Chairperson’s Guideline 8: Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations

Effective date: October 31, 2023

(Short title: Guideline on Accessibility)

Guideline issued by the Chairperson
pursuant to paragraph 159(1)(h)
of the Immigration and Refugee Protection Act

1. Purpose
2. Application
Part I – Principles applicable to all proceedings
3. Use of appropriate language
4. Myths, stereotypes and incorrect assumptions
5. Trauma-informed adjudication
6. Intersectionality
7. Protection of confidential information
Part II – Guidance applicable to procedural accommodations
8. Guiding principle
9. Individuals who may request accommodations
10. Procedural accommodations
11. Early identification
12. Requests for accommodations
13. Documentation to support a request for accommodation
Part III – Guidance applicable to the assessment of the merits of a case
14. Documentation relevant to the assessment of the merits of a case
15. Credibility
16. Proceedings before the Refugee Protection Division and Refugee Appeal Division
17. Proceedings before the Immigration Division
18. Proceedings before the Immigration Appeal Division
19. Inquiries

1. Purpose

1.1 The objective of this Guideline is to enhance access to justice at the Immigration and Refugee Board of Canada (IRB or the Board) by providing guidance on:

granting procedural accommodations (or “accommodations”), including:

identifying when accommodations are legally required.
encouraging the IRB to provide accommodations when doing so would assist an individual even if there is no legal requirement to do so.
identifying when supporting documentation may be needed.

situations where a person's disability, vulnerability^{Footnote 1}, and/or personal characteristics may be relevant to the assessment of the merits of the case.
the use of appropriate language; avoiding myths and stereotypes; the principles of trauma-informed adjudication and intersectionality; and the protection of confidential information.

1.2 This Guideline replaces Guideline 8 – Procedures with Respect to Vulnerable Persons Appearing Before the IRB (Amended December 15, 2012). Notably, this Guideline:

removes the need to designate and consequently label^{Footnote 2} an individual as a “vulnerable person”.^{Footnote 3}
removes the requirement for an individual to establish that their ability to present their case before the IRB is “severely impaired”.^{Footnote 4}

1.3 This Guideline assists members in carrying out their duties to conduct fair hearings and render well-reasoned decisions. It does not change the legal requirements set out in legislation and case law.

2. Application

2.1 This Guideline applies to all Divisions of the IRB. These are: the Refugee Protection Division (RPD), the Refugee Appeal Division (RAD), the Immigration Division (ID), and the Immigration Appeal Division (IAD).

2.2 This Guideline is to be applied by members and other IRB personnel involved in the adjudication or early resolution of cases at the IRB (“members and adjudicative staff”).

2.3 Where more than one Chairperson's Guideline applies, this Guideline is to be applied together with other Chairperson's Guidelines as appropriate.

Part I – Principles applicable to all proceedings

3. Use of appropriate language

3.1 There is no standard terminology that adequately captures the diversity of the individuals who may benefit from the application of this Guideline. Members should not assume that individuals appearing before the IRB will use the terms contained in this Guideline to describe their individual circumstances. Culture and worldview can impact how individuals interpret personal topics which can affect how they describe their experiences.^{Footnote 5}

3.2 Members should use the same terminology used by the person appearing before them to respect the person's choice to describe their own experience. For example, a person may use “person-first” language to describe themselves, while others may use “identity-first” language. An example of person-first language would be to describe someone as “a person living with schizophrenia”. An example of identity-first language would be to describe someone as “a deaf person”.^{Footnote 6}

3.3 Similarly, individuals appearing before the Board may describe their experiences of trauma in different ways. For example, a person may refer to themselves as a “victim” or a “survivor”, while others may not use either of these terms.

4. Myths, stereotypes and incorrect assumptions

4.1 Direct and indirect reliance on myths, stereotypes, and incorrect assumptions relating to vulnerabilities, disabilities, and/or personal characteristics can adversely impact the adjudication process.

4.2 Members should avoid the application of such myths, stereotypes, and incorrect assumptions when questioning witnesses and when making findings of mixed fact and law, with particular attention to credibility findings. All participants in IRB proceedings should avoid the application of such myths, stereotypes, and incorrect assumptions when questioning witnesses and making submissions.

4.3 Examples of myths, stereotypes, and incorrect assumptions relating to vulnerabilities, disabilities, and personal characteristics include:

A person with a disability is inherently vulnerable.^{Footnote 7}
A person with a disability will always require accommodation.
Disabilities and vulnerabilities are always visible or apparent.^{Footnote 8}
Physical disability necessarily has some bearing on intellectual ability.^{Footnote 9}
Communication impairment is a reflection of cognitive impairment.
Vulnerability in some situations means a person is vulnerable in all situations.^{Footnote 10}
A person with a mental health condition, intellectual disability, or substance use disorder will necessarily seek out access to care and/or support in the country of origin or in Canada.^{Footnote 11}
A person with an invisible disability would have necessarily disclosed it to their family members or acquaintances.^{Footnote 12}
The testimony of a person who lives with a mental health condition is necessarily unreliable^{Footnote 13} or incoherent.
All persons will react to traumatic events in a similar way.^{Footnote 14}

5. Trauma-informed adjudication

5.1 Definition of trauma

5.1.1 Trauma is both the experience of, and response to, an overwhelmingly negative event or series of events, including violence.^{Footnote 15} Trauma is experienced by an individual as physically or emotionally harmful or life threatening and that has lasting adverse effects on the individual's functioning and well-being.^{Footnote 16}

5.1.2 Trauma may completely overwhelm an individual's ability to cope with, or integrate the ideas and emotions involved in that experience. A traumatic event can elicit intense feelings of fear, terror, helplessness, hopelessness, and despair often subjectively experienced as a threat to the person's survival.^{Footnote 17}

5.2 Principles of trauma-informed adjudication

5.2.1 Where the impact of trauma creates barriers to access to justice, the IRB is committed to removing these barriers.

5.2.2 Members and adjudicative staff should apply trauma-informed adjudication principles to cases where trauma impacts a person's ability to fully participate in the proceedings. This includes situations where trauma:

is disclosed,
clearly arises from the record, or
becomes apparent during the course of the proceeding.^{Footnote 18}

5.2.3 The following principles should be applied by all those engaged in the
adjudication process:

lead the proceeding with sensitivity to help prevent re-traumatization through the IRB decision-making process;
anticipate the possibility that trauma may impact a person's memory and ability to provide testimony^{Footnote 19}; and
create a safe adjudicative environment for all participants to facilitate the giving of testimony.

