Chapter 8. Common Natural Justice Issues at the Refugee Appeal Division

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8.1. General principles
8.2. Refugee Appeal Division review of Refugee Protection Division fairness
8.3. Right to be heard

8.3.1. Opportunity to state the case
8.3.2. Right to know the case to be met
8.3.3. The one who hears must decide

8.4. Right to representation

8.4.1. Allegations of counsel incompetence
1. 8.4.1.1. Test for counsel incompetence
2. 8.4.1.2. Burden of Proof
3. 8.4.1.3. Reasonable Opportunity for Counsel to Respond
4. 8.4.1.4. Immigration and Refugee Board's Practice Notice on Allegations Against Former Counsel
8.4.2. Type of allegations of counsel incompetence
8.4.3. Remedying counsel incompetence before the Refugee Appeal Division

8.5. Adequacy of interpretation

8.5.1. Test for adequate interpretation
8.5.2. Waiver

8.6. Recordings and transcripts

8.6.1. Test to determine whether the absence of a recording or transcript amounts to a breach of procedural fairness

8.7. Disclosure by the Refugee Appeal Division and opportunity to provide submissions

8.7.1. Disclosing the National Documentation Package (NDP)
8.7.2. Disclosing additional documentary evidence
8.7.3. Judicial notice and specialized knowledge
8.7.4. Disclosing new issues at the Refugee Appeal Division

8.8. Bias

8.8.1. Test to determine a reasonable apprehension of bias
8.8.2. The Refugee Appeal Division's review of allegations of bias at the Refugee Protection Division
8.8.3. Allegations of member bias
1. 8.8.3.1 Member questioning
2. 8.8.3.2 Member research
3. 8.8.3.3 Member demeanor
4. 8.8.3.4 Use of "Boilerplate" in reasons
5. 8.8.3.5 Oral reasons
6. 8.8.3.6 Interactions between member and counsel
7. 8.8.3.7 Improper comments
8. 8.8.3.8 Member's previous decisions in a related matter
9. 8.8.3.9 Member's personal background
10. 8.8.3.10 Member's acceptance rates
11. 8.8.3.11 Prejudicial information seen by member
12. 8.8.3.12 Notice to the Minister
13. 8.8.3.13 Chairperson's guidelines and jurisprudential guidelines

Notes

8. Common Natural Justice Issues at the Refugee Appeal Division

This Chapter explores common procedural fairness and natural justice issues involving the RAD.

8.1. General principles

Section 162(2) of the IRPA provides that each Division of the Board should “proceed as informally and quickly as the circumstances and considerations of fairness and natural justice permit”. Natural justice comprises the rules that an administrative tribunal is required to observe to ensure fair decision-making. The two basic components of natural justice are 1) the right to be heard^{Note 1} and 2) the right to know the case to meet.^{Note 2} The concepts of natural justice and procedural fairness overlap.^{Note 3} The duty of procedural fairness is flexible and variable and depends on an appreciation of the context within which the decision is being made.^{Note 4} The independence of the Board, its adjudicative procedure and functions, and the fact that its refugee decisions affect the Charter rights of claimants, mean that the RPD and the RAD are held to a high standard of procedural fairness.^{Note 5}

8.2. Refugee Appeal Division review of Refugee Protection Division fairness

Where the RAD finds that the RPD has breached procedural fairness, it must determine the appropriate remedy.^{Note 6} As a general rule, a breach of procedural fairness will render a decision void and the matter will be remitted for reconsideration.^{Note 7} The RAD reasons must show that statutory criteria are met to send a matter back to the RPD for redetermination.^{Note 8}

In some cases where a remedy is required, the RAD may do what the RPD should have done and then make the determination.^{Note 9} The RAD has considerable error correction powers on appeal from the RPD.^{Note 10} For example, the RAD may disclose evidence^{Note 11} or admit new evidence to cure possible breaches of procedural fairness.^{Note 12} In certain situations, the RAD may be required to provide a notice to the parties and provide them with an opportunity to make further submissions before remedying a breach of procedural fairness.^{Note 13}

The RAD may not need to give a remedy where the merits of the claim are such that the outcome is legally inevitable or when the procedural error is purely technical and does not result in substantial wrong.^{Note 14}

8.3. Right to be heard

Rooted in the right to be heard is the principle that individuals affected by a decision should have the opportunity to present their case fully and fairly.^{Note 15}

8.3.1. Opportunity to state the case

The Federal Court has stated that the right to be heard is a cardinal principle of natural justice that should not be set aside based on a mere technicality.^{Note 16} It is an error to take an overly rigid approach to the application of procedural rules. Whether the Federal Court considers the Board’s approach to have been overly rigid is highly fact dependent. The Federal Court has found a breach of natural justice where the RPD refused to consider submissions that arrived somewhat late but before the decision was made.^{Note 17} The Court has also found a breach of natural justice where the RAD failed to consider a request to admit new evidence,^{Note 18} or failed to consider an intervention made by the Minister.^{Note 19}

In contrast, the Federal Court has found that there is no breach of natural justice in denying a request at the time of the hearing to call a witness. The Federal Court held that since the claimant did not comply with the Rule to identify a witness prior to the hearing, the denial of a late request did not amount to a breach of procedural fairness.^{Note 20}

For more information about the right to be heard, please see the sections on Adequacy of Interpretation (8.5) and Recordings and Transcripts (8.6) in this Chapter.

8.3.2. Right to know the case to be met

The Court has found that the RPD violated the claimant’s right to know the case to be met in the following situations:

where the RPD makes a negative credibility finding without first informing the claimant about its concern.^{Note 21}
where the claimant has not made submissions on an issue, including credibility, because the RPD directly or indirectly indicates that no such submissions are required, and where the RPD makes its ruling based on that issue.^{Note 22}

However, the duty of fairness does not require that the person be confronted with information that they themselves supplied.^{Note 23}

Where, on appeal, the RAD decides to examine a new issue for the first time, notice of the new issue must be provided to the person and to the Minister, even if the Minister is not a party to the appeal.^{Note 24}

In Miller, the Federal Court held that the Minister is entitled to receive notice of material changes to the person’s case, as they occur, even if the Minister is not a party to the proceeding.^{Note 25} Providing the Minister with notice of submissions or evidence filed after the perfection of the appeal provides the Minister with the opportunity to make an informed decision as to whether to intervene in the appeal.^{Note 26}

For a detailed examination of the case law on new issues, please refer to Chapter 3: New Issues.

8.3.3. The one who hears must decide

One of the most fundamental rules in administrative law is the principle that only the member who heard the case, including reviewing the evidence and representations of the parties, may take part in the decision.^{Note 27}

The rule does not apply where legislation expressly or by necessary implication ousts its application.^{Note 28}

The rule does not preclude all discussions with colleagues or the use of administrative and proofreading assistance as long as, in every case, the ultimate decision is that of the member.^{Note 29} For example, in Krasilov, the Court found that the person’s right to procedural fairness was not breached because the RAD member had their decision reviewed and edited by an assistant. The Court concluded that the emails between the member and the assistant “describe nothing more than the typical administrative assistance provided by support staff to decision makers”. The email exchange contained no indication that the member decided the matter on information unknown to the person, or that the member was substantially influenced by the assistant.

8.4. Right to representation

The right to representation is not absolute but the right to a fair hearing is.^{Note 30} Where a self-represented claimant is prepared, agrees to go ahead, the tribunal explains the process, and the claimant appears to understand the proceedings, there is no breach of natural justice in proceeding without counsel.^{Note 31} Where despite the explanatory efforts and the goodwill of the tribunal, there is a failure of understanding on the part of the self-represented litigant, the Court has held that the unfairness must be remedied by holding a new hearing.^{Note 32}

8.4.1. Allegations of counsel incompetence

The incompetence of counsel in the context of a refugee hearing is ground for review of the tribunal's decision on the basis of a breach of natural justice.^{Note 33} Allegations of counsel incompetence may form part of the grounds for appeal before the RAD. They may also be made in support of an application to re-open an appeal before the RAD or to re-instate a withdrawn appeal^{Note 34} (also as a basis for the submission of new evidence to the RAD). This section of the chapter contains a summary of the jurisprudence, practices, rules and procedures that guide the RAD in deciding issues of counsel incompetence as they arise in proceedings before it.

8.4.1.1. Test for counsel incompetence

The Supreme Court of Canada set out a two-part test for establishing inadequate representation or counsel incompetence in R v. G.D.B.^{Note 35} This legal test applies to the RAD in determining allegations of counsel incompetence before it.

In order to demonstrate a breach of natural justice in a proceeding before the RAD, the person must demonstrate that

counsel’s acts or omissions constituted incompetence (performance component) and
that a miscarriage of justice resulted (prejudice component).^{Note 36}

In cases where it is apparent that no prejudice has occurred, there is no need for the RAD to consider the performance component of the test.^{Note 37}

The person is required to provide former counsel with a reasonable opportunity to respond.^{Note 38} This step is explored more fully under section 8.4.1.3.

8.4.1.2. Burden of proof

The person bears the burden of proof. The party making the allegation of incompetence must show substantial prejudice to the individual and that prejudice must flow from the actions or inaction of the incompetent counsel. It must be shown that there is a reasonable probability that, but for the counsel’s unprofessional errors, the result of the proceeding would be different.^{Note 39}

Incompetence will only result in procedural unfairness in extraordinary circumstances.^{Note 40} There is a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.^{Note 41} Moreover, incompetence of former counsel must be sufficiently specific and clearly supported by the evidence.^{Note 42}

8.4.1.3. Reasonable opportunity for counsel to respond

Where a person intends to make an allegation of counsel incompetence, they must notify counsel and provide counsel with a reasonable opportunity to respond to the allegation.^{Note 43} The specific procedural steps to be followed are set out in section 2.3.1 of the IRB’s Practice Notice - Allegations Against Former Counsel,^{Note 44} issued in 2018.

8.4.1.4. Immigration and Refugee Board's Practice Notice on Allegations Against Former Counsel

The IRB’s Practice Notice - Allegations Against Former Counsel outlines the steps to be followed where a person who is the subject of an IRB proceeding alleges that their former counsel (i.e. a lawyer, immigration consultant, or other person who is entitled to represent a person for a fee or other consideration at an IRB proceeding) did not provide adequate representation in that proceeding or in any previous proceeding.

Regarding proceedings before the RAD, this Practice Notice specifically provides as follows:

When a proceeding is ongoing, the person must provide former counsel with a copy of the appellant’s memorandum or other document in the RAD proceedings that contain the allegations.^{Note 45}
When the proceeding is completed and the person is filing an application to reopen the appeal, the person must provide former counsel with a copy of the application to reopen.^{Note 46}
In both circumstances, the person must provide former counsel with (i) written notice allowing ten days to respond, (ii) a release of any privilege, including solicitor-client privilege, to the extent necessary to allow former counsel to respond to the allegations; and (iii) a copy of the Practice Notice. The RAD must be provided with copies of these documents, as well as proof that they have been provided to the former counsel.^{Note 47}
Former counsel who intends to respond to the allegations must provide a written response to the person, to the RAD, and to the Minister (if the Minister is a party to the RAD proceedings), no later than ten days after receiving the allegations.^{Note 48}
The person may provide a written reply to RAD Division, accompanied by proof that this reply was first provided to former counsel and to the Minister (if the Minister is a party to the proceeding). The written reply must be provided no later than five days after the person received former counsel’s response.^{Note 49}

This Practice Notice does not require the person to make a complaint about their former counsel to a provincial law society or other body that is responsible for governing or investigating counsel conduct. However, if the person has made such a complaint, the person must provide the RAD with a copy of the complaint made. The person must also immediately inform the RAD of the status of that complaint, continue to notify the RAD of any changes to the status of the complaint, and provide the RAD with a copy of any decision regarding the complaint.^{Note 50}

Failure to comply with this Practice Notice is not enough, on its own, to dismiss the allegation against former counsel.^{Note 51} Compliance with this Practice Notice, including the notice requirement, is but one factor the RAD may consider in deciding whether allegations against former counsel are credible. If there is evidence of counsel incompetence on the record, the RAD should assess this evidence in deciding whether allegations against former counsel are well-founded. Results of disciplinary proceedings by the regulatory body are not binding on the court or on the IRB.^{Note 52}

8.4.2. Type of allegations of counsel incompetence

The Federal Court found that allegations of counsel incompetence were well-founded in the following situations:

giving advice that resulted in omissions or errors or other problems in the Basis of Claim Form (BoC);^{Note 53}
failing to assist the person in filling out their personal information form or BoC;^{Note 54}
failing to prepare the claimant in advance of the hearing;^{Note 55}
the cumulative impact of conduct, including: letting a translator, who acted like a lawyer, fill out the BOCs; counsel failing to provide the person with the extent of a Minister's intervention and the extent of similarities between their narrative and that of other claimants; and counsel advising the person not to file an amended BOC;^{Note 56}
improper translation or failing to translate documents in a timely manner;^{Note 57}
failing to make submissions (especially with respect to determinative issues), advocate or question the claimant;^{Note 58}
representing the person, despite being unauthorized and unfamiliar with the case;^{Note 59}
arguing with member/exhibiting unprofessional behaviour; or^{Note 60}
failing to show up for the hearing (and failing to communicate with Board);^{Note 61}

The Federal Court found that allegations of counsel incompetence were not well founded in the following situations:

failing to provide any evidence to support allegations of counsel incompetence.^{Note 62}
failing to call a witness.^{Note 63}
retaining counsel despite being aware of their incompetence and because key negative credibility findings were unrelated to counsel conduct.^{Note 64}
the alleged incompetence did not explain the majority of deficiencies noted by the RPD.^{Note 65}
failing to apply to the RPD to designate claimants as vulnerable persons and to place video evidence before the RPD.^{Note 66}
failing to review identity documents before they are submitted.^{Note 67}
clearly indicating that counsel was not representing the person and that the person required new counsel.^{Note 68}
failing to file a complaint against former counsel and failing to provide counsel with an opportunity to respond.^{Note 69}
counsel’s alleged omission, relating to the absence of documentary evidence regarding proof of employment, had no impact on the outcome of the claim, which was based on the finding of a viable IFA.^{Note 70}

In some cases, the remedy for counsel incompetence is a new hearing before the RPD.^{Note 71} In other cases, it may be possible for the RAD to confirm or substitute the RPD decision despite counsel’s incompetence.^{Note 72}

8.4.3. Remedying counsel incompetence before the Refugee Appeal Division

The failure to observe a principle of natural justice is a basis upon which the RAD may grant an application to re-open an appeal or to reinstate a withdrawn appeal.^{Note 73} Sometimes allegations against former counsel are made within the context of both types of applications and RAD members are called upon to decide whether counsel acted with incompetence.^{Note 74}

8.5. Adequacy of interpretation

Sometimes the quality of the interpretation offered at the RPD hearing is challenged before the RAD and the Federal Court. This section discusses what criteria must be met for the interpretation to be considered adequate and the circumstances under which adequate interpretation has been waived by the person.

