text:
Canadian Refugee Procedure/RPD Rule 22 - Specialized Knowledge

IRPA Sections 170(i) and 171(b)
This section of the Act applicable to the RPD provides that: 170(i) The Refugee Protection Division, in any proceeding before it,...may take notice of any facts that may be judicially noticed, any other generally recognized facts and any information or opinion that is within its specialized knowledge. Similarly, section 171, applicable to the RAD, reads: Proceedings 171 In the case of a proceeding of the Refugee Appeal Division, ... (b) the Division may take notice of any facts that may be judicially noticed and of any other generally recognized facts and any information or opinion that is within its specialized knowledge;

The IRPA provisions for noticing facts are different for refugee proceedings when compared to immigration proceedings at the IRB
Section 170(i) of the Act is the provision that applies to the RPD. There is a similar provision for the RAD, s. 171(b). That said, the IRPA does not have similar provisions for the Immigration Division or the Immigration Appeal Division, as Waldman notes in the text Canadian Immigration and Refugee Law Practice:"Both the Immigration Division and the Immigration Appeal Division of the Immigration and Refugee Board may base their decision only on evidence proven before them during the course of the hearing. These two Divisions of the Immigration and Refugee Board have no power to take notice of facts that form part of their expertise, and they err if they attempt to take notice of facts not before them. This contrasts with the procedure at a hearing held before the Refugee Protection Division of the Immigration and Refugee Board, where, pursuant to s. 170 of IRPA, the Division may take notice of any facts that may be judicially noted, and any other generally recognized facts, information or opinions that are within its specialized knowledge."

IRPA s. 170: The Division may take notice of any facts that may be judicially noticed
Facts that can be “judicially noticed” are facts so notorious or generally accepted as not to be the subject of debate among reasonable persons. Judicial notice concerns facts that are considered to be "common knowledge" or are "generally known, reasonably unquestionable, or easily verifiable." The definition provided by Waldman in Canadian Immigration and Refugee Law Practice is that "judicial notice refers to facts that may be noticed by the court without proof thereof, that are either so notorious as not to be the subject of dispute among reasonable people, or facts that are capable of immediate and accurate demonstration by resorting to readily accessible sources of indisputable accuracy." Such readily accessible sources may include government and NGO websites, provided that the government or organization has a reputation for credibility. Waldman's text goes on to explain that "notorious facts include local conditions and matters, geographical facts, human behaviour and business trade and practices. For example, the fact that Toronto is situated in Ontario or that the rain makes roads slippery would not have to be proven to the court. In simpler terms, the court may and should notice without proof facts that everybody knows." It is said that the purpose of judicial notice is to dispense with unnecessary proof.

Examples of facts that may be judicially noticed:

The United Nations Office on Drugs and Crime has issued Non-binding Guidelines on the use of Social Media by Judges which states that "Irrespective of whether they use social media or not, judges should have a general knowledge of social media, including how it may generate evidence in cases that judges may decide. Judges should also have an understanding of existing online communication tools and technology, including artificial-intelligence-powered technology."
 * University education is generally conducted in the language of the country in which it is located.
 * Local conditions (e.g., time of sunset in the summer).
 * Geographic facts (e.g., location of Canada-U.S. border).
 * The overincarceration of Aboriginal offenders in Canada.
 * "Many if not most signatures on Canadian official documents are not legible".
 * Judicial notice can be taken of Canadian laws, including all federal and provincial statutes and regulations.
 * Judicial notice may be taken of published decisions in Canadian judicial proceedings. However, whether or not there is a wide sentencing range in Canada for the crime of robbery is not something that is appropriately the subject of judicial notice.
 * Judicial notice may be taken of international treaties or custom. However, courts “cannot take judicial notice of foreign law”.

IRPA s. 170: The Division may take notice of other generally recognized facts
The Federal Court of Appeal has observed that "no tribunal can approach a problem with its collective mind blank and devoid of any of the knowledge of a general nature which has been acquired in common with other members of the general public, through the respective lifetimes of its members." The statutory ability to take notice of generally recognized facts reflects this truism. The category of "generally recognized facts" is a broader one than the category of facts that may be judicially noticed. As the Board has stated in its legal paper on weighing evidence, and in the Convention Refugee Determination Member's Handbook, the term "generally recognized facts" could include facts which are usually accepted without question by scholars, by government and United Nations officials, and by people who resided in an area, but which are not necessarily commonly known by the general public. It includes information that may be gleaned from an encyclopedia, a country's census, and information in the Board's National Documentation Package. For example, the Federal Court of Appeal upheld a finding that "it is common knowledge that in Poland there are thousands upon thousands of Poles of Ukranian origin".

It cannot be said that all information in the NDP is of "indisputable accuracy", and hence appropriate for judicial notice, but information in the NDP from reputable sources such as well-regarded human rights groups and academics is nonetheless appropriately accepted by the Board as being "generally recognized". That said, it also should not be said that information from the NDP constitutes specialized knowledge; as illustrated by the court's comments in Pal v. Canada that "the RAD’s comments were grounded in the NDP evidence and surrounding circumstances...not specialized information or knowledge." Similarly, in Morales v. Canada the court commented that the specialized knowledge regime in the Act does not apply to documents that have been adduced into evidence, such as the NDP.

IRPA s. 170: The Division may take notice of information or opinion that is within its specialized knowledge
In contrast to the above categories, specialized knowledge is information that a panel has gleaned from other claims in the manner detailed below, even if it would not be generally recognized. See: Canadian Refugee Procedure/Specialized Knowledge.

Generally recognized facts are not a type of specialized knowledge
A question can arise about the above typology: per s. 170(i) of the Act, are "generally recognized facts" a category of specialized knowledge or an independent type of fact that the Board may notice? In his text, Waldman notes that: "Section 170(i) also refers to “any other generally recognized facts and any information or opinion that is within [the Division’s] specialized knowledge”. This would give the Division a broad discretion to rely on its knowledge gained from other claims once proper notice had been provided."This should not be taken as implying that "generally recognized facts" are a subset or type of specialized knowledge. Instead, they are best thought of as an independent type of fact that the Division can recognize, in the same way that facts that may be judicially noticed is also a distinct category. This interpretation of s. 170(i) of the Act is to be preferred for several reasons:

 * 1) The RPD Rule on specialized knowledge, Rule 22, sets out the steps a panel of the Division must take before using any information or opinion that is within its specialized knowledge. The fact that this rule omits any mention of "generally recognized facts" and speaks only of "information or opinion that is within its specialized knowledge" implies that "generally recognized facts" are not a type of specialized knowledge and thereby are not subject to the rules thereon.
 * 2) Furthermore, the courts readily distinguish between "generally recognized facts" and "specialized knowledge". For example, in Aguirre v. Canada, the court's comments indicate that generally recognized facts are distinct from the category of specialized knowledge: "Applicant's counsel says the information given by Mr. Burke was not specialized knowledge within the meaning of subsection 68(4) and I am inclined to agree with her. However, I would think that for purposes of the subsection, Mr. Burke must have thought it was at least a generally recognized fact that it is common to see big cars in Mexico." Ditto the court's comment in Magonza v. Canada, which affirms the distinction between generally recognized facts and specialized knowledge: "the NDP is better viewed as containing generally recognized facts or specialized knowledge." Similarly, when the Federal Court of Appeal considered this provision of the Act in Lawal v. Canada, they punctuated it with an Oxford comma after "generally recognized facts" as follows, implying that there are three separate categories: "facts which may be judicially noticed, generally recognized facts, and information or opinion that is within the board's specialized knowledge".
 * 3) The type of knowledge that has been regarded as a "generally recognized fact" does not meet the criteria to be considered specialized knowledge. The type of knowledge that is considered to be a "generally recognized fact" is something that, for instance, the Board gleaned from an encyclopedia (in Hussain v. Canada ), which is distinct from "specialized knowledge" that a panel has learned by virtue of their role as a Member of the Board hearing claims.
 * 4) The construction of s. 170 of the IRPA provides that "the Refugee Protection Division, in any proceeding before it,...may take notice of any facts that may be judicially noticed, any other generally recognized facts...". The use of the word "other" implies that generally recognized facts are more akin to facts that may be judicially noticed (while remaining distinct) as opposed to specialized knowledge.

When must a panel provide notice of "generally recognized facts" before relying upon them?
The previous Immigration Act applied the special notice provisions now enshrined in RPD Rule 22 to generally recognized facts. The relevant provisions of that Act read:

68(4) The Refugee Division may, in any proceedings before it, take notice of any facts that may be judicially noticed and, subject to subsection (5), of any other generally recognized facts and any information or opinion that is within its specialized knowledge.

(5) Before the Refugee Division takes notice of any facts, information or opinion, other than facts that may be judicially noticed, in any proceedings, the Division shall notify the Minister, if present at the proceedings, and the person who is the subject of the proceedings of its intention and afford them a reasonable opportunity to make representations with respect thereto.

As such, it was clear from the construction of the then-section 68(4) of the Act that the Board had to provide notice of generally recognized facts that did not meet the test for being judicially noticed, prior to relying upon them. This provision changed with the advent of the IRPA and now the ordinary procedural fairness concepts regarding notice will apply to a panel's reliance on generally recognized facts, as opposed to this sui generis statutory notice regime.