5.2.4 Trauma-informed adjudication is a form of a trauma-informed approach that is specifically tailored to adjudicative processes. The principles of trauma-informed adjudication should not be interpreted or applied in a way that infringes on the independence of members or the Board. These principles also cannot infringe on the procedural fairness the IRB equally owes to all parties to a proceeding.^{Footnote 20}

5.3 Facilitating participation in a proceeding

5.3.1 Members should respond to the individual's verbal cues and body language in a way that creates a safe space to facilitate the giving of testimony. This can be achieved through rapport-building, explaining the context of questioning, and timing breaks responsively. A calm and sensitive approach can enhance the flow of communication, build trust, and assist in the recollection of details.^{Footnote 21}

5.3.2 Members should conduct the hearing and their questioning in a trauma-informed manner.^{Footnote 22} Members should, to the extent possible, prevent individuals from becoming traumatized or re-traumatized by the hearing process. For example, members should avoid any line of questioning at a hearing, or reasoning in a decision, that suggests that a person is responsible for the trauma that they suffered.^{Footnote 23}

5.3.3 In some cases, it may not be necessary for the individual to testify about past trauma when sufficiently credible documentary evidence has been submitted in support of the allegations.^{Footnote 24} Alternatively, where there are serious credibility concerns, it may be necessary for the member to question the individual about difficult matters that could relate to trauma. It is appropriate for members to do this, but they must be conscious of the trauma-informed adjudication principles set out in this Guideline.

5.3.4 Members should avoid asking the person to speculate about matters of which they have no knowledge. For example, a person may not be aware of the motives or methods of the agent of harm.^{Footnote 25}

6. Intersectionality

6.1 Intersectionality is a framework for understanding how multiple identity factors including, but not limited to gender, disability, race, religion, indigenous identity, age, or sexual orientation may interact to create distinct and compounded forms of discrimination, mistreatment or marginalization. Applying intersectional frameworks has become an important analytical tool in a wide variety of policy and adjudicative contexts and is already in use at the Board.^{Footnote 26}

6.2 An intersectional approach takes into account the historical, social and political context of the individual's unique experience and recognizes that such experience is based on the intersection of all relevant factors.

6.3 Members should apply an intersectional approach in all proceedings to which this Guideline applies, based on the evidence of the proceeding.^{Footnote 27} Therefore, members should consider how an individual may face distinct forms of harm, risk, or vulnerability based on their identity factors and lived experience. For example, an intersectional approach would consider how an elderly, person with a disability who also belongs to a racial or ethnic minority may have faced distinct forms of discrimination based on the intersection of the person’s age, disability, and race or ethnicity.

6.4 There is no single type of marginalization or discrimination for all those who share a common identity factor, although patterns may emerge from the experiences of similarly situated individuals.^{Footnote 28}

7. Protection of confidential information

7.1 In all IRB proceedings, members have a responsibility to consider the privacy interests of individuals, which may include sensitive information regarding an individual's vulnerability, disability and/or personal characteristics.

7.2 While proceedings before the RPD and the RAD are private, proceedings at the ID and the IAD are generally public. This means that, in accordance with the open court principle, sensitive information, including information about an individual's disability and/or vulnerability, may be accessible to the public.^{Footnote 29} Additionally, even though proceedings before the RPD and the RAD are private, if a case is before the Federal Court for judicial review, the information in the Federal Court file pertaining to the case becomes publicly accessible.

7.3 As a result, upon request by the parties or at the initiative of members, additional safeguards for the protection of sensitive information related to a disability and/or vulnerability may be considered. Members may, pursuant to s. 166 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), order that particularly sensitive information be treated as confidential where the factors under s. 166 have been met.^{Footnote 30}

7.4 Members should select or craft the confidentiality measure so that it is minimally restrictive to the open court principle for public proceedings.^{Footnote 31}

7.5 In all cases, whether or not a confidentiality measure has been put into place, in drafting reasons for decision, members should, wherever possible, avoid the use of personal or sensitive information that is not necessary to explain the reasoning in the decision.^{Footnote 32}

Part II – Guidance applicable to procedural accommodations

8. Guiding principle

8.1 Members are encouraged to provide accommodations and eliminate barriers individuals face to participating in the proceedings^{Footnote 33} by working with all parties and participants to develop solutions on a case-by-case basis.

9. Individuals who may request accommodations

9.1 Anyone participating in a proceeding at the IRB can make a request for accommodation.

9.2 Although most individuals will not need to request procedural accommodations to ensure they are treated fairly by the Board, standard processes may create barriers which result in unfairness. Fairness may mean treating people differently based on their individual needs and circumstances.

9.3 The IRB must provide reasonable^{Footnote 34} accommodations:

to individuals requiring such accommodation taking into account any disability,^{Footnote 35} vulnerability or personal characteristics, whether identified in the Canadian Human Rights Act (CHRA)^{Footnote 36} or not. This may include but is not limited to:

disability including physical, cognitive, or sensory differences, mental illness, or alcohol or substance use disorders,
neurodiversity,
low literacy,
age, such as minors and the elderly,
sexual orientation, gender identity and expression, and sex characteristics,
past or continuing trauma including survivors of torture, genocide and crimes against humanity, and gender-related violence.

where necessary to ensure the fairness of the proceedings.

9.4 Individuals may require accommodation due to one or more personal characteristics, disabilities and/or vulnerabilities, or their combined effect.^{Footnote 37}

9.5 Members and adjudicative staff are encouraged to provide procedural accommodations to assist an individual, even when there is no legal requirement to do so, as long as doing so would not negatively impact^{Footnote 38} the IRB or the procedural fairness rights of another party.^{Footnote 39}

10. Procedural accommodations

10.1 Accommodations should be personalized as much as reasonably possible, taking into account the nature and extent of an individual's needs, and recognizing that these needs may fluctuate over the course of the proceeding.^{Footnote 40}

10.2 The IRB may accommodate a person's disability, vulnerability and/or personal characteristics by various means, including, but not limited to:

providing priority scheduling where appropriate, for example where uncertainty and delay may cause increased anxiety that is particularly detrimental to the individual as a result of a disability, vulnerability and/or personal characteristic, or where the individual is in detention.^{Footnote 41}
allowing for alternative scheduling of a hearing where appropriate, for example a full day or several half days or at a particular time of day.^{Footnote 42}
allowing a support person (for example, family member, friend, social worker, counsellor) to accompany an individual in a proceeding.
creating a more informal setting for a hearing.^{Footnote 43}
varying the order of questioning.
offering breaks during the proceedings (including informing the individual that they can request it).
excluding non-parties from the hearing.^{Footnote 44}
providing a panel and/or interpreter of a particular gender.
when asking about sensitive matters, using techniques to mitigate the person's distress or allowing testimony by other means.
allowing the use of live transcription and/or a virtual chat function, for example, for a deaf person or a person with hearing loss.
permitting the individual to move during the proceeding if necessary for their health condition.
explaining IRB processes to the individual in plain language.
holding a pre-hearing conference to discuss any potential triggers related to trauma identified by counsel or the individual and potential alternative ways of eliciting testimony.
delivering decisions and reasons for decisions as soon as possible,^{Footnote 45} for example where uncertainty and delay may cause increased anxiety that is particularly detrimental to the individual as a result of a disability, vulnerability and/or personal characteristic, or where the individual is in detention.
allowing for alternative delivery of a decision and reasons.^{Footnote 46}
allowing any other procedural accommodations that may be reasonable in the circumstances.

