1. Purpose
The purpose of the Reasons Review Policy is to provide for transparency and consistency with respect to the policy and procedures regarding reasons review at the Immigration and Refugee Board of Canada (IRB or the Board).
2. Application
This Policy is issued by the Chairperson and is effective as of the date it is approved. It replaces the Reasons Review Policy that was originally issued in April 1993 and revised in August 1997.
This Policy applies to draft reasons for decision that decision-makers (or members) of the IRB have prepared in writing, as well as to the review of proposed oral reasons for decision.
3. Background
The IRB is an independent administrative tribunal which consists of the Refugee Protection Division (RPD), the Refugee Appeal Division (RAD), the Immigration Division (ID) and the Immigration Appeal Division (IAD).Note 1 The RPD and the ID are composed of decision-makers who are appointed in accordance with the Public Service Employment Act, and the RAD and the IAD are composed of decision-makers who are appointed by the Governor in Council for fixed terms. The decision-makers of the Board come from different walks of life and many join the Board without legal training or related experience.Note 2
The IRB Legal Services Branch is responsible for providing a full range of legal and policy advice in an efficient and professional manner to the Chairperson, senior management, decision-makers and other IRB personnel. As one of its activities, upon request, Legal Services reviews draft reasons for decision. The objectives of reasons review are described in Section 4 below.
In Weerasinge,Note 3 the Federal Court of Appeal approved of the practice of the Board to have the reasons of its members reviewed by legal counsel before their release. The Court stated that the value of review of draft reasons is manifest having regard to the composition of the Refugee Division at that time and the nature of its decisions. Further, the Court found that the taking of legal advice on draft reasons does not breach the rules of natural justice. Subsequently, in Bovbel,Note 4 the Federal Court of Appeal found no fault with the Board’s April 1993 reasons review policy.
4. Objectives of Reasons Review
The objectives of reasons review are:
- to assist the IRB in accomplishing its mission to resolve immigration and refugee matters fairly, efficiently and in accordance with the law;
- to assist decision-makers in accurately reflecting the rationale for their decisions by commenting or advising, where appropriate, on the matters set out under the section entitled "Scope of Reasons Review";
- to assist decision-makers by offering services that meet their individual needs, especially as part of new member training;
- to assist the IRB in identifying topics for professional development; and
- to assist the IRB in making its case law accessible to decision-makers and employees of the Board and to the public through the identification of decisions for publication.
5. Policy Statement
5.1 Voluntariness
The decision-maker is free to accept or to reject comments made by Legal Services on the reasons.
Reasons review is an optional service offered to decision-makers. However, the training of new members is a special situation, in which legal counsel work with them as part of a team which may be composed of a professional development advisor, an experienced member, acting as mentor, and the new member's manager. Therefore, new members are expected to make use of the reasons review service offered by Legal Services in accordance with the new member training program.
A member manager may recommend to a member that they should have Legal Services review their draft reasons because of the complexity or novelty of the case or because the member manager is of the view it would be consistent with the objectives of reasons review.
5.2 Confidentiality
A decision-maker’s notes and draft reasons belong to the decision-maker, not to the Board.Note 5
The Reasons Review Policy is subject to the Chairperson’s Instructions Governing Solicitor-Client Privilege and the Confidentiality of Legal Advice at the IRB (“Chairperson’s Instructions”).Note 6 Among other things, the Chairperson’s Instructions provide that where an IRB member seeks legal advice regarding draft reasons for decision, the IRB will treat that legal advice as a confidential communication between the member and Legal Services. In other words, Legal Services will not disclose to management the communication between the member and Legal Services, including the fact that the member sought to have Legal Services review the member’s reasons for decision.
Where a matter before a Division is conducted by a panel of three members, the comments that Legal Services makes on draft reasons for decision are available to all members of that panel.Note 7
The comments made by Legal Services on draft reasons are not used for the purposes of a decision-maker's performance appraisal.
The comments made by Legal Services on draft reasons may be used in a generic way, consistent with the Chairperson’s Instructions, to develop criteria for a performance appraisal form, to identify training and professional development needs of members and areas requiring policy development, and to anticipate the demand for legal services.
