process, the Minister has the standing of a party adverse in interest to the claimant. In this situation, the procedures described above should be amended as necessary, so as to reflect the Minister's status in the proceedings.

1.2.3 Hearing Into A Claim

A hearing into a claim under section 69.1 of the Immigration Act usually follows a "non-adversarial" format, as illustrated by the fact that the Act gives the claimant a full opportunity to participate at the hearing, but gives the Minister only a restricted opportunity:

• under subparagraph 69.1(5)(a)(i) of the Act, the claimant is given a reasonable opportunity to present evidence, cross-examine witnesses and make representations;

• under subparagraph 69.1(5)(a)(ii) of the Act, the Minister, in the usual case, is allowed only to present evidence, and is not allowed to cross-examine witnesses or make representations (although the Refugee Division may, if it considers it appropriate to do so, give the Minister a reasonable opportunity to question the claimant and any other witnesses and to make submissions [ Immigration Act, s. 69.1(5)(b)].)

In practice, the Minister does not often present evidence at a hearing into a claim.

The panel itself may be assisted by an RCO, an employee of the Board. In general, the panel bases its decision on the testimony of the claimant, the documentary evidence submitted by the claimant and the RCO, and, after giving notice to the claimant, its specialized knowledge of the matters in issue.

In some circumstances the hearing will follow an "adversarial" format. If the Minister notifies the Refugee Division that the Minister is of the opinion that matters involving the exclusion clauses (sections E or F of Article 1 of the Convention) or the cessation clause (subsection 2(2) of the Immigration Act) are raised by the claim, the Refugee Division is required to give the Minister an opportunity to question the claimant and any other witnesses and to make representations concerning the claim [ Immigration Act, s. 69.1(5)(a)(ii)]

1.2.3.1 Non-adversarial Format

The Refugee Division hearing into a claim is usually conducted in a "non-adversarial" manner, because there is no case to be met by the claimant, in the sense that there is no party adverse in interest to the claimant. The non-adversarial format permits the decision-maker to take an active role in the gathering of evidence and the presentation of the case. However, there are restrictions imposed on the activities of the decision-makers by the principles of natural justice, in order to ensure fairness. In addition, particular restrictions are set out in the Chairperson's Instructions Governing Extra-Hearing Communication and Instructions for the Acquisition and Disclosure of Information.

Some of the reasons for the uniqueness of the Refugee Division hearing are the often sensitive and painful nature of the testimony, the fact that the panel has to determine not only what has happened to the claimant but what might happen to the claimant, and that the Minister does not normally appear at the hearing to contest the claimant's position. The panel, therefore, has to examine the facts as related by the claimant and also look at the broader picture.

Non-adversarial hearings follow a certain pattern. Usually, the claimant will be the first (and is often the only) witness. Testimony is normally taken under oath, and an interpreter is provided when needed. Counsel for the claimant may examine the claimant, the RCO may then, upon the direction of the panel, question the claimant, and the panel may have some additional questions for clarification. Counsel may then have some questions arising out of the questioning by the RCO or the panel. Counsel is not ordinarily at that point entitled to go into new areas of testimony with the claimant because counsel has already had a reasonable opportunity to present evidence on behalf of the claimant.

The hearing, however, is not a trial and technical rules of evidence do not apply. Similarly, the procedures followed should not be so rigid that they interfere with a fair (full and proper) hearing. The panel therefore has the discretion to allow counsel to introduce new evidence at any stage, if there is good reason to do so.

Because the claimant is not "on trial" and is merely seeking recognition of the claimant's status as a Convention refugee, the panel has to try to put the claimant at ease as much as possible. On the other hand, the panel has to ensure that a certain degree of decorum is maintained in the hearing room. Decorum is necessary (1) so that the claimant will appreciate that the panel is taking the process very seriously, and (2) so that the claimant and other witnesses will appreciate that the hearing is not a just casual interview, but rather is a serious "judicial" type of proceeding, at which every statement must be made as carefully and accurately as possible.

The panel always has to balance the duty to proceed expeditiously (and not let the proceedings get out of control) against the duty to consider all relevant evidence. Some flexibility in following established procedures is therefore appropriate, but the degree in flexibility depends on the good judgment of the panel and all the circumstances of the particular case.

1.2.3.2 Adversarial Format

In those (relatively few) cases where the Minister is of the opinion that the cessation or exclusion clauses apply (subsection 2(2) of the Immigration Act or section E or F of Article 1 of the Convention), the Minister may participate fully at the hearing by presenting evidence, cross-examining witnesses and making representations [ ImmigrationAct, s. 69.1(5)(a)(ii)].

In addition, the Refugee Division may, if it considers it appropriate to do so, give the Minister an opportunity to question the claimant and any other witnesses and to make representations concerning the claim [ Immigration Act, s. 69.1(5)(b)].

Where the Minister participates at a hearing, the Minister is usually represented by an employee of Citizenship and Immigration called a Hearings Officer.