10.3 Designated representatives

10.3.1 The need for accommodation is distinct from the need for a designated representative (DR). Accommodations may be granted in circumstances where the appointment of a designated representative is not required.^{Footnote 47}

10.3.2 The appointment of a designated representative does not, however, preclude the need for accommodations. Designated representatives are expected to determine whether the person they represent requires accommodation, and if needed, request such accommodation as soon as possible.

11. Early identification

11.1 While accommodations may be provided at any point in a proceeding, they should be granted at the earliest possible opportunity, and where possible, well before an appearance before the Board.

11.2 Counsel and DRs are in the best position to bring the need for accommodation to the attention of the IRB and are expected to do so as soon as possible.^{Footnote 48} Similarly, unrepresented individuals may also be best placed to do the same and are encouraged to do so as well.

11.3 If counsel for the Minister is aware of facts indicating that a person may benefit from accommodations, they are also encouraged to advise the IRB as soon as possible.

11.4 In the course of reviewing the file, the IRB may come across information indicating that an individual may face barriers to their full participation in the proceeding. In such situations, the IRB may act on its own initiative granting accommodations or by contacting the unrepresented individual, counsel or appointed DR to determine the nature and extent of any accommodations needed.^{Footnote 49}

11.5 Similarly, when reviewing a request for accommodation, if the IRB needs further information, it may request such information, or hold a pre-hearing conference.^{Footnote 50}

11.6 Decisions to grant a request for accommodation are the responsibility of the member or the member manager. When another member or member manager grants an accommodation, the member who presides over the hearing is not bound by that decision.^{Footnote 51} The presiding member may grant additional accommodations, change, or discontinue previously granted accommodations, where appropriate, after the individual being accommodated is given notice of the reason for the proposed change or discontinuation and an opportunity to respond.^{Footnote 52}

12. Requests for accommodations

12.1 A person who is seeking accommodations should make an application to the Board under the Rules of the applicable Division.^{Footnote 53}

12.2 Strict compliance with the Rules may be a barrier to some individuals, for example, individuals who are not represented or individuals who face barriers that impact their ability to interpret and apply this Guideline or the Rules. Members are encouraged to be flexible in assessing whether the requirements of the Rules have been met^{Footnote 54} and should consider any form of written request^{Footnote 55} received prior to an appearance at the IRB.^{Footnote 56}

12.3 In order for the IRB to grant an accommodation, the request should:

Be made as early as possible.
Specify the accommodation needed.^{Footnote 57}
Be provided to all parties.

12.4 In order to enable the IRB to accommodate the individual's specific needs, the request should provide as much detail as possible on the particular type of accommodation needed and the barriers the individual faces to participation.

12.5 Accommodations provided for individuals before the Board must not have the effect of denying any party^{Footnote 58} a fair opportunity to present their case and participate fully in the proceeding.

12.6 The views of all parties will be sought before granting any accommodations other than accommodations that are minor or administrative.

12.7 Even where no prior request was made, members should consider any oral request made at the hearing, where feasible. In addition, members can act on their own initiative and provide accommodations to an individual where it becomes clear during a hearing that it is necessary for the individual to fully participate.

13. Documentation to support a request for accommodation

13.1 Members should consider whether they need any supporting documentation to grant a procedural accommodation on a case-by-case basis. The need for such documentation should be proportionate to the accommodation being requested. For example, a member may determine that no supporting documentation is required to allow for more breaks in a hearing while a request for priority scheduling of a hearing may require supporting documentation.^{Footnote 59}

13.2 Expert evidence is generally not required to support a request for procedural accommodation and as noted in section 14.5.1 below, members should consider the barriers individuals may face in obtaining expert evidence. However, expert evidence can be of assistance to the IRB in applying this Guideline if it addresses the accommodations required for a person to fully participate in the proceedings, or the person's ability to give reliable testimony or otherwise present evidence.^{Footnote 60}

13.3 If a member needs documentation to assess a request for accommodation, they should provide the individual an opportunity to either provide the documentation or explain why it will not be provided.

Part III – Guidance applicable to the assessment of the merits of a case

14. Documentation relevant to the assessment of the merits of a case

14.1 While there may be little or no need for supporting documentation in order to request an accommodation, supporting documentation may be needed for the assessment of the merits of a case for individuals with a disability and/or vulnerability, including for the assessment of credibility.^{Footnote 61}

14.2 A decision granting a procedural accommodation does not mean that any documentation provided in support of that request has been found credible or that members will arrive at a particular decision in the assessment of the merits of the proceeding.

14.3 Supporting documentation^{Footnote 62} for the assessment of the merits of a case may include:

Expert reports
Medical records^{Footnote 63}
Affidavits or letters of support^{Footnote 64}

14.4 If a member finds that supporting documentation is necessary to assess the merits of a case for individuals with a disability and/or vulnerability and it has not been provided, the member should give the individual an opportunity to explain why it was not provided.

14.5 Expert evidence

14.5.1 While expert reports^{Footnote 65} may be of assistance^{Footnote 66}, members should consider that many individuals face financial, geographical, psychological or social barriers to seeking treatment and obtaining an expert report.

14.5.2 Expert evidence includes reports by medical professionals including psychologists, and other experts, such as social workers, who provide evidence within their area of expertise.^{Footnote 67}

14.5.3 Generally, expert reports prepared for use in proceedings before the Board should contain the following information:

the particular qualifications and experience of the professional that demonstrate an expertise relevant to the subject matter on which they are providing an opinion.^{Footnote 68}
the factual foundation underlying the expert's opinion.
if applicable, the expert's opinion about the person's ability to fully participate in IRB proceedings, including their ability to testify or otherwise present their case.
the methodology used by the expert in assessing the person, including whether an interview was conducted, the number and length of interviews, whether tests were administered, and, if so, what those tests were and the significance of the results, and;
if applicable, whether the person is receiving treatment and, if so, the nature of the treatment and the effectiveness of the treatment.

