Designated representative guide

​This guide is a tool for designated representatives (DRs) who provide or are considering providing services to subjects of proceedings at the Immigration and Refu​gee Board of Canada (IRB). It provides basic information on the IRB environment and the role and responsibilities of the DR at the IRB.

On this page

1. Introduction to the IRB and its tribunal processes

As a DR providing services to subjects of the proceedings at the IRB, it is important to understand the context of the work. “Subject of the proceedings” includes “subject”, “claimant” and “appellant”.

1.1 IRB

The IRB is Canada's largest independent administrative tribunal. It is governed by the Immigration and Refugee Protection Act (IRPA) a​nd the Immigration and Refugee Protection Regulations. Its decision-makers, known as members, are responsible for making well‑reasoned decisions on immigration and refugee matters, efficiently, fairly and in accordance with the law. In addition, the IRB relies on the rules of practice for each of its divisions (Immigration Division Rules, Immigration Appeal Division Rules, Refugee Protection Division Rules, and Refugee Appeal Division Rules,) as well as its own policy instruments and administrative procedures to promote efficiency and fairness in its proceedings and other processes.

a) Divisions of the IRB

The IRB is composed of four divisions. The process for each division varies and takes place over different periods of time.

The Immigration Division (ID) conducts admissibility hearings for foreign nationals or permanent residents believed to be inadmissible to Canada under the IRPA. The ID also reviews the grounds of detention for foreign nationals or permanent residents detained under the IRPA for immigration reasons. Detention reviews are held:

  • within 48 hours of the start of detention or without delay afterwards;
  • then, within 7 days of that first review; and
  • after that, at least once every 30 days until the subject of the proceedings is either released or removed from Canada.

Admissibility hearings usually range from a half day or a full day but can last for multiple days. Detention reviews usually take between one and two hours but can last a half day, full day or multiple days.

The Immigration Appeal Division (IAD) hears appeals on immigration-related matters. There are several types of appeals that are heard by the IAD:

  • appeals of family class sponsorship applications refused by Immigration, Refugees and Citizenship Canada (IRCC) officials;
  • appeals of removal orders made against permanent residents, protected persons, and holders of permanent resident visas;
  • appeals by permanent residents who have been found by an IRCC official outside of Canada not to have fulfilled their residency obligation; and
  • appeals by the Minister of Public Safety and Emergency Preparedness of decisions where the ID made a decision that a person is not inadmissible.

IAD hearings usually range from a half day or a full day but can last for multiple days.

The Refugee Protection Division (RPD) hears and decides claims for refugee protection made in Canada. A claim for refugee protection can be made by speaking to an officer from the Canada Border Services Agency (CBSA)​ at any port of entry upon arrival in Canada, or to an officer from either IRCC or the CBSA at an inland office. The officer decides whether the claim is eligible to be referred to the IRB. If the claim is eligible, it is referred to the RPD to start the refugee protection claim process. Hearings usually take half a day and are held in private. The RPD also hears applications to cease and vacate refugee status where the Minister asks the RPD to remove the subject's refugee protection. It is less common for a DR to be appointed for these proceedings, but it is possible.

The Refugee Appeal Division (RAD) decides appeals from decisions of the RPD to allow or reject claims for refugee protection. The RAD may decide to confirm or to change the RPD's decision. It may also decide to send the case back to the RPD to hear it again, giving any directions to the RPD that it considers appropriate. In most cases, the RAD does not hold a hearing; it usually makes its decision using the information in the appeal file, as well as the information that was considered by the RPD. Should a hearing be held, it usually takes a half day or less and is held in private.

b) Location of proceedings

The IRB holds proceedings across Canada. Proceedings are held in person, by videoconference, virtually using Microsoft Teams, by telephone, or on the basis of the written record (without a hearing). The IRB has its headquarters in Ottawa and regional offices staffed by Board employees in Vancouver, Calgary, Toronto and Montreal. Hearings are held at all five of these offices, as well as at other sites across the country, as described below (the lists of itinerant locations are not exhaustive):

  • Western Region comprises British Columbia, Alberta, Saskatchewan, Manitoba, Yukon and the Northwest Territories. The regional office is in Vancouver, a second office is in Calgary, and there are itinerant hearing facilities in Edmonton, Winnipeg, Regina and Saskatoon.
  • Central Region comprises Ontario, except for Ottawa and Kingston. The regional headquarters is in downtown Toronto, and the Immigration Division is located in Etobicoke. There are itinerant hearing and detention facilities in Scarborough, Milton, Hamilton, Windsor, London and Sudbury.
  • Eastern Region comprises Quebec, eastern Ontario (i.e. Ottawa and Kingston), New Brunswick, Nova Scotia, Prince Edward Island, Newfoundland and Labrador, and Nunavut. The regional headquarters is in Montreal with a satellite office in Ottawa, and there are itinerant hearing facilities in Halifax, Fredericton, Charlottetown and St John's.

All regional offices may also hold hearings at some points of entry, provincial correctional facilities, jails, health institutions and other locations such as CBSA's Immigration Holding Centres (IHC) in Etobicoke (Ontario), Laval (Quebec) and Surrey (British Columbia). Hearing participants and the DR may be required to attend at these locations.

c) Other immigration and refugee portfolio organizations

IRCC has overall responsibility for immigration and refugee policy. In addition, IRCC is responsible for the resettlement of refugees who are outside Canada. It also selects immigrants, issues temporary resident visas, and grants citizenship.

The CBSA is responsible for carrying out enforcement functions related to immigration and refugee matters. These include detention, removals, investigations, and intelligence and immigration control functions in Canada and overseas. The CBSA provides requests to the IRB to hold admissibility hearings and detention reviews. The CBSA is part of the ​Public Safety portfolio.

Both IRCC and the CBSA determine the eligibility of all refugee protection claims made in Canada and refer eligible claims to the IRB for a decision.

The IRB reports to Parliament through the Minister of IRCC but is independent from IRCC and the Minister.

1.2 Tribunal process at the IRB

Although each division has its own mandate, they all follow an administrative tribunal process similar to what happens in a court, though less formal. In all cases, IRB members are expected to make well-reasoned, efficient and fair decisions free from any improper influence.

In the tribunal process:

  • subjects of the proceedings
    • a person who is under 18 years of age or unable to appreciate the nature of the proceedings will have a person appointed to represent them (a DR).
    • a person appearing before the IRB has the right to be represented, at their own expense, by counsel - a lawyer, notary, paralegal who is a member of a law society, registered immigration consultant, trusted advisor or family member. Only regulated counsel such as lawyers, notaries, paralegals who are members of a law society, and registered immigration consultants can be compensated for providing advice or representation to those appearing before the IRB.
    • a person has the right to be heard and to present evidence, call witnesses, and present arguments to an impartial decision-maker (member).
  • decision-makers (members)
    • the people who hear the cases and make the decisions are called “members”. In most cases, one member hears the case.
    • members must provide reasons for final decisions. The member may deliver them orally at the end of the hearing or the member may write out the reasons for the decision later, after the hearing.
    • all decisions are based on the assessment of evidence before the member and the application of the relevant legislation and case law.
  • proceedings
    • hearings are held in person, by videoconference, virtually using Microsoft Teams, by telephone or other means that allow for a fair hearing.
    • some IAD hearings consist of a paper review. (This means the DR role in those appeals is focused on the written response to the issues raised in the appeal, unless the member determines that a hearing is necessary.)
    • most refugee appeal proceedings consist of a paper review. (This means the DR role is focused on the preparatory stage of the appeal record, unless the member determines that a hearing is necessary.)
    • proceedings may be in English or French and where needed the services of an interpreter are provided by the IRB.
    • at the ID, unless the subject of the proceedings has a pending refugee claim, refugee appeal or pre‑removal risk assessment (PRRA), hearings are usually open to the public. At the IAD, hearings involving a refugee claimant, refugee appellant or those seeking a PRRA are by default public. That means media or members of the public may observe hearings or get information about a case unless a confidentiality order is made by the ID or IAD.
    • at the RPD and RAD, hearings concerning refugee claims or appeals of decisions concerning refugee claims are usually held in private.
  • practice and procedure
    • each division has rules of practice. The rules cover matters such as time limits, evidence, documents and other responsibilities of counsel or the people appearing before the IRB.
    • all testimony is given under oath (by swearing on a holy book) or by affirmation (a solemn promise to tell the truth).
    • the setting and procedures for hearings are less formal than a court, and evidence is not limited by technical or legal rules, as in the case of a court.

2. IRB and DRs

In accordance with subsection 167(2) of the IRPA, members are required to appoint a DR if the subject of the proceedings is under 18 years of age or, in the member’s opinion, unable to appreciate the nature of the proceedings.

2.1 Timing for appointing DRs

The appointment of a DR is made as early as possible in the process by the division to ensure that the interests of the minor or person who is unable to appreciate the nature of the proceedings are protected from the outset of the proceeding.

2.2 Persons who can act as DRs

The DR is usually the subject’s parent, family member, legal guardian, or friend. They can also be a person identified by the IRB such as a worker from a child protection agency or law firm and providing services under contractual terms with the IRB (contracted DR).

2.3 Requirements for being a DR

To be designated as a representative, the person must:

  • be 18 years of age or older;
  • understand the nature of the proceedings;
  • be willing and able to act in the best interests of the subject of the proceedings; and
  • not have interests that conflict with those of the subject of the proceedings.

In addition, contracted DRs must:

  • hold a valid reliability status, granted or approved by the IRB OR, as an equivalent, have a valid police records check or “verification request” which includes criminal records checks, vulnerable sector checks and any similar check, within the past 10 years;
  • complete a physical security and information technology security assessment if there is a requirement to handle or store protected information; and
  • ideally live in the vicinity of the location where the proceedings are held. Although the IRB reimburses pre-authorized travel expenses calculated in accordance with the National Joint Council Travel Directive, it does not generally pay for the cost to travel by air to the location where the proceeding is held.

2.4 Remuneration of DRs

The IRB pays remuneration to contracted DRs, but not to parents, relatives, legal guardians or friends acting as DRs, according to the Remuneration Schedule for DRs.

2.5 Status of contracted DRs

Contracted DRs are not employees of the IRB. They provide services in accordance with the terms and conditions set out in their contract with the IRB. They are independent professional services contractors who are appointed by the member assigned to a case to act as the DR for the subject of the proceedings for their case in a specific division once the member is satisfied that they meet all conditions. Such contracts with the IRB do not include a clause guaranteeing a fixed or minimum number of times a contractor may be requested to provide DR services. The volume of cases before the IRB fluctuates year over year as does the need for DRs.