In these cases, a pre-hearing conference under CRDD Rule 20 may be useful. It allows the parties to discuss their roles at the hearing and their proposed method of presenting evidence. This could save time at the hearing, which might otherwise have been spent discussing purely procedural matters.

In setting out a procedure for the hearing, the panel may take into account the preferences or suggestions of counsel for the claimant, counsel for the Minister, and the RCO. The panel may also consider the nature of the evidence to be presented, for example, whether the evidence on "exclusion" is completely distinct from the evidence on "inclusion", or whether a particular witness who will be testifying only on one aspect of the issues is available to testify only at certain times.

One possible format, which would have the "inclusion" and "exclusion" evidence presented together, is as follows:

1.2.4 Ministerial Applications

The hearing under section 69.2 of the Act with respect to a Minister's application for cessation of Convention refugee status or for vacation of Convention refugee status is the traditional kind of adversarial hearing that administrative tribunals usually hold.

The panel for a Minister's application consists of three Members of the Refugee Division. [ ImmigrationAct, s. 69.3(3)].

Both parties, namely, the Minister and the person who is the subject of the application, have an opportunity to present evidence, cross-examine witnesses and make representations [ Immigration Act, s. 69.3(1)]. The Minister is usually represented by an employee of Citizenship and Immigration called a Hearings Officer.

The onus of proof is on the Minister, as she is the one making the application.

The decision of the majority of the panel governs [ Immigration Act, s. 69.3(6)].

1.3 CHECKLIST FOR A HEARING INTO A CLAIM

1.3.1 Before the Hearing

• check file to ensure it contains:

1. the Personal Information Form(s); and
2. the decision by the Senior Immigration Officer to refer claim, with respect to each claimant.

• carefully review the Personal Information Form(s)

• check for any possible joinder of the claims of family members [ CRDD Rule 10] and be sure to obtain files and documents for all the claimants

• designate representative for minor or incompetent, where appropriate [ Immigration Act, s. 69(4)]

• check that written notice of hearing [ CRDD Rule 15] has been served on the claimant(s)

• one member is designated as the presiding member [ CRDD Rule 5]

1.3.2 At The Start of the Hearing

• introduce the panel and identify all persons present

• ensure presence of claimant(s)

• deal with right to counsel

• no need to go over the right to counsel, if counsel is present and ready to proceed

• if counsel is not present, or if counsel is asking for an adjournment, see Chapter 6 (adjournments for counsel); Immigration Act, s. 69(1)

• check with the claimant, the counsel, and the interpreter, to ensure the interpreter is competent for the case

• under the CRDD Rules, the interpreter is required to take an oath or make a solemn affirmation to interpret accurately

• see Chapter 9; CRDD Rule 17; Charter, s. 14; Bill of Rights, s. 2

• joinder of claims

• see Chapter 4; CRDD Rule 10

• public access and observers

• proceedings are in camera but a member of public may apply to have the proceedings conducted in public

• see Chapter 8; Immigration Act, s. 69(3); CRDD Rule 22

• designated representative for minor or incompetent person

• applies to claimants under age 18
• applies to claimants who are unable to appreciate the nature of the proceedings
• see Chapter 10 (usually a parent or close relative is a suitable designated representative, if available; designation of a representative is in addition to the right to counsel); see Immigration Act, ss. 69(4),(5); Rule 11

1.3.3 At the Start of Evidence

• witnesses to be sworn or affirmed as they are called to testify (usually the claimant is the first witness)

• see Immigration Act, s. 67(2)(b) (power to administer oath)
• see Chapter 12 (competency and compellability)
• see Chapter 2 (oaths and affirmations)

• usual order of proceeding for claimant's witnesses:

• usual order of proceeding for witnesses called by RCO

1.3.4 Submissions

• the usual order for submissions:

• representations by counsel for claimant [ Immigration Act, s. 69.1(5)(a)(i)]
• summation by RCO
• any reply by counsel for the claimant

• however, the order may vary at the discretion of the panel, after taking into account the preferences of the participants.

1.3.5 Final Decisions

• requirements are set out in Immigration Act, ss. 69.1(9) to (11)
• oral decision and reasons acceptable
  (see Chapter 15)
• written decision and reasons are necessary where the claimant is determined not to be a Convention refugee
  (see Chapter 15)

1.4 TIPS ON PRESIDING AT A HEARING INTO A CLAIM

1. Always maintain a "judicial temperament".

• it is necessary to listen patiently and extend "professional courtesy" to all participants;
• no matter how exasperating the conduct of counsel for the claimant or the conduct of anyone else may be, it is important to stay in control of one's emotions and not to use indiscreet language;
• occasional sarcasm, especially in a light-hearted manner to chide counsel, may sometimes be appropriate, but overuse or inappropriate use sours the atmosphere of the hearing and is counter-productive;
• if a member fails to maintain a judicial temperament, there may be an apprehension that the case is not being decided on an impartial, objective basis

2. Maintain order in the Hearing Room.

• do not allow two participants to be talking at the same time (among other problems, this makes the transcript difficult to follow);

• do not allow observers to make comments or gestures to witnesses;

• do not allow any participant to use abusive or threatening language.