14.5.4 Members should not necessarily discount the weight to be given to an expert report if it does not contain all the information recommended in this Guideline.

14.6 Assessment of expert evidence

14.6.1 In order to determine the weight that should be assigned to an expert report, members should assess the specific contents of the report and the member's reasons for the decision should explain this assessment.^{Footnote 69}

14.6.2 A medical report may corroborate a person's allegations regarding past events through an independent medical evaluation, including clinical observations.^{Footnote 70}

14.6.3 The recounting of events to an expert does not, by itself, affirm the credibility of the events.^{Footnote 71} However, medical reports should not be discounted for that reason alone and should be assessed in light of the purpose for which they were submitted.^{Footnote 72}

14.6.4 Members may disregard portions of a report that engage in advocacy or offer opinions outside the expertise of the expert.^{Footnote 73}

15. Credibility

15.1 When assessing credibility, members should consider an individual's particular disability and/or vulnerability, including evidence of any potential impact on the individual's ability to testify.^{Footnote 74} However, not all vulnerabilities and/or disabilities will impact a person's ability to provide credible and trustworthy evidence.^{Footnote 75}

15.2 Credibility determinations must be made on a case-by-case basis.^{Footnote 76} Factors that may impact an individual's ability to present their case can include past trauma,^{Footnote 77} medical or psychological conditions,^{Footnote 78} cognitive difficulties,^{Footnote 79} and limitations related to age.^{Footnote 80}

15.3 The presence of any of these factors does not prevent members from making an adverse credibility finding.^{Footnote 81} Members may draw a negative inference from material inconsistencies, omissions, or implausibility in the evidence that have no reasonable explanations.^{Footnote 82} However, the principles from this Guideline should be considered when assessing the individual's credibility and not separately after the credibility assessment.^{Footnote 83}

15.4 Where there is evidence that an individual's personal situation or circumstances may impact their ability to testify, members should avoid making an adverse credibility finding without considering how the evidence might explain inconsistencies, omissions, memory failures and other deficiencies in the person's testimony.^{Footnote 84}

15.5 In cases where an individual's testimony appears to be unreliable as a result of a disability and/or vulnerability, members should consider whether independent corroborative evidence is necessary to assess whether the individual's testimony can be relied upon in any respect.^{Footnote 85}

15.6 Where a credibility concern arises from a person's evidence or testimony, and there is evidence that the person has a vulnerability and/or disability that may impact their credibility, members should:

explain the concern to the person;
provide an opportunity for the person to respond to the concern;
consider the person's response and whether any of the individual's disabilities and/or vulnerabilities may reasonably explain the credibility concern;
evaluate the totality of the circumstances and the internal consistency of the evidence; and
explain in their reasons for decision whether the response reasonably accounts for the credibility concern.

15.7 The assessment of whether an explanation is reasonable is contextual and should include the potential impact of the individual's personal circumstances on memory. For example, trauma may impact memory, which can produce inconsistencies, omissions, and vagueness in the individual's testimony.^{Footnote 86}

15.8 Implausibility findings should only be made in the clearest of cases.^{Footnote 87} A reasonable finding of implausibility should consider the cultural, economic, and political context of the individual and the country in question.^{Footnote 88} Members should not rely on myths, stereotypes, and incorrect assumptions, whether to the advantage or detriment of the individual.^{Footnote 89}

15.9 Members may consider demeanour when assessing the credibility of testimony, however, this should be approached with great caution.^{Footnote 90} For example, the demeanour of persons from different cultural backgrounds or those who have suffered harm may be particularly difficult to assess.^{Footnote 91} Therefore, clear and cogent reasons must be given for findings of credibility based on demeanour.^{Footnote 92} It is only in an exceptional case that demeanour alone would be sufficient to undermine the credibility of the testimony provided in support of the case.

15.10 Members should not expect a person appearing before the IRB to behave in a certain way when recounting traumatic experiences, and credibility findings should not be based on the absence or presence of such behaviours.^{Footnote 93}

16. Proceedings before the Refugee Protection Division and Refugee Appeal Division

16.1 Following are some points relevant to the assessment of the merits of refugee cases involving individuals with a disability and/or vulnerability.^{Footnote 94} In this section, “claimant” refers to the subject of the proceedings before the RPD or the RAD.

16.2 Assessing Convention grounds and persecution

16.2.1 The definition of a Convention refugee requires that the persecution be linked to a Convention ground (i.e., a nexus). In determining whether a nexus exists, members must consider all relevant grounds for protection, including those based on disabilities and/or vulnerabilities. For example, individuals with physical or mental health conditions may meet the requirements for membership in a particular social group where they can demonstrate that they belong to a group defined by an innate or unchangeable characteristic.^{Footnote 95}

16.2.2 An individual's experience of harm due to their disability and/or vulnerability may amount to persecution in some cases.^{Footnote 96} Acts of harassment or discrimination that may not amount to persecution individually, may cumulatively constitute persecution. The cumulative impact of discriminatory treatment should be assessed using an intersectional approach.^{Footnote 97}

16.2.3 Where individuals, including those with a disability and/or vulnerability, present evidence of risk caused by an inability of their country to provide adequate health or medical care, they will not qualify as a person in need of protection on this basis alone.^{Footnote 98} However, if an individual is able to show that they would be refused health care or treatment for reasons related to a Convention ground, members will need to consider the claim under s. 96 of IRPA. For example, a refusal of health care or medical treatment of an individual with HIV positive status based on stigma may be linked with one of the Convention grounds and amount to persecution.^{Footnote 99}

16.2.4 Even where credibility concerns arise from certain aspects of a claim, the claim may still be accepted if the claimant faces a risk based on their profile.^{Footnote 100} For example, a claim may succeed if the claimant faces a serious possibility of persecution based on a disability and/or vulnerability, despite the lack of credibility in respect of the allegations based on another ground.^{Footnote 101}

16.2.5 In some cases, an individual may not have or be able to express a subjective fear of persecution because of their disability and/or vulnerability. However, there may be evidence of an objective forward looking risk in their country of origin. Therefore, it may be necessary to put more weight on the objective rather than the subjective elements of the claim.^{Footnote 102}

16.3 State protection

16.3.1 The claimant's subjective reluctance to seek state protection does not rebut the presumption of state protection.^{Footnote 103} However, members must consider the impact of an individual's personal circumstances on their ability to access state protection. For example, individuals with a disability and/or vulnerability may not seek assistance or state protection due to past negative experiences with state authorities, internalized and community shame, fear of not being believed, or personal risks associated with seeking assistance.^{Footnote 104}