As a general proposition, a panel should disclose to the parties all information on which the decision-maker intends to rely, allowing them an opportunity to respond, before taking notice of any facts. That said, not every situation where a decision-maker does their own research and fails to disclose it prior to providing their reasons will be considered a breach of procedural fairness. The general approach that applies is that of Mancia v Canada, which holds that while "extrinsic evidence" must be disclosed prior to the decision being rendered, a decision maker is not required to provide notice of their reliance on material that is (1) generally available to the public and (2) not novel and significant information that may affect the disposition of a case. That said, there remains a duty of disclosure where the information to be relied upon is potentially contestable. For more detail, see: Canadian Refugee Procedure/The right to be heard and the right to a fair hearing.

Whether explicit notice is required where a panel relies upon information in the National Documentation Package will depend on the circumstances of the case. Generally, the NDP is explicitly placed onto the record by reference in a Consolidated List of Documents, which obviates this issue. See RPD Rule 33: Canadian Refugee Procedure/RPD Rules 31-43 - Documents. In Adefule v. Canada the panel relied upon a section of the NDP for the United States, which was not explicitly on the record. The court concluded that in the circumstances there was no unfairness in relying upon this information, even without having provided prior notice that it would do so:"The information about the asylum process in the USA was not information which the Applicants could not reasonably be expected to have knowledge of. They were represented by counsel at each stage of the proceedings and the RPD had found that the Applicants’ failure to take advantage of the options available to them in the USA undermined their fear of persecution. The RAD was not required to give the Applicants notice that it would be referring to the NDP when it considered that question."

RPD Rule 22
The text of the relevant rule reads: Specialized Knowledge

Notice to parties

22 Before using any information or opinion that is within its specialized knowledge, the Division must notify the claimant or protected person and, if the Minister is present at the hearing, the Minister, and give them an opportunity to (a) make representations on the reliability and use of the information or opinion; and (b) provide evidence in support of their representations.

Comparison to previous version of the Rules
The predecessor to Rule 22 in the previous version of the Rules was Rule 18, which bore a very similar wording to the current Rule 22: 18. Before using any information or opinion that is within its specialized knowledge, the Division must notify the claimant or protected person, and the Minister if the Minister is present at the hearing, and give them a chance to (a) make representations on the reliability and use of the information or opinion; and (b) give evidence in support of their representations.

What is "specialized knowledge"?
As the Federal Court held in Adefule v. Canada, specialized knowledge is knowledge accumulated over time as a result of a decision-maker’s adjudicative functions. The Federal Court of Appeal speaks broadly of knowledge that a tribunal member has acquired from time to time in carrying out their statutory duties. In the words of RAD Member Patricia O’Connor, "the very basis of specialized knowledge involves information which would not necessarily be known to the parties in a particular claim, especially when the knowledge is based on information stemming from other cases before [a panel]." There are any number of examples of what constitutes specialized knowledge, e.g.:

 * In I.P.P. v. Canada the court accepted the following as being examples of specialized knowledge: the statement that Mexican media gives a great deal of coverage to gangs and their activities and the observation that claimants are often able to present medical reports for treatment obtained in Mexico.
 * In Habiboglu v. Canada, the court accepted that the Board had specialized knowledge of the procedures employed by the Canadian Border Security Service to analyse Iraqi documents.
 * In Tariq v. Canada, the court accepted that Board findings about the clothing worn by women in Karachi were an example of the panel relying on specialized knowledge.
 * In Appau v Canada, the panel's own knowledge of Swiss border points and procedures was held to be specialized knowledge.
 * In Saghiri v. Canada, the court held (arguably in obiter) that "Whether the RPD had erred by failing to undertake an analysis under section 98 of IRPA with respect to whether the Applicant is a person referred to in article 1F(b) of the Refugee Convention falls within the RAD’s specialized knowledge of the law applicable to refugee claims" and observed that "Rule 24 of the RAD Rules provides that before using any information or opinion that is within its specialized knowledge, the RAD must give the parties an opportunity to make written submissions."

However, not just any knowledge that a Member has gleaned from other claims may properly count as specialized knowledge:

 * The knowledge must be quantifiable and verifiable: Specialized knowledge, to count as such, must be "quantifiable and verifiable". Unverifiable personal knowledge does not qualify as specialized knowledge. The court considered this issue in Cortes v. Canada, where the panel had noted that there have been "refugee protection claimants who have filed complaints with the Mexican authorities without necessarily being injured or on their deathbed." The court commented as follows: "In my opinion, the 'specialized knowledge' relied on in this case was mischaracterized. Here, the decision maker drew on the specialized and general knowledge it had acquired over the years to point out to the applicant that this was the first time it had heard such an argument and that its professional knowledge and experience in cases from Mexico demonstrated the contrary. The 'knowledge' relied on in this case was neither quantifiable nor verifiable, which meant that Rule 18 did not apply." Similarly, the Federal Court of Appeal stated that "it is not only normal but inevitable that in performing their role, panel members will be influenced by the experience they may have acquired in the exercise of their duties. On the other hand, as long as the members rely only on their experience and not on specific information, [the specialized knowledge provisions do] not apply."
 * The knowledge cannot be based on stereotypes: As the court stated in Vodics v. Canada, "the use of specialized knowledge in the decision-making process, which is, in fact, the use of acquired personal knowledge on the part of the decision-maker, is acceptable, but with a very important limit when it comes to the use of stereotypes." The court in that case goes on to note that a "stereotype" is a preconceived, standardized, and oversimplified impression of the characteristics which typify a person or situation. The danger in applying a stereotype is that the person who is the exception to the oversimplified impression is not protected from the erroneous application of the impression. The court concludes that a number of the panel's findings in that case were made in error because the specialized knowledge was incomplete and based on stereotypes, for example:"The CRDD makes the finding that the Applicant's mother's maiden name is not typically Romany, and draws on its specialized knowledge to do so. Therefore, this finding is significant in that it can be taken to be some evidence used to rebut the Applicant's sworn evidence that he is a Roma. However, in my opinion, before the finding can be considered evidence to be used in this way, the CRDD must be satisfied that its specialized knowledge is complete. The CRDD admits that it has specialized knowledge of 'some specific Roma names', and, accordingly, I find it is reasonable to conclude that it does not have specific knowledge of all Romany names, if such a task is even possible to reach. The CRDD's statement that the Applicant's mother's maiden name is not typically Romany, is not relevant to the determination of the Applicant's ethnicity. It is conjecture used as evidence. As such, the CRDD should not have used it in forming its negative credibility finding."
 * Specialized knowledge should be distinguished from facts that may be judicially noticed and generally recognized facts: There are three types of facts that the Refugee Division may take notice of. They are properly distinguished from each other. See further: Canadian Refugee Procedure/RPD Rule 22 - Specialized Knowledge.

The Member must provide sufficient information so that the specialized knowledge can be tested by the parties
Rule 22 provides that before using any information or opinion that is within its specialized knowledge, the Division must notify the parties and give them a chance to make representations and give evidence in response. This is a requirement of the rules, and procedural fairness, and the courts have held that the effect of Rule 22 is to "codify the common law which requires that parties be notified where information not already on the record may be relied on." Where a Member has relevant knowledge from a related file, there is a presumption that Members reach their decisions by relying solely on the evidence before them in the record and that they are able to ignore any other evidence from other files. Rule 22 provides that the Division must notify the parties (technically the Minister need only be notified if they are present at the hearing, not if they are only intervening in writing) and give them an opportunity to make representations on the reliability and use of the information or opinion. Mr. Justice Campbell commented on what a panel must do so that a party may be said to have had a meaningful opportunity to make representations on the reliability and use of the knowledge in Isakova v Canada: "in order for [the Rule] to be effective, the RPD member who declares specialized knowledge must place on the record sufficient detail of the knowledge so as to allow it to be tested. That is, the knowledge must be quantifiable and verifiable." The legal requirement that specialized knowledge be "quantifiable and verifiable" is thus an aspect of procedural fairness in that the purpose of the notice requirement enshrined in Rule 22 is that a party be able to make meaningful representations on the reliability and use of the information or opinion and this right would be rendered meaningless if the information offered were insufficiently specific for a party to be able to do so.

It is not essential for a party to be informed, prior to the hearing, that the panel will rely on information within its specialized knowledge. What is important is that the claimant be given the opportunity an opportunity to make representations about the specialized knowledge.

Does the Member need to specifically use the words "specialized knowledge" or refer to this rule by number prior to relying on specialized knowledge?
Arguably not, as the purpose of the Rule is satisfied where a claimant has notice of the specialized knowledge being relied upon, and an adequate opportunity to reply, regardless of whether or not the particular words "specialized knowledge" are uttered by the panel member. The principle enshrined in Rule 22 is that prior to relying on any specialized knowledge, a panel of the Board must "advise the claimant of the actual information it will be relying on and give the claimant an opportunity to challenge the evidence."

Member Jolyane Lefebvre of the Refugee Appeal Division considered this issue in a 2019 decision. It involved a case where the RPD found that the answers provided by the male appellant concerning why the appellants had failed to seek asylum in Chile or the United States diminished and undermined their credibility. The RPD was of the opinion that it was reasonable to expect that the appellants would have obtained information on these options, considering their statements that they feared returning to their country. The principal appellant testified that he did not have the right to apply for asylum in the United States because of his “parole” status. The Member stated during the hearing that “that there are several types of parole.” The RAD Member held in the reasons that "I am of the opinion that the member misspoke and should have told the appellants that his specialized knowledge led him to determine that there are several types of 'parole.' As Rule 22 of the Refugee Protection Division Rules sets out, the member must notify the parties and give them an opportunity to make representations or provide evidence in support of their representations at the time of the hearing. I would agree that this was not done because the member failed to specifically mention that he had specialized knowledge in this area."