3. Briefly outline the procedures that will be followed and stay in control of the proceedings.

• counsel for the claimant may try to "take over the hearing", especially since there is no adversary, but the panel should always be seen to be in charge;

• counsel may properly make suggestions regarding procedure, and where the suggestions can reasonably be accommodated they should be accepted, but counsel cannot be allowed to dictate what is to take place at the hearing;
• in cases where an RCO is assisting the panel, the RCO should routinely be asked for comments before a ruling on procedure is made.

4. Have a thorough knowledge of the legal framework.

• have a good command of the relevant provisions of the Immigration Act, the CRDD Rules, the principles of natural justice and the case law, etc., in order to make the proper decision and to maintain the credibility and the authoritativeness of the panel.

5. Listen "actively" to the testimony.

• make sure that the testimony is being properly understood; give a recap to the witness, where necessary, and have the witness confirm that the testimony is being understood;

6. Take good notes.

• helps organize the information in the member's mind, making the information easier to use later for questioning about discrepancies or gaps in the evidence;

• member can highlight in notes where more information is required or where evidence is unclear. If satisfactory answers have not been provided by the time counsel and RCO are finished, then member should ask the necessary questions or have the RCO ask those questions;

• shows that the member is interested in the statements being made;

• helps prevent the member's mind from wandering during a long hearing;

• useful for preparing reasons for decision;

• the member should, however, avoid concentrating so much on note-taking that the member loses touch with what else is going on in the hearing room and does not pay attention to the demeanour of the witness.

7. Interrupt proceedings only where necessary.

• generally better to wait to see if counsel or RCO clarifies the area before the panel asks its questions;

• interrupt if the member did not hear a question or answer;

• however, the members should not hesitate to ensure that only relevant matters are being presented.

8. Take reasonable breaks.

• the interpreter is probably doing more talking than anyone else and needs regular breaks for both physical and mental effectiveness;

• the claimant is probably under a lot of stress and could use a chance to relax;

• the amount of time between breaks will vary with the temperament of the parties, the nature of the evidence, the physical condition of the participants, etc.;

• as a guide, members might consider taking breaks every 1½ hours or so;

• rather than taking breaks arbitrarily, the presiding member might ask for suggestions from the participants as to when a break might be desired. Counsel, for example, might indicate that counsel expects to have 20 minutes more of questions for a witness. The panel could then decide whether to break now or at the end of counsel's questions.

9. Set a time for resuming after a break.

• state "We will reconvene at ten o'clock," rather than, "We will reconvene in 15 minutes." The former is more easily remembered and is more effective in getting everybody back to the hearing room on time;

• members should return to the room at the agreed time even if not all the participants have returned. This sets a good example for the participants and will encourage everyone to return on time after the next break.

10. Deal with objections right away.

• if counsel has an objection to a particular procedure, deal with it immediately;

• the RCO, where participating at a hearing, should ordinarily be invited to make comments before a decision is made;

• sometimes the objection needs to be more thoroughly considered and a recess might be taken both to decide the issue and to prepare the reasons for the response;

• give brief reasons for the decision on the procedural point; if the point may be of general interest, it could be dealt with as well in the member's final reasons on the case.

11. Consult with the other panel member.

• the presiding member gets the final say on all procedural matters [ CRDD Rule 29], but obviously a collegial approach should be followed;

• sometimes it is appropriate for panel members to speak to each other so that everyone can hear, but where there is a more delicate issue at hand, the panel members may take a recess to discuss the matter between themselves;

• it may be appropriate, on occasion, to pass notes between the panel members, but this should be done discreetly and not on such a regular basis that there is concern by the parties that there may be something fundamentally wrong with the hearing.

12. Be consistent, where appropriate.

• be aware of how other panels have been dealing with issues and, where possible, try to do the same as a means of promoting consistency of procedures in the Refugee Division;

• it would be wrong, however, to take a position only on the basis that the member previously took that position or that other panels have done so. Where fairness suggests a change in approach, it may be more important to be flexible than to be consistent.

13. Address procedural issues to counsel, not the claimant.

• the claimant has hired counsel to deal with matters of evidence, adjournments, etc., and the panel's remarks on these procedural issues should be directed to counsel.

14. Be fair.

• fairness is the paramount concern [Immigration Act, s. 68(2)];

• make sure that the claimant (through counsel) has a chance to comment before decisions are taken and has a chance to respond to comments made by the RCO;

• always have good reasons for taking a position and avoid being seen as arbitrary or capricious.

15. Help the claimant to understand the process, especially if the claimant is unrepresented.

• put the issues in colloquial language for the claimant, especially where the claimant is unrepresented by counsel or seems unsure of what is going on;

• the claimant's counsel should have prepared the claimant for the hearing by going over the issues and the procedures. Not all counsel do an adequate job of this, so it is sometimes appropriate for the panel to give simple explanations;

• the hearing should be expeditious, though, and members should not spend time unnecessarily covering these points.