16.3.2 A contextual and intersectional approach^{Footnote 105} should be used to determine whether a claimant's reluctance to seek state protection was reasonable.^{Footnote 106} Where relevant, such an approach should consider factors such as:

the profile of the claimant, including their gender, race, age, education level, support network, experience of trauma, mental or physical health issues, and any other relevant factors;^{Footnote 107}
the profile of the agent of harm, including financial status and political, professional, or criminal connections;
the nature of the relationship between the claimant and the agent of harm;
whether the pursuit of state protection would have risked further endangerment;
any previous efforts to seek state protection, including the response from authorities;^{Footnote 108} and
the country conditions, including cultural and societal norms that stigmatize certain conditions, such as HIV positive status.^{Footnote 109}

16.3.3 Members should assess the adequacy of state protection at the operational level rather than the efforts or intention of the state.^{Footnote 110} While a country's laws may formally protect against certain types of persecution, such as discrimination due to mental or physical disability, social and cultural attitudes or stigma may obstruct such protection in practice.^{Footnote 111}

16.4 Internal flight alternative

16.4.1 When assessing the reasonableness of an internal flight alternative (IFA), members must look at the specific circumstances of the claimant, including any disabilities and/or vulnerabilities.^{Footnote 112}

16.4.2 A claimant's physical or mental health may affect the reasonableness of an IFA. The responsibility is on the claimant to establish that they would be unable to access adequate medical treatment in the proposed IFA which would make the IFA unreasonable.^{Footnote 113}

16.4.3 If a claimant has a medical condition requiring regular treatment and assistance, it may be unreasonable to expect the claimant to relocate to an area where such medical treatment or assistance is not available.^{Footnote 114}

16.4.4 When assessing the reasonableness of a proposed IFA, members should not limit the analysis to the availability and affordability of medical treatment in the proposed IFA. Members should consider the impact of return on the claimant's mental or physical health.^{Footnote 115}

16.4.5 Medical evidence^{Footnote 116} may be relevant to the question of whether an IFA is reasonable and must be considered. However, members may give reduced weight to portions of medical evidence where the following concerns arise:

the report provides an opinion on the availability of care in the proposed IFA, unless the expert is qualified to give such an opinion.^{Footnote 117}
the report does not address the extent to which or reasons why the physical or mental health condition would worsen if the claimant relocated to the proposed IFA.^{Footnote 118}
the report engages in advocacy by providing an opinion on the merits of the underlying claim, including the viability of an IFA.^{Footnote 119}

17. Proceedings before the Immigration Division

17.1 Detention reviews

17.1.1 Disabilities and/or vulnerabilities should be accounted for when assessing all the factors in s. 248 of the Immigration and Refugee Protection Regulations (IRPR),^{Footnote 120} including when determining an individual's ability and capacity to cooperate with removal arrangements^{Footnote 121} and/or identity investigations.

17.1.2 The existence of such disabilities and/or vulnerabilities may be a separate and relevant factor, in addition to the s. 248 factors, for considering whether to release or detain. However, the member must still consider all the factors in s. 248 of the IRPR when deciding whether to continue detention or order release.

17.1.3 Where disabilities and/or vulnerabilities are identified, members are under a heightened obligation to consider alternatives to detention (ATDs) and to impose attainable conditions that are connected to the circumstances of the individual.^{Footnote 122} Members should consider how certain disabilities and/or vulnerabilities, including those related to mental health, may affect the person's ability to comply with conditions of release.

17.1.4 Members should also consider the impact of conditions of detention on an individual with a disability and/or vulnerability, including the way in which such conditions may be particularly harsh in light of their personal circumstances or exacerbate their personal circumstances.^{Footnote 123} These considerations include the availability of medical treatment as well as access to psychiatric assessment and treatment.^{Footnote 124}

17.1.5 Early detention reviews are strongly encouraged to ensure that the file is progressing rapidly, and a person concerned with a disability and/or vulnerability is not unduly affected.

17.2 Admissibility hearings

17.2.1 Where the vulnerability of the person concerned is related to diminished mental capacity, such evidence may be relevant to the application of various inadmissibility provisions, including but not limited to whether the individual was a member of an organization for the purposes of ss. 34 or 37 of the IRPA, or whether they were complicit under s. 35 of the IRPA.

17.2.2 An individual's disability and/or vulnerability, such as, but not limited to a substance use disorder, are relevant to the assessment of the defences of duress or coercion.^{Footnote 125} This includes the individual's ability to make a rational assessment of their potential safe avenues of escape.^{Footnote 126}

17.2.3 Members should consider the social and cultural background of the person concerned when assessing the person's credibility in the context of a misrepresentation. For example, the individual may lack knowledge of their family's political involvement or immigration history, because they were not privy to such information due to the barriers they face.^{Footnote 127}

18. Proceedings before the Immigration Appeal Division^{Footnote 128}

18.1 Sponsorship appeals

18.1.1 When assessing the genuineness of a spousal or conjugal relationship, members should consider the personal attributes that make up an individual, and not treat an individual's disability and/or vulnerability as their defining feature.^{Footnote 129}

18.2 Humanitarian and compassionate considerations

18.2.1 In exercising their ability to grant discretionary relief on humanitarian and compassionate (H&C) grounds, members should consider whether a person's disability and/or vulnerability are relevant to that assessment. For example:

when an appellant has not met their residency obligation,^{Footnote 130} whether the appellant's particular disability and/or vulnerability impacted their departure from Canada, ability to return to Canada, or decision to remain outside Canada.^{Footnote 131}
in appeals involving findings of misrepresentation, whether the appellant's particular disability and/or vulnerability are relevant to their level of responsibility, including whether they knew about and/or participated in the misrepresentation.^{Footnote 132}
when assessing the potential hardship in another country, the individual's experience of discrimination, stigma and/or trauma,^{Footnote 133} and/or violence against individuals living with physical or cognitive disabilities, mental health challenges and/or a substance use disorder.^{Footnote 134} Access to and the availability of appropriate treatment, care and support are also relevant considerations.^{Footnote 135}
when assessing the impact of removal from Canada on the individual's mental health, whether their condition would likely worsen if removed from Canada. This is a relevant consideration that should be identified and weighed regardless of whether there is a treatment available in the country of removal.^{Footnote 136}
when assessing the appellant's establishment in Canada, whether their limited establishment is attributable to such factors as a physical or cognitive disability or mental health condition. Members should consider the severity of the appellant's condition, the extent of care that their condition requires, and the degree to which they are currently dependent on the community-based medical and social support they are receiving in Canada.^{Footnote 137}

18.3 Stays in removal order appeals

18.3.1 Members should impose stay conditions that are designed for a successful stay.^{Footnote 138} For example, members should consider whether conditions relating to abstinence of drugs and alcohol are realistic in the particular circumstances.^{Footnote 139}

18.3.2 In cases involving underlying mental health issues and/or substance use disorders, members are encouraged to consider participation in rehabilitation treatment. A condition that an appellant attend a treatment program should only be imposed if the appellant agrees^{Footnote 140} and the member is satisfied that it will assist in the rehabilitation process.