8.5.1. Test for adequate interpretation

Section 14 of the Charter does not require “perfection” of interpretation; the key is whether there was linguistic understanding.^{Note 75} Put another way, the question is whether the individual was allowed to tell their story and to be understood.^{Note 76}

Per the Supreme Court’s decision in Tran, adequate interpretation must be continuous, precise, competent, impartial, and contemporaneous.^{Note 77}

Interpretation is continuous where there are no breaks or interruptions in interpretation.^{Note 78} Interpretation must be precise: it must be as close as can be, word-for-word and idea-for-idea.^{Note 79} In order to be impartial, the interpretation should be objective and unbiased. Regarding competency, the Supreme Court indicated in Tran that “interpretation must be of a high enough quality to ensure that justice is done and seen to be done.” At a minimum, interpreters must be sworn by taking the interpreter’s oath before beginning to interpret the proceeding.^{Note 80} Finally, regarding the need for contemporaneous translation, the Supreme Court held in Tran that consecutive interpretation is the better practice as compared to simultaneous translation.

The person is responsible for explaining how the translation was inadequate with specific examples from the hearing. The RAD is not obliged to reach out to the person to request specific examples if none are provided in the appeal record.^{Note 81}

Once a person establishes that there was a real and significant translation error, he or she is not required to also demonstrate that the error underpinned a key finding before the RPD decision can be set aside.^{Note 82} However, the errors must be serious and non-trivial, and they must have affected the individual’s ability to present their allegations and answer questions.^{Note 83}

In some cases, the remedy for inadequate interpretation is a new hearing.^{Note 84}

In other cases, where the translation errors are minor, it may be possible for the RAD to confirm or substitute the RPD decision despite the interpretation issues. For example, in Gebremedhin, the Federal Court concluded that the RAD’s own assessment with the correct translations was reasonable.^{Note 85}

For more information, please see Chapter 7 on Remedies.

8.5.2. Waiver

Parties must raise the quality of interpretation at the first possible moment unless there are exceptional circumstances for not doing so.^{Note 86} It will be a question of fact in each case whether it is reasonable to expect a complaint to be made.^{Note 87}

For example, in Aldarwish, the Federal Court found that the RAD reasonably concluded that the person and her counsel failed to raise questions about the quality of interpretation at the earliest reasonable opportunity.^{Note 88} In this case, the RPD hearing occurred over 2 sittings. At the beginning of the first hearing, the RPD member put the person on notice to raise concerns about interpretation if she had any difficulty communicating with the interpreter. At the beginning of the second sitting, the person testified, “I expect I am anticipating that I am more lucky this time with the interpreter.” In its waiver analysis, the RAD noted that the person’s counsel would have heard the foregoing statement that she was “unlucky”. This would have provided a basis during the second hearing to raise the issue to investigate the quality of the translation during the first hearing. Additionally, if the client had such concerns that are intended to have been described being unlucky with the first interpreter, she should have addressed them with her counsel who thereafter could have raised them with the RPD member.

8.6. Recordings and transcripts

In conducting its independent review of the RPD record, the RAD reviews the audio recording of the hearing before the RPD and/or reads the transcript of the RPD.^{Note 89} Sometimes administrative errors occur and recordings and/or transcripts of the RPD hearing are not available. This section sets out the applicable legal test to apply where RAD members are required to assess whether they are able to properly dispose of the appeal without the missing recording and/or transcript.

Where a CD recording of the RPD hearing is available and has been provided to the person in advance of their appeal, the Court has held that the RAD is not under an obligation to provide the person with transcripts of the hearing. The Court also held that the RAD did not breach procedural fairness by relying on transcripts the person did not have.^{Note 90}

8.6.1. Test to determine whether the absence of a recording or transcript amounts to a breach of procedural fairness

A missing recording or transcript does not automatically lead to a breach of procedural fairness.^{Note 91} In Canadian Union of Public Employees, Local 301, the Supreme Court of Canada set out the test for determining when a missing transcript results in a breach of procedural fairness: Does the record allow the decision maker to properly dispose of the application for appeal or review? If so, the absence of a transcript will not violate the rules of natural justice.^{Note 92} On the other hand, if the court cannot dispose of an application before it because of the absence of a transcript, this will violate the rules of natural justice.^{Note 93}

While the RAD’s role on appeal differs from that of the Federal Court on judicial review, this legal test applies to the RAD in determining whether there is a breach of procedural fairness as a result of missing recordings or transcripts of the RPD hearing.^{Note 94}

In determining whether the absence of a recording or transcript amounts to a breach of procedural unfairness, the case law establishes a number of factors that may be considered, such as:

the grounds for review advanced;
the importance of the impugned findings to the refugee claim;
the basis upon which the RPD arrived at its findings;
the subject matter of the transcript gaps, and the significance of the transcript gaps to the impugned findings;
other means the tribunal used to fill the gaps; and,
other means available to the Court to determine what went on at the hearing.^{Note 95}

The Federal Court has held that an adequate review may be possible without a recording in the following circumstances:

where the alleged errors relate to a legal error in the member’s analysis or where the errors do not relate to the oral testimony,^{Note 96}
where the RPD caught the recording malfunction during the course of the hearing and sought to supplement the record,^{Note 97} (unless the RPD's supplementation of the record is inaccurate and/or incomplete),^{Note 98}
where the person failed to identify the substance of the information missing from the recordings nor explain why the missing information was critical to addressing an issue central to their claim and to the Court's ability to properly review the RAD's decision,^{Note 99}
where the only portion of the missing recording relate to counsel’s closing arguments before the RPD,^{Note 100} or
where the decision being reviewed turns on the decision-maker’s assessment of a more “objective” factor.^{Note 101}

The Federal Court has held that an adequate review may not be possible without a recording or transcript in the following circumstances:

where the alleged errors relate to credibility assessment,^{Note 102}
where the alleged errors relate to interpretation errors,^{Note 103}
where the alleged errors relate to the misapprehension of testimony,^{Note 104} or
where the conduct of the member is at issue.^{Note 105}

Where the RAD finds that a missing recording or transcript breaches procedural fairness, the remedy may be to order a new hearing at the RPD.^{Note 106} In other cases, it may be possible for the RAD to confirm or substitute the RPD decision on different grounds despite the missing recording or transcript.^{Note 107}

For more information, please see Chapter 7 on Remedies.

8.7. Disclosure by the Refugee Appeal Division and opportunity to provide submissions

In assessing appeals, the RAD must sometimes disclose information such as new national documentation packages, extrinsic evidence or new issues to the parties and allow parties to provide submissions. The following section addresses relevant jurisprudence, policies, and rules that the RAD must follow in deciding whether new information or issues must be disclosed.

8.7.1. Disclosing the National Documentation Package (NDP)

The RAD has a duty to consider information contained in the NDP.^{Note 108} The RAD must consider the most recent NDP in its assessment of forward-looking risk.^{Note 109}

In certain circumstances, procedural fairness will require the RAD to notify the parties of its intention to rely upon a new version of the relevant NDP.

In Zhang,^{Note 110} the RAD had relied upon a version of the NDP for China that arose after the persons perfected their appeal. The pertinent section had been updated to include information that was not in the version of the NDP that was available to the persons at the time their appeal was perfected. The Federal Court found that the RAD breached procedural fairness by failing to give the persons an opportunity to respond to the new information. In her reasons, Justice Kane wrote:

… [Where] recent information arises after [a person] has perfected their appeal and made their submissions and that information is different and shows a change in the general country conditions, the RAD has a duty to advise the [person] that it is relying on that information.^{Note 111}

On the facts of the case, Justice Kane considered whether the more recent information was sufficiently different, novel and significant compared to the information available to the persons at the time they perfected their appeal so as to require the RAD to give the persons an opportunity to respond to it.^{Note 112} She concluded that the more recent information appeared to minimize the risk the persons would face in China, depending upon the application of certain factors, and therefore the persons should have been given an opportunity to respond to it.^{Note 113}

In Lin,^{Note 114} the RAD had notified the person that it would be “making reference” to particular sections of a version of the relevant NDP that post-dated the perfection of the appeal and invited him to make submissions. The person then requested that the RAD specify how it intended to rely upon those sections, however the RAD issued its decision without responding to that request. The Federal Court held that, contrary to the person’s position, the RAD did not breach its duty of fairness and its notice to the person was sufficient. In his reasons, Justice Ahmed wrote:

None of the authorities cited in Zhang stand for the principle that the duty of fairness requires a decision-maker to disclose how or what segments of the NDP it intends to rely upon […]. Rather, a decision-maker breaches its duty of fairness by relying on documentary evidence that a claimant is not aware of, nor deemed to be aware of […]. [References omitted.]^{Note 115}

Similarly in Sarmiento Florez,^{Note 116} the Federal Court found that the persons were provided with an opportunity to present their case, fully and fairly, when the RAD gave the persons written notice that it was going to use an updated version of the NDP and invited the persons to provide written submissions about a specific document in the NDP. While the persons argued that the purpose of the notice was not clear and the RAD should have been more specific in order to be fair, the Federal Court found that counsel for the persons did in fact provide submissions and did not complain at the time that the notice or its purpose were unclear.^{Note 117}

8.7.2. Disclosing additional documentary evidence

The RAD sometimes relies on extrinsic evidence in disposing appeals. Extrinsic evidence is evidence that the parties are not aware of because it comes from an outside source.^{Note 118} In other words, it is evidence that does not form part of the RPD record,^{Note 119} the appellant’s record^{Note 120} or the Minister’s evidence.^{Note 121} For example, the RAD may wish to rely on newspaper articles, social media posts, websites, maps, or other documents that are not on the record but that are relevant to the appeal.

Generally, the additional documentary evidence relied on by the RAD must be disclosed to the parties and the parties must be provided with an opportunity to respond.^{Note 122} In addition, the RAD must gather and disclose information for its proceedings in conformity with the Chairperson’s Instructions for Gathering and Disclosing Information for Refugee Appeal Division Proceedings.^{Note 123}

If, however, the additional documentary evidence is publicly available and is neither novel nor significant, the RAD can rely on this evidence without prior disclosure. According to the case law, publicly available information is not extrinsic evidence so long as it is not novel.^{Note 124} For example, in Asmelash,^{Note 125} the Federal Court found that a government directive that had come to the attention of the person was not extrinsic evidence and therefore did not need to be disclosed to the parties.^{Note 126} Further, in both Aladenika^{Note 127} and in Olanrewaju,^{Note 128} the Federal Court found that the google search of an address is not extrinsic evidence and does not require disclosure.^{Note 129}

8.7.3. Judicial notice and specialized knowledge

The RAD may also take judicial notice of any facts that may be judicially noticed and of any other generally recognized facts and any information or opinion that is within its specialized knowledge.^{Note 130}

Judicial notice requires disclosure to the parties and the parties must be provided with an opportunity to respond.^{Note 131}

Before using any information or opinion that is within its specialized knowledge, the RAD must notify the parties and give them an opportunity to make written representations on the reliability and use of the information or opinion and provide written evidence in support of their representations.^{Note 132}

For more information, please refer to Chapter 10 of the reference paper on Weighing Evidence (Chapter 10: Judicial notice and specialized knowledge).

8.7.4. Disclosing new issues at the Refugee Appeal Division

New issues are legally and factually distinct from the grounds of appeal raised by the parties.^{Note 133} In other words, a new issue is a question that would take the person or the Minister by surprise.

Where a new issue is raised by the RAD for the first time on appeal, notice must be provided to the person and the Minister, even if the Minister is not a party to the proceedings.^{Note 134} In response to the notice, the person, or the Minister, if the Minister decides to intervene, may provide submissions and new evidence.

For a detailed examination of the case law on new issues, please refer to Chapter 3: New Issues.

8.8. Bias

IRB members are expected to render decisions in an independent and impartial manner. RAD members may be called upon to decide whether an RPD member has exhibited bias or an appearance of bias. The impartiality of RAD members may also be subject to challenge. This section discusses situations in which the Federal Court has considered bias allegations against RPD or RAD members.

8.8.1. Test to determine a reasonable apprehension of bias

The presence of bias or a reasonable apprehension of bias can, if established, constitute a breach procedural fairness by depriving a party of a fair hearing.^{Note 135}

The applicable test to determine the existence of a reasonable apprehension of bias has been articulated by the Supreme Court of Canada as follows:

… the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information… [The] test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.”^{Note 136}

The burden is on the party alleging bias to establish a reasonable apprehension of bias on a balance of probabilities.^{Note 137}

While the assessment requires a real likelihood or probability of bias, it is unnecessary to demonstrate that a decision-maker is actually biased. An appearance of bias is sufficient.^{Note 138}

The threshold to establish a reasonable apprehension of bias is a high one^{Note 139} and the grounds for apprehension of bias must be substantial.^{Note 140} Decision-makers are presumed to be impartial.^{Note 141} Allegations of bias must be supported by material evidence and cannot rest on mere suspicion, insinuations or impressions of a party or their counsel.^{Note 142}

As with procedural fairness issues generally,^{Note 143} parties seeking to raise bias allegations are expected to do so at the earliest available opportunity.^{Note 144}

8.8.2. The Refugee Appeal Division's review of allegations of bias at the Refugee Protection Division

The RAD can hear and decide arguments as to whether RPD conduct establishes bias or a reasonable apprehension of bias and, thus, a breach of procedural fairness.

Where the RAD finds that the conduct or decision of the RPD member raises a reasonable apprehension of bias, the RAD will determine whether it is possible to cure the RPD’s error and make a determination on the refugee claim.^{Note 145}

The Federal Court has found that in considering allegations of bias involving the conduct or questioning of RPD members during a hearing, the RAD should review not only the written transcript of the hearing but also the audio recording.^{Note 146}

Where the RAD is unable to cure the RPD’s error, and where the statutory criteria are met for redetermination, a finding of bias on the part of the RPD member may result in the matter being remitted to the RPD for reconsideration.^{Note 147}

Both RAD and RPD members can hear applications made on the grounds of a reasonable apprehension of bias involving themselves as decision-makers, including applications for decision-makers to recuse themselves.^{Note 148} The RAD can review the RPD member’s decisions on recusal applications. Members may also recuse themselves voluntarily if, for instance, they perceive that they would be incapable of considering a claim impartially.

