Policy no. 2003-05
Effective Date: December 10, 2013
Prepared by: Policy, Planning and Research Branch
This policy serves two purposes. First, this policy standardizes the selection of decision-makers when the Federal Court (the Court) refers a matter back to the Immigration and Refugee Board (IRB) for a redetermination. Second, this policy requires priority review of court-ordered redeterminations by Legal Services, in order to ensure that the evidence from such files is processed in accordance with the Court order and with the principles of natural justice. Both of these purposes serve the ultimate goal of conducting a fair, effective, and efficient redetermination process that minimizes the possibility of a breach of natural justice.
This policy is applicable to the Immigration Division (ID), the Refugee Protection Division (RPD), the Immigration Appeal Division (IAD) and the Refugee Appeal Division (RAD) of the IRB. The Board’s policy on Court-Ordered Rehearings, which originally became effective on February 15, 1999 and was amended on June 19, 2003, is re-issued with consequential amendments to bring it in line with the terminology and section references in the Immigration and Refugee Protection Actand IRB Rules. It replaces the former Court-Ordered Rehearings Policy Paper (#2003-05).
Before the Court-Ordered Rehearings Policy came into effect in 1999, the IRB traditionally interpreted court-ordered redeterminations as a requirement for a new hearing or a hearing de novo. It removed from the redetermination case file all documentary evidence except for the originating or jurisdictional document, and the order and reasons of the Court. The IRB also ensured that, where possible, the matter was reheard by decision-makers other than those who made the original decision, unless ordered by the Court otherwise.
In light of jurisprudence and in accordance with the general principle that a statutory tribunal has control over its proceedings, the IRB adopted a more flexible procedure in conducting court-ordered redeterminations with the introduction of the policy in 1999. The guiding principle of the policy at that time, as at present, was to ensure that the use of evidence from previous hearings will not lead to a reasonable apprehension of bias, or affect the right to be heard.
There are none for the purpose of this policy.
5. Policy Statement
Legal Services will review and treat on a high priority basis all court-ordered redeterminations in order to provide preliminary recommendations on:
- the interpretation of the remittal;
- the content of the redetermination case file as set out below;
- the composition of the panel redetermining the case;
- and any other related matters.
The IRB will comply with any directions of the Court regarding the composition of the redetermination panel. In those instances where the Court does not provide directions regarding the composition of the redetermination panel, whenever practicable, the case will be reheard by a decision-maker(s) other than the one (those) who made the original decision.
The IRB will also comply with any specific directions of the Court regarding the contents of the redetermination case file. Where the Court gives no such directions, the content of the redetermination case file will be determined according to whether or not the Court has found a denial of natural justice.
Where the Court does not provide directions, the following persons will decide who the decision-maker(s) will be. They are also responsible for deciding the contents of the redetermination case file and instructing the Registry accordingly:
- for the Immigration Division: the appropriate Assistant Deputy Chairperson or Associate Director;
- for the Immigration Appeal Division: the appropriate Assistant Deputy Chairperson or Coordinating Member;
- for the Refugee Protection Division: the appropriate Assistant Deputy Chairperson or Coordinating Member;
- for the Refugee Appeal Division: the appropriate Assistant Deputy Chairperson or Coordinating Member.
5.1 File content where the Court has not found a denial of natural justice
Where the Court has provided no specific directions and has made no determination that there was a denial of natural justice in the original hearing, the redetermination case file will contain:
- jurisdictional documents (for example: notice of appeal, referral to the RPD, request for admissibility hearing or detention review);
- the Court order and any reasons;
- the original decision(s) of the IRB and any reasons;
- administrative documents (for example: notices to appear);
- exhibits filed at the previous hearing(s);
- any transcripts of the previous hearing (if available);
- other evidence on the original file.
5.2 File content where the Court has found a denial of natural justice
Where the Court has determined that there was a denial of natural justice in the original hearing and provides specific directions, the IRB will comply with those directions.
Where the Court has not given specific directions, the only documents that must, in every case, be included in the redetermination case file are the Court order and the jurisdictional documents (for example: notice of appeal, referral to the RPD, request for admissibility hearing or detention review). Legal Services, where appropriate, may advise the Assistant Deputy Chairperson (or Coordinating Member or Associate Director) on the need for including any other documents in the redetermination file.
Related procedural guidelines are contained in the Case Management Manuals on Court-Ordered Redeterminations of the IRB’s four Divisions (Chapter 28-RAD, Chapter 33-RPD, Chapter 20-IAD, Chapter 25-Immigration Division).
Ongoing monitoring and evaluation of this policy will be carried out under the direction of the Divisions’ Operations Committees, with the support of Regional Executive Committees and the Policy and Procedures Directorate.
For information contact:
Director, Policy and Procedures Directorate
Policy, Planning and Research Branch
Immigration and Refugee Board of Canada
Minto Place—Canada Building
344 Slater Street, 14th Floor
Ottawa, Ontario K1A 0K1
Available in English and French on the IRB’s Internet site.
Ken Sandhu, Interim Chairperson
December 11, 2013