2.6 Role of DRs

In general, the key role of the DR, whether their services are retained under a contract with the IRB or whether they are family members, friends, legal guardians, etc. is to protect and advance the interests of the subject of the proceedings they represent. (See 3.0 Responsibilities of DRs below for more details.)

2.7 Difference between a DR, legal guardian and counsel

DR

Under subsection 167(2) of the ​IRPA, the member must appoint a DR even when the minor or the person who is unable to appreciate the nature of the proceedings has counsel.

As DR, you are required to decide whether to retain counsel and, if counsel is retained, to instruct counsel or assist the subject of the proceedings in instructing counsel.

If you are a lawyer and you are appointed as a DR, you can use your legal background to provide instructions to counsel. If there is no counsel of record in the case, you can use your legal knowledge to assist the subject of the proceedings in your capacity as DR but you will not be counsel of record. (See 2.2 Persons who can act as DRs)

Immediately after you accept your contract to be a DR or after your appointment as a DR, the Registry will provide you with the contact information of counsel of record, if any.

Legal guardian

The legal guardian of a minor is their parents, unless another legal guardian has been appointed by a judge of a provincial court to take care of a minor and/or manage the minor's affairs because of the parent's incapacity or inability to do so. A judge may also appoint a legal guardian for an incompetent adult.

A legal guardian may be appointed as the DR by a member. (See 2.2 Persons who can act as DRs)

Counsel

Under subsection 167(1) of the IRPA, the subject of the proceedings before the IRB may, at their own expense, be represented by legal or other counsel. Counsel can be any person, including a trusted friend or community member. However, if a fee is being charged for the service, counsel must be a lawyer, paralegal who is a member of a law society or registered immigration consultant in good standing with their respective regulatory body. In Quebec, a notary who is a member in good standing of their professional association may also represent an individual before the IRB.

As soon as counsel for a subject of the proceedings before the IRB provides their contact information to the IRB, agrees to a date for a proceeding, or as soon as a person becomes counsel after a proceeding date has been fixed, the counsel becomes counsel of record. In the case of the RAD, as soon as counsel for the subject of an appeal provides on their behalf a notice of appeal or a notice of intent to respond to an appeal by the Minister, as the case may be, or as soon as a person becomes counsel after providing a notice, the counsel becomes counsel of record for the subject of the appeal.

2.8 Relationship between the DR and counsel

One of the most important roles of a DR is to retain counsel where possible, if not already done, and to work with the counsel.

Both counsel for the subject of the proceedings and the DR have the obligation to act in the best interests of the subject of the proceedings. Therefore, the interaction between the counsel and the DR should be collaborative.

Issues regarding strategy for presenting the case, such as what evidence should be presented, are usually decided by the subject in consultation with their counsel. Where a DR has been appointed, the DR assumes some or all of this role, depending on the capacity of the subject of the proceedings to participate, and the DR is under the obligation to consult the subject of the proceedings to the extent reasonably possible. The DR therefore plays an important role in deciding these matters and instructing counsel, or helping the subject instruct counsel.

The DR should generally be taking the advice of counsel on legal matters, including strategic legal decisions such as the advisability of presenting evidence or calling witnesses, as counsel is retained because they are an expert on the law and procedure. This does not mean that the DR, in consultation with the subject of the proceedings, cannot question or disagree with the advice of the counsel.

In cases of disagreement, the DR, in consultation with the subject of the proceedings, provides final instructions to the counsel. If either the counsel or the DR feels that the relationship of trust has broken down due to an irreconcilable difference of opinions, counsel should withdraw from the file or the DR should remove the counsel of record and retain other counsel, in consultation with the subject of the proceedings where possible. Any withdrawal or removal of counsel of record must be done in accordance with applicable IRB Rules and in compliance with counsel's professional obligations.

This should be an exceptionally rare circumstance, as it is expected that counsel and the DR, both acting in the best interests of the subject of the proceedings, will work collaboratively and constructively to resolve any differences and ensure that the best case possible is put forward on behalf of the subject of the proceedings.

2.9 Selection of DRs

The Registry in each regional office makes every effort to ensure a fair division of work among contracted DRs.

If the member determines that the subject of the proceedings requires a DR, and there is no family member or legal guardian to represent them, or the family members are not appropriate to be DRs, the member will assess the subject's needs and communicate these needs to the Registry. In assessing the subject's needs, the member may consider the subject's linguistic and cultural background, age, gender, and other elements depending on the nature of the proceeding and the subject, such as sexual orientation and gender identity and expression, mental illness, victim of domestic violence, etc. Generally, the Registry will refer to a list of DRs for the division and see who is next to offer the case to, considering any specific requirements identified by the member for suitability. The member will then decide whether to appoint the DR. Where the member considers the DR not suitable, the member will ask the Registry to provide the name of another DR, considering the requirements already identified. In this way, DRs are appointed according to the needs of subjects of proceedings, while ensuring efficiency, transparency and fairness in their appointment.

2.10 Continuation of the designation throughout the immigration and refugee process

Designation of a representative applies to all subsequent proceedings in that division of the IRB unless a member orders otherwise or, in the case of a designation for a minor, when the minor turns 18. Under Chairperson Guideline 8: Procedures with respect to Vulnerable Persons Appearing before the IRB, a member may allow the DR to carry on working as a “support person” to participate in the hearing after the subject of the proceedings turns 18. Alternatively, the member may equally decide to terminate a designation if they are of the opinion that the representative is no longer required or suitable. In such cases, a member may designate a new representative if required.

A person appointed as the DR for the subject of the proceedings in the RPD is deemed to have been appointed by the RAD, unless the RAD orders otherwise. Similarly, the practice of appointing the same DR for the subject of proceedings in all divisions is encouraged by the IRB, where possible, for the continuity of the subject's immigration matter across the IRB. Where a DR is not appointed to act for the subject of the proceedings in other divisions, the DR should, where possible and with permission of the subject of the proceedings, contact the other DR to ensure relevant information for both proceedings is shared.

The IRB has no jurisdiction to appoint a DR for immigration processes at IRCC or the CBSA.

3. Responsibilities of DRs

The responsibilities of a DR include:

  • meeting the subject of the proceedings and helping to prepare their case;
  • deciding whether to retain counsel and, if counsel is retained, instructing counsel or assisting the subject of the proceedings in instructing counsel;
  • making decisions regarding proceedings before the IRB or assisting the subject of the proceedings in making those decisions;
  • keeping the subject of the proceedings informed about their case, including for example requirements, deadlines and options;
  • assisting in gathering evidence to support and advance the case of the subject of the proceedings and, if necessary, being a witness at the hearing;
  • protecting the interests of the subject of the proceedings and putting forward the best possible case to the division;
  • informing and consulting the subject of the proceedings to the extent possible when making decisions about the case;
  • attending all proceedings (i.e. pre-hearing conferences, interlocutory hearings, and hearings on the merits);
  • signing documents normally signed by the subject of the proceedings, where they are unable to sign or should not sign because they do not have sufficient understanding, on behalf of the subject. In some cases it may be advisable to sign these documents in addition to the subject signing where the subject has some capacity to do so;
  • in consultation with counsel, if any, explaining the results of the proceedings and impacts of the decision on the subject of the proceedings; and
  • if applicable, preparing and filing an appeal at the RAD or IAD in consultation with counsel, if any.

Checklists (Annexes B, C, D and E) set out DR responsibilities in each division before, during and after a proceeding.

3.1 Level of understanding of subjects of the proceedings

The role of the DR may vary, depending on the level of understanding of the minor or person unable to appreciate the nature of the proceedings. Minors will vary in their ability to participate in making decisions, depending on the type of decision that has to be made, their age and their maturity. Persons who are unable to appreciate the nature of the proceedings may also have some ability to participate in making decisions, depending on the type of decision that has to be made and the nature and severity of their impairment.

3.2 Minors

Chairperson Guideline 3: Child Refugee Claimants: Procedural and Evidentiary Issues addresses specific procedures in the designation of a representative and the more general procedural issue of the steps to be followed in processing claims for refugee protection by unaccompanied minors. The ID, IAD and RAD will also consider and apply the procedures regarding the appointment of a DR for a minor set out in Guideline 3, making necessary modifications.

Chairperson Guideline 8: Procedures with respect to Vulnerable Persons Appearing before the IRB provides procedural accommodations for individuals who are identified as vulnerable persons by the IRB. Minors also fall under Guideline 8.

In that respect, the environment in which a minor testifies should be informal. It may be appropriate to use an interview-style room rather than a hearing room. It may also be appropriate to have an adult, in addition to the DR, whom the minor trusts present when the minor provides information about their matter before the IRB. This person may or may not be the DR.

3.3 Persons unable to appreciate the nature of the proceedings

Persons who are, in the opinion of the member, unable to appreciate the nature of the proceedings may also fall in the category of vulnerable persons under Chairperson Guideline 8: Procedures with respect to Vulnerable Persons Appearing before the IRB and may be the subject of procedural accommodations.

An application or request under the rules of the division must be made to have a person identified as a vulnerable person. Expert evidence such as a medical, psychiatric, psychological, or other expert reports regarding the vulnerable person can be of great assistance to the IRB in applying this guideline if it addresses the person's particular difficulty in coping with the hearing process, including the person's ability to give coherent testimony (see Chairperson Guideline 8: Procedures with respect to Vulnerable Persons Appearing before the IRB, section 8, Expert Evidence). If the subject of the proceedings does not have the resources to obtain such expert evidence, the DR may provide the IRB with an explanation as to why they believe that the subject of the proceedings should be identified as a vulnerable person. Also, the member may make this determination on their own initiative, without a party having to make such application or request to the division and after giving the parties notice and an opportunity to object.

3.4 Proceedings in divisions of the IRB

RPD hearings are usually non-adversarial as the RPD has an inquisitorial role, which requires that the member take an active role by inquiring into anything they consider relevant to establishing whether a claim is well-founded. However, they may become adversarial if the Minister intervenes in person. Adversarial simply means that there are two opposing parties.

Similarly, RAD hearings are usually non-adversarial when only the subject of the proceedings participates. A RAD member may decide to hold a hearing to ask questions of the subject in the inquisitorial manner. However, an intervention by the Minister would make a RAD hearing adversarial.

ID and IAD hearings are adversarial as they involve opposing parties, where one is presenting against the case of the other.

Annex A provides a basic outline of the common procedures at IRB proceedings.

3.5 Other responsibilities of DRs

Although there are common rules of practice in all divisions, processes may differ from one division to another. Therefore, the role of the DR may vary, depending on the division in which the proceedings are taking place. Checklists B, C, D and E set out DR responsibilities in each division before, during and after a proceeding.

a) Comply with the Code of Conduct for Designated Representatives

The IRB expects that DRs comply with the Code of Conduct for Designated Representatives, which forms part of their contract with the IRB, if applicable.

b) Be well prepared

The IRB expects that DRs:

  • familiarize themselves with the case file;
  • complete the checklists (Annexes B, C, D and E) ;
  • understand the nature of the proceedings;
  • are willing and able to act in the best interests of the subject of the proceedings;
  • do not have interests that conflict with those of the subject of proceedings; and
  • attend and are prepared for the hearing.