16. Get as much information as possible before granting an adjournment.

• CRDD Rule 13(4) indicates factors that may be considered;

• adjournments must not unreasonably impede the proceedings [ Immigration Act, s. 69(6)];

• when a member wishes an adjournment to be peremptory, that should be stated explicitly at the time of granting the adjournment in order to avoid any misunderstanding at the resumption of the hearing.

17. Keep track of exhibits.

• where possible, mark exhibits ahead of time, make a list of the exhibits, and have counsel confirm that counsel has a copy of the list;

• orally identify each additional exhibit as it is being presented;

• put an identifying exhibit number or letter in the same place on each exhibit. The upper right corner is a suitable place. (Change the location on particular documents when the usual spot would be obscured);

• if it is not immediately clear where the best spot to mark the exhibit is, or for any other reasons, the member might quickly mark the exhibit on the back and later put the information more neatly on the front;

• keep an accurate list in the member's file of all documents entered as exhibits;

• sometimes a party will submit the original document (passport, licence, etc.) along with a photocopy. The member should compare the two, and announce that the member is satisfied that the copy is a "true copy". The member should then put on the record that the original document is being returned to the party and that the true copy is being filed as an exhibit.

18. Control the adducing of evidence.

• do not ordinarily allow leading questions in examination-in-chief, except for non-contentious basic information;

• disallow repetitious questions;

• disallow irrelevant questions, such as whether the claimant now has a good job in Canada;

• witnesses should not generally be permitted to give their testimony by reading from notes.

1.5 INTERVENTIONS BY MEMBERS DURING HEARINGS

1.5.1 Questioning Witnesses

Members may ask their own questions directly of any witnesses, including the claimant. However, there are a number of potential risks involved and the following factors should be carefully considered.

Intervention by members may leave them open to allegations of bias, especially if there is "excessive" intervention. Members must keep an open mind as to the outcome of a case until the case has been completed and through questioning a member might inadvertently leave the impression that the member has already assessed the evidence and come to a conclusion.

Members may prefer to allow counsel for the claimant and the RCO to complete their questioning of a witness before the members ask their own questions. This approach avoids unnecessary interruptions by members. It may, however, be appropriate for Members to interrupt if, for example, it appears that counsel is pursuing an irrelevant line of questioning.

Members' questions must be posed in a moderate tone. Overly-aggressive questioning by members is inappropriate.

Members should ask questions for clarification. In some cases, excessive questioning by members could make them appear to be "prosecutors" rather than impartial decision-makers. In other words, members should always avoid the appearance of "descending into the arena" to do battle with the claimant and should remain as impartial decision-makers.

Short "neutral" questions, however, might be appropriate at any time for clarification. For example, a member might interrupt an examination by the parties or the RCO and ask, "What currency are you referring to?" or, "Are you still talking about what happened before you left school?"

If there is a whole area which the members would like to have explored in more detail, the members might direct the RCO or ask counsel for the claimant to attempt to have that area covered.

Even in the adversarial system, the decision-maker is not strictly limited to having to consider only the testimony adduced by the parties. There is a duty to ascertain the truth, and relevant questions should not be left in the air through the failure of counsel to ask those questions. The decision-maker, however, has to remain objective, dispassionate and impartial.

In a non-adversarial format, there is more latitude for a decision-maker to play a role in the adducing of evidence, but the desire to arrive at a correct decision does not override the necessity of conducting a fair and impartial hearing, both in fact and in appearance.

1.5.2 Investigation of Facts

In the courts, it is inappropriate for a judge to engage in any sort of investigation, no matter how unsatisfactory the evidence appears to the judge. However, because of the non-adversarial nature of the Refugee Division and because its members have the powers and authority of commissioners appointed under Part I of the Inquiries Act, it is acceptable in certain circumstances for members of the Refugee Division to do their own research into the facts of a case.

Procedures for investigations of facts are set out the Instructions for the Acquisition and Disclosure of Information for Proceedings in the Refugee Division (CRDD Instructions: 96-01).
1.5.3 Calling Witnesses

Members have the power to call and question witnesses on their own initiative [ Immigration Act, s. 67(2)(a)] and, on occasion, they may have to proceed in this manner if they are of the opinion that it is necessary to do so to reach a just and proper result in the case.

In most situations, however, it is preferable for members to outline their concerns and to ask counsel for the claimant and the RCO for their comments as to whether the presence of a particular witness would be of assistance to the panel. If counsel does not wish to call the witness, the member may direct the RCO to do so. If no RCO is participating at the hearing, the member may call the witness directly. A decision of how to proceed in these situations involves a careful review of all the circumstances of the particular case.