Does specialized knowledge only arise from a Member's personal hearings or is what a Member learns of their colleague's hearings also properly considered specialized knowledge?
Specialized knowledge is information that a panel has gleaned in its role as a Member of the Board. It need not arise from hearings that the Member in question presided over personally. Thus, for example, the Federal Court has held that the Board may take notice of an expert opinion in a "lead case" and consider it in a subsequent case, as an exercise of its authority to take notice of information and opinions within its specialized knowledge, provided it gives proper notice. Relatedly, where a Member has knowledge of similar claims, details of such knowledge are part of their specialized knowledge, and that knowledge may be placed on the record provided that the notice requirements set out in the Division's Rules are followed. Additionally, specialized knowledge need not arise from a hearing at all: the Board states in the legal services paper on its website that "specialized knowledge" may arise from a panel's knowledge of documents in the Board's Documentation Centre, for example. In her article The Use of Official Notice in a Refugee Determination Process, France Houle argues that specialized knowledge can consist of decisions that a Member has read, regardless of whether they participated in the decision or not: "It is important to emphasize that it is only the decisions in which a Member participated, read or became aware of as a result of training sessions which form part of the specialized knowledge of that Member and not all the decisions rendered by all CRDD Members across the country and contained in the [database of refugee decisions]."


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Canadian Refugee Procedure/RPD Rule 23 - Allowing a Claim Without a Hearing

IRPA Section 170
The relevant portions of s. 170 of the Act read: Proceedings 170 The Refugee Protection Division, in any proceeding before it, ... (b) must hold a hearing; ... (e) must give the person and the Minister a reasonable opportunity to present evidence, question witnesses and make representations; ... (f) may, despite paragraph (b), allow a claim for refugee protection without a hearing, if the Minister has not notified the Division, within the period set out in the rules of the Board, of the Minister’s intention to intervene;

The Division may allow a claim if the Minister has not notified the Division of an intention to intervene
Section 170(f) provides that the Division may allow a claim for refugee protection without a hearing if the Minister has not notified the Division, within the period set out in the rules of the Board, of the Minister's intention to intervene in the claim. That time period for the Minister to notify the Board of an intention to intervene in a claim is provided in RPD Rule 23.

RPD Rule 23 - Allowing a Claim Without a Hearing
The text of the relevant rule reads: Allowing a Claim Without a Hearing

Claim allowed without hearing 23 For the purpose of paragraph 170(f) of the Act, the period during which the Minister must notify the Division of the Minister’s intention to intervene is no later than 10 days after the day on which the Minister receives the Basis of Claim Form.

What is the history of the Board's processes to accept claims without a hearing?
In 1990 the expedited process was introduced at the IRB. This process permitted a Refugee Hearing Officer (RHO) to refer a claim to a single CRDD member for paper review. If the CRDD member found the claim to be established, a positive decision could be issued without the need for an oral hearing. In 1993, between 25 and 30 per cent of all claims were processed through this expedited process. The process was codified in legislation with amendments to the Immigration Act that year. At that point, RHOs were instructed to direct a claim to a member for positive determination without a hearing if, after screening and a preliminary conference, the RHO was of the opinion that a panel would almost certainly find the claimant to be a Convention refugee. Then, prior to the 2012 refugee reforms, a claimant was interviewed by IRB staff, such as a Tribunal Officer, under what was then called the Board's “expedited process”. Currently, there is no interview, and the determination about whether or not to accept a claim this way is made based on a review of the paper record submitted to the Board.

When may a Member decide a claim without having held a hearing?
Paragraph 170(b) of the Act specifies that "The Refugee Protection Division, in any proceeding before it, must hold a hearing". However, paragraph 170(f) serves as an exception to this rule, providing that the Board "may, despite paragraph (b), allow a claim for refugee protection without a hearing, if the Minister has not notified the Division, within the period set out in the rules of the Board, of the Minister’s intention to intervene". The relevant IRB policy is the Instructions governing the streaming of less complex claims at the Refugee Protection Division. It states, as a matter of policy, what the Board should do before accepting a claim without a hearing and the substantive nature of the claims that are appropriate for being accepted this way.

First, the Minister has a legitimate expectation that it will receive notice and an opportunity to object prior to any claim being accepted under the file-review process based on the Board's public statements in this document: "Parties must be given a reasonable opportunity to be heard. Therefore, because a Notice to Appear is not provided when a claim is accepted without a hearing, the Minister will be given notice where a claim is chosen for the file-review process." This relates to the requirement in s. 170(e) of the Act that The Refugee Protection Division must give the Minister a reasonable opportunity to present evidence, question witnesses and make representations.

Furthermore, the instructions state that the RPD will not decide any claim without a hearing in the following circumstances:

 * confirmation of front-end security screening has not been received;
 * the Minister has filed a Notice of Intervention to intervene in person;
 * A Notice has been sent under the RPD Rules notifying the Minister of a possible exclusion, inadmissibility or integrity issue;
 * there are issues related to the claimant’s identity which require further examination;
 * there are serious credibility issues that arise from the documents in the file;
 * the claim is inconsistent with country information; or
 * there are complex legal or factual issues that require a hearing to resolve.

Were the IRB to decide a claim that did not meet these criteria, it would err. Canada v. Mukasi is an example of such a case. In that case, a panel of the Board granted the claim without holding a hearing. The Board concluded that Mr. Mukasi had established his identity, did not present any issues that might exclude him from refugee protection, and had shown that his account of events was consistent with documentary evidence on the conditions in Burundi. The Minister applied for judicial review, arguing that the Board erred when it failed to refer the claim for a hearing and by granting his claim in the face of reliable contradictory evidence. The court accepted this argument, noting that there was evidence on the record that the claimant was associated with violence. As the court stated, "This should have alerted the Board to the possibility that Mr. Mukasi might be excluded from the definition of a Convention refugee based on Article 1(F) of the Convention. That provision states, among other things, that the Convention does not apply to persons who have committed a crime against peace, a war crime, a crime against humanity, or acts contrary to the purposes and principles of the United Nations."

In principle, how should the Board decide whether to allow a claim under the file-review process?
As stated in the Board's commentary to the previous version of these rules, "The purpose of the expedited process is to identify cases that appear to be manifestly well founded, based on the factors set out in subsection 19(4) of the Rules." What were those factors? They are the following factors which appeared in the previous version of the rules and are now included in the list of considerations in the Instructions (supra): Allowing a claim without a hearing

(4) If the refugee protection officer recommends that the claim be allowed without a hearing, the Division may allow the claim if

(a) there are no issues that should be brought to the attention of the Minister;

(b) the claimant’s identity is sufficiently established;

(c) there are no serious credibility issues; and

(d) the information given by the claimant is consistent with information about conditions in their country of nationality or, if they have no country of nationality, their country of former habitual residence, and establishes that the claimant is a Convention refugee or a person in need of protection. The general principle in asylum adjudication was well summarized by the European Court of Human Rights when they stated that "a rigorous scrutiny must necessarily be conducted of an individual's claim that his or her deportation to a third country will expose that individual to treatment prohibited by Article 3 [of that European human rights instrument]". The use of the file-review process is consistent with this principle in that it is only manifestly well-founded cases that will be accepted under this process.

Applications to separate claims so that some claimants may be eligible for the file-review process
As stated in the Board's commentary to the previous version of these rules, "Members of the same family will normally be treated as a unit and their claims processed jointly." At times claimants will apply to separate the claims of some family members so that others will be eligible for this file-review process. For example, parents with US-born children would not meet the criteria to have the US-born child's claim accepted under this policy. For the considerations that apply to such applications to separate the claims of family members, see the commentary to Rules 55 and 56: Canadian Refugee Procedure/Joining or Separating Claims or Applications.

Claimants have no right to a decision about whether a claim is eligible under the file-review process
The Federal Court has held that Parliament never intended section 170(f) of the IRPA to provide a mechanism by which refugee claimants could claim the right to obtain refugee status without a hearing: "It would never have been Parliament’s intention to allow a refugee claimant to proclaim a right pursuant to section 170(f) to require the RPD to exercise its discretion in their favour without a hearing. Forcing the RPD to provide a decision pursuant to section 170(f), would result in yet another decision, with yet another judicial review application for its review, and yet more delay in processing the refugee application."The Board's commentary to the previous version of these rules stated that "Counsel may suggest that a claim be dealt with under the expedited process, but the decision to select suitable claims rests solely with the Division." It continues to be the case that the Board has discretion to entertain applications to have a claim processed through the file-review process, but it is "[not required to] consider a request from a refugee claimant pursuant to section 170(f) of the IRPA to grant refugee status without a hearing."

Allowing a claim is the same as accepting a claim
The fact that allowing a claim for refugee protection is a synonym for accepting the claim was stated in the Board's commentary to the previous version of these rules: "Subsection 170(f) of the Immigration and Refugee Protection Act provides that the Division may allow ( i.e., accept) a claim for refugee protection without a hearing, unless the Minister has notified the Division of the Minister's intention to intervene."

How often does the Board use this file-review process?
According to a 2019 Auditor General audit of Board processes, it expedited only a quarter of eligible claims. The other three quarters proceeded to regular hearings, and 87% of them received positive decisions.