18.3.3 Depending on an appellant's personal circumstances, including the nature of any disabilities and/or vulnerabilities, they may require assistance with following the conditions of a stay. In such cases, it is open to members to rely on evidence that the appellant has the necessary supports in place to assist with compliance.^{Footnote 141}

19. Inquiries

For more information, please contact: IRB.Policy-Politiques.CISR@irb-cisr.gc.ca

Senior Director, Policy, Engagement and Parliamentary Affairs Directorate
Strategic Directions and Corporate Affairs Branch
Minto Place - Canada Building
344 Slater Street, 14th Floor
Ottawa, Ontario K1A 0K1

Coming into force

This Guideline comes into force on October 31, 2023.

Approval

Richard Wex
Chairperson
Date: July 19, 2023

Footnotes

Footnote 1

For the purposes of this Guideline, the term vulnerability should be interpreted broadly, as the concept of vulnerability remains difficult to define. The focus should be on whether an individual has any vulnerabilities that negatively impact their ability to fully participate at the IRB and to have a fair hearing. For sources discussing the difficulties in defining vulnerability, see Melissa Mary Anderson and Dagmar Soennecken, Locating the Concept of Vulnerability in Canada's Refugee Policies at Home and Abroad, 2022 11-2 Laws | An Open Access Journal from MDPI, 2022 CanLIIDocs 853; Purkey, Anna, Laws (2022), Vol. 11 No. 2, Vulnerability and the Quest for Protection: A Review of Canadian Migration Case Law, and; Kaga, M., Nakache, D., et al., Vulnerability in the Canadian Protection Regime: Research Report on the Policy Framework. 2021. VULNER Research Report 1.

Return to footnote 1 referrer

Footnote 2

See, for example, the language used in the Global Compact for Safe, Orderly and Regular Migration, adopted by Canada in 2018: Microsoft Word - 180711_Final Draft.docx (un.org) and Canada adopts historic agreement to address migration - Canada.ca

Return to footnote 2 referrer

Footnote 3

Members should take this Guideline into account when exercising discretion under the Refugee Protection Division Rules, SOR/2012-256 (RPD Rules), and the Refugee Appeal Division Rules, SOR/2012-257 (RAD Rules). This guidance applies in particular to RPD Rules 10(5), 53(4) and 54(4) and to RAD Rules 66(4)(f) and 67(5)(j).

Return to footnote 3 referrer

Footnote 4

Under the prior Guideline 8, the IRB was frequently providing accommodations without designating a person as vulnerable because individuals often did not meet the “severely impaired” threshold. This change now brings that practice and those accommodations in line with the Guideline.

Return to footnote 4 referrer

Footnote 5

Ranjbar, Noshene et al. Trauma-Informed Care and Cultural Humility in the Mental Health Care of People from Minoritized Communities. Focus: The Journal of Lifelong Learning in Psychiatry, Vol. 18, No. 1., published online January 24, 2020.

Return to footnote 5 referrer

Footnote 6

Person-first language is the most widely accepted language for referring to persons with disabilities. Far fewer use identity-first language (for example in the deaf community). Person-first language focuses on the individual while de-emphasizing the illness, disability, or condition. Identity-first language is rooted in the relationship between a personal-cultural identity and a disability and focuses on an individual's unique abilities rather than the disability. See HRSDC, A Way with Words and Images: Suggestions for the portrayal of people with disabilities, 2022: way_with_words.pdf (canada.ca); Mental Health Commission of Canada, Language Matters: language_matters_cheat_sheet_eng.pdf (mentalhealthcommission.ca); United Nations, Disability Inclusive Language Guidelines: Disability Inclusive Language Guidelines | UN GENEVA

Return to footnote 6 referrer

Footnote 7

See, for example, Snipstad, Øyvind Ibrahim Marøy, “Concerns regarding the use of the vulnerability concept in research on people with intellectual disability”, British Journal of Learning Disabilities Volume 50, Issue 1, 2022, pp. 107-114.

Return to footnote 7 referrer

Footnote 8

See Government of Canada, Employment and Social Development Canada, “A Way with Words and Images: Suggestions for the portrayal of people with disabilities”, supra note 6.

Return to footnote 8 referrer

Footnote 9

Government of Canada, Department of Justice Canada, “Serious Problems Experienced by Diverse People with Disabilities: Western Canada: A Qualitative Study p.39.

Return to footnote 9 referrer

Footnote 10

United Nations Geneva, “Disability-Inclusive Language Guidelines” (https://www.ungeneva.org/sites/default/files/2021-01/Disability-Inclusive-Language-Guidelines.pdf)

Return to footnote 10 referrer

Footnote 11

Ontario Human Rights Commission, Policy on preventing discrimination based on mental health disabilities and addictions, 2014, Chapter 5 (Policy on preventing discrimination based on Mental health disabilities and addictions (ohrc.on.ca)).

Return to footnote 11 referrer

Footnote 12

Ibid.

Return to footnote 12 referrer

Footnote 13

R. v. Brazier, 2022 ONSC 3807 at para. 58, citing the Supreme Court of Canada in R. v. O'Connor, [1995] 4 S.C.R. 411 at para. 143.

Return to footnote 13 referrer

Footnote 14

The preconception that trauma survivors will necessarily be extremely emotional when discussing their experiences is particularly strong in cases of sexual violence, where survivors are often expected to express high levels of distress and shame. See UNHCHR, Manual on Human Rights Monitoring, 2011, Chapter 12 “Trauma and Self-care” https://www.ohchr.org/sites/default/files/Documents/Publications/Chapter12-MHRM.pdf.

Return to footnote 14 referrer

Footnote 15

Public Health Agency of Canada. Trauma and violence-informed approaches to policy and practice updated February 2, 2020. Online: https://www.canada.ca/en/public-health/services/publications/health-risks-safety/trauma-violence-informed-approaches-policy-practice.html. This Guideline does not incorporate all principles in the PHAC document as it is written in the public health context and not all the principles are applicable to the adjudicative context at the IRB.

Return to footnote 15 referrer

Footnote 16

Center for Substance Abuse Treatment (US). Trauma-Informed Care in Behavioral Health Services, Rockville (MD): Substance Abuse and Mental Health Services Administration (US); 2014. (Treatment Improvement Protocol (TIP) Series, No. 57.) https://www.ncbi.nlm.nih.gov/books/NBK207201/.