8.8.3. Allegations of member bias

8.8.3.1. Member questioning

Rigorous, “extensive and energetic” questioning will not, on its own, give rise to a reasonable apprehension of bias,^{Note 149} nor will questioning that indicates that the member had formed merely a tentative view of the evidence.^{Note 150}

The mere existence of a tense atmosphere in the hearing room, expressions of momentary impatience, an ill-chosen or insensitive question, or the use of harsh or sarcastic language will, on their own, generally be insufficient to establish a reasonable apprehension of bias.^{Note 151} The panel’s questioning may demonstrate a lack of professionalism without necessarily giving rise to a reasonable apprehension of bias.^{Note 152}

Disparaging and sarcastic commentary could demonstrate a loss of objectivity, which undermines both the appearance and the fact of impartiality resulting in a breach of procedural fairness.^{Note 153}

The Federal Court has also found that while the tribunal is entitled to “cross-examine” a claimant, this cannot be confused with harassing the claimant.^{Note 154}

8.8.3.2. Member research

Paragraph 170(a) of IRPA provides that the RPD can “inquire into any matter it considers relevant to establishing whether a claim is well-founded.” The Federal Court of Appeal has acknowledged the Board’s inquisitorial role and its central role in fact-finding.^{Note 155} As such, a member may introduce documents to the claimant during the hearing without giving rise to a reasonable apprehension of bias.^{Note 156}

However, a member’s initiation of a “quest for evidence” may expose them to a charge of bias, where the member’s motive in examining the claimant on that evidence cannot be said to be to clarify or reconcile inconsistent testimony.^{Note 157}

8.8.3.3. Member demeanor

Board members are required to demonstrate patience, respect and restraint.^{Note 158} While, as stated above, sarcastic and harsh language will typically not be sufficient, on its own, to demonstrate that a member lacks impartiality, the adjudicative process requires an appropriate tone and demeanor in order to ensure that the member is not seen to have reached a decision prematurely.^{Note 159} Fairness does not permit intrusive, insensitive, intimidating, harassing, unwarranted, or highly irrelevant interventions by the member which are capable of giving the impression that the member was biased.^{Note 160}

The Court has also recognized the contribution of counsel to the hearing room environment. The Court declined to find a reasonable apprehension of bias where, although the RPD member presented herself as upset and possibly angry during the hearing, almost all of the impugned verbal exchanges were between the member and the person’s counsel. The Court noted that counsel was asked on at least two occasions to be more respectful and must bear some responsibility for the difficulties that arose during the hearing.^{Note 161}

8.8.3.4. Use of "Boilerplate" in reasons

The Federal Court has found that the RPD’s use of “boilerplate” passages is acceptable when they address the actual claim being considered, and the previous analysis fits the situation of the claimant before it.^{Note 162}

However, where reasons are taken virtually word for word from an earlier decision, this may give rise to a finding that the decision maker acted without due care and attention to the record, especially where accompanied by errors in referring to the parties.^{Note 163}

8.8.3.5. Oral reasons

Procedural fairness does not always require a lengthy period of deliberation on the part of the decision-maker before the delivery of oral reasons for decision. A short deliberation period does not necessarily mean that the decision-maker formed an opinion before considering the parties’ evidence and arguments,^{Note 164} particularly where the RPD accounted for the person’s testimony and arguments in its reasons.^{Note 165}

However, the Federal Court has cautioned that a decision-maker’s haste may indicate that the person did not receive a fair hearing. For instance, the Federal Court found a breach of procedural fairness where the RPD read extensive reasons for decision immediately at the conclusion of the hearing.^{Note 166}

In another case, the person alleged a reasonable apprehension of bias because the member had referred, during the hearing, to a document that had the format and look of a decision.^{Note 167} The Federal Court concluded that the fact that, prior to the hearing, the member had prepared a [translation] “draft decision” that looked like a decision would give rise to serious concerns about the member’s impartiality in the mind of a reasonable, right minded observer who was well informed on the subject. The Federal Court was of the opinion that, although it was certain that the member had acted in good faith, appearances were against him, and this fundamental flaw was sufficient in itself to set aside the decision.

8.8.3.6. Interactions between member and counsel

Discord between members and counsel is not necessarily indicative of an appearance of bias.^{Note 168}

8.8.3.7. Improper comments

The following are examples in which the Federal Court has found that comments of the RPD member have been so improper as to give rise to a reasonable apprehension of bias:

The member pointed out that the claimant, who alleged that she had been raped, was not emotional when testifying about the incident, and also expressed surprise that the claimant could have forgotten to mention in her narrative that she had been raped twice. The Court found that the member’s comments were not only sexist but displayed an unacceptable lack of sensitivity and compassion.^{Note 169}
The member commented that the claimant, who alleged persecution in Russia on the basis of her Jewish identity, did not have a Jewish appearance.^{Note 170}
The member commented on the claimant’s “effeminacy” or lack thereof, when assessing his claim, which he had advanced on the basis of his sexual orientation.^{Note 171}
The member commented that children sexually abused by male relatives do not suffer abuse or persecution if they are homosexual.^{Note 172}

However, instances of levity that reflected the personal style of the member, and when examined in their context, did not give rise to an apprehension of bias and did not prevent or discourage the claimants from placing their accounts before the Board.^{Note 173}

8.8.3.8. Member's previous decisions in a related matter

Members develop expertise with respect to certain countries and certain issues and are bound to come across cases with similar fact patterns, and similar legal issues. Even if a decision-maker had erred in law in another case, there would still be no basis for asserting bias.

The Federal Court has declined to find an appearance of bias where the member had been part of a panel that rejected the refugee claim of the person’s friend, with whom the person had travelled to Canada.^{Note 174}

The Federal Court has also found that the fact that the member who heard the person’s claim for refugee protection was the same person who had earlier heard and rendered a negative decision in connection with his spouse’s claim for refugee protection did not in itself create a reasonable apprehension of bias.^{Note 175}

Nor will the fact that the member was the same individual who had previously declared the person’s original claim abandoned, in and of itself, give rise to a reasonable apprehension of bias requiring the member to recuse himself.^{Note 176}

The Federal Court has also found no reasonable apprehension of bias where the member ordered a de novo hearing because of interpretation issues but remained the decision-maker in the claim.^{Note 177} The Federal Court found that there was no reasonable apprehension of bias when the member refused to recuse himself from presiding at the de novo hearing. It was open to the member to choose what questions to put to the person at the de novo hearing and the fact that the member did not ask the person the same questions again did not raise a reasonable apprehension of bias.

8.8.3.9. Member's personal background

The Courts have also considered bias arguments on the basis of the decision-maker’s personal background, history or characteristics.

The alleged religious beliefs of a decision maker are irrelevant to the issue of bias.^{Note 178} Moreover, the mere fact that a decision-maker is originally from the same country as the refugee status claimant will not suffice to justify a reasonable fear of bias.^{Note 179}

However, in a subsequent case involving the same member, the Court considered evidence that the member had, in the past, expressed the view that Ghana did not produce legitimate refugees.^{Note 180} The Court found that an informed person would think it more likely than not that the member might decide the issue unfairly.

8.8.3.10. Member's acceptance rates

The Federal Court has repeatedly found that statistics about acceptance rates of members do not, in and of themselves, give rise to a reasonable apprehension of bias.^{Note 181}

Where the person cannot point to any instance of bias or prejudice on the part of the member, the numbers alone as presented by the person are insufficient. Mere suspicion based on “rates” has not been found to meet the applicable standard of the well-informed individual considering the matter in depth in a realistic and practical way.^{Note 182}

The Federal Court has also declined to find an appearance of bias where the person argued that the member’s acceptance rates for claimants of the person’s country of origin was below the national acceptance rate for claimants from that country, without any analysis of the figures they submitted to support their allegation of bias.^{Note 183}

8.8.3.11. Prejudicial information seen by member

The Federal Court has also found that the member’s viewing of evidence for the purpose of assessing its admissibility does not, in and of itself, establish an appearance of bias and does not necessarily mean that the panel was relying on that evidence.^{Note 184}

In addition, it is not a violation of the principles of natural justice for the member to read a previous adverse decision before hearing a refugee claim de novo, where there is no evidence that the second panel prejudged the case or failed to recognize that this was a de novo hearing.^{Note 185}

8.8.3.12. Notice to the Minister

The Federal Court has declined to find an appearance of bias where the RPD member informed the Minister of the possible application of Article 1E of the Refugee Convention owing to the person’s Ethiopian permanent residence and to inform the Minister that the authenticity of the documents that the person presented was in question. Although the person argued that the RPD’s letter to the Minister showed a reasonable apprehension of bias and that the language showed that a decision on exclusion had already been made, the Federal Court held that the RPD acted in accordance with the Rules in informing the Minister both times, and that there was nothing in its conduct to support the allegation that it had already made a determination that Article 1E applied.^{Note 186}

8.8.3.13. Chairperson's Guidelines and Jurisprudential Guides

The Chairperson’s Guidelines and Jurisprudential Guides are policy instruments identified by the Board that are applied in decision-making.

Chairperson’s Guidelines are issued under the authority given in paragraph 159(1)(h) of the IRPA, and provide guiding principles for adjudicating and managing cases. IRB members are expected to follow the Chairperson’s Guidelines unless compelling or exceptional reasons exist to depart from them.^{Note 187}

Jurisprudential Guides are IRB decisions that are well-written, detailed and contain persuasive reasoning. They are aimed at facilitating fair decision-making consistent with the Board’s statutory obligation to deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit. The Policy on the Use of Chairperson’s Guidelines and Jurisprudential Guides indicates that neither the Guidelines nor the Jurisprudential Guides are binding and members remain free to reach their own conclusions based on the facts of the case.

The Federal Court of Appeal recently confirmed that the Chairperson has the authority under paragraph 159(1)(h) of the IRPA to issue jurisprudential guides that include factual determinations.^{Note 188} The Court of Appeal also confirmed that none of the Jurisprudential Guides before it improperly encroached upon members’ adjudicative independence, and found no reasonable apprehension of bias related to the use of the Jurisprudential Guides, for three principal reasons:

the Court distinguished factual determinations which solely required consideration of evidence specific to the circumstances of the parties from the special nature of the factual determinations at issue in the JGs, which involved the review of country condition evidence;
the public nature of the JGs is to be contrasted with the behind-closed-doors consultations between members; and
IRB members remain free to decide cases based on their own assessment of the facts and of the evidence before them.^{Note 189}

Notes

Note 1

Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), paragraph 28 cited in Canada (Minister of Citizenship and Immigration)v. Vavilov, 2019 SCC 65, paragraph 127 (CanLII).

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Note 2

Charkaoui v. Canada (Minister of Citizenship and Immigration), 2007 SCC 9, paragraph 53 (CanLII) relying on Singh v. Canada (Minister of Employment and Immigration), 1985 CanLII 65 (SCC).

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Note 3

C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29, at paragraph 100 (CanLII) citing Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police, 1978 CanLII 24 (SCC) per Laskin CJ, page 325.

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Note 4

Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), paragraphs 21–28.

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Note 5

Kozak v. Canada (Minister of Citizenship and Immigration), 2006 FCA 124, paragraph 53 (CanLII).

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Note 6

Huruglica v. Canada (Minister of Citizenship and Immigration), 2016 FCA 93, paragraphs 88, 100 (CanLII).

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Note 7

Marin v. Canada (Minister of Citizenship and Immigration), 2018 FC 243, paragraph 39 (CanLII), citing Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, 1994 CanLII 114 (SCC), page 228.

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Note 8

Section 111(1)(c) and 111(2) of the Immigration Refugee Protection Act, SC 2001, chapter 27 allow the RAD to refer the matter back to the RPD for re-determination only if the RPD decision is wrong and the RAD cannot make a decision without hearing evidence that was presented to the RPD. For example, in Paramo de Gutierrez, the CBSA hearing advisor breached principles of natural justice and fairness when they called the claimants—who had already been referred for a refugee hearing—to an interview, without advising counsel of record. Since reliance by the RPD or the RAD on the evidence that CBSA obtained in that interview would perpetuate the breach of the right to counsel, the RAD referred the matter back to the RPD. The RAD found the appropriate remedy for CBSA’s breach of the right to counsel and the RPD’s subsequent reliance on evidence obtained in counsel’s absence, was to refer the claim to the RPD for redetermination by a different member. The Federal Court and the Federal Court of Appeal upheld this result: Canada (Minister of Citizenship and Immigration)v. Paramo de Gutierrez, 2016 FCA 211, paragraphs 52–53 (CanLII). For a further discussion of this remedy see section 7.3 of Chapter 7: Remedies.

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Note 9

The RAD shall confirm the determination of the RPD pursuant to Immigration Refugee Protection Act, SC 2001, chapter 27, section 111(1)(a), or set aside the determination and substitute a determination that should have been made pursuant to Immigration Refugee Protection Act, SC 2001, chapter 27, section 111(1)(b), unless the conditions of section 111(2) are met. See Huruglica v. Canada (Minister of Citizenship and Immigration), 2016 FCA 93, paragraph 103 (CanLII). The Federal Court of Appeal in McBain acknowledged the rule that a breach of procedural fairness will ordinarily result in ordering a new hearing, but noted an exception where the breach of procedural fairness has been cured in the appellate proceeding: Canada (Attorney General v. McBain, 2017 FCA 204, paragraphs 9–10 (CanLII). For a further discussion of these remedies see section 7.2 of Chapter 7: Remedies.

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Note 10

Rrukaj v. Canada (Citizenship and Immigration), 2022 FC 1647, paragraph 20 (CanLII).

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Note 11

Afzal v. Canada (Citizenship and Immigration), 2023 FC 1273, paragraphs 34-38 (CanLII).

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Note 12

Rrukaj v. Canada (Citizenship and Immigration), 2022 FC 1647, paragraph 20 (CanLII).

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Note 13

See for example Belay v. Canada (Citizenship and Immigration), 2023 FC 1154, paragraphs 23-33 (CanLII).

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Note 14

Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, 1994 CanLII 114 (SCC), page 228; Canada (Attorney General v. McBain, 2017 FCA 204, paragraphs 9–10 (CanLII). Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, paragraph 43 (CanLII). The Supreme Court of Canada allowed the appeal against the Federal Court of Appeal finding that the IAD had acted unreasonably in denying relief.

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Note 15

Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), paragraph 28, cited in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, paragraph 127 (CanLII).

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Note 16

Caceres v. Canada (Minister of Citizenship and Immigration), 2004 FC 843, paragraph 23 (CanLII).

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Note 17

Haile v. Canada (Minister of Citizenship and Immigration), 2019 FC 538, paragraphs 54–62 (CanLII), citing Caceres v. Canada (Minister of Citizenship and Immigration), 2004 FC 843, paragraph 23 (CanLII). In Haile, the RPD received the submissions on the due date but after the close of business. The Federal Court found that the rigid approach of the RPD, and the confirmation by the RAD that this approach was procedurally fair, were wrong.

See also two cases where the RPD had declared claims abandoned for failure to complete the BOC form and attend the hearing: Crudu v. Canada (Minister of Citizenship and Immigration), 2019 FC 834, paragraph 34 (CanLII), citing Huseen v. Canada (Minister of Citizenship and Immigration), 2015 FC 845, paragraphs 16–17 (CanLII). The Federal Court in Huseen highlighted the flexibility to safeguard fairness found in Immigration and Refugee Protection Regulations, SOR/2002-22, section 159.8(3) and Refugee Protection Division Rules, SOR/2012-256, Rule 62(6), and concluded that notwithstanding the persons’ failures, access to refugee protection should not be withheld from all those who fail to meet ordinary procedural requirements.

The RAD found the RPD took an overly rigid approach in X(Re), 2019 CanLII 140842 (RAD), paragraph 19 (RAD Reasons of Interest decision no. TB9-18639, added October 2020). The RAD found the RPD erred in its application of Refugee Protection Division Rules, SOR/2012-256 when it refused documents and a request to call a witness, which were late but submitted several days before the RPD hearing. See Refugee Protection Division Rules, SOR/2012-256, Rule 34 (Disclosure of documents by party), and Refugee Protection Division Rules, SOR/2012-256, Rule 44 (Providing witness information), which require that parties and the Division receive documents no later than 10 days before the date fixed for hearing. In this case, the submissions came 5 days before the hearing. The RAD found that the RPD had a duty to weigh its finding that the documents and the request could have been provided earlier against the probative value and relevance of the proposed evidence.