1.5.4 Interventions During Submissions

Submissions are the arguments presented by the parties and the RCO after all evidence has been given. In submissions, counsel for the claimant or the Minister advocates a particular view of the evidence and the law, and the RCO summarizes the evidence and the law.

It is appropriate for members to ask questions of counsel and the RCO during their submissions in order to clarify or explore certain points. However, Members should refrain from unnecessary interruptions, in order to allow counsel and RCOs to make their submissions in the way that they deem best.

Appendix 1A - Immigration Act, ss. 67 to 69.1

 

Appendix 1B - Table of Contents to CRDD Rules, SOR/93-45 (February 10, 1993)

SHORT TITLE INTERPRETATION REGISTRY REGISTRAR PRESIDING MEMBER REFERRAL TO THE REFUGEE DIVISION CESSATION AND VACATION APPLICATIONS PARTICIPATION OF THE MINISTER, GENERAL PARTICIPATION OF THE MINISTER, EXCLUSION CLAUSES JOINDER DESIGNATED REPRESENTATIVES CHANGE OF VENUE POSTPONEMENTS AND ADJOURNMENTS INFORMATION RESPECTING CLAIM (PIF) NOTICE TO APPEAR OFFICIAL LANGUAGES INTERPRETER PRELIMINARY CONFERENCE DETERMINATION OF CLAIM WITHOUT A HEARING (EXPEDITED HEARINGS) CONFERENCES DISCLOSURE OF EXPERT TESTIMONY APPLICATIONS FOR PUBLIC HEARINGS AND CONFIDENTIALITY WITNESS FEES EXCLUSION OF WITNESSES SUMMONSES PERSON CONCERNED IN CUSTODY APPLICATIONS MOTIONS DECISIONS, SPLIT INTERLOCUTORY DECISIONS, REGISTRAR SIGNS REQUEST FOR WRITTEN REASONS ABANDONMENT WITHDRAWAL REINSTATEMENT SERVICE OF DOCUMENTS ADDRESS FOR SERVICE FILING OF DOCUMENTS TIME LIMITS GENERAL, RULES NOT EXHAUSTIVE GENERAL, REMEDY FOR NON- COMPLIANCE

Appendix 1C - Glossary Of Terms Related To Hearings

The following descriptions are intended for general information only. For more precise definitions, consult the applicable legislation or a legal text such as Black's Law Dictionary.

(2) members of a panel hearing a case are "sitting" on that case.

Appendix 1D - Acquisition And Disclosure Of Information
(CRDD Instructions: 96-01)

 

A. Application These Instructions are issued by the Chairperson of the Immigration and Refugee Board (the "Board") and are effective 11 March 1996.

They govern the acquisition and disclosure of information by the Convention Refugee Determination Division (the "Refugee Division") of the Board for proceedings within its jurisdiction.

They replace interim instructions entitled Specific Interim Instructions to RHOs - February 1994 dated 15 February 1994 and Updated Interim Instructions Regarding the Acquisition of Information dated 26 July 1994, and draft Instructions for the Acquisition and Disclosure of Information (CRDD Instructions 95-01) dated 5 September 1995.

B. Definitions

"Acquisition of Information Form" (Formulaire d'obtention de renseignements) means the form that is approved, from time to time, by the Refugee Division for the purpose of recording and disclosing to the parties any initiative to acquire information and have documents verified.

"Claimant" (Demandeur) means the person whose claim to be a Convention refugee has been referred to the Refugee Division and any other person who is the subject of the proceedings.

"Counsel" (Conseil) means a person representing a party at proceedings before the Refugee Division.

"General Information" (Renseignements généraux) means information, the acquisition of which:

1. would not involve identifying a claimant or giving to a department or an agency external to the Board particulars of a case that could reveal the identity of the claimant or of any other person who is not a public figure; or
2. would not otherwise result in a serious possibility that the life, liberty or security of the claimant or any other person would be endangered.

"Minister's Information" (Renseignements ministériels) means information pertaining to individual claimants acquired by officers of the Department of Citizenship and Immigration during the course of fulfilling their responsibilities as set in the Immigration Act and Immigration Regulations, 1978. This information includes one or more of the following:

1. copies of any identification or travel documents
2. standard form reports completed in relation to the claim by the responsible Immigration Officer or Senior Immigration Officer at the port-of-entry or inland office where the claim is received;
3. case claim highlights;
4. copies of examining officers' completed question and answer forms;
5. copies of transportation tickets and any other itinerary information;
6. certified copies of any documents (including identity documents) in the possession of the claimant at the time of entry;
7. information from Canadian visa offices overseas pertaining to any application for a Canadian visa made by the claimant, including copies of the visa officer's notes pertaining to such application;
8. results of Royal Canadian Mounted Police ("RCMP") identification and criminality verification; and
9. information gathered by the Department of Citizenship and Immigration for the purpose of determining whether the Minister will intervene at the hearing into a claim, regardless of whether the Minister does intervene.

"Parties" (Parties) means the person who is the subject of the proceedings and the Minister, where the Minister participates in those proceedings.

