Policy no. 2004-01
Effective Date: June 28, 2004
1. Purpose
The Immigration and Refugee Board (IRB) was established as an administrative tribunal, in part, in order to make well-reasoned decisions, quickly and fairly. It must deal with all proceedings before it as informally and quickly as the circumstances and considerations of fairness and natural justice permit. To do so, the Board must use its discretion to apportion work where resources are available in order to provide a fair hearing at the earliest opportunity. Dealing with cases in a timely manner is an important element in the delivery of justice and quality decision-making.
The administrative transfer of files is a critical tool for the IRB to manage its workloads. In doing so, the IRB remains responsive to persons awaiting decisions, as well as to Canadians expecting a fair and efficient administration of justice.
The purpose of this policy is to outline the principles governing the administrative transfer of files between regions/districts in the Refugee Protection Division (RPD) and the associated holding of hearings by videoconference. Specifically, this policy sets out the circumstances in which administrative transfers may or may not occur.
2. Application
This Policy is applicable to the Refugee Protection Division of the IRB.
3. Definitions
For the purposes of this policy:
"Administrative transfer of files" means a transfer of files between regions/districts that takes place on the RPD's own initiative. This is distinguished from transfers of files that occur as a result of applications received from parties to change the location of proceedings.
"Hearings" includes expedited interviews.
"Office, or region/district, that originally received the claim(s)" means the region/district to which the claim(s) were originally referred by Citizenship and Immigration Canada (CIC).
"Receiving region/district" means the region/district that receives the administrative transfer of files from another region/district.
4. Context
The IRB is Canada's largest administrative tribunal. It is comprised of three distinct tribunals, the largest being the RPD, which operates out of five regional/district offices. As a tribunal, the IRB was established, in part, to deliver a procedurally simpler and quicker version of justice than the courts. However, as a large administrative organization, there are operational limits to the IRB's flexibility and to its ability to re-allocate resources in response to significant changes in its workload.
Since the creation of the IRB a number of initiatives have been utilized to deal with periods of variable workflows to the RPD (formerly the Convention Refugee Determination Division), including the appointment of additional members to the RPD and the redeployment of members within both the Division and the organization as a whole. A series of measures known as the "Chairperson's Action Plan", designed to increase the efficiency of the RPD as a whole, were also introduced in 2003 in response to the unprecedented increases in referrals of refugee claims which began in 1999. While these measures provided some immediate results, further action was needed to deal specifically with ongoing variations in the distribution of workload between regions/districts. In March 2003, the inventory had peaked at more than 52,000 claims with 70% of the RPD workload situated in the Toronto region. The use of administrative transfer of files for hearings by videoconference responds to such workload pressures.
4.1 Quality of decision-making and natural justice
The quality of decision-making is of paramount importance to the IRB. The key determinants of quality remain the same whether the hearing is held in the presence of the claimant or by videoconference. The administrative transfer of files for hearings by videoconference is in accordance with the principles of natural justice and procedural fairness.
Natural justice is a principle of law that requires administrative tribunals such as the IRB to be procedurally fair. The administrative transfer of files and the holding of hearings by videoconference adhere to the underlying principles of natural justice, i.e. that a person must know the case that he or she must meet and have an opportunity to be heard by an unbiased and impartial decision-maker. The right to a full and proper hearing with an opportunity to present evidence, question witnesses, and make representations exists. All participants in the hearing process (including counsel and an interpreter, where applicable) continue to be present in cases that are heard by way of videoconference and evidence continues to be assessed in each case in the same way as when all participants are in the same location.
4.2 Statutory Support:
4.2.1 Transfer of Files Between Regions/Districts
The Immigration and Refugee Protection Act (IRPA) provides the authority for the Board to transfer files between regions and/or districts. Section 159(1)(a) states that in his, or her, capacity as chief executive officer of the Board, the Chairperson "has supervision over and direction of the work and staff of the Board". Furthermore, section 162(2) states that "each Division shall deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit."