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Note 18

In Chaudhry v. Canada (Citizenship and Immigration), 2023 FC 785, paragraphs 16-24 (CanLII), the RAD record erroneously indicated that no new evidence was filed when in fact the person had filed new evidence in proper form and within the applicable timeline.

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Note 19

In Canada (Citizenship and Immigration) v. Manuel, 2023 FC 928, paragraphs 1-9 (CanLII), the RAD erroneously stated in its reasons that the Minister did not intervene on appeal when in fact the Tribunal’s record showed that the IRB received the Minister’s intervention at the RAD.

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Note 20

Kusmez v. Canada (Citizenship and Immigration), 2015 FC 948, paragraph 23 (CanLII).

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Note 21

In, Olah v. Canada (Minister of Citizenship and Immigration), 2019 FC 401, paragraphs 34–35, 38 (CanLII), an alleged rape was a material aspect of the claim. The claimant expressed discomfort about testifying in the presence of her children. The RPD had serious credibility concerns about the rape but did not question the claimant about it. The Federal Court found that the RPD failed to accommodate the claimant such that she could not advance the claim fully and it denied her the opportunity to address the RPD’s credibility concerns. See also: Sarker v. Canada (Minister of Citizenship and Immigration), 2014 FC 1168, paragraph 18 (CanLII) where the Federal Court found concerns about discrepancies between the BOC, the claimant’s testimony, and documentary evidence were not put to the claimant at the RPD hearing. In Jamal v. Canada (Minister of Citizenship and Immigration), 2018 FC 734, paragraph 23 (CanLII) the Federal Court found that the claimant’s procedural rights were breached when concerns about the legitimacy of documentary evidence were not put to the claimant before dismissing a critical piece of evidence, citing, Angulo v. Canada (Minister of Citizenship and Immigration), 2014 FC 1131, paragraph 36 (CanLII). For an in-depth discussion on allowing the person to clarify contradictions or inconsistencies, see section 2.4 of the IRB Legal Services’ paper entitled Assessment of credibility in claims for refugee protection, December 2020.

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Note 22

Okwagbe v. Canada (Minister of Citizenship and Immigration), 2012 FC 792, paragraph 7 (CanLII). See also, Sarker v. Canada (Minister of Citizenship and Immigration), 2014 FC 1168, paragraph 15 (CanLII) where the claimant’s identity was never raised as an issue during the hearing and counsel was instructed not to make submissions on identity, but the RPD drew a negative inference from the alleged absence of documentary evidence to establish identity Lacko v. Canada (Minister of Citizenship and Immigration), 2015 FC 512, paragraph 5 (CanLII).

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Note 23

Konare v. Canada (Minister of Citizenship and Immigration), 2016 FC 985 (CanLII). See also Reza Azali v. Canada (Minister of Citizenship and Immigration), 2008 FC 517, paragraph 26 (CanLII) and D'Amico v. Canada (Minister of Citizenship and Immigration), 2013 FC 470, paragraphs 51–53 (CanLII).

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Note 24

Ching v. Canada (Minister of Citizenship and Immigration), 2015 FC 725, paragraphs 65-76 (CanLII) and Canada (Minister of Citizenship and Immigration) v. Alazar, 2021 FC 637, paragraph 80 (CanLII).

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Note 25

Canada (Citizenship and Immigration) v. Miller, 2022 FC 1131, paragraphs 56-58 (CanLII). See also Canada (Minister of Citizenship and Immigration) v. Alazar, 2021 FC 637, paragraph 83 (CanLII).

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Note 26

Canada (Citizenship and Immigration) v. Miller, 2022 FC 1131, paragraph 60 (CanLII).

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Note 27

Ellis-Don Ltd. v. Ontario (Labour Relations Board), 2001 SCC 4, paragraph 66 (CanLII), Binnie J., in dissent but not on that point, relying on Iwa v. Consolidated-Bathurst Packaging Ltd., [1990] 1 SCR 282 (CanLII).

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Note 28

Johnny v. Adams Lake Indian Band, 2017 FCA 146, paragraph 31 (CanLII), relying on Iwa v. Consolidated-Bathurst Packaging Ltd., [1990] 1 SCR 282, pages 329-330 (CanLII).

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Note 29

Krasilov v. Canada (Citizenship and Immigration), 2023 FC 635, paragraphs 11-16 (CanLII).

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Note 30

Section 167(1) of the Immigration Refugee Protection Act, SC 2001, chapter 27, ” A person […] may, at their own expense, be represented by legal or other counsel.” See also:Balogh v. Canada (Minister of Citizenship and Immigration), 2016 FC 426, paragraph 25 (CanLII).

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Note 31

Li v. Canada (Minister of Citizenship and Immigration), 2015 FC 927 (CanLII); Larrab v. Canada (Minister of Citizenship and Immigration), 2021 FC 135, paragraphs 25-28 (CanLII).

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Note 32

Kergeli v. Canada (Minister of Citizenship and Immigration), 2015 FC 475, paragraphs 16 and 18 (CanLII).

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Note 33

Shirwa v. Canada (Minister of Employment and Immigration),1993 CanLII 3026 (FCA).

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Note 34

Refugee Appeal Division Rules, SOR/2012-257, Rule 48 and Refugee Appeal Division Rules, SOR/20212-257, Rule 49.

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Note 35

R. v. G.D.B., 2000 SCC 22 (CanLII) .

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Note 36

R. v. G.D.B., 2000 SCC 22, paragraphs 26–29 (CanLII).

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Note 37

R. v. G.D.B., 2000 SCC 22, paragraph 29 (CanLII).

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Note 38

Guadron v. Canada (Minister of Citizenship and Immigration), 2014 FC 1092, paragraph 11 (CanLII).

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Note 39

Zhu v. Canada (Minister of Public Safety and Emergency Preparedness), 2017 FC 626, paragraph 41 (CanLII), relying on Jeffrey v. Canada (Minister of Citizenship and Immigration), 2006 FC 605, paragraph 9 (CanLII).

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Note 40

Shirwa v. Canada (Minister of Employment and Immigration) (T.D.), 1993 CanLII 3026 (FCA).

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Note 41

R. v. G.D.B., 2000 SCC 22, paragraph 27 (CanLII).

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Note 42

Gombos v. Canada (Minister of Citizenship and Immigration), 2017 FC 850, paragraph 17 (CanLII)

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Note 43

Guadron v. Canada (Minister of Citizenship and Immigration), 2014 FC 1092, paragraph 11 (CanLII).

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Note 44

Practice Notice - Allegations Against Former Counsel (September 10, 2018).

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Note 45

Practice Notice - Allegations Against Former Counsel (September 10, 2018), section 6.

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Note 46

Practice Notice - Allegations Against Former Counsel (September 10, 2018), section 11.

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Note 47

Practice Notice - Allegations Against Former Counsel (September 10, 2018), sections 6, 7, and 11.

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Note 48

Practice Notice - Allegations Against Former Counsel (September 10, 2018), section 8. Note that the RAD must provide the Minister with (whether a party or not), a copy of applications to re-open RAD appeals filed by the person per Refugee Appeal Division Rules, SOR/2012-257, Rule 49(3).

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Note 49

Refugee Appeal Division Rules, SOR/2012-257, Rule 9.

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Note 50

Refugee Appeal Division Rules, SOR/2012/257, Rule 16.

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Note 51

Yanasik v. Canada (Minister of Citizenship and Immigration), 2021 FC 1319 (CanLII).

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Note 52

Basharat v. Canada (Minister of Citizenship and Immigration), 2015 FC 559, paragraph 14 (CanLII).

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Note 53

Memari v. Canada (Minister of Citizenship and Immigration), 2010 FC 1196 (CanLII). In Memari counsel for the person submitted a revised narrative on the morning of the hearing and when an issue arose regarding the claimed dates of detention, counsel approached the panel and displayed a marked-up copy of the person’s PIF and claimed she had intended to amend the PIF prior to the hearing, but forgot, due to her illness. See also Mahadjir Djibrine v. Canada (Minister of Citizenship and Immigration), 2020 FC 1036, paragraph 19, 30–32 (CanLII).

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Note 54

Gaylas v. Canada (Minister of Citizenship and Immigration), 2013 FC 250, paragraphs 83–89 (CanLII). In allowing the application for judicial review, the Federal Court held, “[t]he evidence before me is undisputed that the Applicant was left to write his [BOC] on his own and that, after doing so, he was not advised that what he had written did not conform with the requirements set out in question 31 as to what should be in a [BOC] narrative.”

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Note 55

Kavihuha v. Canada (Minister of Citizenship and Immigration), 2015 FC 328, paragraph 27 (CanLII); El Kaissi v. Canada (Minister of Citizenship and Immigration), 2011 FC 1234, pargraphs 18–21. In finding that incompetence of counsel amounted to a breach of procedural fairness, the Federal Court noted the following failures in El Kaissi: (i) counsel did not assist the principal person in filling out his PIF and left this to his assistant; (ii) there was no meeting with the principal person until two days before the hearing; (iii) letter referring to the principal person’s arrest warrant was not produced.

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Note 56

Zakeri v. Canada (Citizenship and Immigration), 2023 FC 421, paragraphs 21–22, 27–32 (CanLII).

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Note 57

Isugi v. Canada (Minister of Citizenship and Immigration), 2019 FC 1421, paragraphs 33–36, 39 (CanLII). In Isugi, former counsel filed two summonses, without proper translations, as new evidence at the RAD, and failed to provide detailed arguments why the new evidence met the criteria in Immigration Refugee Protection Act, SC 2001, chapter 27, subsection 110(4). The only reasonable reason for the RAD to have rejected the summonses is the lack of translation. There is a reasonable probability that the result before the RAD would have been different had this evidence been admitted. Former counsel filed an affidavit stating that she didn’t have to time to get a translation because she received the two untranslated summonses a few days before the date at which the RAD file needed to be perfected. Former counsel had close to two years to have the two summonses translated and to file a motion for permission to file additional documents before the RAD. She provided no explanation for her failure to do so. Considering the potential impact that the translated summons and additional documents could have had on the overall credibility findings made by the RPD and the RAD, the Federal Court granted the person’s application for judicial review.

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Note 58

Medica v. Canada (Minister of Citizenship and Immigration), 2011 FC 927, paragraphs 34–35, 40 (CanLII); Aiyathurai v. Canada (Minister of Citizenship and Immigration), 2018 FC 1278 (CanLII); Rendon Segovia v. Canada (Minister of Citizenship and Immigration), 2020 FC 99, paragraphs 23-33 (CanLII). In Rendon Segovia, the determinative issue was the availability of an IFA. On appeal before the RAD, former counsel did not address any argument against the proposed IFAs. In finding that counsel’s omissions constituted incompetence, the Federal Court held that there is little doubt that “failing to make submissions on the determinative issue in a decision – when appealing the merits of that decision – amounts to pure incompetence,”

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Note 59

Ngueliega Leuga v. Canada (Minister of Citizenship and Immigration), 2021 FC 661 (CanLII). In Ngueliega Leuga, the person’s counsel was temporarily disbarred for three months. He went to his counsel’s office two days before his PRRA hearing and was met by one of the office staff, Mr. Franklin, who accompanied the person to his hearing. Mr. Franklin was neither a counsel nor an immigration consultant. In finding that the person’s procedural rights had been violated, the Federal Court noted that the person arrived at the hearing with a file that was not properly prepared and a representative who was not very familiar with the particulars of his case. The person was not aware that Mr. Franklin was an unauthorized representative and Mr. Franklin did not apprise the officer of the situation.

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Note 60

Medica v. Canada (Minister of Citizenship and Immigration), 2011 FC 927, paragraph 21-25 (CanLII). In Medica, counsel for the person filed a motion for the member to recuse themselves from the claim. Counsel accused the member of being inappropriate and hostile towards the person. In concluding that counsel’s conduct fell outside the range of “reasonable professional assistance” the Federal Court held that while there was some merit to counsel’s concern that the member was unnecessarily direct and perhaps harsh with the person in his questioning; counsel’s conduct in addressing this issue was rude, unprofessional, and hostile.

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Note 61

Ali v. Canada (Minister of Citizenship and Immigration), 2015 FC 1107 (CanLII).The RPD declared the person’s refugee protection claim abandoned after his request for an adjournment was denied. The person sustained severe and multiple injuries in a motor vehicle accident that prevented him from attending the hearing on the scheduled date. However, the person’s consultant failed to fully address the Board’s request for more medical information. In addition, the Federal Court held that the consultant was negligent in failing to attend before the Board on the scheduled hearing date as he simply assumed that his request for an adjournment would be granted.

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Note 62

Javeed v. Canada (Citizenship and Immigration), 2023 FC 1377, paragraphs 46–47 (CanLII).

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Note 63

Vassell-Samuel v. Canada (Minister of Citizenship and Immigration), 2013 FC 995, paragraphs 27, 32 (CanLII); see also Dib v. Canada (Citizenship and Immigration), 2023 FC 621, paragraph 21 (CanLII).

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Note 64

Ruiz Lopez v. Canada (Minister of Citizenship and Immigration), 2021 FC 390, paragraphs 72–73, 78 (CanLII). In Ruiz Lopez, the persons alleged that their counsel before the RPD was incompetent because they did not submit various documents that would have changed the outcome of their case. In September 2019 the associate claimants alleged the counsel was incompetent. Despite being aware of this allegation, the persons named that same counsel as their representative in November 2019. On appeal to the RAD, the persons alleged that they felt they had “no choice” but to keep their counsel “because the hearing date was only a few weeks away.” The RAD did not find that the explanation was credible and found it did not make common sense that the persons would maintain the services of counsel in whom the associated claimants had lost faith. In dismissing the application for judicial review, the Federal Court held that the persons freely chose to retain the same counsel, even though they were aware of the incompetence allegations, and they must bear the consequences of that choice.

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Note 65

Reyes Contreras v. Canada (Citizenship and Immigration), 2023 FC 1453, paragraphs 42–45 (CanLII).

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Note 66

Badihi v. Canada (Minister of Citizenship and Immigration), 2017 FC 64, paragraphs 20–24 (CanLII). In dismissing the application for judicial review, the Federal Court held that the persons did not place independent and credible evidence before the Court indicating that a vulnerable person designation would have been appropriate or how the video evidence might have impacted upon the negative credibility findings.

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Note 67

Olayinka v. Canada (Minister of Citizenship and Immigration), 2018 FC 975, paragraphs 38–42 (CanLII). In Olayinka, the person argued her former counsel should not have permitted her to file her refugee claim, with the Attestation of Birth and Declaration of Age as supporting identity documents, without first reviewing those documents. In concluding that former counsel did not breach his professional obligations, the Federal Court held that counsel has no absolute obligation to review such documentation before the client relies upon it to submit a refugee claim.