"Refugee Division file" (Dossier de la Section du statut) means, in reference to a proceeding before the Refugee Division, the master file maintained by the registry in that proceeding, to which the Members and RCOs charged with carriage of the matter have access or of which they have copies.

"Responsible Coordinating Member" (Commissaire coordonnateur responsable) means the Coordinating Member of the Case Management Team that is responsible for handling the case for which Specific Information is required or the person designated to act in the place of the Coordinating Member.

"Specific Information" (Renseignements précis) means information other than General Information or Minister's Information.

C. Background and Overview

The Refugee Division may acquire, from domestic and international sources, information additional to that provided by the parties. The Refugee Division acquires this additional information to assist in making fair, well-reasoned decisions in accordance with its statutory mandate.

The Board has established a Documentation, Information and Research Branch (the " DIRB") to acquire information to assist the Refugee Division in making informed decisions. In addition, the Board employs Refugee Claim Officers (" RCOs") to assist Members in the conduct of proceedings, and to assist in the acquisition of required information.

Parties are encouraged to request conferences for the purpose of identifying information required to resolve issues that are before the Refugee Division and identifying appropriate means of obtaining such information, as well as communicating any concerns that should be addressed in deciding whether such information should be acquired.

Communication between Members and RCOs and between Members and other employees of the Board, for the purpose of acquiring information, is governed by Instructions Governing Extra-Hearing Communication Between Members of the Refugee Division and Refugee Claim Officers and Between Members of the Refugee Division and other employees of the Board (CRDD Instructions 96-02).

A. General Principles

 

The Refugee Division, in seeking to acquire additional information, is governed by the following general principles:

1. The acquisition of information by the Refugee Division in no way absolves parties of their responsibility to present evidence in support of their cases.
2. In acquiring information on its own initiative, the Refugee Division is concerned with the relevance of such information to the case before it, not with whether the information may be favorable or prejudicial to any party.
3. The Refugee Division will acquire information through an accountable and consistent process that is managed and structured to ensure fairness in decision-making.
4. The Refugee Division will acquire Specific Information only where it is satisfied that acquisition of this information will not result in a serious possibility that the life, liberty or security of the claimant or any other person would be endangered.

E. Procedures for the Acquisition and Disclosure of Information

1. Minister's Information

1.1 Minister's Information is routinely provided to the Refugee Division by the Department of Citizenship and Immigration.

1.2 Where there is Minister's Information that has not been provided and the Members are of the opinion that such Minister's Information may be required, the Presiding Member may direct the RCO to acquire the information from the Department of Citizenship and Immigration in accordance with procedures agreed to by the Department of Citizenship and Immigration and the Board.

1.3 Minister's Information shall be placed on the Refugee Division file when it is received by the registry.

1.4 The RCO shall forthwith disclose to the claimant a copy of all Minister's Information received and shall invite the claimant to file at the registry and serve on any other party, in advance of the hearing, written representations with respect to the information.

2. General Information

2.1 In accordance with Board procedures, the RCO assigned to a case shall acquire and provide to the Members and the parties relevant General Information which is accessible from public sources.

2.2 Where General Information is contained in a publicly available package prepared for general use by the Refugee Division (such as a Contextual or Human Rights package or an Issue Specific Package), the RCO shall provide to the Members and the parties the table of contents of the pertinent package, identifying any information in the package that is of particular relevance to the case.

2.3 The RCO assigned to a case shall acquire additional relevant General Information in accordance wit

2.4 directions from the Presiding Member.

2.4 The RCO shall place General Information acquired in relation to a proceeding in the Refugee Division file and shall forthwith provide a copy to the parties.

2.5 Where there is any doubt whether the information is General Information or Specific Information, acquisition of such information shall be governed by the procedures for the acquisition of Specific Information set forth in section 3 of these Instructions.

3. Specific Information

3.1 With assistance from the RCO, the Members assigned to hear a case shall consider whether Specific Information may be required to resolve an issue central to the case.

3.2 Where the Members are of the opinion that Specific Information may be required, the Presiding Member shall direct the RCO to prepare a draft research directive on an Acquisition of Information Form.

3.3 When preparing the draft research directive, the RCO shall, where appropriate, seek the assistance of the DIRB in:

1. identifying potential sources and methodologies for acquiring the information;
2. assessing the likelihood of being able to acquire it; and
3. estimating the cost of acquiring it.

3.4 The RCO shall provide to the Members the draft research directive containing the following:

1. a description of the information required;
2. the purpose, source(s) and methodology for acquiring the information;
3. an indication of whether the acquisition of information would require the Board to incur any external expense, and
4. where known, the estimated cost of acquiring the information.

3.5 Where acquisition of the information would require the Board to incur any external expense, the Presiding Member, before giving any direction on the research directive, shall consult with the responsible Coordinating Member to determine whether funds are available to acquire the information.

3.6 Where funds are not available to acquire the requested Specific Information, the responsible Coordinating Member shall endorse the Acquisition of Information Form accordingly and the process for seeking approval to acquire the information shall end.