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Canadian Refugee Procedure/RPD Rule 24 - Conferences

RPD Rule 24 - Conferences
The text of the relevant rule reads: Conferences

Requirement to participate at conference 24 (1) The Division may require the parties to participate at a conference to fix a date for a proceeding or to discuss issues, relevant facts and any other matter to make the proceedings fairer and more efficient.

Information or documents (2) The Division may require the parties to give any information or provide any document, at or before the conference.

Written record (3) The Division must make a written record of any decisions and agreements made at the conference.

Conferences may be held in the absence of the claimant
A claimant need not be present for any conferences. The Board's Chairperson Guidelines 7: Concerning Preparation and Conduct of a Hearing in the Refugee Protection Division discusses this and provides guidance on this point. The guidelines state that a conference should be held only where it would be more practical or efficient to consider issues before the actual hearing or where it may be more appropriate to discuss certain sensitive issues without the presence of the claimant. For example, where there are complex legal issues to be discussed, a conference may be held to go over matters related to procedure or for questions related to the evidence to be settled. One example of this is where the Board schedules a telephone conference prior to a hearing date in order to discuss issues of scheduling or procedural orders that parties are requesting the Board make.

A particular type of pre-hearing conference is one held, in the words of the Chairperson's Guideline 7, "just before the hearing". The guidelines state that a brief conference with the parties will be held in this way only where it would help make the proceedings fairer and more efficient. An example of such a conference discussed in the guideline is where the refugee claimant has been identified as vulnerable and counsel and the claimant will meet, without the claimant being present, in order to discuss appropriate procedures for the hearing in light of the claimant's vulnerability. The guidelines go on to note that "when the claimant is represented, the member and counsel will participate, but the claimant will not usually be present." However, they go on to note that "a represented claimant may be present if the member decides it would be useful." The better practice is likely for Members to ordinarily have claimants in the room during such pre-hearing conferences, with simultaneous interpretation provided as necessary. The discussions occurring relate, after all, to their claim. That said, this is a matter of the Member's discretion and at times excluding a claimant will be appropriate.

Conferences should not become a hearing in the claimant's absence
The Board's Chairperson Guidelines 7 state that "A conference should be held only where it would be more practical or efficient to consider such issues before the actual hearing or where it may be more appropriate to discuss certain sensitive issues without the presence of the claimant." There will exist a point where a conference could come to delve into the substance of a case to such an extent that it involves submissions going to the merit of the case moreso than a matter appropriately considered before the actual hearing. For example, where a conference continues for a very lengthy time and where the Member hears and debates extensive arguments from the parties on the central issues of the claim without the attendance of the claimant, it may be the case that it virtually becomes a hearing on the merits, instead of a pre-hearing conference. Such an extensive conference regarding the determinative issues of a refugee claim taking place without the presence of a claimant, even where there is the implied consent of counsel, may not be an acceptable use of this conference provision.

A proper pre-hearing conference will not lead to a Member being seized of a matter
The Member who conducts a pre-hearing conference may differ from the Member who ultimately presides over the hearing. Where the matters discussed do not go beyond those appropriate for a pre-hearing conference, the Member who conducts the pre-hearing conference will not ordinarily be seized of the case. For more detail on this concept, see: Canadian Refugee Procedure/The right to an independent decision-maker.

Members should both provide an oral summary and make a written record of any decisions and agreements made at pre-hearing conferences
As per RPD Rule 24(3), "The Division must make a written record of any decisions and agreements made at the conference." If the claimant was not present at a pre-hearing conference, then, before the hearing starts, the Board's Chairperson Guidelines 7 state that the Member will summarize for the claimant what was discussed and what instructions the Member gave at the conference. The Member will also make a written record of any decisions and agreements made at the conference. As such, the oral summary at the hearing is something that Members are expected to provide in addition to, not instead of, the requirement in Rule 24(3) that a written record of decisions and agreements be made (often this can be practically accomplished by commenting on the pre-hearing conference in the reasons for decision, but in other cases it will be more practical to provide this written record as a set of interim reasons). This provision requiring an oral summary in the Chairperson Guidelines is just that, a guideline, and not a legal requirement. It appears to be a good practice where a pre-hearing conference from which the claimant was excluded occurs just before the hearing and consequently counsel may not have had an opportunity to go over the decisions made at the pre-hearing conference with the claimant. In contrast, the guideline would appear not to apply to, say, a telephone pre-hearing conference held weeks prior to the hearing commencing and where the decisions made at the pre-hearing conference have already been reduced to writing and received by the parties.


text:
Canadian Refugee Procedure/RPD Rule 25 - Notice to Appear

Rule 25
The text of the relevant rule reads: Notice to Appear

Notice to appear 25 (1) The Division must notify the claimant or protected person and the Minister in writing of the date, time and location of the proceeding.

Notice to appear for hearing (2) In the case of a hearing on a refugee claim, the notice may be provided by an officer under paragraph 3(4)(a).

Date fixed for hearing (3) The date fixed for a hearing of a claim or an application to vacate or to cease refugee protection must not be earlier than 20 days after the day on which the parties receive the notice referred to in subrule (1) or (2) unless (a) the hearing has been adjourned or postponed from an earlier date; or (b) the parties consent to an earlier date.

Children under 12 who are accompanied by an adult in Canada are not ordinarily expected to attend the hearing. During COVID this applies to all accompanied children.
Accompanied children who are under the age of 12 on the date of the hearing are not required to appear before the RPD unless the presiding member requires their attendance. Children 12 years of age or older are still required to attend the hearing. However, during the COVID period, as a temporary measure, this is extended to all children: accompanied children under the age of 18 on the date of the hearing are not required to appear before the RPD unless the presiding member requires their attendance. As outlined in Chairperson Guideline 3: Child Refugee Claimants: Procedural and Evidentiary Issues, accompanied children include:

 * Children who arrive in Canada at the same time as their parents or some time thereafter. In most cases, the parents also seek refugee status, and
 * Children who arrive in Canada with, or are being looked after in Canada by, persons who the RPD is satisfied are related to the child, then the child should be considered an accompanied child.

How long is a normal hearing?
Unless otherwise specified, for example if the hearing notice states that the hearing will be a full day or a short hearing of only 2 hours, parties should expect that a hearing will usually be about 3.5 hours. That said, hearing length can vary, usually within a range of 1–4 hours. Parties can make an application pursuant to Rule 50 to request a different hearing duration, for example that a full-day hearing be scheduled.

Conduct and process at the hearing
For details about how parties should comport themselves in the context of a hearing, see the section of this book on decorum: Canadian Refugee Procedure/Decorum.


text:
Canadian Refugee Procedure/RPD Rules 26-28 - Exclusion, Integrity Issues, Inadmissibility and Ineligibility

The Division is required, in accordance with the following three rules, to notify the Minister of Public Safety and Emergency Preparedness (PSEP) or the Minister for Immigration, Refugees and Citizenship Canada (IRCC) that intervention in an RPD case, wherein neither organization had originally intervened, may be warranted. This mechanism is referred to as a “red letter”.

IRPA Section 98: Exclusion — Refugee Convention
Section 98 of the Immigration and Refugee Protection Act reads: Exclusion — Refugee Convention

98 A person referred to in section E or F of Article 1 of the Refugee Convention is not a Convention refugee or a person in need of protection.

The RPD is required to determine whether a claimant is excluded regardless of whether the Minister decides to intervene
The RPD is required to determine whether section 98 of the IRPA is applicable to a claimant regardless of whether or not the Minister decides to intervene. See: Canadian Refugee Procedure/The Board's inquisitorial mandate.

There is no absolute right to a section 96 risk analysis
The Federal Court concludes that both the Refugee Convention and the IRPA recognize that there is no absolute right to a section 96 risk analysis. Article 33(2) of the Refugee Convention clearly allows individuals to be excluded from the protection against refoulement where there are reasonable grounds for regarding them as a threat to public security. Article 1F of the Convention states that its provisions shall not apply to any person with respect to whom there are serious reasons for considering that he has committed a war crime, crime against humanity, or serious non-political crime outside the country of refuge; it also excludes he who has been guilty of acts contrary to the purposes and principles of the United Nations. In the words of the Federal Court in Hussain v. Canada, "these exclusions are clearly reflected in section 98 of the IRPA".

Furthermore, it is not necessary that the IRB conduct the risk analysis; finding an applicant to be excluded from protection under Article 1E will ultimately not be contrary to Canada’s non-refoulement obligation under international law where a person benefits from the ability to apply for a Pre-Removal Risk Assessment prior to any deportation.

See also: Canadian Refugee Procedure/115-116 - Principle of Non-refoulement.

Heading to this portion of the Rules: Exclusion, Integrity Issues, Inadmissibility and Ineligibility
Exclusion, Integrity Issues, Inadmissibility and Ineligibility

Division of responsibility between CBSA and IRCC
Rules 26-28 use the term "the Minister", but responsibility for responding to these notifications is split between two such Ministers (and Ministries): that related to the Minister of Public Safety and Emergency Preparedness (specifically its sub-entity, the CBSA or Canada Border Services Agency) and that related to IRCC (technically, still CIC or Citizenship and Immigration Canada). With the introduction of the IRCC Ministerial Reviews and Interventions pilot project in October 2012, senior immigration officers were delegated to effect reviews and interventions at the IRB. IRCC ministerial interventions are restricted to cases involving program integrity and credibility as well as cases where exclusion pursuant to article 1E of the Refugee Convention arises.