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Note 68

Castro Lopez v. Canada (Minister of Citizenship and Immigration), 2020 FC 197, paragraphs 46–47 (CanLII) . In Castro Lopez, the RAD had refused an application to reopen the appeal. The persons’ former counsel had filed their Notice of Appeal so that they would not miss the deadline. However, he informed the persons that he would not represent them on appeal before the RAD because the appeal lacked merit and he thought they should file an H&C application instead. In an application to re-open before the RAD, the persons alleged that former counsel never made it clear to them that he would not be acting for them on the appeal which is why they continued to contact him on this issue. In dismissing the application for judicial review, the Federal Court held that the RAD reasonably concluded that former counsel made it very clear to the persons that they needed to find alternative counsel.

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Note 69

Idugboe v. Canada (Minister of Citizenship and Immigration), 2020 FC 334, paragraphs 51, 54–57 (CanLII). In Idugboe, the person alleged that counsel failed to file medical evidence in a timely way. The RAD rejected this argument, noting that no complaint had been made against former counsel, nor were they given any notification or opportunity to respond. In dismissing the application for judicial review, the Federal Court held that the RAD’s approach was reasonable given the importance of notifying former counsel to permit the RAD to assess allegations of incompetence. See however Yanasik v. Canada (Minister of Citizenship and Immigration), 2021 FC 1319, paragraphs 34, 36 (CanLII), where the Federal Court found that the RAD fettered its discretion by basing its decision on counsel’s non-compliance with the Practice Notice and then refusing to consider materials before it demonstrating issues with former counsel’s representation.

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Note 70

Hannan v. Canada (Minister of Citizenship and Immigration), 2021 FC 155, paragraphs 17–25 (CanLII). The persons submit the appeal before the RAD was dismissed because former counsel failed to disclose evidence related to proof of employment. In dismissing the application for judicial review, the Federal Court held that the determinative issue was the availability of an IFA: her proof of employment was irrelevant to this finding. Previous counsel’s alleged omission had no impact on the outcome of the proceeding.

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Note 71

X (Re), 2015 CanLII 110990 (RAD); X (Re), 2017 CanLII 146862 (RAD); X (Re), 2018 CanLII 142856 (RAD); X (Re), 2016 CanLII 107244 (RAD); X (Re), 2020 CanLII 124652 (RAD).

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Note 72

X (Re), 2021 CanLII 118176 (RAD), paragraph 36; X (Re), 2020 CanLII 123251 (RAD). See also Bahredar v. Canada (Minister of Citizenship and Immigration), 2022 FC 1577 (CanLII) where the Federal Court found that the RAD unreasonably refused to admit new evidence filed to prove and remedy counsel incompetence.

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Note 73

Refugee Appeal Division Rules, SOR/2012-257, Rule 49(6), and Refugee Appeal Division Rules, SOR/2012-25, Rule 48(4).

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Note 74

For example, in Mahadjir Djibrine v. Canada (Minister of Citizenship and Immigration), 2020 FC 1036, paragraph 35 (CanLII) the Federal Court found that the RAD’s refusal to re-open the appeal was unreasonable and allowed the application for judicial review because the RAD “failed to address the arguments and evidence put forward by the [Person] regarding counsel’s competence”. The Federal Court also found that the RAD’s reliance on new grounds on which adverse credibility findings might be made was not justifiable as these findings were not previously identified by either the RPD or the RAD, and no party had made submissions on them.

In Brown v. Canada (Minister of Citizenship and Immigration), 2018 FC 1103, paragraphs 29–39 (CanLII), an immigration consultant filed the notice of appeal at the RAD but then told the persons that he did not know how to proceed with the appeal. The persons eventually retained a lawyer, but the immigration consultant did not cooperate with the lawyer by turning over materials in a timely way. The RAD dismissed the application to reopen the appeal for failure to perfect. The Federal Court allowed the application for judicial review finding that the immigration consultant’s failure to assist the persons contributed to the delay in perfecting the appeal. In Driss v. Canada (Minister of Citizenship and Immigration), 2020 FC 254, paragraphs 22–31 (CanLII), the RAD dismissed an application to reopen, despite there having been a breach of natural justice due to the incompetence of the persons’ immigration consultant in failing to perfect their appeal. The RAD held that the delay of two years before filing the application to reopen was not justified and the Federal Court maintained the RAD’s decision.

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Note 75

R. v. Tran, 1994 CanLII 56 (SCC).

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Note 76

X.Y v. Canada (Minister of Citizenship and Immigration), 2020 FC 39, paragraph 32 (CanLII) relying on Batres v. Canada (Minister of Citizenship and Immigration), 2013 FC 981, paragraphs 10–13 (CanLII). For example, in Mah v. Canada (Minister of Citizenship and Immigration), 2013 FC 853 (CanLII), the Federal Court granted the application for judicial review because it found that the translator made significant translation errors involving central points in the Board’s credibility analysis. Notably, the translator mistranslated the claimant’s evidence as to how he was able to evade the guards at the border. He testified that he waited until they were out of sight and earshot, but his evidence was initially incorrectly translated as being that he waited until a shift change. The translator later then partially referred to the correct translation when subsequent questions were asked by the panel member and the RPD found this to give rise to shifting testimony, when it did not. The claimant also testified that he attended an agricultural school, but the translator stated that he went to university. The RPD erroneously drew an implausibility on this basis because the documentary evidence established that children of incarcerated dissidents are denied access to higher education in North Korea.

In Batres v. Canada (Minister of Citizenship and Immigration), 2013 FC 981, paragraph 17 (CanLII), the Federal Court found there was a breach of procedural fairness because the interpreter mistranslated the Spanish word “pendiente” throughout the hearing. The translator interpreted the word to mean “pending” when it actually meant “hit list.” The mistranslation led the Board to erroneously conclude that “there is no mention of anyone looking for the claimant on an ongoing basis”.

In Paulo v. Canada (Minister of Citizenship and Immigration), 2020 FC 990, paragraph 37 (CanLII), the applicant alleged a breach of procedural fairness because the interpreter made an error in the interpretation and translation of Mr. Paulo’s testimony regarding his medical report. The interpreter stated that Mr. Paulo told the RPD that [translation] “they put a hot iron on my right foot”, whereas it should have been translated to: “They poked me with an iron in the foot, in the right foot.” The RAD raised six issues with the person’s testimony regarding the medical evidence. The question of the puncture wound to his right foot as opposed to a burn from a hot iron—arising from the translation error—was only one of several factors which, according to the RAD, cast doubt on Mr. Paulo’s medical condition. The Federal Court found that the error was minor and was not sufficient to vitiate the RAD’s decision or its findings as to the person’s lack of credibility with regard to his medical problems. See also Casilimas Murcia v. Canada (Minister of Citizenship and Immigration), 2019 FC 1182, paragraphs 54–78 (CanLII) where the Federal Court found that the RAD reasonably determined that the interpretation issues were related to peripheral aspects of the claim and where not material to the decision affirmed by the RAD. See also Agudelo v. Canada (Minister of Citizenship and Immigration), 2022 FC 355, paragraph 54 (CanLII) .

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Note 77

Mohammadian v. Canada (Minister of Citizenship and Immigration) 2001 FCA 191, paragraph 4 (CanLII), R. v. Tran, 1994 CanLII 56 (SCC).

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Note 78

R. v. Tran, 1994 CanLII 56 (SCC).

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Note 79

R. v. Tran, 1994 CanLII 56 (SCC).

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Note 80

Refugee Protection Division Rules SOR/2012-256, Rule 19(5) and Refugee Appeal Division Rules, SOR/2012-257, Rule 59(4) states that interpreters must take an oath or make solemn affirmation to interpret accurately. To file a complaint concerning interpretation, please refer to the procedures for Complaints Concerning Interpretation, 2006 (IRB).

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Note 81

Talwar v. Canada (Citizenship and Immigration), 2023 FC 200, paragraphs 20–21 (CanLII).

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Note 82

Mah v. Canada (Minister of Citizenship and Immigration), 2013 FC 853, paragraph 26 (CanLII). In Mohammadian v. Canada (Minister of Citizenship and Immigration), 2001 FCA 191, paragraph 4 (CanLII), the second certified question was “Must applicants show that they have suffered actual prejudice as a result of a breach of the standard of interpretation before the Court can interfere with the CRDD's decision.” This question was answered in the negative by the Federal Court of Appeal (paragraphs 4, 20). See also: Paulo v. Canada (Minister of Citizenship and Immigration), 2020 FC 990, paragraph 23–32 (CanLII), citing Bidgoli v. Canada (Minister of Citizenship and Immigration), 2015 FC 235, paragraph 10–16 (CanLII). See however subsequent FC decisions where the Court held that the translation error(s) must also be material to the tribunal’s findings: X.Y. v. Canada (Minister of Citizenship and Immigration), 2020 FC 39, paragraph 33 (CanLII), relying on Gebremedhin v. Canada (Minister of Citizenship and Immigration), 2017 FC 497, paragraph 14 (CanLII).

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Note 83

Paulo v. Canada (Minister of Citizenship and Immigration), 2020 FC 990, paragraph 32(CanLII). See also Muamba v. Canada (Minister of Citizenship and Immigration), 2021 FC 388, paragraphs 15–16 (CanLII) where the RAD reasonably found that the translation error was not serious or material.

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Note 84

See for example X (Re), 2017 CanLII 147620 (RAD), where the RAD held the RPD incorrectly dismissed concerns that interpretation was not continuous, contemporaneous, or precise. The RAD ordered a new RPD hearing. In the decision of X (Re), 2019 CanLII 143669 (RAD), designated as a reasons of interest decision, the RAD held the RPD failed to ensure interpretation of witness testimony and then breached procedural fairness by relying on inconsistencies. The RAD ordered a new RPD hearing.

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Note 85

Gebremedhin v. Canada (Minister of Citizenship and Immigration), 2017 FC 497, paragraph 17–19 (CanLII). The Federal Court found that the RAD considered each error in turn. They listened to the hearing recording to ensure they had the context in which the particular translation error was made. The RAD found that although minor errors were made, those errors would not overcome the totality of adverse credibility findings made by the RPD. The adverse findings were unaffected by any error of translation.

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Note 86

Mohammadian v. Canada (Minister of Citizenship and Immigration), 2001 FCA 191, paragraphs 13–20 (CanLII). The third certified question, “Where it is reasonable to expect an applicant to do so, such as when an applicant has difficulty understanding the interpreter, must the applicant object to the quality of interpretation before the CRDD as a condition of being able to raise the quality of interpretation as a ground of judicial review?” was answered in the affirmative.

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Note 87

Casilimas Murcia v. Canada (Minister of Citizenship and Immigration), 2019 FC 1182, paragraph 71 (CanLII), relying on Mohammadian v. Canada (Minister of Citizenship and Immigration), 2001 FCA 191, paragraph 13 (CanLII).

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Note 88

Aldarwish v. Canada (Minister of Citizenship and Immigration), 2019 FC 1265, paragraph 56–65 (CanLII). See also Defaite v. Canada (Minister of Citizenship and Immigration), 2019 FC 620 (CanLII). Note however Bilbili v. Canada (Minister of Citizenship and Immigration), 2017 FC 1188, paragraphs 12–23 (CanLII) where the Federal Court found that the RAD unreasonably refused to admit, as new evidence, a statutory declaration of an interpreter explaining interpretation errors in the transcript of the RPD hearing and in the RPD’s decision because it was clear from the record that the interpretation errors was not known until the RPD rendered its decision.

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Note 89

There is no requirement for the tribunal to record the proceedings, or to produce a transcript from the recording if there is a recording: Antunano Martinez v. Canada (Minister of Citizenship and Immigration), 2019 FC 744, paragraph 7 (CanLII). However, for the purpose of appeal to the RAD and judicial review at the FC, the Board is required to provide records of the hearing, if such records exist: Refugee Appeal Division Rules, SOR/2012-257, Rule 21(3)(e); Federal Courts Citizenship, Immigration and Refugee Protection Rules, SOR/93-22, Rule 17.

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Note 90

Abdi v. Canada (Citizenship and Immigration), 2023 FC 1322, paragraphs 34-37 (CanLII).

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Note 91

Kandiah v. Canada (Minister of Employment and Immigration), [1992] FCJ No 321 (CA), 141 N.R. 232.

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Note 92

Canadian Union of Public Employees, Local 301 v. Montreal (City), 1997 CanLII 386 (SCC), paragraphs 80–81 (CanLII), approving the principles set out in the Federal Court of Appeal’s decision in Kandiah v. Canada (Minister of Employment and Immigration), [1992] FCJ No 321 (CA), 141 N.R. 232. Per the Supreme Court in C.U.P.E., Local 301, “a recording need not be perfect to ensure the fairness of the proceedings, defects or gaps in the transcript must raise a ‘serious possibility’ of the denial of a ground of appeal or review before a new hearing will be ordered.”

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Note 93

Patel v. Canada (Public Safety and Emergency Preparedness), 2018 FC 804, paragraph 31 (CanLII).

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Note 94

See, for example, Antunano Martinez v. Canada (Minister of Citizenship and Immigration), 2019 FC 744, paragraph 9 (CanLII): “The [persons] also argue that the Federal Court’s case law regarding the lack of recording of the hearing under judicial review does not apply to the RAD, since the RAD’s role on appeal is different from that of the Federal Court on judicial review. I agree that the roles of the RAD and the Federal Court are different, but I do not believe that the rules of principle are different with respect to the absence of a recording or transcription”; X (Re), 2016 CanLII 29130, paragraph 44 (RAD).

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Note 95

Huszar v. Canada (Minister of Citizenship and Immigration), 2016 FC 284, paragraph 18 (CanLII) relying on Goodman v. Canada (Minister of Citizenship and Immigration), 2000 CanLII 14928 (FC), paragraph 75.

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Note 96

In Huszar v. Canada (Minister of Citizenship and Immigration), 2016 FC 284, paragraphs 29–40 (CanLII), the RPD rejected the claims of the family because aspects of the claims were not credible, an internal flight alternative was available in Budapest, Hungary, and the presumption of state protection had not been rebutted. The lack of transcript did not prevent the Court from evaluating the RPD’s state protection analysis, which was based principally on documentary evidence. See also Paguada v. Canada (Minister of Citizenship and Immigration), 2009 FC 351, paragraphs 14–15 (CanLII). In finding that the person did not show a “serious possibility” that the absence of a transcript adversely affected him and deprived him of an argument that could justify judicial review, the Court noted that the RPD’s decision is not based on an assessment of the person’s credibility and the person did not refer to any violation of procedural fairness during the hearing.

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Note 97

Aragon v. Canada (Minister of Citizenship and Immigration), 2008 FC 144, paragraphs 36-39 (CanLII). In concluding that the Board’s steps in supplementing the transcript were sufficient to allow for a meaningful judicial review for the Board decision, the Federal Court held: once an error in recording occurred, an overview of the person’s remaining testimony as provided by a recitation of the written notes of the Board member and the person’s counsel. It is clear from the record that this error was caught while the hearing was in process, and that the parties took steps to supplement the existing record so as to satisfy the requirements of natural justice. See also Oladeji v. Canada (Citizenship and Immigration), 2023 FC 1183, paragraphs 5-7 (CanLII).

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Note 98

Adebiyi v. Canada (Citizenship and Immigration), 2023 FC 901, paragraph 26 (CanLII).

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Note 99

Singh v. Canada (Citizenship and Immigration), 2022 FC 1535, paragraphs 15–19 (CanLII); see also Imafidon v. Canada (Citizenship and Immigration), 2023 FC 1592, paragraphs 31, 33-37 (CanLII).

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Note 100

Antunano Martinez v. Canada (Minister of Citizenship and Immigration), 2019 FC 744, paragraphs 12–14 (CanLII). The persons claimed they fled Mexico following threats from a criminal group. The RPD rejected their claim for lack of credibility. The RAD dismissed their appeal for the same reason. The recording of the RPD hearing does not include the closing arguments of counsel for the persons, but it appears to include everything else. The lack of recording did not prevent the persons from presenting their arguments before the RAD regarding the “new” grounds. The RAD did not err in rejecting the persons’ argument on this point.

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Note 101

Cletus v. Canada (Minister of Citizenship and Immigration), 2008 FC 1378, paragraph 25 (CanLII). In Cletus the Federal Court found that the RPD reasonably decided that the person faced no objective risk of persecution. The Court held that it could properly dispose of the application for judicial review in spite of the unavailability of the transcript. Notably because the Board noted in its decision that, even if it accepted the person’s version of events, there was still insufficient evidence to show that he faced more than a mere possibility of persecution if he were returned to Nigeria. In coming to this conclusion, the Board relied on findings of fact which it made based on the country reports and the person’s own submissions. The person did not take issue with any of these findings of fact in this judicial review. See also Huszar v. Canada (Minister of Citizenship and Immigration), 2016 FC 284, paragraph 27 (CanLII).

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Note 102

Khaira v. Canada (Minister of Citizenship and Immigration), 2004 FC 1071, paragraphs 12–14 (CanLII). In allowing the application for judicial review the Court held, “[f]or the purposes of a judicial review, when the applicant's credibility is at issue, in my view it is essential that the Court be able to review what happened at the hearing, what questions were asked, what answers were given (paragraph 12).” In Ngugi v. Canada (Minister of Citizenship and Immigration), 2004 FC 432, paragraphs 45–49 (CanLII), no transcript could be made available for judicial review because of poor tape quality. The RPD decision was based mostly on a lack of credibility that the RPD found in the person's narrative and inconsistencies in her evidence. Looking at the specific issues raised in the person’s affidavit that involve what she may or may not have said at the hearing, the Court concluded that it cannot deal adequately with the concerns raised in this application without a transcript. See also Menaj v. Canada (Minister of Citizenship and Immigration), 2008 FC 611 (CanLII); X (Re), 2017 CanLII 144391, paragraph 9 (RAD).

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Note 103

Coya v. Canada (Minister of Citizenship and Immigration), 2011 FC 1005 (CanLII). In Coya, the Federal Court held that because the transcript was incomplete, it was impossible to properly verify the quality of the interpretation to determine whether it met the standard for adequate interpretation set by Mohammadian.

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Note 104

Nweke v. Canada (Minister of Citizenship and Immigration), 2017 FC 242, paragraph 45 (CanLII). In Nweke, the RPD did not believe that the person is bisexual and that he was implicated for crimes related to his sexual orientation in Nigeria. The first two hours of the RPD hearing had not been recorded. The person in no way ties the information that he alleges is missing to the Member’s findings on credibility about his sexual orientation and related matters. However, if the person, as he now deposes, did try to explain that the Education Certificate and 1980’s Letters were from different sources, then the reasons could also suggest that the Member overlooked or misapprehended that evidence. Therefore, the Court is left with no appropriate alternative but to quash the decision and return the matter to the RPD for re-determination, although the ultimate outcome may well be the same. See also Mbimbi v. Canada (Minister of Citizenship and Immigration), 2015 FC 1194, paragraphs 11–12 (CanLII). In allowing the application for judicial review the Court held “Ms. Mbimbi claims in her affidavit that the Board misunderstood her evidence on this point, and that there was in fact no inconsistency in her testimony on this question. This argument cannot be evaluated without knowing what evidence was and was not before the Board on this point.”

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Note 105

Makani v. Canada (Minister of Citizenship and Immigration), 2005 FC 891, paragraph 4 (CanLII). In allowing the application for judicial review, the Court held “[a] perusal of the transcript of the hearing before the RPD discloses that it is seriously incomplete. As a result, even though the incomplete transcript does not disclose the statement attributed to the Presiding Member that she was ‘not interested’ in his evidence, I have no reason to doubt the Applicant's sworn statement”.

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Note 106

X (Re), 2018 CanLII 143001 (RAD).

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Note 107

Immigration Refugee and Protection Act, SC 2001, chapter 27, section 111(1)(a) and (b).

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Note 108

Saalim v. Canada (Minister of Citizenship and Immigration), 2015 FC 841, paragraph 26 (CanLII).

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Note 109

Policy on National Documentation Packages in Refugee Determination Proceedings (June 5,2019), section 5.Oymali v. Canada (Minister of Citizenship and Immigration), 2017 FC 889, paragraph 29 (CanLII); Galamb v. Canada (Minister of Citizenship and Immigration), 2020 FC 85, paragraph 58 (CanLII).

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Note 110

Zhang v. Canada (Minister of Citizenship and Immigration), 2015 FC 1031, paragraph 54 (CanLII).

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Note 111

Zhang v. Canada (Minister of Citizenship and Immigration), 2015 FC 1031, paragraph 54 (CanLII).

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Note 112

Zhang v. Canada (Minister of Citizenship and Immigration, 2015 FC 1031, paragraph 60-61 (CanLII). In doing so, Justice Kane relied on the Federal Court of Appeal’s previous decision in Mancia v Canada (Minister of Citizenship and Immigration), 1998 CanLII 9066 (FCA). In Mancia, the Court of Appeal considered whether a post-claims determination officer was required to disclose the documents that he relied on that were published after the person had filed his written submissions, all of which were in the public domain. The Court of Appeal answered the certified question noting that each case should be decided according to its own circumstances and:

with respect to documents relied upon from public sources in relation to general country conditions which were available and accessible when the [person] made his submissions, fairness does not require disclosure in advance of a determination;
where the documents became available and accessible after the [person] filed his submissions, fairness requires disclosure where they are novel, significant and evidence changes in the general country conditions that may affect the decision.

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Note 113

Zhang v. Canada (Minister of Citizenship and Immigration, 2015 FC 1031, paragraph 60–61 (CanLII).

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Note 114

Lin v. Canada (Minister of Citizenship and Immigration), 2021 FC 380, paragraphs 26–28 (CanLII). Also see Zheng v. Canada (Minister of Citizenship and Immigration), 2011 FC 1359 (CanLII) where the Federal Court found the RPD breached procedural fairness by relying on a document that was not disclosed to the claimant and that was removed from the NDP and had been replaced with a more recent document that contradicted the findings made in the removed document; Roy v. Canada (Minister of Citizenship and Immigration), 2013 FC 768 (CanLII), where the Federal Court found that the RPD breached procedural fairness by relying upon an older, outdated version of a document that appeared in the NDP without giving the person an opportunity to respond; Adefule v. Canada (Minister of Citizenship and Immigration), 2021 FC 1227 (CanLII), where the Federal Court found that the RAD did not breach procedural fairness by relying on information in the NDP that was not before the RPD and was therefore not part of the record before the RAD, finding that the information relied upon was not novel or significant and did not reflect changes in general country conditions that may affect the decision.

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Note 115

Lin v. Canada (Minister of Citizenship and Immigration), 2021 FC 380, paragraph 28 (CanLII).

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Note 116

Sarmiento Florez v. Canada (Minister of Citizenship and Immigration), 2021 FC 1033, paragraphs 28–31 (CanLII).

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Note 117

Sarmiento Florez v. Canada (Minister of Citizenship and Immigration), 2021 FC 1033, paragraph 29 (CanLII).

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Note 118

Dasent v. Canada (Minister of Citizenship and Immigration), 1994 CanLII 3539 (FC); Asmelash v. Canada (Minister of Citizenship and Immigration), 2005 FC 1732, paragraphs 10–15 (CanLII).

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Note 119

Refugee Appeal Division Rules, SOR/2012-257, Rule 21(3).

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Note 120

Refugee Appeal Division Rules, SOR/2012-257, Rule 3(3)(e).

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Note 121

Immigration and Refugee Protection Act, SC 2001, chapter 27, section 110(3); Refugee Appeal Division Rules, SOR/2012-257, Rule 4.

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Note 122

Diallo v. Canada (Minister of Citizenship and Immigration), 2016 FC 741, paragraph 53 (CanLII) relying on Level v. Canada (Minister of Public Safety and Emergency Preparedness), 2008 FC 227, paragraph 19 (CanLII). See also Porosh v. Canada (Citizenship and Immigration), 2023 FC 1638, paragraphs 24, 27– 29 (CanLII) where the Court found that the RAD breached procedural fairness by relying on an English translation of a document for key credibility findings without giving the person an opportunity to respond .

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Note 123

Instructions for Gathering and Disclosing Information for Refugee Appeal Division Proceedings (May 31, 2016).

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Note 124

Olranrewaju v. Canada (Minister of Citizenship and Immigration), 2020 FC 569, paragraph 27 (CanLII); Aladenika v. Canada (Minister of Citizenship and Immigration), 2018 FC 528, paragraph 16 (CanLII); Jiminez v. Canada (Minister of Citizenship and Immigration), 2010 FC 1078, paragraph 19 (CanLII); Holder v. Canada (Minister of Citizenship and Immigration), 2012 FC 337, paragraph 28 (CanLII); Mancia v. Canada (Minister of Citizenship and Immigration), 1998 CanLII 9066 (FCA).

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Note 125

Asmelash v. Canada (Minister of Citizenship and Immigration), 2005 FC 1732 (CanLII).

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Note 126

Asmelash v. Canada (Minister of Citizenship and Immigration), 2005 FC 1732, paragraphs 13–14 (CanLII).

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Note 127

Aladenika v. Canada (Minister of Citizenship and Immigration), 2018 FC 528, paragraphs 13–14 (CanLII).

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Note 128

Olranrewaju v. Canada (Minister of Citizenship and Immigration), 2020 FC 569, paragraph 27 (CanLII).

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Note 129

See also Ketjinganda v. Canada (Minister of Citizenship and Immigration), 2021 FC 1072, paragraphs 14–21 (CanLII), where the Federal Court found that a senior immigration officer did not breach procedural fairness by failing to disclose updated country documentation about Namibia found through Google. The Court found that the documents were “easily located, publicly available and not novel”; Dubow-Noor v. Canada (Minister of Citizenship and Immigration), 2017 FC 35, paragraphs 16–18 (CanLII) where the Federal Court found that the RAD did not rely on extrinsic evidence when it consulted Google Maps.

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Note 130

Immigration and Refugee Protection Act, SC 2001, chapter 27, paragraph 171(b).

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Note 131

Kwakwa v. Canada (Minister of Citizenship and Immigration), 2016 FC 600, paragraph 27 (CanLII).

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Note 132

Refugee Appeal Division Rules, SOR/2012-257, Rule 24.

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Note 133

In Ching v. Canada (Minister of Citizenship and Immigration), 2015 FC 725, paragraphs 66–71 (CanLII), the Federal Court determined that the principles regarding new issues set out by the Supreme Court of Canada in R. v. Mian, 2014 SCC 54, paragraphs 30, 33 (CanLII) should apply to appeals before the RAD, with the necessary modifications; Kwakwa v. Canada (Minister of Citizenship and Immigration), 2016 FC 600, paragraphs 23–25 (CanLII).

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Note 134

Ching v. Canada (Minister of Citizenship and Immigration), 2015 FC 725, paragraphs 71–74 (CanLII); Canada (Minister of Citizenship and Immigration) v. Alazar, 2021 FC 637, paragraphs 80–84 (CanLII).

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Note 135

Gaziova v. Canada (Minister of Citizenship and Immigration), 2017 FC 679 (CanLII).

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Note 136

Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369, page 394 (CanLII), de Grandpré J., dissenting. This principle has consistently been endorsed by the Courts, e.g., Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25, paragraphs 20–21 (CanLII). In the Immigration and Refugee Board context, see also, Alam v. Canada (Minister of Citizenship and Immigration), 2017 FC 639, paragraphs 20–21 (CanLII).

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Note 137

Panov v. Canada (Minister of Citizenship and Immigration), 2015 FC 716, paragraph 19 (CanLII); Zhou v. Canada (Minister of Citizenship and Immigration), 2020 FC 633, paragraph 39 (CanLII).

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Note 138

Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General) 2015 SCC 25 (CanLII) .

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Note 139

Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25, paragraphs 25–26 (CanLII). See also Oleynik v. Canada (Attorney General), 2020 FCA 5, paragraph 57 (CanLII) and Bai v. Canada (Minister of Citizenship and Immigration), 2021 FC 1406, paragraph 16 (CanLII).

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Note 140

Lawal v. Canada (Minister of Citizenship and Immigration), 2008 FC 861, paragraphs 39–42 (CanLII). In that case, the person argued that the member’s statement, “I’ve got to tell you right now I’m not – I don’t get the feeling you’re gay” gives rise to a reasonable apprehension of bias, specifically that the member had made up their mind before all of the evidence was submitted. The Federal Court rejected the argument, finding that the statement was “an expression of the Board member’s desire to address the issue and an invitation to the applicant to respond by way of an explanation.” The Court distinguished the person’s case from that of the person in Santos v. Canada (Minister of Citizenship and Immigration), 2006 FC 1476 (CanLII), where the member’s statements revealed a “closed mind” and a “mood of impatience” such that they were gravely prejudicial to the refugee claim and it was reasonable to expect that the member’s approach impacted its determination as to the person’s credibility.

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Note 141

Sagkeeng First Nation v. Canada (Attorney General), 2015 FC 1113, paragraph 105 (CanLII).

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Note 142

Arthur v. Canada (Attorney General), 2001 FCA 223, paragraph 8 (CanLII). See also Sosa Trujillo v. Canada (Minister of Citizenship and Immigration), 2021 FC 438, paragraph 18 (CanLII).

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Note 143

In Aldarwish v. Canada (Minister of Citizenship and Immigration), 2019 FC 1265 (CanLII), the persons had sought to admit before the RAD an interpreter’s affidavit regarding the quality of interpretation before the RPD. One of the principal issues before the Federal Court was whether, in considering the admissibility of that evidence, the RAD erred in its factual conclusion that the persons failed to raise concerns with the RPD about the interpretation at the earliest reasonable opportunity. Although the RPD Member made a comment during the second hearing day pertaining to the quality of interpretation on the first hearing day, the persons did not raise the issue to investigate the quality of the interpretation during the first hearing. The Federal Court found that if the persons had concerns about the first interpreter, they should have addressed them with their counsel thereafter, who could have raised them with the RPD Member.

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Note 144

Dib v. Canada (Citizenship and Immigration), 2023 FC 621, paragraph 24 (CanLII), relying on Hennessey v. Canada, 2016 FCA 180, paragraph 21 (CanLII): "A party must object when it is aware of a procedural problem in the first-instance forum. It must give the first-instance decision-maker a chance to address the matter before any harm is done, to try to repair any harm or to explain itself. A party, knowing of a procedural problem at first instance, cannot stay still in the weeds and then, once the matter is in the appellate court, pounce."

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Note 145

In Chan v. Canada (Minister of Citizenship and Immigration), 2021 FC 1378 (CanLII), the Federal Court quashed the RAD decision in part because the RAD had failed to correct a reasonable apprehension of bias arising from the conduct of the RPD member during the hearing, who the Court determined to have interrupted the person’s evidence, argued with the person and used a dismissive tone. The Federal Court found that, as the apprehension of bias was derived from the conduct of the hearing, it may have affected the way the person gave her evidence, or even the way she framed the issue in her refugee claim. The Federal Court found that, by accepting almost all of the RPD’s findings, the RAD compounded the unfairness created by the procedural fairness breach at the RPD hearing.

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Note 146

In Khan v. Canada (Minister of Citizenship and Immigration), 2022 FC 1330 (CanLII), the Federal Court quashed a RAD decision because it erroneously found that the RPD’s conduct of the hearing did not breach procedural fairness. In that case, the RPD questioned the claimant for almost 3.5 hours and provided the claimant’s counsel with 20 minutes to conduct his examination. The RAD found no reasonable apprehension of bias on the part of the RPD member and noted that the RPD was entitled to set time limits in order to ensure that the proceedings advanced in a timely manner. The Federal Court agreed with the person that the RAD had breached natural justice by failing to adequately consider the person’s arguments regarding the breach of natural justice flowing from the RPD member’s conduct at the hearing. In particular, the person’s right to a fair hearing was breached when the RPD imposed an arbitrary time limit for the person’s counsel’s questions at the hearing, and the RAD did not remedy this arbitrary limit in its consideration of the appeal. In addition, the Federal Court found that the RPD member’s interactions with the person’s counsel showed a “concerning lack of civility and care.” The Federal Court noted that while the RAD’s decision indicated that in considering the person’s natural justice arguments the RAD had “reviewed the transcript” of the hearing, the RAD was also required to review the audio recording of the RPD hearing.

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Note 147

See, for instance, X (Re), 2021 CanLII 141252 (RAD).

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Note 148

See, Ponce de Leon v. Canada (Minister of Citizenship and Immigration), 1998 CanLII 8681, where the Federal Court upheld the panel’s decision not to recuse itself on the basis that it had read letters that could be prejudicial to the persons. In the Federal Court context, see, Canada (Minister of Citizenship and Immigration) v. Jaballah, 2006 FC 180 (CanLII), where Mackay J. considered a motion for his recusal from the determination of the reasonableness of a safety certificate on the basis of a reasonable apprehension of bias. The Federal Court dismissed the motion, relying in part on the decision in Canada (Minister of Citizenship and Immigration) v. Charkaoui, 2004 FC 624 (CanLII), where Noël J. reviewed the arrangements for designated judges under the Immigration Refugee Protection Act with respect to a single judge considering applications for release from detention and the reasonableness of the security certificate. In Canada (Minister of Citizenship and Immigration) v. Jaballah, 2006 FC 180 (CanLII), Mackay J. held that the findings contained in the decision about the release of the person from detention do not give rise to a reasonable apprehension that he prejudged the evidence and argument yet to be adduced in regard to the reasonableness of the security certificate. See also Oberlander v. Canada (Attorney General), 2018 FC 488 (CanLII).

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Note 149

Bankole v. Canada (Minister of Citizenship and Immigration), 2005 FC 1581, paragraph 23 (CanLII). In Melo Sanchez v. Canada (Minister of Citizenship and Immigration), 2011 FC 68 (CanLII), the persons feared harm due to the actions of members of the federal police who allegedly harassed, kidnapped, assaulted, extorted and threatened them. The RPD found that there was no credible basis for the claim. The Federal Court found that there were insufficient grounds to find that there is a reasonable apprehension of bias. The Federal Court was satisfied that any frustration the member experienced was not directed at the persons. While the member was somewhat abrupt in instructing the principal person to give a verbal answer to questions, it appears to have been necessary to clarify his testimony. See also, Abdi v. Canada (Minister of Citizenship and Immigration), 2020 FC 172 (CanLII), where the Federal Court found that persistent and repetitive questioning was not an error of procedural fairness because the RPD was affording the claimant the opportunity to explain a blatant contradiction in their evidence. The Federal Court found further support for its conclusion in the absence of any objection by counsel to the RPD’s questioning, re-examination by counsel on the point or complaint about the competence or conduct of counsel at the RPD hearing. See also, Abbas v. Canada (Minister of Citizenship and Immigration), 2006 FC 746 (CanLII), where the person, a citizen of Pakistan, based his claim for protection on a fear of Sunni Muslim extremists because of his activities with various Shia organizations. The RPD rejected his claim on the basis that he did not have a high enough profile to attract persecution, there was an inconsistency as to when his problems began, state protection and his stay in the US. The Federal Court found that, notwithstanding the irrelevant lines of questioning the tribunal embarked on, the allegation of partiality was not made out. The person was a difficult witness needing many clarifying questions, his counsel also pursued many lines of irrelevant questions, and the tribunal did not make a general credibility finding against the person. In addition, see: Bai v. Canada (Minister of Citizenship and Immigration), 2021 FC 1406, paragraph 17 (CanLII); Benitez v. Canada (Minister of Citizenship and Immigration), 2007 FCA 199, paragraph 18 (CanLII); and Panov v. Canada (Minister of Citizenship and Immigration), 2015 FC 716 (CanLII).

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Note 150

In Ramirez v. Canada (Minister of Citizenship and Immigration), 2022 FC 35 (CanLII), the Federal Court found it was reasonable for the RAD to conclude that the way the RPD member questioned the claimant did not give rise to a reasonable apprehension of bias. At its highest, the questioning by the RPD indicated that the member had formed a tentative view of the evidence and asked for the person’s comments on that. Relying on, Eshetie v. Canada (Minister of Citizenship and Immigration), 2019 FC 1036, paragraph 30 (CanLII), the Federal Court found that this is not an indication of a reasonable apprehension of bias. In addition, in Huang v. Canada (Minister of Citizenship and Immigration), 2019 FC 148 (CanLII), the Federal Court rejected the argument that the member’s questioning created a reasonable apprehension of bias because the member started some questions with phrases like “it seems odd” and “it does not make sense.”

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Note 151

Kankanagme v. Canada (Minister of Citizenship and Immigration), 2004 FC 1451 (CanLII); Ramirez v. Canada (Minister of Citizenship and Immigration), 2012 FC 809, paragraph 23 (CanLII); Liadi v. Canada (Minister of Citizenship and Immigration), 2022 FC 160 (CanLII); Aloulou v. Canada (Minister of Citizenship and Immigration), 2015 FC 1236, paragraph 28 (CanLII); Fenanir v Canada (Minister of Citizenship and Immigration), 2005 FC 150 (CanLII).

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Note 152

Lakatos v. Canada (Minister of Citizenship and Immigration), 2018 FC 1061 (CanLII). At the RPD hearing, counsel for the persons objected to how the RPD member questioned the adult female person and asked that the member recuse himself because of a reasonable apprehension of bias, if not actual bias. The member dismissed the request, concluding that his questioning was not overly harsh or demeaning and would not adversely affect the ability of the person to provide answers and would not lead an informed person to conclude that the member would be unable to decide the matter fairly. Applying the correctness standard, the Federal Court agreed with the RAD’s conclusion that an exchange between the Member and the persons’ counsel, while heated and demonstrative of a lack of professionalism, did not rise to the level of a reasonable apprehension of bias on the part of the member. See also, Maritime Employers Association v. Longshoremen’s Union, Local 375 (Canadian Union of Public Employees), 2020 FCA 29 (CanLII), where the Federal Court of Appeal held that the member’s conduct of constantly whispering and staring disinterestedly out the window, while in no way a model of professionalism, did not support a finding of a reasonable apprehension of bias.

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Note 153

In Olvera-Paoletti v. Canada (Minister of Citizenship and Immigration), 2008 FC 444 (CanLII), the Federal Court found a reasonable apprehension of bias where the member attempted to offer advice to the person on credibility matters, which were coupled with a negative opinion about the person’s responses, and interjected disparagingly throughout the course of questioning. See however, Onukuba v. Canada (Citizenship and Immigration), 2023 FC 877, paragraphs 36–39 (CanLII) where the Federal Court found that while swear words used by the RPD during a break have no place in a professional setting, the member’s use of those words during the break, without context or apparent motivation, did not give rise to a reasonable apprehension of bias. The RAD reasonably found that the there was no evidence that the words were directed toward the persons or their counsel.

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Note 154

Guermache v. Canada (Minister of Citizenship and Immigration), 2004 FC 870 (CanLII). In this case, the Federal Court found that the member identified contradictions where none existed, and the person had to tolerate insulting remarks, such that a reasonable apprehension of bias was raised.

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Note 155

Benitez v. Canada (Minister of Citizenship and Immigration), 2007 FCA 199, paragraph 15 (CanLII).

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Note 156

Galindo v. Minister of Employment and Immigration (1994), 79 F.T.R. 280. See also, Asare v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 513, where the Court found that the member’s introduction of a document was not done to contradict something the person had already said, and there was no “trap” set for the person in the manner contemplated in Sivaguru v. Canada (Minister of Employment and Immigration) (C.A.), 1992 CanLII 14796 (FCA). See also, Wankhede v. Canada (Minister of Citizenship and Immigration), 2015 FC 265 (CanLII), where, before the hearing began, the RPD member presented to the person’s counsel a newspaper article he had discovered about the situation of Dalits in India. The Federal Court found no apprehension of bias owing to the RPD member having done his own research and no evidence that the RPD prejudged the claim. The Court noted that the transcript of the hearing clearly showed that the person was afforded an opportunity to question and respond to the contents of the article. In addition, the Federal Court noted that there was no excuse for failing to allege bias at the hearing, which amounts to an implied waiver of the right to raise the issue of bias at this stage of the matter. In addition, in Kisfaludy v. Canada (Minister of Citizenship and Immigration), 2019 FC 288 (CanLII), the respondent argued that the fact that the member sent an article to the persons’ counsel and invited comments does not mean that the RPD was close-minded or failed to review the documentary evidence as a whole. The Federal Court agreed, per Arrachch v. Canada (Minister of Citizenship and Immigration), 2006 FC 999 (CanLII), that an allegation “cannot rest on mere suspicion, pure conjecture or mere impressions of an applicant or counsel” and emphasized the importance of the RPD having given notice to the persons and having provided an opportunity for them to respond to the evidence.

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Note 157

Sivaguru v. Canada (Minister of Employment and Immigration) (C.A.), 1992 CanLII 14796 (FCA). In that case, the Federal Court of Appeal found that the member embarked on a “quest for evidence” to support an impression he had formed from evidence already adduced. The Court noted that the tenor of the questions put to the person strongly suggested that he had paid sufficient attention to a particular article to enable him to use it “to devastating effect” in his questioning. As the ground covered by him had already been explored by the person’s counsel and by the Refugee Hearing Officer and the answers in both examinations were consistent, it could not be said that the member was merely attempting to clarify or even reconcile inconsistent testimony. Rather, his whole object was to set a trap, which the person fell into when the member revealed contradicting evidence that resulted from the research he had initiated on his own. The Court concluded that this procedure would open the most well-meaning Board member to a charge of bias. See also, Cipak v. Canada (Minister of Citizenship and Immigration), 2014 FC 453 (CanLII), in which the Court noted that the RPD "spent months getting to the bottom of the issue," which involved inconsistencies or contradictions between the claimants' testimonies and the PIF, which the claimants blamed on inadequate translation. The claimants had first alleged that the PIFs were translated by a relative, and it later emerged that the translation was done by their former counsel. A months-long process ensued, during which the RPD summoned former counsel to appear, suggesting that solicitor-client privilege be waived, in spite of what the Court considered to be a "well-placed reluctance" on the part of counsel, especially after his former clients declined to waive the privilege as "strongly suggested" by the RPD. The Court found a reasonable apprehension of bias where the RPD insisted on getting to the bottom of an incident which did not require that kind of attention. The Court found that the RPD's insistence "must be contrasted with the issue's importance." In this case, although the RPD wanted to test the credibility of the persons with respect to discrepancies between the translated PIF and testimonies, this was just one element that could have been used to test credibility. The well-informed person, acting reasonably and viewing the matter realistically and practically, would question such insistence. The Court was concerned that such behaviour creates a perception that there was bias resembling a vendetta against the persons or their chosen counsel.

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Note 158

Toth v. Canada (Minister of Citizenship and Immigration), 2001 FCT 149 (CanLII); see also, Quiroz Mendez v. Canada (Minister of Citizenship and Immigration), 2011 FC 1150 (CanLII), where the Federal Court found a reasonable apprehension of bias where the member raised his voice in an intemperate manner at counsel. A reasonable observer in the hearing room would likely think that the presiding member was angry at the persons’ counsel and in a state of mind against the persons. The Federal Court noted that RPD members must conduct hearings in an objective, moderate, irreproachable manner, with politeness and basic courtesy.

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Note 159

Quiroa v. Canada (Minister of Citizenship and Immigration), 2005 FC 271 (CanLII).

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Note 160

Yusuf v. Canada (Minister of Employment and Immigration) (C.A.), 1991 CanLII 13547 (FCA); See also, Chaudhry v. Canada (Minister of Citizenship and Immigration), 2006 FC 1015 (CanLII), where the Federal Court concluded that the transcript disclosed several instances of inappropriate tone and questionable demeanor by the presiding member. Fairness does not permit intrusive, insensitive, intimidating, harassing, unwarranted, or highly irrelevant interventions by the member which are capable of giving the impression that the member was biased. The Federal Court also found the person’s failure to demand that the member recuse himself is not a sufficient failing that it ought to be taken to amount to an implicit waiver of the problem.

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Note 161

Ramirez v. Canada (Minister of Citizenship and Immigration), 2012 FC 809 (CanLII).

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Note 162

I.P.P. v. Canada (Minister of Citizenship and Immigration), 2018 FC 123, paragraph 251 (CanLII). In Gomez Cordova v. Canada (Minister of Citizenship and Immigration), 2009 FC 309 (CanLII), the Federal Court determined that the RPD’s use of “boilerplate passages” did not render the decision unreasonable by default. The Court found that, provided that the “boilerplate” is based on the documentary evidence and addresses the particular evidence and position of a claimant, the repetition of certain passages from other decisions is not an error.

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Note 163

Zeng v. Canada (Minister of Citizenship and Immigration), 2021 FC 318 (CanLII). In that case, while the Federal Court allowed the appeal on other grounds, the Court characterized it as “not a practice to be encouraged” that the RAD’s negative credibility finding based on what it found to be a forged Public Security Bureau summons was taken virtually word-for-word from an earlier RAD decision, including the adoption of what were, in the present case, inapt pronouns.

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Note 164

Stapleton v. Canada (Minister of Citizenship and Immigration), 2006 FC 1320 (CanLII). In that case, the Federal Court found that the fact that the panel had rendered its decision from the bench did not translate into a breach of one of the principles of natural justice. The RPD had properly considered the persons’ allegations and all the evidence submitted. In Castellanos Penaranda v. Canada (Minister of Citizenship and Immigration), 2021 FC 608 (CanLII), the Court found no support in the evidence that the RPD member prepared their decision and reasons in advance of the hearing, as alleged by the persons. The Court allowed the appeal on other grounds.

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Note 165

In Pajarillo v. Canada (Minister of Citizenship and Immigration), 2019 FC 1654 (CanLII), the Federal Court found that the fact that the RPD drafted a decision and rendered it orally 50 minutes after the hearing concluded does not prove bias. The RPD accounted for the person’s testimony and arguments in its reasons. The person failed to establish the facts or issues in her case were so substantial or complex that it was not reasonably practicable for the Refugee Protection Division to comply with Refugee Protection Division Rules, SOR/2012-256, Rule 10(8).

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Note 166

In Martinez v. Canada (Minister of Citizenship and Immigration), 2005 FC 1617 (CanLII), the Federal Court found that the Board Member delivered his 13-page reasons from the bench “obviously in a hurried fashion.” In Navarrete Menjivar v. Canada (Minister of Citizenship and Immigration), 2006 FC 11, paragraph 42 (CanLII), the Federal Court endorsed Martinez v. Canada (Minister of Citizenship and Immigration), 2005 FC 1617 (CanLII) and noted that, in the present case, the decision-maker “immediately launched into its reasons that, when reduced to writing, were just over 15 pages long.”

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Note 167

Kalombo Kabongo v. Canada (Minister of Citizenship and Immigration), 2011 FC 1106 (CanLII).

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Note 168

But v. Canada (Minister of Citizenship and Immigration), 2016 FC 626 (CanLII). In this case, the person argued that the RPD had erred in refusing to recuse itself and that the member was rather unwilling to postpone his hearing when she was clearly sick, even though he had consented more than once, and that he was rude by raising his voice and interrupting her lawyer. The Federal Court found no appearance of bias on the part of the member. Although the member may have been very strict in applying the rules for medical evidence, he clearly explained that his main concern was to determine whether the person was able to participate in the hearing. From time to time there is discord between counsel and decision-makers, as both are trying their best to do their jobs. This is not enough to conclude that there is an appearance of bias. In Martinez v. Canada (Minister of Citizenship and Immigration), 2005 FC 1065 (CanLII), the Court found that if counsel uses language that is intemperate and borders on improper conduct for an officer of the Court, it is proper for the Board to interject. Ensuring that counsel demonstrate proper decorum and respect is a matter directly relevant to the integrity of the Board as a tribunal; it is not a demonstration that the Board was taking the comments "personally." In Jiang v. Canada (Minister of Citizenship and Immigration), 2010 FC 222 (CanLII), even though there were clashes between counsel and the panel during the hearing, they were resolved respectfully. In that case, argument made in the heat of a proceeding was not determinative of bias where the tribunal accepted most of the objections made by counsel. By contrast, in Arrachch v. Canada (Minister of Citizenship and Immigration), 2006 FC 999 (CanLII), the Court found a reasonable apprehension of bias on the part of the member where the claimant requested that the member recuse himself, arguing that the member had a low acceptance rate and had made extensive comments about counsel’s stratagem to remove the member. At the opening of the hearing, counsel for the persons made a motion that the member recuse himself on the basis of bias in that the member had a low acceptance rate of claimants from Sri Lanka as compared to other members. The member denied the motion. Counsel then made a motion to change the language of proceedings from English to French. The Board accepted the motion and, while not changing the member, provided an interpreter to translate from French to English for the benefit of the member. In the course of dealing with the motions, the member made extensive comments regarding the stratagem of counsel to remove him as the presiding member. The court held that although (i) counsel was engaged in blatant forum shopping, (ii) there was no evidence of actual bias on the part of the member, and (iii) the member attempted to deal with the matter in a professional and ethical manner, the member let his frustration with counsel emerge. The member should have stood back and dispassionately considered the effect this dispute with counsel was having on the hearing. An informed and reasonable observer would conclude that it was more likely than not that the claim would not be decided fairly in the circumstances. In Saint-Eustache v. Canada (Minister of Citizenship and Immigration), 2012 FC 511 (CanLII), the Court found a reasonable apprehension of bias where, without explanation, the RPD member refused counsel’s recusal request that was made on the basis of a history of animosity between the member and counsel, criticized counsel for disrupting the conduct of the hearing, and invited her to withdraw if she did not want the hearing to proceed. The Court noted that the member placed the person and his counsel in an unacceptable position. He was required to explain the reasoning behind his refusal of the recusal request by counsel instead of attacking her, and his conduct created an untenable environment for the person, who was forced to choose between maintaining his counsel and running the risk of offending the member.

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Note 169

Chiebuka v. Canada (Minister of Citizenship and Immigration), 2000 CanLII 16411 (FC).

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Note 170

Kotkova v. Canada (Minister of Citizenship and Immigration), 2004 FC 1188 (CanLII).

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Note 171

Herrera v. Canada (Minister of Citizenship and Immigration), 2005 FC 1233 (CanLII).

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Note 172

Santos v. Canada (Minister of Citizenship and Immigration), 2006 FC 1476 (CanLII).

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Note 173

Ferrari v. Canada (Minister of Citizenship and Immigration), 2008 FC 1334 (CanLII).

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Note 174

Ianvarashvili v. Canada (Minister of Citizenship and Immigration), 2004 FC 695 (CanLII).

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Note 175

El Bachir v. Canada (Minister of Citizenship and Immigration), 2005 FC 1227 (CanLII); see also, Farkas v. Canada (Minister of Citizenship and Immigration), 2014 FC 1140 (CanLII), where the Court found that the fact that the same member heard the claim of a family member of the persons could not in itself give rise to an apprehension of bias in a reasonable person. No evidence was presented that could establish that the member based her findings on factors that were extrinsic to the record or that she otherwise showed a potential for bias. However, in Lopez Aguilar v. Canada (Minister of Citizenship and Immigration), 2011 FC 908 (CanLII), the Court found a failure to observe the principles of natural justice where, upon their divorce, the former husband and wife’s claims were separated and the hearings were held successively on the same day, by the same member. In this case, the female person’s amended narrative, which contradicted some of the information in the male person’s narrative, was found in the file of the male person. The Court held that individuals have the right to present their case before an impartial decision-maker, and in this case, the member should not have had access to the female person’s amended narrative when hearing her ex-husband’s claim.

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Note 176

Thambiah v. Canada (Minister of Citizenship and Immigration), 2006 FC 742 (CanLII).

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Note 177

Yuan v. Canada (Minister of Citizenship and Immigration), 2018 FC 755 (CanLII).

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Note 178

Chaudhry v. Canada (Minister of Citizenship and Immigration), 2005 FC 200, paragraphs 10–12 (CanLII) cited in Slimani v. Canada (Citizenship and Immigration), 2023 FC 430, paragraph 19 (CanLII).

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Note 179

Nartey v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 120. In that case, the member was a member of a clan that at the time of the hearing had close ties to the governing authorities in a country and was called upon to decide the claim of a member of a rival clan from that country. The Court found that the evidence before it did not demonstrate that it is more likely than not that the member would draw upon this knowledge and experience of Ghana to render an unfair decision. While it may seem at first blush that a reasonable bystander might conclude that there is a reasonable apprehension of bias on the part of the member, it is necessary to consider the function and composition of the Board. It must be borne in mind that the Board is to reflect the composition of Canadian society, including the immigrant community. As a result, the Court found it to be highly likely that members will hear the claims of person's who are from the same country of origin or the same ethnicity as themselves and it is likely that members will draw upon their knowledge and experience of the country to enhance their understanding of the person's claim. This was found not to result in a breach of natural or fundamental justice, provided the member applies this knowledge or experience to the evidence before it. See also, Badu v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 5, where the Court found that it was an “aberration” to suggest that the member cannot, by reason of ancestral warfare and conflict, carry out properly, objectively and judicially the duties and responsibilities which Parliament had imposed upon him.

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Note 180

Tekyi v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 225.

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Note 181

Xuan v. Canada (Minister of Citizenship and Immigration), 2013 FC 673 (CanLII). See also, I.P.P. v. Canada (Minister of Citizenship and Immigration), 2018 FC 123 (CanLII) where, between sittings, the persons learned of media reports that the presiding RPD member had a “zero percent acceptance rate.” The persons made six requests for the member’s recusal, all of which were denied. The member delivered a decision in which he rejected all of the claims on the basis of credibility. The Federal Court found that the persons’ concerns about the member’s reported acceptance rate came from sources outside the RPD and nothing about the hearing process itself or the member’s conduct supported a reasonable apprehension of bias.

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Note 182

Bulut v. Canada (Minister of Citizenship and Immigration), 2005 FC 1627 (CanLII) the person alleged that there was a reasonable apprehension of bias because that member accepts far fewer Turkish claims than the “national” acceptance rate. Where the person could not point to any instance of actual bias or prejudice on the part of the member, the Federal Court found that the numbers alone as presented by the person are meaningless without an informed analysis as to what they mean and whether a reasonable conclusion could, as a result, be drawn from them.

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Note 183

Sahil v. Canada (Minister of Citizenship and Immigration), 2008 FC 772 (CanLII). The persons alleged a reasonable apprehension of bias, in that the RPD member who heard their case rejected all 12 Afghan refugee claims she heard in 2006 and 2007, whereas the national acceptance rate of Afghan refugee claimants in 2006 was 94% and in 2007 was 79%. The Federal Court found that the persons did not make any attempt to break down and analyze the figures they seek to rely on to support their allegation of a reasonable apprehension of bias. Without any such analysis or breakdown of the percentages and statistics, the persons failed to meet their burden. See also, Turoczi v. Canada (Minister of Citizenship and Immigration), 2012 FC 1423 (CanLII), where the Federal Court found that the “Rehaag Report” submitted by the person in support of his bias allegation, while admissible in that case, was credible evidence only of the result of various refugee determinations made by various members of the RPD over a specific period of time. It is not evidence of any of the variables that may impact the inference that the persons were seeking to make. The informed reasonable person, thinking the matter through, would demand a statistical analysis of this data by an expert based upon and having taken into consideration all of the various factors and circumstances that are unique to and impact on determinations of refugee claims before he or she would think it more likely than not that the decision-maker would not render a fair decision. That something is said to “hint” at a result can hardly be said to raise to the level that one “think[s] that it is more likely than not” that a decision-maker would not decide fairly. In that case, the Court found that there was every likelihood that an informed person, viewing the matter realistically and practically – and having thought the matter through – would conclude that there was very little likelihood that any member would have decided the claim differently.

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Note 184

Ponce de Leon v. Canada (Minister of Citizenship and Immigration), 1998 CanLII 8681 (FC). The panel received three anonymous letters containing highly prejudicial information. The panel ruled not to admit the letters but refused a motion to recuse itself. There was no evidence before the Court of any impropriety with respect to receipt of the letters. What is important for fairness is that the panel ensure the parties know that the anonymous letters were received and that they be disclosed to the parties. That the letters were disclosed to their counsel and not to claimants personally is of no consequence. Judges and tribunals routinely rule on the admissibility of evidence and do not feel the need to recuse themselves. The panel concluded the claimants were not telling the truth and the letters also accused the claimants of lying, but this does not necessarily imply that the panel was relying on the letters.

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Note 185

Lahai v. Canada (Minister of Citizenship and Immigration), 2002 FCA 119 (CanLII). See also, Endemikael v. Canada (Minister of Citizenship and Immigration), 2013 FC 675 (CanLII), where after a full day of testimony, the person moved that the proceedings be terminated because the translator at the hearing had allegedly counselled him to falsify his immigration history when helping him prepare his PIF. Although the member found the allegations to be unsubstantiated, out of an abundance of caution he determined that he would commence the hearing de novo, disregarding the first day’s evidence. The Court found that nothing in the record suggests that the RPD member was tainted or unable to ignore the first day’s evidence after starting the hearing de novo. It is a common circumstance that a decision maker must hear or see evidence which then must be ignored, particularly with respect to admissibility issues.

Return to note 185 referrer

Note 186

Gebreyesus v. Canada (Minister of Citizenship and Immigration), 2018 FC 966 (CanLII).

Return to note 186 referrer

Note 187

Policy on the Use of Chairperson’s Guidelines and Jurisprudential Guides (July 7, 2022); see also, Khon v. Canada (Minister of Citizenship and Immigration), 2004 FC 143, paragraph 19 (CanLII); Nour v. Canada (Minister of Citizenship and Immigration), 2012 FC 805, paragraph 38 (CanLII); Zeah v. Canada (Minister of Citizenship and Immigration), 2020 FC 711, paragraph 72 (CanLII).

Return to note 187 referrer

Note 188

Canadian Association of Refugee Lawyers v. Canada (Immigration, Refugees and Citizenship), 2020 FCA 196 (CanLII), application for leave to the Supreme Court of Canada dismissed.

Return to note 188 referrer

Note 189

Canadian Association of Refugee Lawyers v. Canada (Immigration, Refugees and Citizenship), 2020 FCA 196 (CanLII), application for leave to the Supreme Court of Canada dismissed.

Return to note 189 referrer

Chapter 8. Common Natural Justice Issues at the Refugee Appeal Division

Table of contents

8. Common Natural Justice Issues at the Refugee Appeal Division

8.1. General principles

8.2. Refugee Appeal Division review of Refugee Protection Division fairness

8.3. Right to be heard

8.3.1. Opportunity to state the case

8.3.2. Right to know the case to be met

8.3.3. The one who hears must decide

8.4. Right to representation

8.4.1. Allegations of counsel incompetence

8.4.1.1. Test for counsel incompetence

8.4.1.2. Burden of proof

8.4.1.3. Reasonable opportunity for counsel to respond

8.4.1.4. Immigration and Refugee Board's Practice Notice on Allegations Against Former Counsel

8.4.2. Type of allegations of counsel incompetence

8.4.3. Remedying counsel incompetence before the Refugee Appeal Division

8.5. Adequacy of interpretation

8.5.1. Test for adequate interpretation

8.5.2. Waiver

8.6. Recordings and transcripts

8.6.1. Test to determine whether the absence of a recording or transcript amounts to a breach of procedural fairness

8.7. Disclosure by the Refugee Appeal Division and opportunity to provide submissions

8.7.1. Disclosing the National Documentation Package (NDP)

8.7.2. Disclosing additional documentary evidence

8.7.3. Judicial notice and specialized knowledge

8.7.4. Disclosing new issues at the Refugee Appeal Division

8.8. Bias

8.8.1. Test to determine a reasonable apprehension of bias

8.8.2. The Refugee Appeal Division's review of allegations of bias at the Refugee Protection Division

8.8.3. Allegations of member bias

8.8.3.1. Member questioning

8.8.3.2. Member research

8.8.3.3. Member demeanor

8.8.3.4. Use of "Boilerplate" in reasons

8.8.3.5. Oral reasons

8.8.3.6. Interactions between member and counsel

8.8.3.7. Improper comments

8.8.3.8. Member's previous decisions in a related matter

8.8.3.9. Member's personal background

8.8.3.10. Member's acceptance rates

8.8.3.11. Prejudicial information seen by member

8.8.3.12. Notice to the Minister

8.8.3.13. Chairperson's Guidelines and Jurisprudential Guides

Notes

Thank you for your help!