3.7 Where the process for acquiring Specific Information is terminated because funds are not available or where the Presiding Member decides not to proceed with acquisition of the information, the Presiding Member shall direct the RCO forthwith to send a copy of the completed Acquisition of Information Form to the parties for their information.

3.8 Where the responsible Coordinating Member indicates that funds are available to acquire the information, or where the information can be acquired without the Board incurring any external expense, the Presiding Member, before directing the RCO to proceed with the research directive, shall direct the RCO forthwith to provide a copy of the proposed Acquisition of Information Form to the parties and to invite them to make representations with respect to the research directive.

3.9 Where, pursuant to paragraph 3.8 the parties are invited to make representations, they shall do so within 10 working days after being served with a copy of the Acquisition of Information Form by filing at the registry either:

1. written representations; or
2. a request for a conference, indicating the issues they wish to discuss at the conference.

3.10 A party who makes written representations shall serve a copy of the submissions on the other party.

3.11 Subject to subsection 3.12, where a conference is requested, the Presiding Member shall convene it at a time and place agreed to by the participants.

3.12 Where the party requesting the conference is unavailable for the conference within a reasonable time and convening the conference would, as a result, unreasonably delay the proceedings, in lieu of convening the conference, the Presiding Member may direct the party to file any written representations at the registry within 10 working days of being served with such a direction and to serve these representations on any other party.

3.13 After reviewing the research directive and after considering representations from the parties, including the RCO's observations on the parties' representations, where applicable, whether made in writing or at a conference, the Presiding Member shall decide:

1. whether to authorize the research directive, with or without modifications; and
2. where modifications are to be made, the Presiding Member shall direct the RCO to revise the Acquisition of Information Form accordingly.

3.14 Before authorizing the acquisition of any Specific Information, the Presiding Member shall be satisfied that:

1. the information is needed to resolve an issue central to the case ;
2. it is likely that the information can be acquired;
3. there is no serious possibility that the life, liberty or security of the claimant or any other person would be endangered through the acquisition of the information;
4. the methodology for acquiring the information complies with the Privacy Act; and
5. acquisition of the information will not unreasonably delay the proceedings.

3.15 Where the information is in the possession of a department or agency of the Government of Canada or of any Province or of any foreign country or any international governmental or non-governmental agency with which the Board has entered into a written agreement regarding the sharing and exchange of information, the Presiding Member may, in the absence of evidence to the contrary, presume that:

1. it is likely that the information can be acquired; and
2. there is no serious possibility that the life, liberty or security of any person would be endangered through the acquisition of the information.

3.16 Where the Presiding Member authorizes the research directive, the Presiding Member shall endorse the Acquisition of Information Form accordingly.

3.17 Where a department or an agency from which information is to be acquired requires the claimant's consent for the release of the information, the RCO shall obtain such consent in writing before initiating the research.

3.18 Where the Presiding Member has approved the research directive, the RCO shall forthwith send the endorsed Acquisition of Information Form to the DIRB for action and provide a copy of the endorsed Form to the parties for their information.

3.19 Specific Information received pursuant to a research directive shall be placed on the Refugee Division file.

3.20 The RCO shall forthwith provide a copy of the information to the parties and invite them:

1. to file at the registry any written representations with respect to the information; and
2. to serve such representations on any other party in advance of the hearing or by a date fixed by the Presiding Member.

3.21 A party who makes representations pursuant to subsection 3.20 shall serve them on any other party.

4. Modification of Procedure on Agreement of the Parties

4.1 Subject to subsections 4.2 and 4.3, the procedure set out in section 3 with respect to authorization of the acquisition of Specific Information may be modified as the parties agree.

4.2 Where acquisition of the information would require the Board to incur any external expense, the Presiding Member shall consult with the responsible Coordinating Member to ensure that funds are available to acquire the information before authorizing the research directive.

4.3 The requirements set forth in subsection 3.14 with respect to the acquisition of

Specific Information shall apply notwithstanding any agreement among the parties.

5. Verification of Documents

5.1 Where the RCO recommends the forensic verification of a document, the RCO shall complete an Acquisition of Information Form and request the Presiding Member to authorize the forensic verification.

5.2 Where the Presiding Member forms the opinion that forensic verification of a document is necessary, the Presiding Member may direct the RCO to send the document to the RCMP Forensic Laboratory for forensic verification.

5.3 Where the original of a document to be verified is in the possession of the Board, the RCO shall send the document to the RCMP Forensic Laboratory for forensic verification.

5.4 Where the original of the document is in the possession of the Minister, the RCO shall request, in writing, that the Minister send the document to the RCMP Forensic Laboratory for forensic verification. The RCO shall forthwith provide a copy of the request to the parties.

5.5 Where the original of the document is in the possession of the claimant, the RCO shall obtain the original from the claimant and send it to the RCMP Forensic Laboratory for forensic verification.