CBSA intervenes in cases involving serious criminality, security concerns, war crimes, crimes against humanity, or acts contrary to the purposes and principles of the United Nations. CBSA is also responsible for hybrid cases (i.e. those where there are combined program integrity/credibility issues and criminality or security concerns). Where the case is determined to be a hybrid case and, due to various circumstances, CBSA elects not to pursue the case on the grounds of criminality or security, CBSA has made a commitment to IRCC to go forward on credibility or program integrity grounds where warranted. The CBSA also has responsibility for detention cases, all arguments regarding the Charter of the United Nations, and designated foreign nationals.

How frequently are these notification provisions used?
The number of such red letters has increased steadily in recent years. In most cases where the RPD provides such notification, the Minister declines to intervene: The CBSA approach to interventions varies markedly across the country. For example, in Central region, due to the volume of “red letters” and its current staffing level, the CBSA team assigned to the Refugee Protection Division focuses on assessing the cases referred by the IRB red letter process, while not working on cases referred through the CBSA triage process. Central Region maintains the lowest level of intervention in red letter cases, relative to other IRB regions, largely because it has much lower staffing levels when compared to the other regions:

How often does the Minister participate in proceedings at the Board?
In the 1990s, the Minister of Citizenship and Immigration was represented in fewer than three percent of the refugee cases which came before the Board. In part, this was a product of the legislation at the time, which limited in-person Ministerial participation in a hearing to vacation, cessation, and exclusion cases. The academic Hathaway was sharply critical of this low intervention rate, writing “This ministerial lethargy is destructive of the intended non-adversarial role of refugee hearing officers, who are too frequently tempted to 'fill the shoes' of the absent Minister's representative in pursuit of matters which are important, but which have no bearing on their protection mandate.” The legislation was subsequently amended and Ministerial interventions increased. Today the Minister intervenes in about seven percent of claims.

RPD Rule 26 - Possible Exclusion
The text of the relevant rule reads: Notice to Minister of possible exclusion before hearing 26 (1) If the Division believes, before a hearing begins, that there is a possibility that section E or F of Article 1 of the Refugee Convention applies to the claim, the Division must without delay notify the Minister in writing and provide any relevant information to the Minister.

Notice to Minister of possible exclusion during hearing (2) If the Division believes, after a hearing begins, that there is a possibility that section E or F of Article 1 of the Refugee Convention applies to the claim and the Division is of the opinion that the Minister’s participation may help in the full and proper hearing of the claim, the Division must adjourn the hearing and without delay notify the Minister in writing and provide any relevant information to the Minister.

Disclosure to claimant (3) The Division must provide to the claimant a copy of any notice or information that the Division provides to the Minister.

Resumption of hearing (4) The Division must fix a date for the resumption of the hearing that is as soon as practicable, (a) if the Minister responds to the notice referred to in subrule (2), after receipt of the response from the Minister; or (b) if the Minister does not respond to that notice, no earlier than 14 days after receipt of the notice by the Minister.

History of this rule
This rule is to Rule 23 in the previous version of the Refugee Protection Division Rules from 2002. Changes include that the phrase "after a hearing begins" in Rule 26(2) previously read "at any time during a hearing" in the previous version of the Rules and that the previous Rule did not speak of needing to adjourn the hearing: 23.(1)  If the Division believes, before a hearing begins, that there is a possibility that sections E or F of Article 1 of the Refugee Convention applies to the claim, the Division must notify the Minister in writing and provide any relevant information to the Minister.

(2) If the Division believes, at any time during a hearing, that there is a possibility that section E or F of Article 1 of the Refugee Convention applies to the claim, and the Division is of the opinion that the Minister’s participation may help in the full and proper hearing of the claim, the Division must notify the Minister in writing and provide the Minister with any relevant information.

What are sections E or F of Article 1 of the Refugee Convention?
The schedule to the IRPA includes the full text of these articles of the Refugee Convention: Sections E and F of Article 1 of the United Nations Convention Relating to the Status of Refugees

E This Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country.

F The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; (b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; (c) he has been guilty of acts contrary to the purposes and principles of the United Nations. These grounds for denying protection have been directly incorporated into Canadian law through section 98 of IRPA.

When will there be a "possibility" of exclusion?
The standard used in Rules 26(1) and 26(2) relates to whether or not there is a “possibility that section E or F of Article 1 of the Refugee Convention applies to the claim”. Specifically, Rule 26(1) provides that "if the Division believes, before a hearing begins, that there is a possibility that section E or F of Article 1 of the Refugee Convention applies to the claim, the Division must without delay notify the Minister in writing and provide any relevant information to the Minister." Similarly, Rule 26(2) requires notification where, inter alia, there is a “possibility that section E or F of Article 1 of the Refugee Convention applies to the claim”. This provision turns on the Division believing that there is a "possibility" of the claimant being excluded. The RAD has held that the term "possibility" suggests a "low threshold that need only be met in order to prompt the RPD to notify the Minister that exclusion may apply in the claim". Generally speaking, this threshold will be met in the following types of cases:

 * Where it is evident that the Member subjectively believes that there is a possibility of exclusion: As the RAD notes, "Rule 26 of the RPD Rules specifically refers to the belief of the RPD member." As such, where it is clear from a Member's conduct that they believed, before a hearing began, that there was a possibility of exclusion, then notification should have been provided. For example:
 * Where a panel identifies exclusion as an issue at the hearing: Where the panel identifies exclusion as an issue at the beginning of the hearing, then it is clear that the “possibility” standard has been met on the basis of the pre-hearing evidence and formal notification is appropriate. For example, in Kanya v. Canada, the Member stated at the beginning of the hearing that "The issues in this claim ... from what I can figure out from the narrative, it might be an issue [of] exclusion on 1F(b)." Justice Rouleau of the Federal Court held in that case that "the Board has a duty to notify the Minister if there is a ‘possibility’ that Article 1(F)(b) should apply to a refugee claimant. The Board clearly indicated from the outset of the proceedings that there was a ‘possibility’ that 1(F)(b) would apply to the applicant. The hearing should have been adjourned from the outset; the Minister should have been notified and the applicant should have been given time to prepare for an exclusion determination."
 * Where the panel asks questions about the issue: The court commented in Canada v. Louis that the Board erred by questioning a claimant about exclusion issues without having previously notified the Minister of the possibility of exclusion. The fact that the panel asked the claimant questions about their possible exclusion was a sufficient basis on which to conclude that there was a “possibility” of it. That said, the fact that a panel asks questions about an issue that could relate to exclusion does not always mean that the "possibility" threshold has been met, especially when the questions could equally relate to other issues such as the claimant's general credibility. For example, in one case the RAD noted that "The RPD member [] told the respondent at the beginning of his RPD hearing that she will have questions about his role with the army. I note that the RPD member did question the respondent about why he joined the army, how long he was in the army, what his duties were in the army, and where he was stationed while in the army." The Minister had appealed the RPD's positive determination on the basis that the Member should have notified the Minister that there was a possibility of exclusion in the case as, in their view, the panel "simply overlooked the evidence of his service in the Afghan National Army and did no analysis of whether his service and responsibilities amount to complicity in war crimes or crimes against humanity." The RAD rejected this argument noting that "there was no evidence that was before the RPD [that] could have alerted the RPD member to the possibility of exclusion being a live issue for the RPD hearing" and that the fact that the Member asked questions that could relate to such issues did not, without more, trigger the obligation to notify the Minister.
 * Where the Board makes a factual finding relating to the issue in its reasons: In Canada v. Oladapo, the court considered a case in which the Minister sought judicial review on the basis that "the Board did not notify the Minister upon becoming aware that section 1E of the Convention...possibly applied to the claim". The Minister stated that the Board was clearly aware there was a possibility [Article 1E] applied since it took the time to review the evidence and make a finding. The Minister argued that had it had the chance to participate in the proceedings, it could have provided evidence on the respondent’s status in Spain and other questions relevant to whether or not the respondent had status substantially similar to that of Spain’s nationals. The court concurred: "the Board considered and then rejected exclusion. The Board made a factual finding relating to the respondent’s status in Spain. This reaches the threshold of 'possibility' as used in [then-]Rule 23 and therefore requires notice to the Minister." In such circumstances where a Member considers exclusion in their reasons, unless it can be said that the issue only arose after the hearing began, then it should be concluded there was a possibility of exclusion in the case and that the possibility existed prior to the hearing commencing.
 * When there is evidence on the record that should have alerted the panel to the issue: Even where it is clear that the Member did not subjectively believe that there was a possibility of exclusion, if the Member's failure to form that belief is unexplained or unreasonable in light of the evidence that was before them, then reviewing bodies have been quite willing to conclude that there was a possibility of exclusion and that the Minister should have been so notified. Examples of cases where the RAD and courts have reached this conclusion follow.
 * The claimant admits to having committed a serious crime: For example, in one case a claimant had stated in his Basis of Claim form that the state wanted him to pay back 3 billion Soums he stole and that he had left Uzbekistan because he did not have the money. The RAD held that with that information in front of it, the RPD had erred in not notifying the Minister of possible exclusion for serious criminality, notwithstanding the fact that the RPD had ultimately rejected the claim in question.
 * Information in the NDP establishes that the claimant was involved with a problematic group:
 * Examples of where notification was appropriate: For example, in one case a claimant indicated that he was involved with the Sudan People’s Liberation Movement (SPLM). Information in the National Documentation Package was that the SPLM or factions of the SPLM were involved in excessive acts of violence and the targeting of civilians. The group was also accused of recruiting child soldiers. Even where there was no explicit evidence in the record that the claimant was actively and personally involved in activities that would lead to exclusion, there was evidence in the record which established that the group with which he admitted he was a highly active member was involved in such activities. The RAD concluded that this gave rise to the possibility that exclusion may apply to the claim and thus the obligation to notify the Minister. Similarly, in Canada v. Mukasi there was evidence before the Board that the claimant was associated with violence, particularly that the claimant "led a faction of UPRONA that was opposed to the peace process in Burundi. He was arrested for his stance. UPRONA was associated with a violent militant group." In the view of the court, this evidence "should have alerted the Board to the possibility that Mr. Mukasi might be excluded from the definition of a Convention refugee based on Article 1(F) of the Convention."
 * Examples of where notification was unnecessary: That said, the Minister need not be notified where the possibility of exclusion is purely speculative. For example, RAD Member Rena Dhir considered a case in which the Minister appealed a positive determination from the RPD regarding an Afghan national. In that case, the claimant had a record of service with the Afghan National Army. The Minister argued that issues of exclusion should have been canvassed, and notification provided, on the basis that there have been documented human rights abuses in Afghanistan on the pro-government side attributed to pro-government armed militias, who operate outside of government control, but may at times have some contact with the army, and on the basis of the Army's own past activities. The RAD held that this was an insufficient basis on which to conclude that any such notice needed to be provided, noting that "there is no evidence, from my review, that indicates that the ANA was complicit in war crimes regarding the issue of Exclusion as it relates to Article 1(F)(a) when the respondent was part of this organization" and that the organization's more tangential links to armed militias were also insufficient to trigger this rule.

