TABLE OF CONTENTS

1. INTRODUCTION
2. THE ROLES OF MEMBERS, RPOS AND COUNSEL
3. 1.   CASE PREPARATION
   1. 1.1   Early identification of issues
   2. 1.2   Disclosure of documents and witness information
   3. 1.3   Information requests to IRB Research Directorate
4. 2.   HEARING PRELIMINARIES
   1. 2.1   Failure to appear
   2. 2.2   Informal conference before the hearing
   3. 2.3   Interpreters
   4. 2.4   Affirmation/Oath
   5. 2.5   Personal Information Form (PIF)
   6. 2.6   Exhibits
5. 3.   HEARING
   1. 3.1   Issue agenda
   2. 3.2   Questioning
   3. 3.3   Representations
6. ENDNOTES

INTRODUCTION

The Refugee Protection Division (RPD) is the largest division of Canada's largest administrative tribunal, the Immigration and Refugee Board (IRB). Administrative tribunals operate less formally and more expeditiously than courts of law. Accordingly, the Immigration and Refugee Protection Act (IRPA) requires the IRB to deal with proceedings before it informally, quickly and fairly. ¹ The Chairperson has issued these guidelines to explain what the RPD does before and during the hearing to make its proceedings more efficient but still fair. The guidelines also set out what the RPD expects participants to do.

The guidelines apply to most cases heard by the RPD. However, in compelling or exceptional circumstances, the members will use their discretion not to apply some guidelines or to apply them less strictly.

Generally speaking, the RPD will make allowances for unrepresented claimants who are unfamiliar with the Division's processes and rules. Claimants identified as particularly vulnerable will be treated with special sensitivity.

THE ROLES OF MEMBERS, RPOS AND COUNSEL

Under the IRPA, RPD members have the same powers as commissioners who are appointed under the Inquiries Act. ² They may inquire into anything they consider relevant to establishing whether a claim is well-founded. ³ This means that they define what issues must be resolved in order for them to render a decision.

A member's role is different from the role of a judge. A judge's primary role is to consider the evidence and arguments that the opposing parties choose to present; it is not to tell parties how to present their cases. Case law ⁴ has clearly established that the RPD has control of its own procedures. It decides and gives directions as to how a hearing is to proceed, including who will start the questioning. The members have to be actively involved to make the RPD's inquiry process work properly.

A Refugee Protection Officer (RPO) may be involved in proceedings at the preparation stage, at the hearing, or both. An RPO acts under the direction of the Division to carry out activities necessary for a full and proper examination of a claim or other matter. ⁵

The role of counsel is the same whether counsel is representing a claimant or the Minister. Counsel assists the client in presenting the case in an efficient manner within the limits set by the member. Their role is essentially to protect the client's interests and right to a fair hearing.

1.  CASE PREPARATION

To make the best use of hearing time, these guidelines emphasize the importance of case preparation. Issues have to be identified early in the process and the rules have to be strictly followed.

1.1  Early identification of issues

1. The RPD will make a preliminary identification of the issues it considers to be central to the claim. A copy of the RPD File Screening Form identifying those issues will be provided to the parties together with the Notice to Appear.
2. After seeing the issues indicated on the RPD File Screening Form, a party is expected to notify the RPD as soon as possible of any issue it wants to add or delete, and explain why.

1.2  Disclosure of documents ⁶ and witness information ⁷

1. 3. Parties must disclose documents they want to use and a list of those documents no later than 20 days before the hearing. ⁸ Unless the member decides otherwise, a document that was not disclosed according to the RPD Rules cannot be used at the hearing. ⁹ The RPD has to follow the same rule. ¹⁰ If it does not disclose in time, its documents cannot be used without the member's permission.
2. 4. Members will refuse to accept documents that are not relevant to the proceeding. Members will take such documents off the exhibit list submitted.
3. 5. The RPD will continue to provide information on the country of reference. This means that every case will have some basic documentary evidence.

1.3  Information requests to IRB Research Directorate

1. 6. The RPD will submit requests for country of origin and claimant-specific information to the IRB Research Directorate only where the RPD considers that the information is necessary to decide the case and cannot be obtained from any other source.

    

2.  HEARING PRELIMINARIES

The procedure for opening hearings is standardized to allow more of the hearing time to be spent on the claim itself instead of on opening formalities. Hearings proceed informally, but all the participants must show respect for the RPD and the parties.

2.1  Failure to appear

1. 7. The hearing will begin promptly as scheduled. Participants must be present and ready to proceed by the scheduled start time.
2. 8. If a party or counsel does not appear by the scheduled start time, the member will note this on the record.
3. 9. If a party or counsel appears within 15 minutes after the scheduled start time, the member will note the explanation for the late arrival on the record.
4. 10. After 15 minutes,
   
   
   • if it is a claimant who has not appeared, the member will decide whether to adjourn the matter on a peremptory basis or to start abandonment proceedings according  to the RPD Rules. ¹¹
   • if it is a protected person ¹² who has not appeared, the member will decide whether to proceed in the absence of that party or to adjourn the matter on a peremptory basis.
   • if it is counsel who has not appeared, the member will decide whether to proceed in counsel's absence, adjourn the matter on a peremptory basis or start abandonment proceedings according to the RPD Rules . ¹³

2.2  Informal conference before the hearing

1. 11. A brief conference with the parties will be held just before the hearing only where it would help make better use of hearing time. ¹⁴ When the claimant is represented, the member, the RPO and all counsel will participate, but the claimant will not usually be present. A represented claimant may be present if the member decides it would be useful. If the claimant was not present at the conference, before the hearing begins, the member will summarize for the claimant what was discussed and what directions the member gave at the conference. The conference will be recorded and form part of the tribunal's record.