5.3 Implementation
Reasons review is a flexible exercise. The nature of comments by Legal Services may vary according to the experience of decision-makers and the complexity and novelty of the issues involved.
Comments that are provided are respectful of the independence of the decision-maker; are consistent with the objective of giving concise reasons; and encourage the decision-maker to focus on essential issues and analyses.
5.4 Scope of Reasons Review
There are two types of review of written reasons: the standard review and the selective review. Legal Services provides the standard review unless the decision-maker requests a selective review.
Legal Services is also available to provide advice on proposed oral reasons.
A member may also seek legal advice from Legal Services during the course of proceedings on any issue relevant to the proceedings, and the same general principles from sections 5.1 to 5.3 above will apply.
5.4.1 Standard Review
A standard review is usually based on the draft reasons without further information. However, Legal Services may access the case file if it will help in meeting the objectives of reasons review.
A standard review involves making succinct or amplified comments that identify and, where appropriate, give advice on:
- essential substantive legal and procedural issues;
- alternative legal analyses, but only where they appear necessary and expedient to resolve the issues identified in the reasons;
- potential errors of law;
- apparent inconsistencies and incoherence in the draft reasons; and
- jurisprudence, including jurisprudential guides and persuasive decisions, legal opinions and other legal reference materials, Chairperson's guidelines, and policies that may be relevant to the draft reasons.
5.4.2 Selective Review
A selective review involves giving advice on an issue or issues identified by a decision-maker.
5.5 Limitations
The review of reasons for decision does not ordinarily include:
- the review of the written version of reasons that were delivered orally;
- the identification of factual inconsistencies between the reasons and information on the file; and
- the identification of errors in grammar, syntax, punctuation, spelling or quotations unless errors adversely affect coherence.
5.6 Oral Reasons for Decision
Statutory provisions permit members to render decisions orally or in writing in most cases.Note 8 The RPD Rules establish that oral decisions and reasons are the norm in the RPD.Note 9 Oral decisions and reasons are also the norm in practice at the ID, and are encouraged at the IAD. Currently, oral decisions and reasons are not permitted at the RAD.Note 10
Legal Services will give high priority to providing members who request advice regarding their proposed oral reasons.
6. Procedures
6.1 Form
Members may submit their final draft of proposed written reasons to Legal Services in hard copy or, for greater efficiency, in electronic version. In addition to formal reasons review, Legal Services is also available at any stage of the process to provide legal advice to members.
Comments from Legal Services may be handwritten on, or attached to, the hard copy of reasons or may be made as electronic annotations on the electronic version of reasons.
A member may meet with Legal Services to discuss proposed oral reasons. The member may choose to use notes to facilitate that discussion, or may choose only to have an oral discussion.
6.2 Timely Processing
Legal Services will give high priority to completing its review of written reasons in a timely way and will set its commitments for processing time limits in light of Divisional needs as well as taking into account the priority that must be given to oral reasons.
6.3 Further Reviews
Legal Services normally reviews written reasons only once. However, additional reviews may be provided in exceptional circumstances, with the approval of the General Counsel, Legal Services.
7. Management Responsibility
The implementation of this policy is the responsibility of the General Counsel, Legal Services, whose duties include assigning legal counsel to reasons review, developing effective review strategies, and meeting the needs of the Divisions within their regions.
8. Monitoring
Program monitoring and evaluation of this policy is the responsibility of the Legal Services Branch and each of the Divisions of the Board.
9. Enquiries
For more information, please contact:
Director, Policy and Procedures
Policy, Planning and Research Branch
Immigration and Refugee Board of Canada
Minto Place—Canada Building
344 Slater Street, 12th Floor
Ottawa, Ontario K1A 0K1
Available in English and French on the IRB’s Internet site.
10. Approval
Signed by Ken Sandhu
Interim Chairperson
December 18, 2014
Notes
- Note 1
Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27, s. 151.
