Policy on the Use of Jurisprudential Guides

Table of Contents

1. Purpose
2. Application
3. Statutory authority
4. Context
5. Process for identifying a decision
6. Communication of a jurisprudential guide
7. Monitoring
8. Effect of a jurisprudential guide
9. Revocation of a jurisprudential guide
10. References
11. Enquiries
12. Approval

1. Purpose

This policy outlines the Chairperson's authority to identify a decision as a jurisprudential guide in the Refugee Protection Division (RPD), Refugee Appeal Division (RAD), Immigration Division (ID), and Immigration Appeal Division (IAD) of the Immigration and Refugee Board of Canada (IRB, or the Board).

This policy establishes:

• a framework that guides the exercise of that authority
• the process for identifying a decision as a jurisprudential guide
• the effect of a jurisprudential guide, and
• the circumstances for revoking a jurisprudential guide.

2. Application

This version of the Policy on the Use of Jurisprudential Guides supersedes any other documents or portions of documents previously issued by the IRB that conflict with this policy.

3. Statutory authority

Paragraph 159(1)(h) of the Immigration and Refugee Protection Act (IRPA) provides that the Chairperson may identify decisions of the Board as jurisprudential guides, after consulting with the Deputy Chairpersons, to assist members in carrying out their duties.

4. Context

The IRB's ability to develop a consistent and coherent body of jurisprudence depends, in part, on the establishment of a coordinated and rational approach to its adjudicative function. To be most effective, each Division must establish a selective and strategic approach to the adjudication of cases.

The identification of a decision as a jurisprudential guide aims to focus the Board’s attention because they are exceptional cases that have the potential to shape the Board's jurisprudence.

The Chairperson may decide to identify a decision as a jurisprudential guide in order to:

• address an issue of importance to the Board
• address an emerging issue
• resolve an ambiguity in the law, or
• resolve inconsistency in decision-making.

A decision may be identified as a jurisprudential guide on either a question of law, fact, or mixed law and fact.

5. Process for identifying a decision

A Deputy Chairperson may submit to the Chairperson a decision to consider for identification as a jurisprudential guide. Generally, the decision should:

• be well-written
• provide a detailed and clear analysis
• consider all of the relevant issues in the case, and
• contain persuasive reasoning.

The decision and reasons will be accompanied by a memorandum from the Deputy Chairperson, along with a policy note setting the proposed scope of the jurisprudential guide. The Senior General Counsel will provide a legal risk assessment, evaluating the legal considerations that could flow from the identification of the decision as a jurisprudential guide.

External consultation regarding areas appropriate for a jurisprudential guide, or in exceptional circumstances, on the identification of a jurisprudential guide, may take place at the discretion of the Chairperson.

6. Communication of a jurisprudential guide

Once selected, the decision and reasons will be released in both English and French, and, where applicable, identifying information removed in order to maintain the privacy of the person concerned.

The decision and reasons will be posted on the Board’s website along with the accompanying policy note.

Parties and their counsel will be expected to know which decisions have been identified as jurisprudential guides.

7. Monitoring

The Board conducts ongoing monitoring of decisions identified as jurisprudential guides, both with regard to country conditions and proceedings at higher courts, to ensure that the jurisprudential guides reflect up-to-date information. Deputy Chairpersons and the Senior General Counsel will advise the Chairperson of any issues that may have an impact on the jurisprudential guide’s continued application.

8. Effect of a jurisprudential guide

Jurisprudential guides are not binding, and members remain free to reach their own conclusions, based on the facts of each particular case.

Members are encouraged to consider the reasoning in a decision identified as a jurisprudential guide to the extent set out in the accompanying policy note, where the facts underlying the decision are sufficiently close to those in the case being decided.

Members are encouraged to explain in their reasoning why they are not adopting the reasoning that is set out in a jurisprudential guide when, based on the facts of the case, the jurisprudential guide would otherwise seem to apply.

9. Revocation of a jurisprudential guide

A jurisprudential guide remains in effect unless the Chairperson revokes it.

The decision whether or not to revoke the identification is at the Chairperson's discretion, after consulting with the Deputy Chairpersons, as applicable.

The Chairperson may issue a notice of revocation when:

• a higher court subsequently overturns the underlying decision
• country conditions have changed to a point where the reasoning in the jurisprudential guide no longer assists members, or
• there are other reasons that the jurisprudential guide no longer assists members.

10. References

• Immigration and Refugee Protection Act, s. 159(1)(h)
• Canadian Association of Refugee Lawyers v. Canada (Citizenship and Immigration), 2019 FC 1126 at para [86]

11. Enquiries

For information, contact:

IRB.Policy-Politiques.CISR@irb-cisr.gc.ca

Or

Senior Director
Policy, Outreach and Engagement Directorate
Immigration and Refugee Board of Canada
Canada Building (Minto Place)
344 Slater Street
Ottawa, Ontario  K1A 0K1

12. Approval