What does it mean that the Division must notify the Minister "without delay"?
The standard used in Rule 26(1) is that "if the Division believes, before a hearing begins, that there is a possibility that section E or F of Article 1 of the Refugee Convention applies to the claim, the Division must without delay notify the Minister in writing and provide any relevant information to the Minister." Similarly, Rule 26(2) requires the Division to "adjourn the hearing and without delay notify the Minister in writing" where certain conditions are met.

What does "without delay" mean in this context? The Federal Court commented on this in Kanya v. Canada, noting that where the Board determines that there is a possibility of exclusion, the hearing should be adjourned immediately: "The Board clearly indicated from the outset of the proceedings that there was a 'possibility' that 1(F)(b) would apply to the applicant. The hearing should have been adjourned from the outset; the Minister should have been notified and the applicant should have been given time to prepare for an exclusion determination."In that case, the court held that the Board erred when it asked a series of questions related to the narrative and the possibility of exclusion before, mid-way through the hearing, "formally" raising the possibility of 1F(b) exclusion, notifying the Minister, and ultimately setting a future date for the hearing to resume. This was held to be procedurally unfair to the claimant who had not had the requisite pre-hearing notice of this issue that is entailed by the Ministerial notification requirement. The court reaffirmed that the rule requires that the claim be suspended "immediately" and does not permit a panel to ask any additional questions prior to notifying the Minister in Oyejobi v. Canada: "My review of the transcript shows that the RPD member actually did not invoke Rule 27(1) immediately because he was trying to “give the client a chance.” As the RPD member himself stated, he wanted to see if he could find the Applicant credible (specifically with regard to her sexual orientation) – in spite of the perceived integrity issue – such that he might grant the claim. While the RPD approach is laudable in that it was likely motivated by a desire to give the Applicant the benefit of the doubt, the RPD member did not do what Rule 27 requires him to do[.]"In similar fashion, the court commented in Canada v. Louis, another case in which a panel proceeded to question a claimant about possible exclusion without having previously notified the Minister, that "the Board [set] aside the issues of exclusion following an examination of their merits. The fundamental problem [with the Board's conduct was] the fact that the Board indeed continued with this examination without having previously notified the Minister." As such, where the Board examines the merits of an issue on which it is supposed to provide notice, without having previously provided the notice in question, it errs.

The phrase "without delay" is used not just in the Refugee Protection Rules, but across the scheme and regulations of the IRPA more broadly. For example, in the IRCC manual on port of entry procedures, it notes that a person who is arrested must be informed of their right to counsel "without delay": "For the purpose of an Immigration Secondary examination, a person is not entitled to counsel unless formally arrested or detained. A person who is arrested or detained must be informed without delay of their right to counsel and granted the opportunity to retain and instruct counsel. [emphasis added] " It is easy to appreciate in the criminal context the importance of affording the right to counsel without delay, and without first asking a claimant a series of questions about the matter that they are being arrested in relation to. The fact that the same language is used in the context of this Ministerial notification obligation may be instructive.

How much notice must the Division provide where it identifies a possibility of exclusion prior to a hearing?
Rule 26(1) provides that the Division must notify the Minister where it believes, before a hearing begins, that there is a possibility of exclusion in the claim. Once such notification has been provided, this rule does not provide any particular notice period for the Minister and does not require that the hearing be postponed for any specific number of days. Instead, a specific notification period only arises pursuant to Rule 26(2) in situations where the Division is of the view both that there is a possibility of exclusion and where "the Division is of the opinion that the Minister’s participation may help in the full and proper hearing of the claim". In such circumstances, the Division must adjourn the hearing, notify the Minister, and can only resume after the Minister responds or after 14 days have elapsed following the Minister's receipt of the notice.

As such, how much notice is required where notification is provided pre-hearing pursuant to Rule 26(1) will be driven by procedural fairness requirements, including what is fair and sufficient notice to the Minister and to the claimant regarding this new issue. The notification provisions above operate not only to the benefit of the Minister, but also ensure that a claimant has adequate notice of a potential exclusion issue and time to prepare for it. For a discussion of this, see: Canadian Refugee Procedure/The right to a hearing and the right to be heard. As a starting point, the notice period specified in Rule 26(4) may be relied upon for an indication of what amount of notice should normally be considered appropriate, requisite, and fair, but the Division has discretion to deviate from this duration where appropriate given that there is no specific period specific in this rule.

When should a panel form the belief that there is a possibility of exclusion prior to a hearing, as opposed to forming such a belief after the hearing begins?
Reading Rules 26(1) and 26(2) in conjunction, Rule 26(2) provides a panel with discretion about whether or not to notify the Minister where the panel only forms an opinion about there being a potential issue "after a hearing begins". Rule 26(1) is entitled "Notice to Minister of possible exclusion before hearing". Per Rule 26(1), where an issue is identified before the hearing, the panel must notify the Minister. In contrast, Rule 26(2) is entitled "Notice to Minister of possible exclusion during hearing". Where the panel only forms an opinion about there being a potential issue "after a hearing begins", per Rule 26(2) the Ministerial notification requirement only applies where the Division is of the view that the Minister's participation "may help in the full and proper hearing of the claim". This discretionary aspect to Rule 26(2) means that even where the panel forms an opinion that there is a "possibility" that the claimant is excluded during the hearing, the panel nonetheless retains discretion about whether or not to notify the Minister, and, as a result, adjourn the hearing.

The court commented on how the notification provisions in Rules 26(1) and 26(2) interact in Oyejobi v. Canada, noting that where issues exist on the record prior to the hearing, notification will be called for, and that the types of issues where Rule 26(2) applies are ones where a panel should be able to identify some particular new evidence on the record that caused the panel to come to its newfound belief about the possibility of exclusion:"I am unable to identify the precise testimony from the Applicant that caused the RPD member to change his mind and decide that the Minister’s assistance would, after all, be necessary to ensure a full and proper hearing. I find this to be particularly troubling, considering that the integrity issue was discovered prior to the hearing and involved the copying of BOC narratives. In my view, it is not clear from the RPD reasons how such an integrity concern would be resolved (positively or negatively) through the Applicant’s oral testimony. In other words, and contrary to the assertion of the RPD, the copying of BOC narratives would present a significant integrity issue whether or not this Applicant is believed to be bisexual."It should be noted that Oyejobi v. Canada concerned Rule 27 of the RPD Rules, but the point applies equally to Rule 26, mutatis mutandis.

How should a panel decide whether "the Minister’s participation may help in the full and proper hearing of the claim"?
Where the panel only forms an opinion about there being a potential issue "after a hearing begins", per Rule 26(2) the Ministerial notification requirement will apply if, and only if, the Division is of the view that the Minister's participation "may help in the full and proper hearing of the claim". How should the Division exercise this discretion? As Madam Justice Tremblay-Lamer observed in Rivas v. Canada, when an issue of exclusion is raised during the hearing, this rule "allows a certain discretion for the RPD to determine whether the Minister’s participation will help it deal with the issue of the applicant’s exclusion". The court provided some guidance on this question in Oyejobi v. Canada, as follows: "In my view, the RPD member ignored the provisions of Rule 27. The RPD member claims to have not invoked the Rule 27(1) because he was not of the opinion that the Minister could provide “meaningful assistance” when he was preparing for the hearing, and then invoked Rule 27(2) once he determined that the allegedly copied passages “would need to be addressed after all.” This explanation is simply repeated in the Decision without further analysis. I find this to be problematic for at least three reasons. First, the standard for notifying the Minister is not when there is a belief that the Minister may provide “meaningful assistance;” rather, it is triggered as soon as the RPD is of the opinion that the Minister’s participation “may help in the full and proper hearing of the claim” (emphasis added). As such, the standard is much lower than the one employed by the RPD member."The above case concerned Rule 27 of the RPD Rules, but the point applies equally to Rule 26, mutatis mutandis.