4.2.2 Hearings by videoconference
Section 164 of IRPA explicitly provides that "where a hearing is held by a Division, it may, in the Division's discretion, be conducted in the presence of, or by means of live telecommunication with, the person who is the subject of the proceedings."
5. Policy Statement
5.1 General
The administrative transfer of files for hearings by videoconference is guided by the following principles:
The administrative transfer of files does not require a claimant to attend the hearing in person in the regional/district office to which the file has been transferred. The hearing is held by videoconference and the claimant and his or her representative (if one has been retained) are present in the office where the claim was initially received, while the member, the refugee protection officer (if assigned), and the interpreter (if necessary) are present in the office to which the file has been transferred. However, a claimant, and counsel, if any, may choose to attend the hearing in person in the receiving region at claimant's own expense.
Subject to the circumstances noted below, the IRB may, in its discretion, administratively transfer any file for a hearing to be conducted by videoconference. This includes files involving cases to be dealt with by expedited interviews. The administrative transfer of files between IRB offices, and the holding of hearings by videoconference, will occur in accordance with operational requirements and where there are resource capacities in other IRB offices that have previously dealt with claims from the same source countries.
5.2 Who May Exercise this Authority
The administrative transfer of files may occur where it has been determined by the Executive Director and the RPD Deputy Chairperson, that a disproportionate share of the RPD's workload is found in one or more regions/districts.
Once such a determination has been made, Regional Directors/District Managers of sending and receiving offices will provide directions to their respective registries regarding the inventory of files that are to be administratively transferred. This will be based upon recommendations from the RPD Operations Committee, as approved by the Executive Director and the RPD Deputy Chairperson.
No files are to be transferred prior to the receipt of completed Personal Information Forms (PIFs).
5.3 Criteria Applied Prior to Administrative Transfer
The IRB recognizes that there may be circumstances in which it would not be appropriate to transfer a file and hold a hearing by videoconference. The following criteria outline those circumstances and will be applied by the regional/district office that originally received the claim:
- Cases involving unaccompanied minors and persons who, in the opinion of the RPD, are unable to appreciate the nature of the proceedings;
- Cases involving detained persons (priority processing);
- Cases in which the Minister's counsel is intervening and participating at the hearing in person (high incidence of case complexity); and,
- Cases involving the joining of family members as identified in RPD Rule 49(1) (claims automatically joined), may be transferred. However, cases involving a large number of persons not otherwise identified in RPD Rule 49(1) should be retained in the region that originally received the claims (high incidence of case complexity).
5.4 Review of Transferred Files by Receiving Region/District
Following the receipt of transferred files by the receiving region/district, the files will be reviewed regarding their complexity. Significant case complexities will be sufficient reason for returning a file to the office that originally received the claim.
The receiving region/district will also determine, with respect to the criteria set out in section 5.3 above, whether any new information has come forth that may also necessitate the return of a file to the office that originally received the claim. Files will be returned to the office that originally received the claim only in limited circumstances, for example, cases likely to involve multiple sittings, those involving in-person Ministerial interventions where case complexities have been confirmed, or those involving the joining of multiple files where significant case complexities exist.
5.5 Applications
Furthermore, the RPD recognizes that circumstances may also be brought to its attention after a file has been transferred, that could make it more appropriate to hold the hearing in person in the regional/district office that originally received the claim. Board members will assess such circumstances on a case-by-case basis when they are brought to their attention in the form of a properly submitted application to change the location of the proceeding to the region/district where the claim was initially received. That decision will be based on relevant factors, including those listed in Rule 47(4). The complexity of the case is a relevant factor.
6. Implementation
Regional and district management is accountable for the overall implementation of this policy.
7. Monitoring
Ongoing monitoring and evaluation of this policy will be carried out under the direction of the RPD Operations Committee, with the support of regional executive committees and the Policy, Planning and Research Branch.
8. References
Relevant Legislation
Immigration and Refugee Protection Act, sections 159(1)(a), 162 (2), and 164.
Refugee Protection Division Rules, rules 47, 49, and 69.
9. Enquiries
For information, contact: