Table of Contents
- Disclosure of Communication in the Absence of Parties
These Instructions are issued by the Chairperson of the Immigration and Refugee Board (the "Board") and are effective June 18, 2004.
They govern all communication that takes place in the absence of parties between Members of the Refugee Protection Division ("Members") and Refugee Protection Officers ("RPOs") relating to cases before the Refugee Protection Division that have not been concluded. A case is considered to be concluded when a decision has been made and, where required, reasons for decision have been given.
These Instructions also govern communication between Members and other employees of the Immigration and Refugee Board (the "Board") that takes place in the absence of parties. For the purposes of these Instructions, the phrase "employees of the Board" means persons appointed pursuant to the Public Service Employment Act.
These Instructions do not apply to communication between Members and Legal Advisers of the Board. Legal Advisers are governed by Board policies, the rules of natural justice, and by their respective codes of professional conduct.
They replace the draft Instructions governing Extra-Hearing Communications between Members of the Refugee Division and Refugee Claim Officers dated 11 March 1996.
Refugee claims are determined through an inquiry process conducted by a single Member panel. In special circumstances a three Member panel may be constituted. Ultimate responsibility for processing a case rests at all times (pre-hearing, hearing and post-hearing) with this panel.
A panel may be assisted by an RPO. Under direction of the panel, the RPO assists in identifying information required for a full and proper determination of the claim and examines witnesses to elicit evidence, to probe questions of fact, and to test credibility. The RPO may also assist the panel by providing observations on the law applicable to the evidence adduced at the hearing.
This working relationship requires the panel and the RPO to communicate with each other about many matters, including:
- the identification of factual and legal issues to be addressed;
- the identification of information, including general information on country conditions and human rights and specific information relating to the particular circumstances of a claim or claimant, required for the full and proper determination of cases; and
- administrative and procedural issues (e.g. information about the processing, scheduling and hearing of cases and about the receipt and disclosure of information, comments and submissions concerning cases).
Three basic principles govern all communication between Members and RPOs and between Members and other employees of the Board:
- the principles of fundamental justice and the rules of natural justice must at all times be respected;
- the independence of Members as decision-makers must at all times be respected; and
- the impartiality of the Refugee Protection Division must at all times be respected.
It is presumed that Members, RPOs and other employees of the Board discharge their duties and responsibilities in good faith and in accordance with the respective policies and instructions that govern them.
Members, and RPOs and other employees of the Board shall follow these Instructions in all communication that takes place in the absence of the parties and that relates to individual cases from the time of referral of the case until it is concluded.
1.1 Communication Permitted
Subject to subsection 1.2 and 1.3, Members may communicate with RPOs and with other employees of the Board outside the hearing in the absence of the parties with respect to a case that has not been concluded.
1.2 General Prohibition
No communication referred to in subsection 1.1 shall involve the offering or the soliciting of an opinion on:
- the merits of the case;
- the conclusion to be reached on any element of the case;
- the decision that should be made on any question of law that arises for determination;
- any conclusion of fact or conclusion as to the credibility or trustworthiness of any evidence adduced; or,
- the reasons for decision.
1.3 Communication At Team Meetings
At meetings of Members with RPOs and other employees of the Board (including at meetings of case management teams), communication on questions of law and on country conditions is encouraged but communication with respect to the application of law pertaining to a particular case that has not been concluded or with respect to questions of fact to be determined in a particular case that has not been concluded is prohibited.
1.4 Communication During Recesses and Adjournments
During recesses or adjournments in the course of a hearing, Members and RPOs should be circumspect in their communications with each other, and whenever possible:
- communicate in the presence of the parties; and,
- where disclosure has not taken place earlier in some other form, inform the parties upon resumption and on the record of any communication that has taken place during the recess or adjournment that would be required to be disclosed under section 2.
With respect to communication conducted in the absence of the parties pertaining to a case that has not been concluded, the Member shall ensure that the following is disclosed without delay to the parties:
- the date of the communication and the names of the persons involved;
- the issues identified as relevant to the case;
- any directive given by the Member to the RPO with respect to the case;
- documentary material that is identified as being of particular relevance to the issues raised by the case;
- statutory or legal principles or case law that are identified as being of particular relevance to an issue raised by the case; and
- any other matter which the Member believes should be disclosed to:
- comply with the rules of natural justice; and
- facilitate the fair and expeditious conclusion of the case.
Where any communication takes place which contravenes these Instructions, the Member shall ensure that the parties are informed of the content of such communication and that they are given an opportunity to make representations with respect to it.