Persons appearing before the IRB may have experienced trauma or have mental health issues or other vulnerabilities (refer to Chairperson Guideline 4 - Women Refugee Claimants Fearing Gender-Related Persecution, Chairperson Guideline 8: Procedures with respect to Vulnerable Persons Appearing before the IRB​ and Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression). DRs should be aware and prepared for the fact that sensitive and emotional issues may arise during preparation for the hearing or during the hearing itself.

c) Adopt a professional and respectful approach

Each presiding member at an ID, IAD, RPD, or RAD proceeding may have a slightly different style and approach. Any concerns about the conduct of a proceeding must always be brought to the attention of the presiding member.

A DR must not withdraw from a proceeding without providing notice or explanation. The impact of withdrawing as a DR in mid-hearing can have severe adverse consequences for the subject of the proceedings and should be avoided if possible. Therefore, it is important that any issues (including conflicts of interest) that may impede a professional and respectful approach be brought immediately to the member’s attention.

d) Dress professionally

In-person hearings are often held in a formal hearing room. Participants are expected to dress professionally.

​e) Provide updated contact information

DRs must always notify the Registry of any change of address, email and telephone number for themselves and the subject of proceedings.

4. DRs expectations from the IRB

DRs can expect IRB members and the Registry staff, as the case may be, to:

  • treat them with respect.
  • provide an environment free from bias and prejudice that allows them to perform optimally.
  • provide them with the necessary information to prepare for an IRB proceeding, including being copied on all case related correspondence.
  • allow health breaks during proceedings.
  • keep them informed about their designation. For example, should a member determine that a designation must be ending because the DR is not a right fit for the subject of the proceedings or the hearing, the DR will receive a written notice explaining the reasons for this decision (termination of contracts due to performance issues are dealt with by the Registry, not members).
  • not ask them to perform tasks other than those specifically required for a DR.
  • in the case of contracted DRs, arrange for their timely remuneration and reimbursement of expenses.

Should a DR feel that the presiding member's conduct is in breach of the Code of Conduct for Members of the IRB, they may file a complaint. The IRB's Procedures for Making a Complaint about a Member provide full details on this complaint process.

5. Participants at IRB Proceedings

Following is a brief description of the roles of the various participants in a proceeding (by alphabetical order).

Adjudicative support officer (ASO)/case management officer (CMO)/case officer (CO)

The ASO/CMO/CO is an employee of the Registry of the IRB who is responsible for the administrative processing of cases. They are generally not present at the hearing.

Coordinating member/Member manager

The coordinating member/member manager is a decision-maker responsible for member management. A coordinating member/member manager may also be a member (decision-maker) in a hearing.

Counsel

Counsel represents the subject of the proceedings at the hearing. They may be a lawyer, notary, paralegal who is a member of a law society, registered immigration consultant, or a friend, relative or another person chosen by the subject of the proceedings to act on their behalf. Counsel may disclose documentary evidence on behalf of the subject of the proceedings (in advance of the hearing), call witnesses, make applications, objections and submissions. A DR instructs or helps the subject of the proceedings to instruct counsel.

Early resolution officer (ERO) (IAD only)

The ERO is an employee of the IRB responsible for working with the appellant and Minister's counsel to see if the appeal can be resolved without an oral hearing. The ERO may request information from the appellant by email, telephone or letter and initiate discussions between the parties through informal methods. If the appeal is selected for an Alternative Dispute Resolution conference, the ERO will facilitate the discussion between the appellant and Minister's counsel at the conference.

Guardian/legal guardian/parent

A guardian/legal guardian/parent is a person who has the legal right and duty to make decisions for the subject of the proceedings, where the subject is under 18 years of age or mentally incompetent.

Hearings officer/Minister’s counsel

A hearings officer/Minister's counsel is a CBSA employee who represents the Minister of IRCC and/or the Minister of Public Safety and Emergency Preparedness in matters before the IRB. Also known as Minister's counsel, the hearings officer is responsible for presenting the Minister's case, calling witnesses, examining and cross-examining witnesses.

Interpreter

An interpreter is an independent contractor retained by the IRB to interpret between the language of the proceeding and from the language of the subject of the proceedings or their counsel, using consecutive interpretation (the interpreter waits for a person to finish speaking before interpreting). They interpret orally the entire dialogue that takes place at the proceeding and, in some cases, may interpret short documents submitted before, during, or after proceedings. Sometimes interpretation is simultaneous (the interpreter interprets while the person is speaking) or standby (the interpreter is present to provides interpretation services if needed).

Member (decision-maker)

A member (decision-maker) is an IRB employee or Governor-in-Council appointee presiding at the hearing and who is responsible for making the decision, on the basis of the evidence presented in the case and in accordance with the law.

Observer

An observer is a person who watches or listens to a hearing but is not taking part in the hearing. Observers are usually members of the media, academics, friends or family members. They may attend any public hearing. An observer may also attend hearings held in private at the discretion of the member. Subjects of private proceedings will be asked whether they object to observers prior to the member deciding whether an observer can attend. The presiding member may require an observer to leave if that person is likely to impede the proceedings. A representative of the United Nations High Commission for Refugees has a right to attend and observe any hearing involving a refugee claimant or protected person, at any IRB division. IRB personnel including contractors (such as interpreters and DRs) may attend any public or private proceedings for training purposes. This will be arranged with the member in advance of the hearing.

Subject of the proceedings

The subject of the proceedings is a person whose case is being decided at the proceeding. This person is the main witness and may be the only one called. It is of the utmost importance that this person understands what is being said and that others understand them.

  • ID: The person who appears before the ID at an admissibility hearing or a detention review may be referred to as “the person concerned”.
  • RPD: The person who claims protected person status may be referred to as “the claimant”.
  • IAD: The person who makes an appeal to the IAD may be referred to as “the appellant”. If the Minister initiates the appeal, the Minister will be referred to as “the appellant” and the subject will be referred to as “the respondent”.
  • RAD: The person who makes an appeal to the RAD may be referred to as “the appellant”. If the Minister initiates the appeal, the Minister will be referred to as “the appellant”, and the person who made the refugee claim will be referred to as “the respondent”.

Witness

A witness is a person called upon to give evidence at the proceeding.

Annex A

Common procedures at IRB hearings

The following is a basic outline of common procedures that may be encountered at a hearing before the IRB. This is to be used as a guide only, since the order and content of the steps may vary at the discretion of the member presiding at the hearing.

  1. All participants are identified.
  2. The interpreter is administered an oath or affirmation to interpret accurately, or asked to confirm that such an oath or affirmation was made at a previous IRB proceeding.
  3. The interpreter and the subject of the proceeding are asked by the presiding member to confirm that they understand each other. If the designated representative (DR) also requires the use of an interpreter, the DR will be asked by the member to confirm that they understand the interpreter.
  4. The presiding member may deal with preliminary matters, such as what evidence has been filed and what the key issues in the case are, or ask counsel if there are any preliminary matters to be discussed.
  5. The subject of the proceeding and the DR (if required to testify) will be asked to make an oath or solemn affirmation. In inquisitorial hearings they will usually be examined by the presiding member and then their counsel. (The Minister is represented by a Canada Border Services Agency employee who represents Immigration, Refugees and Citizenship Canada  and/or Public Safety Canada—also known as “hearings officer” or “Minister's counsel”).​
  6. In adversarial hearings, the Minister will generally present evidence followed by the subject of the proceeding. In addition to being represented by a DR, the subject of the proceeding may be represented by a counsel. At the IAD, the appellant presents evidence first (examination-in-chief), and is then cross-examined by the Minister's counsel, and then redirected by their own counsel. During the hearing the member may question the appellant. If the appellant is self-represented, the member will typically conduct the initial examination, then have the Minister's counsel do a cross-examination, and then allow the appellant to make any final comments or clarifications to ensure that all relevant evidence has been heard. At the RPD, the Minister starts questioning when they intervene on exclusion followed by the member and then counsel for the claimant.
  7. Counsel will make submissions and observations in their closing arguments of the case. If the subject of the proceeding is not represented by counsel, they or their DR may be asked for submissions.
  8. At the end of the hearing, the member may provide the decision orally or reserve their decision and issue their decision in writing at a later date.

Annex B​

Designated representative (DR) checklist

Immigration Division (ID)

Refer to Preparing for Detention Reviews and Admissibility Hearings for details about the ID process.

Relationship between the DR and counsel

One of the most important roles of a DR is to retain counsel where possible, if not already done, and to work with the counsel.

Both counsel for the subject of the proceedings and the DR have the obligation to act in the best interests of the subject of the proceedings. Therefore, the interaction between the counsel and the DR should be collaborative.

Issues regarding strategy for presenting the case, such as what evidence should be presented, are usually decided by the subject in consultation with their counsel. Where a DR has been appointed, the DR assumes some or all of this role, depending on the capacity of the subject of the proceedings to participate, and the DR is under the obligation to consult the subject of the proceedings to the extent reasonably possible. The DR therefore plays an important role in deciding these matters and instructing counsel, or helping the subject instruct counsel.

The DR should generally be taking the advice of counsel on legal matters, including strategic legal decisions such as the advisability of presenting evidence or calling witnesses, as counsel is retained because they are an expert on the law and procedure. This does not mean that the DR, in consultation with the subject of the proceedings, cannot question or disagree with the advice of the counsel.

In cases of disagreement, the DR, in consultation with the subject of the proceedings, provides final instructions to the counsel. If either the counsel or the DR feels that the relationship of trust has broken down due to an irreconcilable difference of opinions, counsel should withdraw from the file or the DR should remove the counsel of record and retain other counsel, in consultation with the subject of the proceedings where possible. Any withdrawal or removal of counsel of record must be done in accordance with applicable IRB Rules and in compliance with counsel's professional obligations.

This should be an exceptionally rare circumstance, as it is expected that counsel and the DR, both acting in the best interests of the subject of the proceedings, will work collaboratively and constructively to resolve any differences and ensure that the best case possible is put forward on behalf of the subject of the proceedings.

Upon acceptance of the contract to be a DR or as soon as possible after your appointment as DR by the IRB, you must meet the subject of the proceedings you represent to explain your role and responsibilities.

In some circumstances, you may be contacted to act as a DR with very little advance notice. This would make it difficult to meet with the subject of the proceedings in advance of the hearing, but you should do so at the earliest available opportunity.

Before you meet the subject of the proceedings / before the detention review or admissibility hearing:

  • Ensure that you have been appointed as the DR at the earliest opportunity in the process (upon acceptance of the contract to be a DR, you will receive a letter from the IRB confirming your appointment). If you are using a private address instead of a business address, inform the IRB and provide your business phone number, business email and, if any, fax number.

    In the case of detention reviews and admissibility hearings conducted simultaneously, you will be appointed as DR at the proceeding by the member.

  • Determine:
    • whether there is counsel of record in the proceedings.
    • what stage the subject of the proceedings is at (detention review, admissibility hearing) and whether there are any pending proceedings in other divisions (e.g. refugee claim) or immigration processes with Immigration, Refugees and Citizenship Canada (IRCC)​ or the Canada Border Services Agency (CBSA).
    • where the subject of the proceedings is (in detention/released from detention, in the community, under the care of an organization such as community housing, a rehabilitation centre or a health institution).
    • what language the subject of the proceedings speaks.
  • Ensure that:
    • if there is no counsel, you obtain counsel if the subject of the proceedings has the means to pay counsel or qualifies for legal aid. You can contact the provincial legal aid organization of the province where the case will be heard to see if the subject of the proceedings may be able to obtain legal representation paid for by legal aid. Counsel can be a lawyer, a paralegal who is a member of a law society, or a registered immigration consultant. If you are in Quebec, counsel can also be a notary. Otherwise, the subject of the proceedings is responsible for paying their counsel.
    • if there is a counsel of record, you instruct them and share relevant information.
    • you have received and reviewed all documents on file from the IRB, including any disclosure and prior transcripts and exhibits and/or that you will be receiving all documents that will be filed.
    • all documents are filed within time limits set out in the ​Immigration Division Rules.
  • In consultation with counsel, contact the CBSA hearings officer to:
    • determine the grounds for detention or the inadmissibility allegation.
    • determine if there are any available resources within the community including any alternatives to detention, if applicable.
    • obtain and read disclosure from the CBSA.

When you meet the subject of the proceedings:

The person may be detained in a CBSA Immigration Holding Centre (IHC) or a correctional facility, or under the care of a health institution. If this is the case, contact the ID Registry if you are unsure how to contact and meet with the subject of the proceedings. It is also recommended that you contact the IHC, correctional facility or health institution ahead of your planned visit to conform with the visiting hours to meet with the person.

  • Explain:
    • your role and responsibilities as a DR.
    • that you are on their side and will act in their best interests and that you will put forward the best possible case to the ID.

      Make a plan with them about how you are going to work towards what is best for them.​

    • that, as DR under contract with the IRB, you are bound by the Code of Conduct for Designated Representatives which includes a requirement to maintain confidentiality.
    • the immigration process and available options.
    • if there is no counsel of record, and the subject of the proceedings has the means to retain counsel or qualifies for legal aid, that you will retain and instruct counsel for them.
    • that you will make other decisions regarding their case in consultation with counsel, if any, or assist them to make those decisions.
    • that you will inform them about the various stages and procedures in the processing of their case.
    • that you will assist in gathering evidence to support their case and in providing evidence and being a witness at their hearing if necessary.
    • hearing process and procedures, and that during the hearing you will need to advise the member of your various interactions with them and your assessment of their ability to understand the nature of the proceeding.
    • that, in the meantime, they may be eligible for interim health care​ if they are refugee claimants. If applicable, assist the subject of the proceedings with arrangements for interim health care if required and if they are eligible.
    • in the case of a minor, with their consent, that you will assist with arrangements for school registration.

      (School registration may only be made after refugee protection has been granted by the IRB, i.e. that the minor has received a positive decision from the RPD.)

  • Assist the subject of the proceedings with obtaining identity documents/completing travel document applications. This may involve assisting with connecting with family or friends in or outside of Canada, or foreign authorities.

    If contacting foreign authorities, you should exercise caution as to whether or not the subject of the proceedings is seeking protection in Canada from foreign authorities.

  • Assess:
    • the ability of the subject of the proceedings to appreciate the nature of the proceedings, including their ability to instruct counsel.

      In the case of persons who are unable to appreciate the nature of the proceedings, to the extent possible, set up appointments with psychologists/psychiatrists to obtain medical expert reports in time to present at the detention review or admissibility hearing for the presiding member's consideration in order to avoid postponement of the proceeding; accompany the person to these appointments, if possible; keep the ID informed about impediments such as missed appointments or a late medical report, etc.

      Professional fees for appointments with psychologists/psychiatrists and medical expert reports are at the expense of the subject of the proceedings. If it is not possible to obtain such expert reports, you may identify an appropriate person who can speak to the capacity of the subject of the proceedings, either in a letter or in an affidavit.

    • in consultation with counsel, whether an application to the IRB concerning Chairperson Guideline 8 (Procedures with respect to Vulnerable Persons Appearing before the IRB), which provides procedural accommodations for individuals who are identified as vulnerable persons by the IRB, should be made. As minors fall under Guideline 8, in all cases involving minors, the ID will consider and apply Chairperson Guideline 3: Child Refugee Claimants: Procedural and Evidentiary Issues, making necessary modifications in respect of any provisions in this guideline that are not relevant to the ID.
  • In consultation with counsel, review, with the subject of the proceedings:
    • CBSA's disclosure.
    • the family or support network of the subject of the proceedings, if appropriate.

      You should exercise caution in gathering information that may result in the subject of the proceedings being placed at risk, e.g. by contacting government officials of their home country where the state is the alleged agent of persecution, as RPD proceedings are held in private.

    • ties to community and availability of alternatives to detention.

      The detention of a minor must be a measure of last resort. Alternatives to detention must be considered by the member. Refer to Chairperson Guideline 2: Detention ​which provides guidance with respect to the detention review process under the Immigration and Refugee Protection Act (IRPA).

      Subjects of the proceedings identified as vulnerable persons under Chairperson Guideline 8 (Procedures with respect to Vulnerable Persons Appearing before the IRB) may have certain vulnerabilities, such as mental illness, that may affect their ability to comply with conditions of release. Where vulnerabilities are identified, a member is under a heightened obligation to consider alternatives to detention and to impose attainable conditions that are connected to the circumstances of the vulnerable subject of the proceedings.

      Therefore, prior to the detention review, in consultation with counsel, you should make all reasonable efforts to find suitable alternatives to detention, including contacting potential bondspersons and gathering evidence.

  • In the case of an unaccompanied minor, ensure​ that:
    • connections to the provincial ministry are in place and that you have the contact details for the provincial support worker. (The IRB is responsible for advising provincial authorities and provide you with the details.)
    • when appropriate (and with the minor's consent), you may communicate with the parents, guardians or relatives of the minor to gather information and to ascertain that the minor is properly cared for and that the care situation is appropriate. This is particularly important if the minor is not in the care of parents.
  • If the minor is accompanied with one parent or guardian, ​ensure that you gain the trust of the parent or guardian in order to be able to communicate effectively with the minor involved by explaining your role (to eliminate any doubts that you are acting against the parent or guardian). There may also be situations where there is a conflict of interest between a minor and the parent or guardian (e.g. cases involving sexual orientation and gender identity and expression), and you must be able to also speak freely and alone with the minor.
  • If the subject of the proceedings does not have counsel, gather and submit relevant evidence on their behalf, including arranging witnesses or bondspersons. If the subject of the proceedings has counsel, work with counsel to gather evidence and arrange witnesses. This includes, whenever it is safe to do so, communicating with any relatives of the subject of the proceedings both in Canada and abroad to:
    • gather information.
    • make themselves available to testify by telephone or videoconference at the time of the detention review or admissibility hearing.
    • ask them to send corroboration of allegations to counsel whenever possible.
  • Arrange when and how you will next communicate with and see the subject of the proceedings.
  • Where the subject of the proceedings has a pending refugee claim in the RPD, caution the subject of the proceedings about the lack of confidentiality in the use of social media because proceedings involving refugee claimants are generally held in private.
  • Ensure that the subject of the proceedings who is not detained will be able to arrive at the hearing on time.

During the detention review / admissibility hearing:

  • Attend the proceeding. If counsel is retained, they will have primary responsibility for presenting the subject's case and interacting with the presiding member. However, the DR should not hesitate to politely request to intervene where appropriate or ask for a break to consult with the subject of the proceedings and counsel where necessary.
  • If requested by the member, give an opinion on whether the subject of the proceedings continues to need a DR and explain what informs that opinion:
    • provide specific examples about their behavior, medications, diagnosis, interactions, if applicable.
    • explain how contact was established (in person, by telephone, videoconference), whether it was a separate meeting in advance of the hearing or just prior to the hearing beginning, and indicate the duration of the meeting.
    • what you understand from the subject of the proceedings concerning their needs, limitations, mental health and medical issues.
    • how the subject of the proceedings interacted with you and others.
    • whether the subject of the proceedings is oriented to time and place.
  • Reassure and calm the subject of the proceedings if necessary.
  • Explain the proceedings to the subject of the proceedings to the best of their ability to comprehend.
  • Be knowledgeable about the limitations, mental health and medical issues of the subject of the proceedings and be prepared to speak about these matters to the member. In supporting the subject of the proceedings throughout the hearing, be prepared to request breaks and provide support during those breaks.
  • Consult with and provide instructions to counsel.
  • Speak for the subject of the proceedings and make decisions on their behalf, as necessary.
​​

After the ID decision is provided to the subject of the proceedings:

  • Ensure that the decision and the reasons concerning the detention review are clearly and accurately explained to the subject of the proceedings. This is generally done by counsel.
  • Detention reviews outcomes:
    • If the subject of the proceedings is ordered to remain in detention at the 48‑hour detention review, another detention review will be held within seven days. If the member orders detention again after the seven‑day review, the grounds of detention will again be reviewed in 30 days. These reviews will then continue every 30 days after that until the subject is released or removed from Canada. At each detention review, you can present new facts to support the request for release. For example, in consultation with counsel, you can find a new bondsperson who is willing to help the subject.

      A written application for an Early Detention Review can be made, in consultation with counsel. If granted, this means a detention review would be held before the expected timeframe, for instance before the next planned 30‑day review. The CBSA may respond and state if they are opposed to the application for an Early Detention Review. The member may allow the application if you set out new information that justifies an early review of the subject's detention.

      • Follow up between hearings (visit the subject in detention, complete legal aid applications, etc.).
      • In consultation with counsel, identify and arrange alternatives to detention to present to the member for the next detention review.
      • Communicate with:
        • relatives of the subject of the proceedings or support network in Canada and abroad, if appropriate and safe to do so.
        • counsel for the subject of the proceedings or retain counsel if not already done.
      • Gather relevant evidence for the next hearing, possibly including arranging medical evaluations.
      • Communicate with the IRB on behalf of the subject of the proceedings as required.
      • In consultation with counsel, the judicial review process to the Federal Court of Canada, where applicable, should be explained. The subject of the proceedings may apply to the Federal Court of Canada for leave, or permission, for judicial review of any ID decision (application for leave and judicial review). The Federal Court of Canada will either dismiss the application or return the case to the ID for re-hearing.
      • Continue to assist the subject of the proceedings, with their counsel, to understand the next steps in the detention process during this period.

        If there was a continued order for detention, detention reviews will continue to occur as per the usual detention review cycle under t​he IRPA, unless otherwise ordered by the Federal Court of Canada or upon application to change a date or time of a hearing to the ID.

    • If the subject of the proceedings is released, they must respect the conditions of their release. These conditions apply until they are removed from Canada, or until the conditions have been changed or cancelled. You may assist with making arrangements with the counsel and subject of the proceedings to make a request to the ID to change or cancel the conditions if a period of time has passed since the conditions were imposed and the subject's situation has changed since they were imposed by completing, the Application to Vary Conditions of Release Form.
  • Admissibility hearings ​outcomes:
    • If the member decides that the subject of the proceedings may enter or remain in Canada, they will be permitted to do so.
    • If the member decides that the subject of the proceedings may not enter or remain in Canada (that they are inadmissible), the member will issue a removal order. There are three types of removal orders. The reason why the subject of the proceedings is found inadmissible will determine which removal order applies. In consultation with counsel, help the subject of the proceedings understand the meaning and consequences of the specific removal order. You may ask the member to explain these if you are unclear.
      • In consultation with counsel, the appeal process to the IAD, where applicable, should be explained (refer to How to start a removal order appeal and Annex C – Designated Representative ​- Immigration Appeal Division. If the subject of the proceedings does not have access to an appeal or does not want to file an appeal, assist them with their counsel to understand the next steps in the removal process.
      • In consultation with counsel, the judicial review process to the Federal Court of Canada, where applicable, should be explained. The subject of the proceedings may apply to the Federal Court of Canada for leave, or permission, for judicial review of any ID decision (application for leave and judicial review). The Federal Court of Canada will either dismiss the application or return the case to the ID for re-hearing.
      • Assist the subject of the proceedings with their counsel to understand the next steps in the removal process.

The appropriate recourse of any ID decision (to the IAD and/or the Federal Court of Canada) varies depending on the type of case and decision received.

Annex C

Designated representative (DR) checklist

Immigration Appeal Division (IAD)

Refer to Filing an Immigration Appeal for details about the IAD process.

Relationship between the DR and counsel

One of the most important roles of a DR is to retain counsel where possible, if not already done, and to work with the counsel.

Both counsel for the subject of the proceedings and the DR have the obligation to act in the best interests of the subject of the proceedings. Therefore, the interaction between the counsel and the DR should be collaborative.

Issues regarding strategy for presenting the case, such as what evidence should be presented, are usually decided by the subject in consultation with their counsel. Where a DR has been appointed, the DR assumes some or all of this role, depending on the capacity of the subject of the proceedings to participate, and the DR is under the obligation to consult the subject of the proceedings to the extent reasonably possible. The DR therefore plays an important role in deciding these matters and instructing counsel, or helping the subject instruct counsel.

The DR should generally be taking the advice of counsel on legal matters, including strategic legal decisions such as the advisability of presenting evidence or calling witnesses, as counsel is retained because they are an expert on the law and procedure. This does not mean that the DR, in consultation with the subject of the proceedings, cannot question or disagree with the advice of the counsel.

In cases of disagreement, the DR, in consultation with the subject of the proceedings, provides final instructions to the counsel. If either the counsel or the DR feels that the relationship of trust has broken down due to an irreconcilable difference of opinions, counsel should withdraw from the file or the DR should remove the counsel of record and retain other counsel, in consultation with the subject of the proceedings where possible. Any withdrawal or removal of counsel of record must be done in accordance with applicable IRB Rules and in compliance with counsel's professional obligations.

This should be an exceptionally rare circumstance, as it is expected that counsel and the DR, both acting in the best interests of the subject of the proceedings, will work collaboratively and constructively to resolve any differences and ensure that the best case possible is put forward on behalf of the subject of the proceedings.

Upon acceptance of the contract to be a DR or as soon as possible after your appointment as DR by the IRB, you must meet the subject of the proceedings you represent to explain your role and responsibilities.

Before you meet the subject of proceedings:

  • Ensure that you have been appointed as the DR at the earliest opportunity in the process; you will receive a letter from the IRB confirming your appointment. If you are using a private address instead of a business address, inform the IRB and provide your business phone number, business email and, if any, fax number.
  • Determine:
    • whether there is counsel of record in the proceedings.
    • what stage the subject of the proceedings is at and whether there are any pending proceedings in other divisions (e.g. refugee claim) or immigration processes with Immigration, Refugees and Citizenship Canada (IRCC) or the Canada Border Services Agency (CBSA)​.
    • where the subject of the proceedings is (in detention/released from detention, in the community, under the care of an organization such as community housing, a rehabilitation centre or a health institution).
    • what language the subject of the proceedings speaks.
  • Ensure:
    • in the case of a sponsorship appeal:
      • that you or counsel completes a notice of appeal.
      • that you or counsel provides the IAD with the notice of appeal and the refusal letter from IRCC within 30 days after receiving the refusal letter.
      • that you provide your contact information to the IRB and, if applicable, indicate that you were the DR at the ID.
    • in the case of a removal order appeal:
      • that you or counsel fills out a notice of appeal.
      • that you or counsel provides the IAD with the signed notice of appeal and the removal order received from the ID, within 30 days after receiving the removal order from the ID.
      • that you provide your contact information to the IRB and, if applicable, indicate that you were the DR at the ID.
    • in the case of a residency obligation appeal:
      • that you or counsel fills out a notice of appeal.
      • that you or counsel provides the IAD with the notice of appeal and a copy of the IRCC decision from the overseas visa office, within 60 days after receipt of the IRCC decision.
      • that you provide your contact information to the IRB and, if applicable, indicate that you were the DR at the ID.
    • in the case of a response to the Minister's appeal from an ID decision that the subject of the proceedings is admissible and can remain in Canada:
      • that the subject of the proceedings receives:
        • the Minister's notice of appeal.
        • a letter from the IAD asking the subject of the proceedings to confirm details such as contact information, counsel information, etc. and that the requested details are provided within the requested time period.
      • that you provide your contact information to the IRB and, if applicable, indicate that you were the DR at the ID.

    The notice of appeal may have already been provided to the IAD, and the subject of the proceedings may have already received the Minister's appeal.

    If you were the DR at the ID, shortly after you provide the notice of appeal to the IAD, you will receive a letter from the IAD indicating that your appointment continues.

    Where another DR was appointed in the ID, you should, where possible and with permission of the subject of the proceedings, contact the other DR to ensure relevant information for both proceedings is shared.

After you are appointed as the DR:

  • Ensure:
    • that you have received and reviewed all documents on file from the IAD as well as prior transcripts and exhibits and/or that you will be receiving all documents that will be filed.
    • that all documents are filed within time limits set out in the Immigration Appeal Division Rules.

When you meet the subject of the proceedings:

The person may be detained in a CBSA Immigration Holding Centre (IHC) or a correctional facility, or under the care of a health institution. If this is the case, contact the Registry if you are unsure how to contact and meet with the subject of the proceedings. It is also recommended that you contact the IHC, correctional facility or health institution ahead of your planned visit to conform with the visiting hours to meet with the person.

  • Explain:
    • your role and responsibilities as a DR.
    • that you are on their side and will act in their best interests and that you will put forward the best possible case to the IAD.

      Make a plan with them about how you are going to work towards what is best for them.

    • that, as DR under contract with the IRB, you are bound by the Code of Conduct for Designated Representatives which includes a requirement to maintain confidentiality.
    • the immigration process and available options.
    • if there is no counsel of record, and the subject of the proceedings has the means to retain counsel or qualifies for legal aid, that you will retain and instruct counsel for them.
    • that you will make other decisions regarding their case in consultation with counsel, or assist them to make those decisions.
    • that you will inform them about the various stages and procedures in the processing of their case.
    • in consultation with counsel, which documents must be provided by the subject of the proceedings and disclosed in support of the appeal.
    • that you will assist in gathering evidence to support their case and in providing evidence and being a witness at their hearing if necessary.
    • the hearing process and procedures, and that during the hearing you will need to advise the member of your various interactions with them and your assessment of their ability to understand the nature of the proceeding.
    • that, in the meantime, they may be eligible for interim health care if they are refugee claimants. If applicable, assist the subject of the proceedings with arrangements for interim health care if required and if they are eligible.
    • in the case of a minor, with their consent, that you will assist with arrangements for school registration.

      (School registration may only be made after refugee protection has been granted by the IRB, i.e. that the minor has received a positive decision from the RPD.)

  • Contact counsel of record to instruct them and share relevant information if the subject of the proceedings has the means to pay counsel or qualifies for legal aid.

    (Counsel can be a lawyer, paralegal who is a member of a law society, or registered immigration consultant. If you are in Quebec, counsel can also be a notary.)

  • Assess:
    • the ability of the subject of the proceedings to appreciate the nature of the proceedings, including their ability to instruct counsel.

      In the case of persons who are unable to appreciate the nature of the proceedings, to the extent possible, set up appointments with psychologists/psychiatrists to obtain medical expert reports in time to present at the hearing for the presiding member's consideration in order to avoid postponement of the proceeding; accompany the person to these appointments, if possible; keep the IAD informed about impediments such as missed appointments or late medical report, etc.

      Professional fees for appointments with psychologists/psychiatrists and medical expert reports are at the expense of the subject of the proceedings. If it is not possible to obtain such expert reports, you may identify an appropriate person who can speak to the capacity of the subject of the proceedings, either in a letter or in an affidavit.

    • in consultation with counsel, whether an application to the IRB concerning Chairperson Guideline 8 (Procedures with respect to Vulnerable Persons Appearing before the IRB), which provides procedural accommodations for individuals who are identified as vulnerable persons by the IRB, should be made.
  • In consultation with counsel, review, with the subject of the proceedings:
    • the disclosure.
    • the family or support network of the subject of the proceedings, if appropriate.

    Where an individual has a pending refugee claim in the RPD, you should exercise caution in gathering information that may result in the individual being placed at risk as these proceedings are held in private.

  • In the case of an unaccompanied minor, ensure that:
    • connections to the provincial ministry are in place and that you have the contact details for the provincial support worker. (The IRB is responsible for advising provincial authorities and provide you with the details.)
    • when appropriate (and with the minor's consent), you may communicate with the parents, guardians or relatives of the minor to gather information and to ascertain that the minor is properly cared for and that the care situation is appropriate. This is particularly important if the minor is not in the care of parents.
  • If the minor is accompanied with one parent or guardian, ensure that you gain the trust of the parent or guardian in order to be able to communicate effectively with the minor involved by explaining your role (to eliminate any doubts that you are acting against the parent or guardian). There may also be situations where there is a conflict of interest between a minor and the parent or guardian (e.g. cases involving sexual orientation and gender identity and expression), and you must be able to also speak freely and alone with the minor.
  • In consultation with counsel, gather and submit​ relevant evidence on behalf of the subject of the proceedings, including arranging witnesses. This includes, whenever it is safe to do so, communicating with any relatives of both in Canada and abroad to:
    • make themselves available to testify by telephone or videoconference at the time of the hearing.
    • ask them to send documents that will support their appeal or their testimony to counsel whenever possible.
  • Arrange when and how you will next communicate with and see the subject of the proceedings.
  • Ensure that the subject of the proceedings will be able to arrive at the hearing on time.

In a paper hearing or early resolution process:

  • In consultation with counsel, gather evidence on behalf of the subject of the proceedings, prepare written submissions, and submit them within the time limits set out in the correspondence from the IAD.

During an ​Alternative Dispute Resolution conference:

  • Attend the conference. If counsel is retained, they will have primary responsibility for interacting with the Early Resolution Officer (ERO) or member. However, the DR should not hesitate to politely request to intervene where appropriate or ask for a break to consult with the subject of the proceedings and counsel where necessary. During an Alternative Dispute Resolution conference, counsel or the DR can ask to meet privately with the ERO or member to discuss the case.
  • Reassure and calm the subject of the proceedings if necessary.
  • Explain the conference to the subject of the proceedings to the best of their ability to comprehend.
  • Be knowledgeable about limitations, mental health and medical issues of the subject of the proceedings and be prepared to speak about these matters to the ERO or member. In supporting the subject of the proceedings throughout the conference, be prepared to request breaks and provide support during those breaks.
  • Consult with and provide instructions to counsel.
  • Speak for the subject of the proceedings and make decisions on their behalf, as necessary.

During the pre-hearing conference, if any, and the hearing:

  • Attend the proceeding. If counsel is retained, they will have primary responsibility for presenting the subject's case and interacting with the presiding member. However, the DR should not hesitate to politely request to intervene where appropriate or ask for a break to consult with the subject of the proceedings and counsel where necessary.
  • If requested by the member, give an opinion on whether the subject of the proceedings continues to need a DR and explain what informs that opinion:
    • provide specific examples about their behavior, medications, diagnosis, interactions, if applicable.
    • explain when and how contact was established (in person, by telephone, videoconference).
    • what you understand from the subject of the proceedings concerning their needs, limitations, mental health and medical issues.
    • how the subject of the proceedings interacted with you and others.
    • whether the subject of the proceedings is oriented to time and place.
  • Reassure and calm the subject of the proceedings if necessary.
  • Explain the proceedings to the subject of the proceedings to the best of their ability to comprehend.
  • Be knowledgeable about limitations, mental health and medical issues of the subject of the proceedings and be prepared to speak about these matters to the member. In supporting the subject of the proceedings throughout the hearing, be prepared to request breaks and provide support during those breaks.
  • Consult with and provide instructions to counsel.
  • Speak for the subject of the proceedings and make decisions on their behalf, as necessary.

After the IAD decision is provided to the subject of the proceedings:

  • Ensure that the decision and the reasons are clearly and accurately explained to the subject of the proceedings. This is generally done by counsel.
  • If the sponsorship appeal is allowed:
    • the decision to refuse the permanent resident visa application is overturned (or cancelled), and ​IRCC will resume processing the permanent resident visa application. The appeal is closed and the IAD is no longer involved in the processing of your sponsorship application. (The Minister may apply to the Federal Court of Canada for leave, or permission, for judicial review of the IAD decision. If the Federal Court of Canada grants the leave application, it will hear the application for judicial review and will either dismiss the application or return the case to the IAD for re-hearing.)
    • You can contact IRCC to check the status of the sponsorship application.
  • If the sponsorship appeal is dismissed:
    • The decision by IRCC to refuse the permanent resident visa application remains the same. The appeal is closed at the IAD.

      (You may wish to seek legal advice on behalf of the subject of the proceedings.)

    • The subject of the proceedings may apply to the Federal Court of Canada for leave, or permission, for judicial review of any IAD decision. The Federal Court of Canada will either dismiss the application or return the case to the IAD for re-hearing.
  • If the removal order appeal is allowed:
    • The removal order will be cancelled and the subject of the proceedings will be able to remain in Canada. If they were already a landed permanent resident, they will keep that status. If they hold a permanent resident visa but did not become a landed permanent resident, they should contact IRCC. The Minister may apply to the Federal Court of Canada for leave, or permission, for judicial review of the IAD decision. If the Federal Court of Canada grants the leave application, it will hear the application for judicial review and will either dismiss the application or return the case to the IAD for re-hearing.
  • If the removal order appeal is stayed:
    • The removal order will be put on hold temporarily and the subject of the proceedings will be able to stay in Canada provided they respect certain conditions. The IAD may reconsider a stay at any time, and, as a result, the stay conditions and/or duration can be changed, or the stay can be cancelled. If the IAD cancels the stay, it will then decide to either allow or dismiss the appeal. Until this happens, the stay remains in effect as a stay does not end until the IAD cancels the stay.
    • It is important to respect all the conditions in the stay decision. If the subject of the proceedings does not do so, their stay can be cancelled and their appeal may be dismissed.

      It is the DR's obligation to ensure the subject of the proceedings understands the conditions (or a family member or friend), but it is not the DR's responsibility to assist them in complying with the conditions over the one-to-five year period (e.g. arranging for rehabilitation, reporting, etc.). You may want to seek legal advice on behalf of the subject of the proceedings concerning the conditions.

      Either the subject of the proceedings or the Minister may apply to the Federal Court of Canada for leave, or permission, for judicial review of the IAD decision. If the Federal Court of Canada grants the leave application, it will hear the application for judicial review and will either dismiss the application or return the case to the IAD for re-hearing.

  • If the removal order appeal is dismissed:
    • The removal order will take effect, which means the CBSA may remove the subject of the proceedings from Canada. (You may wish to seek legal advice on behalf of the subject of the proceedings.)
    • The subject of the proceedings may apply to the Federal Court of Canada for leave, or permission, for judicial review of any IAD decision. If the Federal Court of Canada grants the leave application, it will hear the application for judicial review and will either dismiss the application or return the case to the IAD for re-hearing.
  • If the residency obligation appeal is allowed:
    • The subject of the proceedings will keep their permanent resident status. IRCC will issue them a permanent resident travel document so they can travel back to Canada if they have not already done so. The Minister may apply to the Federal Court of Canada for leave, or permission, for judicial review of the IAD decision. If the Federal Court of Canada grants the leave application, it will hear the application for judicial review and will either dismiss the application or return the case to the IAD for re-hearing. (The Minister may appeal this decision to the Federal Court of Canada.)
  • If the residency obligation appeal is dismissed:
    • The subject of the proceedings will lose their permanent resident status. If they are in Canada at the time of the decision, they will also receive a removal order. (You may wish to seek legal advice on behalf of the subject of the proceedings.)
    • The subject of the proceedings may apply to the Federal Court of Canada for leave, or permission, for judicial review of any IAD decision. The Minister may apply to the Federal Court of Canada for leave, or permission, for judicial review of the IAD decision. If the Federal Court of Canada grants the leave application, it will hear the application for judicial review and will either dismiss the application or return the case to the IAD for re-hearing.
  • If the Minister's appeal is dismissed:
    • The decision by the ID will remain and the subject of the proceedings will be able to stay in Canada. The Minister may apply to the Federal Court of Canada for leave, or permission, for judicial review of the IAD decision. If the Federal Court of Canada grants the leave application, it will hear the application for judicial review and will either dismiss the application or return the case to the IAD for re-hearing.
  • If the Minister's appeal is allowed and their removal order issued is stayed:
    • The subject of the proceedings becomes inadmissible to Canada but can remain in Canada under certain conditions. It is important to respect all the conditions in the stay decision. If the subject of the proceedings does not do so, their stay can be cancelled and their appeal may be dismissed.

      It is the DR's obligation to ensure the subject of the proceedings understands the conditions (or a family member or friend), but it is not the DR's responsibility to assist them in complying with the conditions over the two-four year period, e.g. arranging for rehabilitation, reporting, etc. You may want to seek legal advice on behalf of the subject of the proceedings concerning the conditions.

    • The Minister may apply to the Federal Court of Canada for leave, or permission, for judicial review of the IAD decision. If the Federal Court of Canada grants the leave application, it will hear the application for judicial review and will either dismiss the application or return the case to the IAD for re-hearing
  • If the Minister's appeal is allowed and a removal order is issued:
    • The subject of the proceedings becomes inadmissible to Canada and they will receive a removal order. (You may wish to seek legal advice on behalf of the subject of the proceedings.)
    • The subject of the proceedings may apply to the Federal Court of Canada for leave, or permission, for judicial review of the IAD decision. If the Federal Court of Canada grants the leave application, it will hear the application for judicial review and will either dismiss the application or return the case to the IAD for re-hearing.

Annex ​D

Designated representative (DR) checklist

Refugee Protection Division (RPD)

Refer to Claiming Refugee Protection for details about the RPD process.

Relationship between the DR and counsel

One of the most important roles of a DR is to retain counsel where possible, if not already done, and to work with the counsel.

Both counsel for the subject of the proceedings and the DR have the obligation to act in the best interests of the subject of the proceedings. Therefore, the interaction between the counsel and the DR should be collaborative.

Issues regarding strategy for presenting the case, such as what evidence should be presented, are usually decided by the subject in consultation with their counsel. Where a DR has been appointed, the DR assumes some or all of this role, depending on the capacity of the subject of the proceedings to participate, and the DR is under the obligation to consult the subject of the proceedings to the extent reasonably possible. The DR therefore plays an important role in deciding these matters and instructing counsel, or helping the subject instruct counsel.

The DR should generally be taking the advice of counsel on legal matters, including strategic legal decisions such as the advisability of presenting evidence or calling witnesses, as counsel is retained because they are an expert on the law and procedure. This does not mean that the DR, in consultation with the subject of the proceedings, cannot question or disagree with the advice of the counsel.

In cases of disagreement, the DR, in consultation with the subject of the proceedings, provides final instructions to the counsel. If either the counsel or the DR feels that the relationship of trust has broken down due to an irreconcilable difference of opinions, counsel should withdraw from the file or the DR should remove the counsel of record and retain other counsel, in consultation with the subject of the proceedings where possible. Any withdrawal or removal of counsel of record must be done in accordance with applicable IRB Rules and in compliance with counsel's professional obligations.

