Effective Date: September 9, 2014
Prepared by: Policy, Planning and Research Branch
1. Purpose
This policy serves two purposes. First, this policy standardizes the selection of decision-makers when the Refugee Appeal Division (RAD) refers a matter back to the Refugee Protection Division (RPD) for a redetermination. Second, this policy provides a standardized process for determining the content of a RAD-ordered redetermination case file. Both of these purposes serve the ultimate overarching goal of ensuring a fair and efficient redetermination process that minimizes the possibility of a breach of natural justice.
2. Application
This policy is applicable to the RPD.
3. Context
This policy is being introduced as a result of the coming into force of the refugee reform provisions of the Protecting Canada’s Immigration System Act. In the past the Immigration and Refugee Board (IRB) interpreted redeterminations such as those ordered by the Federal Court 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 higher tribunal. The IRB also ensured that, where possible, the matter was reheard by decision-maker(s) other than those who made the original decision, unless ordered 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 on Court-Ordered Rehearings 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 would not lead to a reasonable apprehension of bias, or affect the parties’ right to be heard.
4. Definitions
There are none for the purpose of this policy.
5. Policy Statement
The Assistant Deputy Chairperson (ADC) or a Coordinating Member (CM) will review all RAD-ordered redeterminations in order to ascertain what should be included in the redetermination case file and the composition of the redetermination panel.
The RPD will comply with any directions of the RAD regarding the composition of the redetermination panel. In those instances where the RAD 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 RPD will also comply with any specific directions of the RAD regarding the contents of the redetermination case file. Where the RAD gives no such directions, the content of the redetermination case file will be determined according to whether or not the RAD has found a denial of natural justice.
In those instances where the RAD does not provide directions, the appropriate ADC or CM will decide who the decision-maker(s) will be as well as the contents of the redetermination case file.
5.1 File content where the RAD has not found a denial of natural justice
Where the RAD 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: referral to the RPD);
- the RAD order and any reasons;
- the original decision(s) of the RPD and any reasons;
- administrative documents (for example: notices to appear);
- exhibits filed at the previous RPD hearing(s);
- any transcripts of the previous hearing (if one exists on file);
- other evidence on the original RPD file.
5.2 File content where the RAD has found a denial of natural justice
Where the RAD has determined that there was a denial of natural justice in the original hearing and provides specific directions, the RPD will comply with those directions.
Where the RAD has not given specific directions, the only documents that must, in every case, be included in the redetermination case file are the RAD order and the jurisdictional documents (for example, the referral to the RPD). The appropriate ADC or CM will determine whether any other documents should be included in the redetermination file.
6. Implementation
Related procedural guidelines are contained in the Case Management Manual on RAD-Ordered Redeterminations (Chapter 32).
7. Monitoring
Ongoing monitoring and evaluation of this policy will be carried out under the direction of the Divisions, with the support of Regional Executive Committees and the Policy and Procedures Directorate.
9. Enquiries
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.
10. Approval
Signed by Ken Sandhu
Interim Chairperson
September 9, 2014
Date