2.3  Interpreters

1. 12. Interpreters are permanently bound by their promise to interpret accurately once they take an oath or make a solemn affirmation to do so. Therefore, a member who knows that an interpreter has been sworn in before by the Division should simply ask the interpreter to confirm that s/he has taken the oath or made the affirmation.
2. 13. At the beginning of the hearing, the interpreter will confirm that s/he used a standardized script to make sure that the interpreter and claimant are able to speak to and understand each other.

2.4  Affirmation/Oath

1. 14. Before the claimant starts testifying, the member will ask the claimant to make either a solemn affirmation or an oath on a holy book that the claimant has brought for that purpose.

2.5  Personal Information Form (PIF)

1. 15. The claimant is responsible for making sure that the PIF was interpreted to him or her before the hearing. At the beginning of the hearing, the member will ask the claimant to confirm that the interpretation was done.
2. 16. The member will not ask the claimant if there are amendments to the PIF. Any changes to the PIF must be submitted 20 days before the hearing, in three copies and underlined, according to the RPD's rules. ¹⁵

2.6  Exhibits

1. 17. The member will not make an exhibit list or ask if there are any other exhibits. The member will enter into evidence the exhibit lists already submitted by the RPO and the parties.

3.  HEARING

It is an essential part of the members' inquisitorial role to be actively involved in the conduct of hearings. The member is in charge of the inquiry and issues directions to make the proceedings more efficient. The member decides the order of the proceedings in accordance with these Guidelines, including the order of questioning and representations by the parties and the RPO.

3.1  Issue agenda

1. 18. Using the File Screening Form as a starting point, the member will consult with the RPO and counsel about the issues and how long the hearing is expected to last. Once the issues have been confirmed by the member, questioning must be limited to those issues. However, if it becomes necessary, the member can add or delete issues even during the course of the hearing.

3.2  Questioning

1. 19. In a claim for refugee protection, the standard practice will be for the RPO to start questioning the claimant. If there is no RPO participating in the hearing, the member will begin, followed by counsel for the claimant. Beginning the hearing in this way allows the claimant to quickly understand what evidence the member needs from the claimant in order for the claimant to prove his or her case.
2. 20. In a claim for refugee protection where the Minister intervenes on an issue other than exclusion, for example, on a credibility issue, the RPO starts the questioning. If there is no RPO at the hearing, the member will start the questioning, followed by the Minister's counsel and then counsel for the claimant.
3. 21. In proceedings where the Minister intervenes on the issue of exclusion, Minister's counsel will start the questioning, followed by the RPO, the member, and counsel for the claimant. Where the Minister's counsel requests another chance to question at the end, the member will allow it if the member is satisfied that new matters were raised during questioning by the other participants.
4. 22. In proceedings where the Minister is making an application to vacate or to cease refugee protection, Minister's counsel will start the questioning, followed by the member, and counsel for the protected person. Where the Minister's counsel requests another chance to question at the end, the member will allow it if the member is satisfied that new matters were raised during questioning by the other participants.
5. 23. The member may vary the order of questioning in exceptional circumstances. For example, a severely disturbed claimant or a very young child might feel too intimidated by an unfamiliar examiner to be able to understand and properly answer questions. In such circumstances, the member could decide that it would be better for counsel for the claimant to start the questioning. A party who believes that exceptional circumstances exist must make an application to change the order of questioning before the hearing. The application has to be made according to the RPD Rules . ¹⁶
6. 24. The member will limit the questioning by the RPO and counsel for the parties according to the nature and complexity of the issues. Questioning must bring out relevant information that will help the member make an informed decision. Questions that are answered by the claimant just repeating what is written in the PIF do not help the member.

3.3  Representations

1. 25. Parties will have a reasonable opportunity to make representations at a hearing. ¹⁷ The member will set time limits for the representations after all the evidence has been heard. The time limits will be reasonable in relation to the number of issues and the amount of relevant evidence heard.
2. 26. The RPO and the parties must be prepared to give oral representations after the evidence has been heard. ¹⁸ These representations must be relevant, focussed and concise so that they help a member to decide the claim efficiently and make it possible for the member to give an oral decision and reasons at the end of the hearing.
3. 27. The member may direct the RPO not to deliver representations if the member considers that representations by the RPO are not necessary.

Endnotes

1. Immigration and Refugee Protection Act, s. 162(2).
2. Immigration and Refugee Protection Act, s. 165.
3. Immigration and Refugee Protection Act, s. 170(a).
4. Rezaei, Iraj v. M.C.I. (F.C.T.D.no. IMM-1367-02), Beaudry, December 5, 2002, which refers to the powers of administrative tribunals according to Prassad v. Canada (Minister of Manpower and Immigration), [1989]  1 S.C.R. 560.
5. Refugee Protection Division Rules, s. 16.
6. Refugee Protection Division Rules, s. 29.
7. Refugee Protection Division Rules, s. 38.
8. Refugee Protection Division Rules, s. 27(4), 29(4).
9. Refugee Protection Division Rules, s. 30.
10. Refugee Protection Division Rules, s. 29(2), (4) and Commentary to Rules 29, 30 and 37.
11. Refugee Protection Division Rules, s. 58(2).
12. Immigration and Refugee Protection Act, s. 95(2).
13. Refugee Protection Division Rules, s. 58(2).
14. For example, where there are complex legal issues to be discussed, or matters related  to procedure or to evidence to be settled. A conference should only be held 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.
15. Refugee Protection Division Rules, s. 6(4), s. 29(4), s. 30 and Commentary to rules 5 and 6.
16. Refugee Protection Division Rules, s. 44.
17. Immigration and Refugee Protection Act, s. 170(e).
18. Refugee Protection Division Rules, s. 60.