This should be an exceptionally rare circumstance, as it is expected that counsel and the DR, both acting in the best interests of the subject of the proceedings, will work collaboratively and constructively to resolve any differences and ensure that the best case possible is put forward on behalf of the subject of the proceedings.

Upon acceptance of the contract to be a DR or as soon as possible after your appointment as DR by the IRB, you must meet the subject of the proceedings you represent to explain your role and responsibilities.

Before you meet the subject of proceedings:

  • Ensure that you have been appointed as the DR at the earliest opportunity in the process; you will receive a letter from the IRB confirming your appointment. If you are using a private address instead of a business address, inform the IRB and provide your business phone number, business email and, if any, fax number.
  • Determine:
    • whether there is counsel of record in the proceedings.
    • at what stage the subject of the proceedings is.
    • where the subject of the proceedings is (in detention/released from detention, in the community, under the care of an organization such as community housing, a rehabilitation centre or a health institution).
    • what language the subject of the proceedings speaks.
  • Ensure:
    • that you have received and reviewed all documents on file from the RPD and/or that you will be receiving all documents that will be filed.
    • that all documents are filed within time limits set out in the ​ ​Refugee Protection Division Rules.

When you meet the subject of the proceedings:

The person may be detained in an Immigration Holding Centre (IHC) of the Canada Border Services Agency (CBSA)​ or a correctional facility, or under the care of a health institution. If this is the case, contact the Registry if you are unsure how to contact and meet with the subject of the proceedings. It is also recommended that you contact the IHC, correctional facility or health institution ahead of your planned visit to conform with the visiting hours to meet with the person.

  • Explain:
    • your role and responsibilities as a DR.
    • that you are on their side and will act in their best interests and that you will put forward the best possible case to the RPD.

      Make a plan with them about how you are going to work towards what is best for them.

    • that, as DR under contract with the IRB, you are bound by the Code of Conduct for Designated Representatives which includes a requirement to maintain confidentiality.
    • what the options are and what the RPD process is.
    • if there is no counsel of record, and the subject of the proceedings has the means to retain counsel or qualifies for legal aid, that you will retain and instruct counsel for them.
    • that you will make other decisions regarding their case in consultation with counsel, if any, or assist them to make those decisions.
    • that you will inform them about the various stages and procedures in the processing of their case.
    • that you will assist in gathering evidence to support their case and in providing evidence and being a witness at their hearing if necessary.
    • the hearing process and procedures, and that during the hearing you will need to advise the member of your various interactions with them and your assessment of their ability to understand the nature of the proceeding.
    • that, in the meantime, they may be eligible for interim health care. If applicable, assist the subject of the proceedings with arrangements for interim health care if required and if they are eligible.
  • Contact counsel of record to instruct them and share relevant information if the subject of the proceedings has the means to pay counsel or qualifies for legal aid.
  • Assess:
    • the ability of the subject of the proceedings to appreciate the nature of the proceedings, including their ability to instruct counsel.

      In the case of persons who are unable to appreciate the nature of the proceedings, to the extent possible, set up appointments with psychologists/psychiatrists to obtain medical expert reports in time to present at the hearing for the presiding member's consideration in order to avoid postponement of the hearing; accompany the person to these appointments, if possible; keep the RPD informed about impediments such as missed appointments or late medical report, etc.

      Professional fees for appointments with psychologists/psychiatrists and medical expert reports are at the expense of the subject of the proceedings. If it is not possible to obtain such expert reports, you may identify an appropriate person who can speak to the capacity of subject of the proceedings, either in a letter or in an affidavit.

    • in consultation with counsel, whether an application to the RPD concerning Chairperson Guideline 8 (Procedures with respect to Vulnerable Persons Appearing before the IRB), which provides procedural accommodations for individuals who are identified as vulnerable persons by the IRB, should be made. In all cases involving minors, the RPD will consider and apply Chairperson Guideline 3: Child Refugee Claimants: Procedural and Evidentiary Issues.
  • In consultation with counsel, review, with the subject of the proceedings:
    • how to fill out the Basis of Claim (BOC) form if it is not already completed.
    • what their current circumstances are.
    • what they have told CBSA or Immigration, Refugees and Citizenship Canada (IRCC)​ officials.
    • the history of the subject of the proceedings included in the BOC form.
    • what identification documents they have. Assist them with obtaining identity documents. This may involve assisting with connecting with family or friends in or outside of Canada, or foreign authorities.

      You should exercise caution in gathering information that may result in the individual being placed at risk, e.g. by contacting government officials of their home country where the state is the alleged agent of persecution, as RPD proceedings are held in private.

    • what they want to do.
    • the documents they would like to disclose in support of their claim, e.g. police reports, medical reports, photographs, statements from friends or relatives, news articles, etc. Tell the subject of the proceedings about the IRB's National Documentation Packages (NDP), which contain reports on conditions in each country. The member will consider the reports in the NDP for the country of the subject of the proceedings.
    • the oral evidence (testimony) to be given by the subject of the proceedings.
    • if it has been determined that the subject of the proceedings should not testify (if so, be prepared to testify on their behalf). Normally, the subject of the proceedings must testify, so if there is an issue preventing their testimony, the RPD should be informed in advance of the hearing.
    • all materials prepared by counsel in support of the claim.
    • the family or support network of the subject of the proceedings, if appropriate.
  • In the case of an unaccompanied minor, ensure​ that:
    • connections to the provincial ministry are in place (the IRB is responsible for advising provincial authorities) and that you have the contact details for the provincial support worker.
    • when appropriate (and with the minor's consent), you may communicate with the parents, guardians or relatives of the minor to gather information and to ascertain that the minor is properly cared for and that the care situation is appropriate. This is particularly important if the minor is not in the care of parents.
  • If the minor is accompanied with one parent or guardian, ensure that you gain the trust of the parent or guardian in order to be able to communicate effectively with the minor involved by explaining your role (to eliminate any doubts that you are acting against the parent or guardian). There may also be situations where there is a conflict of interest between a minor and the parent or guardian (e.g. cases involving sexual orientation and gender identity and expression), and you must be able to also speak freely and alone with the minor.
  • If the subject of the proceedings does not have counsel, gather and submit relevant evidence on their behalf, including arranging witnesses. If the subject of the proceedings has counsel, work with counsel to gather evidence and arrange witnesses. This includes, whenever it is safe to do so, communicating with any relatives of the subject of the proceedings both in Canada and abroad to:
    • gather information.
    • make themselves available to testify by telephone or videoconference at the time of the RPD hearing.
    • ask them to send corroboration of allegations to counsel whenever possible.
  • Arrange when and how you will next communicate with and see the subject of the proceedings.
  • Caution the subject of the proceedings about the lack of confidentiality in the use of social media and the importance of keeping this in mind whenever using social media platforms.

    This is particularly important because proceedings involving refugee claimants are generally held in private.

  • Ensure that the subject of the proceedings will be able to arrive at the hearing on time.

During the pre-hearing conference, if any, and the hearing:

  • Attend the proceeding. If counsel is retained, they will have primary responsibility for presenting the subject's case and interacting with the presiding member. However, the DR should not hesitate to politely request to intervene where appropriate or ask for a break to consult with the subject of the proceedings and counsel where necessary.
  • If requested by the member, give an opinion on whether the subject of the proceedings continues to need a DR and explain what informs that opinion:
    • provide specific examples about their behavior, medications, diagnosis, interactions, if applicable.
    • explain how contact was established (in person, by telephone, videoconference), whether it was a separate meeting in advance of the hearing or just prior to the hearing beginning, and indicate the duration of the meeting.
    • what you understand from the subject of the proceedings concerning their needs, limitations, mental health and medical issues.
    • how the subject of the proceedings interacted with you and others.
    • whether the subject of the proceedings is oriented to time and place.
  • Reassure and calm the subject of the proceedings if necessary.
  • Explain the proceedings to the subject of the proceedings to the best of their ability to comprehend.
  • Be knowledgeable about limitations, mental health and medical issues of the subject of the proceedings and be prepared to speak about these matters to the member. In supporting the subject of the proceedings through the hearing, be prepared to request breaks and provide support during those breaks.
  • Consult with and provide instructions to counsel.
  • Speak for the subject of the proceedings and make decisions on their behalf, as necessary.
  • If necessary, testify on behalf of the subject of the proceedings.

After the RPD decision is provided to the subject of the proceedings:

Annex E​

Designated representative (DR) checklist

Refugee Appeal Division (RAD)

Refer to Filing a Refugee Appeal or Responding to a Minister's Appeal for details about the RAD process.

Relationship between the DR and counsel

One of the most important roles of a DR is to retain counsel where possible, if not already done, and to work with the counsel.

Both counsel for the subject of the proceedings and the DR have the obligation to act in the best interests of the subject of the proceedings. Therefore, the interaction between the counsel and the DR should be collaborative.

Issues regarding strategy for presenting the case, such as what evidence should be presented, are usually decided by the subject in consultation with their counsel. Where a DR has been appointed, the DR assumes some or all of this role, depending on the capacity of the subject of the proceedings to participate, and the DR is under the obligation to consult the subject of the proceedings to the extent reasonably possible. The DR therefore plays an important role in deciding these matters and instructing counsel, or helping the subject instruct counsel.

The DR should generally be taking the advice of counsel on legal matters, including strategic legal decisions such as the advisability of presenting evidence or calling witnesses, as counsel is retained because they are an expert on the law and procedure. This does not mean that the DR, in consultation with the subject of the proceedings, cannot question or disagree with the advice of the counsel.

In cases of disagreement, the DR, in consultation with the subject of the proceedings, provides final instructions to the counsel. If either the counsel or the DR feels that the relationship of trust has broken down due to an irreconcilable difference of opinions, counsel should withdraw from the file or the DR should remove the counsel of record and retain other counsel, in consultation with the subject of the proceedings where possible. Any withdrawal or removal of counsel of record must be done in accordance with applicable IRB Rules and in compliance with counsel's professional obligations.

This should be an exceptionally rare circumstance, as it is expected that counsel and the DR, both acting in the best interests of the subject of the proceedings, will work collaboratively and constructively to resolve any differences and ensure that the best case possible is put forward on behalf of the subject of the proceedings.

If you were appointed as DR for the subject in the proceedings relating to the RPD decision being appealed, you are deemed to have been designated by the RAD, unless the RAD member orders otherwise.

If you were the DR during the RPD process:

  • Ensure that your designation as DR has been confirmed by the RAD (shortly after the notice of appeal is provided to the RAD, you will receive a letter from the RAD indicating that your appointment continues.)