Return to note 1 referrer
- Note 2
IRPA, s. 153(4), currently provides that the Deputy Chairperson of the Immigration Appeal Division and a majority of the Assistant Deputy Chairpersons of that Division and at least 10 per cent of the members of the Refugee Appeal Division and the Immigration Appeal Division must be members of at least five years standing at the bar of a province or notaries of at least five years standing at the Chambre des notaires du Québec. There is no similar statutory qualification for members of the Refugee Protection Division and the Immigration Division.
Return to note 2 referrer
- Note 3
Weerasinge v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 330 (C.A.).
Return to note 3 referrer
- Note 4
Bovbel v. Canada (Minister of Employment and Immigration), [1994] 2 F.C. 563 (C.A.). Application for leave to appeal to the Supreme Court of Canada dismissed September 8, 1994 (case number 24108). The Federal Court of Appeal (FCA) held that even if the Board's Reasons Review Policy was formulated so as to give the impression that draft reasons were to be reviewed as a general rule, “we fail to understand how, if the Board's policy was otherwise unobjectionable, the fact that it was generally applied could make it bad.” The FCA also stated: “Surely, if there is nothing wrong in the author of the reasons receiving the comments of a legal advisor, there cannot be any wrong in making those comments known to the other member of the Board who is asked to concur in the reasons.” Regarding discussion of facts, the FCA stated: “A fair reading of the documents on the record shows, in our view, that the legal advisors were not expected to discuss the findings of facts made by the members but merely, if there was a factual inconsistency in the reasons, to look at the file in order to determine, if possible, how the inconsistency could be resolved. True, there was always the possibility that the legal advisors might, since they were in possession of the file, exceed their mandate and try to influence the factual findings of the Board. However, as mentioned by Mahoney J.A. in Weerasinge, any policy is susceptible of abuse.”
Return to note 4 referrer
- Note 5
Tunian v. Chairman of the Immigration and Refugee Board, 2004 FC 849 (CanLII), involved an application made pursuant to section 41 of the Privacy Act, R.S.C. 1985, c. P-21, for judicial review of the IRB’s decision not to disclose draft reasons prepared by an IRB member who determined that the applicants were not Convention refugees. The Federal Court stated at para. 9: “…The Board does not require the Board Member to keep draft reasons or notes from a hearing on the official record, as it is part of the decision-making process associated with an independent adjudicative function and, as such, should not be under the control of the Board. Rather, the Board's policy is that Board Members are encouraged to keep notes to the extent that notes are an aid in the decision-making process. Accordingly, all notes, including draft reasons, prepared by Board Members are considered to belong to the Board Member.”
Return to note 5 referrer
- Note 6
Instructions Governing Solicitor-Client Privilege and the Confidentiality of Legal Advice at the Immigration and Refugee Board of Canada (effective date: July 30, 2010).
Return to note 6 referrer
- Note 7
Supra, note 4.
Return to note 7 referrer
- Note 8
IRPA, s. 169, reads:
169. In the case of a decision of a Division, other than an interlocutory decision: - (a) the decision takes effect in accordance with the rules;
- (b) reasons for the decision must be given;
- (c) the decision may be rendered orally or in writing, except a decision of the Refugee Appeal Division, which must be rendered in writing;
- (d) if the Refugee Protection Division rejects a claim, written reasons must be provided to the claimant and the Minister;
- (e) if the person who is the subject of proceedings before the Board or the Minister requests reasons for a decision within 10 days of notification of the decision, or in circumstances set out in the rules of the Board, the Division must provide written reasons; and
- (f) the period in which to apply for judicial review with respect to a decision of the Board is calculated from the giving of notice of the decision or from the sending of written reasons, whichever is later.
Return to note 8 referrer
- Note 9
Rule 10(8) of the Refugee Protection Division Rules, SOR/2012-256, provides that an RPD member "must render an oral decision and reasons for the decision at the hearing unless it is not practicable to do so."
Return to note 9 referrer
- Note 10
The restriction on oral decisions at the RAD will be removed when s. 25 of the Balanced Refugee Reform Act, 2010, c. 8, as amended by 2012, c. 17, s. 65(F), comes into force.
Return to note 10 referrer