Return to footnote 16 referrer

Footnote 17

Randall, Melanie and Haskell, Lori, “Trauma-Informed Approaches to Law: Why Restorative Justice Must Understand Trauma and Psychological Coping”, Dalhousie Law Journal, Fall (2013), p. 507 Trauma-Informed Approaches to Law: Why Restorative Justice Must Understand Trauma and Psychological Coping (dal.ca) referring to the work of Kammerer, Nina & Mazelis, Ruta “After the Crisis Initiative: Healing from Trauma after Disasters” (Paper presented at the “After the Crisis: Healing from Trauma after Disasters”, Expert Panel Meeting, Bethesda, MD, April 24-25, 2006).

Return to footnote 17 referrer

Footnote 18

Evidence of trauma can include descriptions of experiences, behaviour, or medical reports. See Niyongira v. Canada (Citizenship and Immigration), 2021 FC 911 at paras. 16-17, where the Court acknowledged the importance of considering the impact of torture on a claimant's ability to participate in the proceeding, including on their capacity to give evidence. See also Hillary v. Canada (Citizenship and Immigration), 2010 FC 638 at para. 75. For an example of a trauma-informed approach to decision making at the Refugee Appeal Division, see X (Re), 2021 CanLII 68622 (RAD).

Return to footnote 18 referrer

Footnote 19

Jones v. Canada (Minister of Citizenship and Immigration), 2006 FC 405 at para. 15.

Return to footnote 19 referrer

Footnote 20

The trauma-informed principles set out by the Public Health Agency of Canada, supra note 15, include principles that foster choice and collaboration by giving someone dealing with trauma the choice to accept or reject medical treatment. However, offering the choice of whether or how to participate within adjudicative processes will not be possible where doing so infringes on adjudicative independence or the rights of other individuals in the proceedings. See also Trauma-Informed Practice Guide available on the website of the Public Health Agency of Canada, May 2013. Online: https://cewh.ca/wp-content/uploads/2012/05/2013_TIP-Guide.pdf.

Return to footnote 20 referrer

Footnote 21

See Haskell and Randall, “The Impact of Trauma on Adult Sexual Assault Victims”, Report submitted to the Department of Justice, 2019, https://www.justice.gc.ca/eng/rp-pr/jr/trauma/index.html, p. 23: “This knowledge [of the science of memory and trauma] is of critical importance to sexual assault investigations: if a victim is interviewed in a stressful way – for example, if they are not treated with compassion, if their narrative is interrupted, if they receive only expressions of doubt about what they are reporting – they will not be able to recall potentially crucial information that is stored in the brain”.

Return to footnote 21 referrer

Footnote 22

See also Code of Conduct for Members of the Immigration and Refugee Board of Canada (modified April 1, 2022): “9. Members shall conduct hearings in a courteous and respectful manner.”

Return to footnote 22 referrer

Footnote 23

For example, questions regarding the cause of gender-based violence are unnecessary and risk engaging in victim-blaming. In Chavez v. Canada (Citizenship and Immigration), 2015 FC 442 at para. 7, the Court held that the RPD erred by making a credibility finding based on the source of the abuse, which came “too close to blaming the victim instead of the perpetrator for the assaults on the Applicant's person”.

Return to footnote 23 referrer

Footnote 24

Olah v. Canada (Citizenship and Immigration), 2019 FC 401 at para. 38; X (Re), 2019 CanLII 132811 (RAD) at para. 8.

Return to footnote 24 referrer

Footnote 25

X (Re), 2018 CanLII 147831 (RAD) at para. 17; X (Re), 2019 CanLII 134984 (RAD) at paras. 20-21.

Return to footnote 25 referrer

Footnote 26

The concept of intersectionality was first introduced by Kimberlé Crenshaw, see “Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics”. University of Chicago Legal Forum, Volume 1989, Issue 1, Article 8. For how the approach can be applied in practice to understand the factors impacting a person's lived experience see: Understanding the Intersectional Forms of Discrimination Impacting Persons with Disabilities. Canadian Centre on Disability Studies (CCDS). March 2018, ccds-int-dis--151110-final-report-en-full.pdf (disabilitystudies.ca) In the legislative and judicial contexts, see section 3.1 of the Canadian Human Rights Act and Turner v. Canada (Attorney General), 2012 FCA 159 at para. 49. See also Mabuya v. Canada (Citizenship and Immigration), 2013 FC 372 at para. 10.

Return to footnote 26 referrer

Footnote 27

In Rodriguez Ramos v. Canada (Citizenship and Immigration), 2022 FC 41 at paras. 9-21, the Federal Court found that a PRRA officer failed to conduct a cumulative and intersectional risk assessment regarding an applicant who alleged a risk of persecution or harm in El Salvador due to his profile as a returnee with severe mental illness being deported due to serious criminality. In Gorzsas v. Canada (Citizenship and Immigration), 2009 FC 458 at para. 36 the Federal Court emphasized the importance of an intersectional analysis when assessing the claim involving a gay male HIV-positive Roma.

Return to footnote 27 referrer

Footnote 28

Ajele, Grace and McGill, Jenna, Women's Legal Education and Action Fund (LEAF), “Intersectionality in Law and Legal Contexts” https://www.leaf.ca/publication/intersectionality-in-law-and-legal-contexts/. See Executive Summary and section 5.3 “Immigration and Refugee Law”.

Return to footnote 28 referrer

Footnote 29

Paragraph 166(a) of the IRPA. However, paragraph 166(c.1) of the IRPA provides that Immigration Division proceedings involving refugee protection claimants are conducted in private.

Return to footnote 29 referrer

Footnote 30

Paragraphs 166(b), (c) and (c.1) of the IRPA.

Return to footnote 30 referrer

Footnote 31

For example, paragraph 166(b) of the IRPA requires “having considered all available alternate measures” before conducting a proceeding in the absence of the public. For a similar common law framework outside of the IRPA, see Dagenais v. Canadian Broadcasting Corp., [1994] 3 SCR 835; R. v. Mentuck, 2001 SCC 76; Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41.

Return to footnote 31 referrer

Footnote 32

Code of Conduct for Members of the Immigration and Refugee Board of Canada (modified April 1, 2022): “38. Members have a responsibility to consider the privacy interests of individuals in the conduct of proceedings and the writing of decisions, ensuring that decisions contain only the personal information that is necessary to explain the reasoning of the decision."

Return to footnote 32 referrer

Footnote 33

For the purposes of this Guideline, the term proceeding should be interpreted broadly. It includes all stages of a matter before the IRB from the start of the process until the final decision, and not just the hearing. See IRPA, s. 166, and Cui v. Canada (Citizenship and Immigration), 2007 FC 945 at para 6.