    As the RAD has tight time frames, the subject of the proceedings may have retained counsel, and the above documents may have already been provided to the RAD. In any case, these documents should be prepared with counsel of record. If there is no counsel of record, and the subject of the proceedings has the means to pay for counsel or qualifies for legal aid, you should retain and instruct counsel to conduct the appeal as soon as possible.

If you were not the DR during the RPD process, before you meet the subject of proceedings:

  • Ensure that you have been appointed as the DR at the earliest opportunity in the process; you will receive a letter from the IRB confirming your appointment. If you are using a private address instead of a business address, inform the IRB and provide your business phone number, business email and, if any, fax number.

    Where another DR was appointed in the RPD, you should, where possible and with permission of the subject of the proceedings, contact the other DR to ensure relevant information for both proceedings is shared.

    As the RAD has tight time frames, the subject of the proceedings may have retained counsel, and the above documents may have already been provided to the RAD. In any case, these documents should be prepared with counsel of record. If there is no counsel of record, and the subject of the proceedings has the means to pay for counsel or qualifies for legal aid, you should retain and instruct counsel to conduct the appeal as soon as possible.

Determine:

  • whether there are any pending proceedings in other IRB divisions or immigration processes with Immigration, Refugees and Citizenship Canada (IRCC) or the Canada Border Services Agency (CBSA)​.
  • where the subject of the proceedings is (in detention/released from detention, in the community, under the care of an organization such as community housing, a rehabilitation centre or a health institution).

When you meet the subject of the proceedings:

The subject of the proceedings may be detained in a CBSA Immigration Holding Centre (IHC) or a correctional facility, or under the care of a health institution. If this is the case, contact the Registry if you are unsure how to contact and meet with the subject of the proceedings. It is also recommended that you contact the IHC, correctional facility or health institution ahead of your planned visit to conform with the visiting hours to meet with the person.

  • Explain:
    • your role and responsibilities as a DR.
    • that you are on their side and will act in their best interests and that you will put forward the best possible case to the RAD.

      Make a plan with them about how you are going to work towards what is best for them.

    • that, as DR under contract with the IRB, you are bound by the Code of Conduct for Designated Representatives which includes a requirement to maintain confidentiality.
    • what the options are and what the RAD process is.
    • that you will make other decisions regarding their case in consultation with counsel, if any, or assist them to make those decisions.
    • that you will inform them about the various stages and procedures in the processing of their case.
    • that you will assist in gathering evidence to support their case and in providing evidence and being a witness at any hearing if necessary.
    • the hearing process and procedures, and that during the hearing you will need to advise the member of your various interactions with them and your assessment of their ability to understand the nature of the proceeding.
  • In the case of an unaccompanied minor, ensure​ that:
    • connections to the provincial ministry are in place (the IRB is responsible for advising provincial authorities) and that you have the contact details for the provincial support worker.
    • when appropriate (and with the minor's consent), you may communicate with the parents, guardians or relatives of the minor to gather information and to ascertain that the minor is properly cared for and that the care situation is appropriate. This is particularly important if the minor is not in the care of parents.
  • If the minor is accompanied with one parent or guardian, ensure​ that you gain the trust of the parent or guardian in order to be able to communicate effectively with the minor involved by explaining your role (to eliminate any doubts that you are acting against the parent or guardian). There may also be situations where there is a conflict of interest between a minor and the parent or guardian (e.g. cases involving sexual orientation and gender identity and expression), and you must be able to also speak freely and alone with the minor.
  • Arrange when and how you will next communicate with and see the subject of the proceedings.
  • Caution the subject of the proceedings about the lack of confidentiality in the use of social media and the importance of keeping this in mind whenever using social media platforms.

    This is particularly important because proceedings involving refugee claimants or appellants are generally held in private.

  • Assess whether the subject of the proceedings may be eligible for interim health care. If applicable, assist them with arrangements for interim health care if required.

In consultation with counsel:

  • Review, with the subject of the proceedings:
    • what they want to do.
    • what part or parts of the RPD decision they wish to appeal.
    • the appropriate procedure and strategy related to the refugee appeal.
    • whether there is information that the RPD member did not have when the RPD decision was made.
    • You should exercise caution in deciding to gather information because RAD time frames are tight, and, as a result, you might not have enough time to receive additional information. Also, gathering information may result in the subject of the proceedings being placed at risk by contacting government officials of their home country where the state is the alleged agent of persecution, notwithstanding RAD proceedings are held in private.

    • the documents they would like to disclose in support of their appeal. Tell the subject of the proceedings about the IRB's National Documentation Packages (NDP)​, which contain reports on conditions in each country. The member will consider the reports in the NDP for the country of the subject of the proceedings. A NDP may have been updated since the RPD hearing and contain relevant information.
    • the oral evidence (testimony), if relevant to the appeal given by them at the RPD hearing.
    • all materials prepared by counsel in support of the appeal.
    • their family or support network, if appropriate.
  • Ensure that all documents are filed within the time limits set out in the ​Refugee Appeal Division Rules:
    • if the subject of the proceedings wants to appeal the RPD decision:
      • that you or counsel fill out a notice of appeal and provide the DR information required at page 2.
      • that you or counsel provide the notice of appeal to the RAD no later than 15 days after the day on which you received the written reasons for the RPD decision.
      • after the notice of appeal has been provided to the RAD, that the appeal is perfected. This means that no later than 30 days after the day on which the written reasons for the RPD decision are received, you or counsel provide the appellant's record to the RAD. (Effective September 28, 2020, this time limit is extended to 45 days; see Practice notice extending time limit for perfecting an appeal.)
      • collaborate with counsel to prepare the appellant's record if it is not already completed.
    • if the subject of the proceedings wants to respond to the Minister's appeal:
      • that you or counsel fill out a notice of intent to respond and provide the DR information required.
      • that you or counsel provide the notice of intent to respond and the respondent's record to the Minister and then to the RAD no later than 15 days after the day on which you receive a document from the Minister supporting their appeal.

Assess:

  • the ability of the subject of the proceedings to appreciate the nature of the proceedings, including their ability to instruct counsel.

    In the case of persons who are unable to appreciate the nature of the proceedings, to the extent possible, set up appointments with psychologists/psychiatrists to obtain medical expert reports in time to present to the presiding member's consideration in order to avoid delay in the review of the appeal or postponement of any hearing; accompany them to these appointments, if possible; keep the RAD informed about impediments such as missed appointments or late medical report, etc.

    Professional fees for appointments with psychologists/psychiatrists and medical expert reports are at the expense of the subject of the proceedings. If it is not possible to obtain such expert reports, you may identify an appropriate person who can speak to the capacity of the subject of the proceedings, either in a letter or in an affidavit.

  • in consultation with counsel, whether an application to the RAD concerning Chairperson Guideline 8: Procedures with respect to Vulnerable Persons Appearing before the IRB, which provides procedural accommodations for individuals who are identified as vulnerable persons by the IRB, should be made. As minors fall under Guideline 8, in all cases involving minors, the RAD will consider and apply Chairperson Guideline 3: Child Refugee Claimants: Procedural and Evidentiary Issues.

Should the RAD decide that the appeal will be heard:

  • Determine what language the subject of the proceedings speaks.
  • Review, with the subject of the proceedings and counsel:
    • the documents on file (notice of appeal or notice of intent to respond, appellant's record, RPD record, Minister's intervention documents, etc.).
    • the evidence to be given by the subject of the proceedings. Ensure that the subject of the proceedings is prepared for the hearing process and (if they are to testify) the testimony they will be expected to provide. If it has been determined that they should not testify, be prepared to testify on their behalf.
    • all materials prepared by counsel in support of the refugee claim and the appeal.
    • the family or support network of the subject of the proceedings, if appropriate.

    You should exercise caution in gathering information that may result in the individual being placed at risk, e.g. by contacting government officials of their home country except in exceptional cases, as RAD proceedings are held in private.

  • Ensure that the subject of the proceedings will be able to arrive at the hearing on time.

During the pre-hearing conference, if any, and the hearing:

  • Attend the proceeding. If counsel is retained, they will have primary responsibility for presenting the subject's case and interacting with the presiding member. However, the DR should not hesitate to politely request to intervene where appropriate or ask for a break to consult with the subject of the proceedings and counsel where necessary.
  • If requested by the member, give an opinion on whether the subject of the proceedings continues to need a DR and explain what informs that opinion:
    • provide specific examples about their behavior, medications, diagnosis, interactions, if applicable.
    • explain how contact was established (in person, by telephone, videoconference), whether it was a separate meeting in advance of the hearing or just prior to the hearing beginning, and indicate the duration of the meeting.
    • what you understand from the subject of the proceedings concerning their needs, limitations, mental health and medical issues.
    • how the subject of the proceedings interacted with you and others.
    • whether the subject of the proceedings is oriented to time and place.
  • Reassure and calm the subject of the proceedings if necessary.
  • Explain the proceedings to the subject of the proceedings to the best of their ability to comprehend.
  • Be knowledgeable about limitations, mental health and medical issues of the subject of the proceedings and be prepared to speak about these matters to the member. In supporting the subject of the proceedings through the hearing, be prepared to request breaks and provide support during those breaks.
  • Consult with and provide instructions to counsel.
  • Speak for the subject of the proceedings and make decisions on their behalf, as necessary.

After the RAD decision is provided to the subject of the proceedings:

  • Ensure that the decision and the reasons are clearly and accurately explained to the subject of the proceedings. This is generally done by counsel.
  • If the RAD confirms (agrees with) a positive RPD decision, ensure that:
    • the process for seeking permanent resident status is explained to the subject of the proceedings.
    • if required by the minor, the process for seeking reunification with family members (parents, siblings, etc.) is explained.
    • referrals for appropriate settlement services are provided.
  • If the RAD confirms (agrees with) a negative RPD decision, ensure that:
  • if the RAD sets aside (disagrees with) the RPD decision and replaces it with a different decision:
    • if the subject is granted refugee protection, ensure that:
      • the process for seeking ​permanent resident status is explained to the subject of the proceedings.
      • if required by the minor, the process for seeking reunification with family members (parents, siblings, etc.) is explained.
      • referrals for appropriate settlement services are provided.
    • if the subject of the proceedings is denied refugee protection, ensure that:
      • the recourse process (through judicial review at the Federal Court of Canada), and other legal process available including proceeding with a humanitarian and compassionate application, are explained to the subject of the proceedings.
      • if possible, appropriate arrangements are made for the reception of the subject being returned to their country of origin.
    • if the RAD refers the case back to the RPD, ensure that:
      • the decision and the reasons are clearly and accurately explained to the subject of the proceedings.
      • the RPD confirms that your designation as the DR continues by contacting the Registry.