5.6 The report received from the RCMP Forensic Laboratory shall be placed on the Refugee Division file.

5.7 The RCO shall forthwith provide a copy of the report to the parties and invite them:

1. to file at the registry any written representations with respect to the information; and
2. to serve such representations on any other party prior to the commencement or resumption of the hearing or by a date fixed by the Presiding Member.

5.8 Any party who makes representations, pursuant to subsection 5.7, shall serve a copy on any other party.

Appendix 1E - Extra-Hearing Communication (CRDD Instructions: 96-02)

A. Application

These Instructions are issued by the Chairperson of the Immigration and Refugee Board (the "Board") and are effective 11 March 1996.

They govern all extra-hearing communication that takes place in the absence of parties between Members of the Convention Refugee Determination Division ("Members") and Refugee Claim Officers (" RCOs") relating to cases before the Refugee Division that have not been concluded. A case is considered to be concluded when a decision has been made and, where required, reasons for decision have been given.

These Instructions also govern extra-hearing communication between Members and other employees of the Immigration and Refugee Board (the "Board"). For the purposes of these Instructions, the phrase "employees of the Board" means persons appointed pursuant to the Public Service Employment Act.

These Instructions do not apply to extra-hearing communication between Members and Legal Advisers of the Board. Legal Advisers are governed by Board policies, the rules of natural justice, and by their respective codes of professional conduct.

They replace the draft Instructions governing Extra-Hearing Communications between Members of the Refugee Division and Refugee Claims Officers dated 5 September 1995.

B. Background

Refugee claims are determined through an inquiry process conducted by a panel of one or two Members. Other cases are determined by three-Member panels. Ultimate responsibility for processing a case rests at all times (pre-hearing, hearing and post-hearing) with this panel.

A panel is normally assisted by an RCO. Under direction of the panel, the RCO assists in identifying information required for a full and proper determination of the claim and may examine witnesses to elicit evidence, to probe questions of fact, and to test credibility. The RCO may also assist the panel by providing observations on the law applicable to the evidence adduced at the hearing.

This working relationship requires the panel and the RCO to communicate with each other about many matters, including:

1. the identification of factual and legal issues to be addressed;
2. the identification of information, including general information on country conditions and human rights and specific information relating to the particular circumstances of a claim or claimant, required for the full and proper determination of cases; and
3. administrative and procedural issues (e.g. information about the processing, scheduling and hearing of cases and about the receipt and disclosure of information, comments and submissions concerning cases).

Three basic principles govern all communication between Members and RCOs and between Members and other employees of the Board:

1. the principles of fundamental justice and the rules of natural justice must at all times be respected;
2. the independence of Members as decision-makers must at all times be respected; and
3. the impartiality of the Refugee Division must at all times be respected.

It is presumed that Members, RCOs and other employees of the Board discharge their duties and responsibilities in good faith and in accordance with the respective policies and instructions that govern them.

C. Instructions

Members, and RCOs and other employees of the Board shall follow these Instructions in all extra-hearing communication that takes place in the absence of the parties and that relates to individual cases.

1. Communications

1.1 Communication Permitted

Subject to subsection 1.2 and 1.3, Members may communicate with RCOs and with other employees of the Board outside the hearing in the absence of the parties with respect to a case that has not been concluded.

1.2 General Prohibition

No communication referred to in subsection 1.1 shall involve the offering or the soliciting of an opinion on:

1. the merits of the case;
2. the conclusion to be reached on any element of the case;
3. the decision that should be made on any question of law that arises for determination;
4. any conclusion of fact or conclusion as to the credibility or trustworthiness of any evidence adduced; or,
5. the reasons for decision.

1.3 Communication At Team Meetings

At meetings of Members with RCOs and other employees of the Board (including at meetings of case management teams), communication on questions of law and on country conditions is encouraged but communication with respect to the application of law pertaining to a particular case that has not been concluded or with respect to questions of fact to be determined in a particular case that has not been concluded is prohibited.

1.4 Communication During Recesses and Adjournments

During recesses or adjournments in the course of a hearing, Members and RCOs should be circumspect in their communications with each other, and whenever possible:

2. Disclosure of Extra-hearing Communication

With respect to extra-hearing communication conducted in the absence of the parties pertaining to a case that has not been concluded, the Member shall ensure that the following is forthwith disclosed to the parties:

1. the date of the communication and the names of the persons involved;
2. the issues identified as relevant to the case;
3. any directive given by the Member to the RCO with respect to the case;
4. documentary material that is identified as being of particular relevance to the issues raised by the case;
5. statutory or legal principles or case law that are identified as being of particular relevance to an issue raised by the case; and
6. any other matter which the Member believes should be disclosed to:

1. comply with the rules of natural justice; and
2. facilitate the fair and expeditious conclusion of the case.

3. Contravention

Where any communication takes place which contravenes these Instructions, the Member shall ensure that the parties are informed of the content of such communication and that they are given an opportunity to make representations with respect to it.

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