RPD Rule 27 - Possible Integrity Issues
Notice to Minister of possible integrity issues before hearing 27 (1) If the Division believes, before a hearing begins, that there is a possibility that issues relating to the integrity of the Canadian refugee protection system may arise from the claim and the Division is of the opinion that the Minister’s participation may help in the full and proper hearing of the claim, the Division must without delay notify the Minister in writing and provide any relevant information to the Minister.

Notice to Minister of possible integrity issues during hearing (2) If the Division believes, after a hearing begins, that there is a possibility that issues relating to the integrity of the Canadian refugee protection system may arise from the claim and the Division is of the opinion that the Minister’s participation may help in the full and proper hearing of the claim, the Division must adjourn the hearing and without delay notify the Minister in writing and provide any relevant information to the Minister.

Integrity issues (3) For the purpose of this rule, claims in which the possibility that issues relating to the integrity of the Canadian refugee protection system may arise include those in which there is (a) information that the claim may have been made under a false identity in whole or in part; (b) a substantial change to the basis of the claim from that indicated in the Basis of Claim Form first provided to the Division; (c) information that, in support of the claim, the claimant submitted documents that may be fraudulent; or (d) other information that the claimant may be directly or indirectly misrepresenting or withholding material facts relating to a relevant matter.

Disclosure to claimant (4) The Division must provide to the claimant a copy of any notice or information that the Division provides to the Minister.

Resumption of hearing (5) The Division must fix a date for the resumption of the hearing that is as soon as practicable, (a) if the Minister responds to the notice referred to in subrule (2), after receipt of the response from the Minister; or (b) if the Minister does not respond to that notice, no earlier than 14 days after receipt of the notice by the Minister.

What are "issues relating to the integrity of the Canadian refugee protection system"?
Rule 27 is triggered where the Division believes that there is a possibility that issues relating to the integrity of the Canadian refugee protection system may arise from the claim. What so qualifies? Those categories listed in Rule 27(3) provide guidance when it states that such issues include those in which there is:

(a) information that the claim may have been made under a false identity in whole or in part.

(b) a substantial change to the basis of the claim from that indicated in the Basis of Claim Form first provided to the Division.

(c) information that, in support of the claim, the claimant submitted documents that may be fraudulent.

(d) other information that the claimant may be directly or indirectly misrepresenting or withholding material facts relating to a relevant matter. The court provided some guidance on this question in Oyejobi v. Canada, noting that a situation in which a panel suspects that a BOC narrative has been copied from another claimant is one which raises issues relating to the integrity of the system.

When should the Division be of the opinion that the Minister’s participation may help in the full and proper hearing of the claim?
It is clear from the focus of Rule 27 that even where such issues arise in relation to a claim, for example there is an indication that the BOC narrative was copied from another claim, the clear wording of the Rule also requires that the panel believe that the Minister’s participation may help in the hearing of the specific claim before the Member, not simply in investigating a possibility of broader integrity issues involving the other (suspiciously similar) claim. For a broader discussion of this question, see Canadian Refugee Procedure/Exclusion, Integrity Issues, Inadmissibility and Ineligibility above.

RPD Rule 28 - Possible Inadmissibility or Ineligibility
Notice of possible inadmissibility or ineligibility 28 (1) The Division must without delay notify the Minister in writing and provide the Minister with any relevant information if the Division believes that (a) a claimant may be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality; (b) there is an outstanding charge against the claimant for an offence under an Act of Parliament that is punishable by a maximum term of imprisonment of at least 10 years; or (c) the claimant’s claim may be ineligible to be referred under section 101 or paragraph 104(1)(c) or (d) of the Act.

Disclosure to claimant (2) The Division must provide to the claimant a copy of any notice or information that the Division provides to the Minister.

Continuation of proceeding (3) If, within 20 days after receipt of the notice referred to in subrule (1), the Minister does not notify the Division that the proceedings are suspended under paragraph 103(1)(a) or (b) of the Act or that the pending proceedings respecting the claim are terminated under section 104 of the Act, the Division may continue with the proceedings.

What process does the Minister follow in order to determine ineligibility?
Under the Act, the burden of proving that a claim is eligible to be referred to the Refugee Protection Division rests solely with the refugee protection claimant, and it is not for an immigration officer to show that the claim is ineligible. Prior to declaring that a claimant is ineligible, the Minister will generally send out what is referred to as a procedural fairness letter. The letter will invite the claimant to provide evidence/submissions/materials regarding their eligibility by providing a written response to the letter. An officer will make a final decision after the deadline for providing submissions. If the claimant does not respond by the stated date, an officer will make a decision with the information on file. An appointment will generally be set up shortly thereafter to discuss the matter with the claimant in a CBSA office. If the final decision is that their claim is ineligible for referral to the Refugee Protection Division, the claimant will face removal from Canada. If, and when, the CBSA commences removal arrangements, the claimant's eligibility to apply for a Pre-Removal Risk Assessment (PRRA) will be assessed.

The RPD has no jurisdiction to determine that refugee claims are eligible or ineligible for referral to the RPD. The role of the RPD in this regard is restricted to providing notice to the Minister of possible ineligibility. Where the Minister does not terminate or suspend a claim, possible ineligibility is not a barrier to the RPD proceeding with the hearing of a claim or granting protection.

What does it mean that the Division must notify the Minister "without delay"?
Rule 28(1) provides that the Division must without delay notify the Minister if it believes that one of the listed issues may arise in the claim (regarding inadmissibility, criminality, and ineligibility). The Rule 28(3) then provides the circumstances under which the Board may continue with the proceedings. The rationale for this scheduling policy has been articulated by the Federal Court, which has observed that "there is no point in conducting a hearing if eligibility could be an issue". Furthermore, the Minister argues that one of the purposes of this provision is to "avoid the need to nullify an RPD decision on a claim that is later found to be ineligible." That said, these issues of admissibility and eligibility are not determined by the Board. As with the notice provisions considered above (Canadian Refugee Procedure/RPD Rules 26-28 - Exclusion, Integrity Issues, Inadmissibility and Ineligibility), the claimant will generally have a right to have the proceedings halt when the Board determines that such notification is necessary, but the claimant may waive this right and elect to continue with the questioning (with the Board's decision suspended during the 20-day notice period above) for reasons of the claimant's choice, efficiency, and other considerations.

Rule 28(1)(c): When is a claim ineligible to be referred under section 101 of the Act?
See the provisions of, and commentary on, section 101 of the Act: Canadian Refugee Procedure/100-102 - Examination of Eligibility to Refer Claim

Rule 28(1)(c): When is a claim ineligible to be referred under section 104 of the Act?
See the provisions of, and commentary on, section 104 of the Act: Canadian Refugee Procedure/103-104 - Suspension or Termination of Consideration of Claim.

Other grounds of inadmissibility in the IRPA do not render claimants ineligible for a refugee hearing, but may nonetheless have consequences even where a claim is accepted
A number of grounds of inadmissibility are listed in the provision above. There are a number of others in the Act that are not listed above. As Jennifer Bond, et. al., observe, those other grounds of inadmissibility, such as health or financial criteria (ss. 38–39 of IRPA), misrepresentation (s. 40(1)(a) of IRPA), or criminality falling below the threshold described above will not make them ineligible for a refugee hearing; however, if their claim is successful and they become a “protected person”, some of these grounds of inadmissibility could prevent them from acquiring permanent resident status. These include health grounds if their condition poses a danger to the public (s. 38(1)(a)–(b) of IRPA) or “serious criminality” in the absence of a conviction (s. 36(1)(c) of IRPA) or for a crime that does not carry a 10-year maximum sentence (IRPA, s. 99(4) and s. 21(2)). Such persons could not be refouled from Canada, by virtue of s. 115(1) of IRPA, but would be subject to a range of negative consequences due to their lack of permanent status. This has been a part of Canadian immigration law for some time; even under the previous Immigration Act, where a claimant applying for permanent residence did not have sufficient identity documents, or he/she or a dependent included in the application was inadmissible for criminal or security reasons, it was possible that “landing” would not be granted.


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Canadian Refugee Procedure/RPD Rule 29 - Intervention by the Minister

Relevant IRPA Provision
The relevant provision in the Act is s. 170(e), which reads: Proceedings

170 The Refugee Protection Division, in any proceeding before it, (e) must give the person and the Minister a reasonable opportunity to present evidence, question witnesses and make representations;

The rate of Ministerial interventions in Refugee Protection Division hearings
For details on the rate at which the Minister intervenes in Refugee Protection Division proceedings, see: Canadian Refugee Procedure/RPD Rules 26-28 - Exclusion, Integrity Issues, Inadmissibility and Ineligibility.

The Minister is permitted to intervene in proceedings, but is not required to do so
The Minister is not required to intervene and bring forward evidence available to it prior to a refugee hearing.

Rule 29
The text of the relevant rule reads: Intervention by the Minister

Notice of intention to intervene

29 (1) To intervene in a claim, the Minister must provide (a) to the claimant, a copy of a notice of the Minister’s intention to intervene; and (b) to the Division, the original of the notice, together with a written statement indicating how and when a copy was provided to the claimant.

Contents of notice (2) In the notice, the Minister must state (a) the purpose for which the Minister will intervene; (b) whether the Minister will intervene in writing only, in person, or both; and (c) the Minister’s counsel’s contact information.

Intervention — exclusion clauses (3) If the Minister believes that section E or F of Article 1 of the Refugee Convention may apply to the claim, the Minister must also state in the notice the facts and law on which the Minister relies.

Time limit (4) Documents provided under this rule must be received by their recipients no later than 10 days before the date fixed for a hearing.

History of this Rule
The equivalent rule in the previous 2002 version of the Rules read: INTERVENTION BY THE MINISTER

Notice of intention to intervene 25. (1) To intervene in a claim, the Minister must provide (a) to the claimant, a copy of a written notice of the Minister’s intention to intervene; and (b) to the Division, the original of that notice and a written statement of how and when a copy was provided to the claimant.

Contents of notice (2) In the notice, the Minister must state how the Minister will intervene and give the Minister’s counsel’s contact information.

Intervention — exclusion clauses (3) If the Minister believes that section E or F of Article 1 of the Refugee Convention may apply to the claim, the Minister must also state in the notice the facts and law on which the Minister relies.

Time limit (4) Documents provided under this rule must be received by the Division and the claimant no later than 20 days before the hearing. Comparing this version of the rule to the current version of the rule, one can see that the current version of the rules introduced changes to the requirements for the contents of the notice (the former Rule 25(2)) and also changed the timeline provided for in the former Rule 25(4).

Rule 29(2)(a) requires that the Minister provide a notice stating the purpose for which it will intervene
Rule 29(2)(a) provides that in order for the Minister to intervene in a claim and thus become a party to the proceedings, the Minister must provide a Notice of Intervention, and this Notice must state the purpose for which they are intervening in the claim. The Notice of Intervention should go beyond identifying what the Minister wishes to do at the hearing and should state why they want to do it, e.g. what determinative issues are at play in the hearing. For example, in one case the Minister provided a notice of intervention which identified their purposes as “appearing through Minister’s counsel at the proceedings to present evidence, question witnesses and make representations.” The Division held that this notice did not actually identify any purpose for the intervention and thus did not meet the requirements imposed by the rules:"They are merely listing what they intend to do at the hearing as opposed to why they are doing it. The Minister has not stated what their purpose is for filing their intervention; they have simply recited the obvious role Minister’s counsel will play at the hearing when they appear in person once they become a party. The statement in the notice made by Minister’s counsel that is defined as their “purpose” are descriptions of actions and not the reasons behind those actions, and therefore do not constitute a statement of purpose at all."In that case, the Board declined to allow the Minister's intervention on the basis that the intervention notice was insufficiently specific. The rationale for this decision is strengthened by comparing the current version of the rules to its predecessor reproduced above. Whereas the previous version of the rules only required that the Minister state "how" they would intervene, this was modified to require that the Minister identity the "purpose" of their intervention in the current version of the rules. As discussed in the reasons above, the Board identified in its public commentary at the time of this change that this modification was made in order to ensure that claimants had better notice of the reasons why the Minister would be intervening in the upcoming proceeding.

The Board has noted that "the level of detail required in the Notice is fact driven and may vary from case to case". A description of the issues the Minister will raise at the hearing or identifying the specific facts and issues of the intervention are not necessarily required. It is common that such notices simply indicate that the Minister is intervening on an issue such as "credibility" or that it indicates that the Minister is intervening "in all aspects of the claim". What a claimant can expect from such statements is exemplified by the following passage from a University of Ottawa guide for refugee claimant which describes the process: "If [IRCC] has sent a Minister’s Counsel to your hearing, you will have already been informed of the reason why (for example [IRCC] suspects you are misrepresenting your identity) and the Minister’s Counsel will ask questions relating to those concerns."

Where the Notice of Intervention is deficient in this respect, the Division should generally decline to allow the Minister's intervention, while inviting them to submit a notice of intervention that complies with the requirements of the rules. See the reasons of Member Davidson of the Refugee Protection Division for an example of this approach. However, where there would not be enough time to allow the Minister to do this prior to the hearing date, then see the following commentary.

Rule 29(4) provides that a claimant is entitled to 10 days of notice of the purpose of any Ministerial intervention
Under Rule 29(4), claimants are entitled to notice of the purpose of any Ministerial intervention under this Rule at least 10 days before the hearing. This mirrors the requirement that the Board provide advance notification to the Minister that certain issues may arise in a claim and the way that that is a substantive right that the claimant is entitled to: Canadian Refugee Procedure/The right to a fair hearing. Where this notice requirement has not been complied with, what should a panel of the Board do?

 * The Board may waive this notice requirement, including pursuant to Rule 71: Canadian Refugee Procedure/General Provisions. This may properly be done where there is no prejudice to the claimant as a result of the lack of notice or any potential prejudice can be ameliorated through post-hearing submissions. For example, in El Haddad c. Canada the Minister intervened on the issue of exclusion. At the hearing, the Minister stated that they would not be pursuing the exclusion matter, but wished to provide submissions on the claimant's credibility. On judicial review, the claimant challenged their ability to do so on the basis that they had not provided the advance notice required by Rule 29 that they would be intervening for that purpose. The court held that the Board had not erred in allowing the Minister to provide submissions on credibility in these circumstances given that the Minister did not question the claimant but only provided legal submissions at the close of the hearing, and given that the issue they provided submissions on, credibility, is one that is always at issue in hearings.
 * The Board may postpone the commencement of proceedings so that the claimant receives the requisite amount of notice.
 * The Board may err if it proceeds with the hearing and denies the Minister the ability to participate. Section 170(e) of the IRPA provides the Minister with a right to participate in the hearing: "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". In Canada v. Atabaki the Minister's notice of intervention indicated that they would intervene related to exclusion, but did not indicate that they would intervene on issues of credibility. The Member accordingly denied the Minister the ability to question the claimant regarding issues of credibility. The court held that this approach was in error and remitted the matter to be redetermined by the Board. That said, it should be noted that this case concerned the previous version of the RPD Rules, which had a different requirement for Ministerial notice, and so that may affect the decision's ongoing applicability.

Rule 29(2)(b) provides that a claimant is entitled to advance notice where the Minister will be intervening in person
Rule 29(2)(b) provides that the Minister's notice of intervention must state whether the Minister will intervene in writing only, in person, or both. Member McSweeney of the Refugee Appeal Division has considered the effect of a violation of this rule in a published decision. In that case, the Minister's intervention notice had not indicated whether or not the Minister would be intervening in person. When the Minister's delegate appeared at the hearing and sought to question the claimant, counsel for the claimant objected to the Minister being able to do so because of the lack of notice as required by the rules. The claimant and their counsel did not have an opportunity to prepare for questioning by the Minister given the lack of notice before the second sitting. The Refugee Appeal Division held that it was wrong to have allowed the questioning to proceed in such circumstances, this rendered the proceeding unfair, and a new hearing was consequently ordered by the RAD.

A Minister's Notice of Intention to Intervene must be in the language of the proceeding
Any documents that the Minister provides in a proceeding, including the Notice of Intention to Intervene, must be in the language of the proceedings: Canadian Refugee Procedure/Documents. Thus, for example, where a claimant elects to proceed with their case in French and the Minister provides a Notice of Intention to Intervene in English, a claimant will be right to object that they have not received proper notice as required by Rule 29.


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Canadian Refugee Procedure/RPD Rule 30 - Claimant or Protected Person in Custody

Rule 30 - Claimant or Protected Person in Custody
The text of the relevant rule reads: Claimant or Protected Person in Custody

Custody 30 The Division may order a person who holds a claimant or protected person in custody to bring the claimant or protected person to a proceeding at a location specified by the Division.

A large majority of refugee claimants who are detained are detained on grounds of identity or being a flight risk
The CBSA detained an average of 7215 individuals per year in the period from 2012 to 2017, each of whom spent, on average, 19.5 days behind bars. One study found that the vast majority (93 percent) of refugee claimants detained in 2015 were detained on grounds of identity or of their being flight risks, without allegations that they represented a danger to the public or a security risk.

Access to Justice issues for persons in custody
UNHCR states that, practically, detention has been shown to cause psychological illness, trauma, depression, anxiety, aggression, and other physical, emotional and psychological consequences. Detention can exacerbate the suffering and trauma that asylum seekers may already have undergone prior to or during flight to seek protection. These consequences of detention can be even more severe for vulnerable asylum seekers such as children, pregnant women, the elderly, victims of torture or trauma and persons with physical and/or mental disabilities.

There are particular access to justice issues for persons in custody: claimants in detention have consistently been identified as those who have had the greatest difficulty accessing legal counsel. The UN Committee Against Torture, in its General Comment on non-refoulement, has listed this as one situation in which the burden of proof should reverse, and it should fall on the state to rebut the claimant's assertions where a detained persons faces difficulties in obtaining evidence to substantiate their claim: "[W]hen the complainant is in a situation where he/she cannot elaborate on his/her case, for instance, when the complainant has demonstrated that he/she has no possibility of obtaining documentation relating to his/her allegation of torture or is deprived of his/her liberty, the burden of proof is reversed and it is up to the State party concerned to investigate the allegations and verify the information on which the communication is based."For more details on this, see Canadian Refugee Procedure/The Board's inquisitorial mandate.