Return to footnote 33 referrer

Footnote 34

An accommodation must be reasonable in the circumstances and need not necessarily be the specific accommodation requested. When determining the appropriate accommodation, the impact of the accommodation on the Board's operations should be considered. Under the concept of reasonable accommodation, service providers have a duty to do whatever is reasonably possible to accommodate persons with disabilities. The discriminatory barrier must be removed unless there is a bona fide justification for its retention, which is proven by establishing that the accommodation imposes undue hardship on the service provider. See Haynes v Canada (Attorney General), 2023 FCA 158 at para. 20 and Council of Canadians with Disabilities v. VIA Rail Canada Inc., 2007 SCC 15 at para. 121. See also Canadian Human Rights Act, R.S.C., 1985, c. H-6 (CHRA), at s. 15(2), which notes that the assessment of undue hardship includes consideration of health, safety, and costs. The concept of undue hardship applies to all enumerated grounds under the CHRA, not just disability.

Return to footnote 34 referrer

Footnote 35

The duty on the IRB not to discriminate and to procedurally accommodate individuals with disabilities comes from a number of sources, including s. 15 of the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, chapter 11 (Charter), the CHRA, and the United Nations Convention on the Rights of Persons with Disabilities, A/RES/61/106, adopted December 13, 2006. See also the Accessible Canada Act, S.C. 2019 c.10 (ACA) at ss. 6(c) and (e). The purpose of the ACA is to make Canada barrier-free by January 1, 2040. For guidance from the Federal Court of Appeal on the application of the duty to accommodate in the adjudicative context see Haynes v Canada (Attorney General), 2023 FCA 158 at paras. 18–19 and 23.

Return to footnote 35 referrer

Footnote 36

The CHRA sets out prohibited grounds of discrimination. Prohibited grounds include personal characteristics such as race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital or family status, as well as genetic characteristics and disability. The complete list of prohibited grounds listed in the CHRA can be found in s.3.The CHRA sets out prohibited grounds of discrimination. Prohibited grounds include personal characteristics such as race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital or family status, as well as genetic characteristics and disability. The complete list of prohibited grounds listed in the CHRA can be found in s.3.

Return to footnote 36 referrer

Footnote 37

See section 6 of this Guideline: Intersectionality.

Return to footnote 37 referrer

Footnote 38

“Negatively impact” is not as high a standard as undue hardship, noted in endnote 34, which applies to accommodations that are legally required under the CHRA.

Return to footnote 38 referrer

Footnote 39

For example, requests for additional breaks, where the denial of the additional breaks would not amount to a breach of natural justice; the member is not legally required to provide that accommodation.

Return to footnote 39 referrer

Footnote 40

Purkey, Anna, Laws (2022), Vol. 11 No. 2, Vulnerability and the Quest for Protection: A Review of Canadian Migration Case Law.

Return to footnote 40 referrer

Footnote 41

See also section 13.1 of this Guideline regarding the possible need for supporting documentation.

Return to footnote 41 referrer

Footnote 42

An example where this may be needed is to align with an individual's medication schedule.

Return to footnote 42 referrer

Footnote 43

Such an accommodation could include, for example dimmed lighting or adjustments to the seating arrangements.

Return to footnote 43 referrer

Footnote 44

This would apply to public hearings, and consideration should be given to the open court principle. See section 7 of this Guideline: Protection of confidential information.

Return to footnote 44 referrer

Footnote 45

The accommodation to deliver decisions and reasons as soon as possible should be left to the assigned member.

Return to footnote 45 referrer

Footnote 46

For example, by way of special sitting, or to counsel only.

Return to footnote 46 referrer

Footnote 47

See IRPA, s.167(2), as to when a Designated Representative (DR) is required. See also the IRB's Designated Representative Guide, modified December 6, 2022. Online: https://irb.gc.ca/en/designated-representant/Pages/designated-representative-guide.aspx.

Return to footnote 47 referrer

Footnote 48

In Hillary v. Canada (Citizenship and Immigration), 2011 FCA 51 at paras. 42-43, the Federal Court of Appeal explained that the IAD does not bear primary responsibility for identifying individuals who are especially vulnerable. Counsel is best placed to bring this to the attention of the IRB. See also Gilles v. Canada (Citizenship and Immigration), 2011 FC 7 at para. 17, where the panel did not notice anything abnormal about the applicant's mental state, and the Federal Court held that the burden was on counsel to bring the issue of the applicant's mental health to the Board's attention; Ehigiator v. Canada (Citizenship and Immigration), 2023 FC 308 at para. 62; Ahmed v. Canada (Citizenship and Immigration), 2023 FC 830 at para. 36; Singh v. Canada (Citizenship and Immigration), 2023 FC 872 at paras. 13-17. In Haynes v Canada (Attorney General), 2023 FCA 158 at para. 30 the Court noted the obligation on the person to assist in securing appropriate accommodation.

Return to footnote 48 referrer

Footnote 49

In cases where there is more than one party, all parties should be notified of the IRB's request.

Return to footnote 49 referrer

Footnote 50

Ibid.

Return to footnote 50 referrer

Footnote 51

Supra note 45: The decision to grant an accommodation to deliver decisions and reasons as soon as possible should be left to the assigned member.

Return to footnote 51 referrer

Footnote 52

In cases where there is more than one party, all parties should be given notice and an opportunity to respond.

Return to footnote 52 referrer

Footnote 53

RPD Rule 50, RAD Rule 37, Rule 38 of the Immigration Division Rules, SOR /2002-229 (ID Rules) and Rule 85 Immigration Appeal Division Rules, 2022, SOR/2022-277 (IAD Rules).

Return to footnote 53 referrer

Footnote 54

See RPD Rule 70, RAD Rule 53, ID Rule 50 and IAD Rule 4.

Return to footnote 54 referrer

Footnote 55

This would include any application form that the Board may make available for the purpose of supporting a request for procedural accommodation.

Return to footnote 55 referrer

Footnote 56

This is in accordance with current IRB practice to treat any written request as an application pursuant to the Rules. Generally, affidavits or statutory declarations will not be needed for applications for accommodations.

Return to footnote 56 referrer

Footnote 57

For example, the individual could request that the IRB refer to an agent of persecution in a particular way so as to reduce the risk of re-traumatization; a general request to avoid re-traumatization does not provide the presiding member with sufficient information to accommodate the specific need.

Return to footnote 57 referrer

Footnote 58

The Minister is a party to all proceedings before the ID and IAD and is a party before the RPD and RAD when they intervene, make an application for cessation or vacation, or bring an appeal. The rules of natural justice apply equally to all parties.

Return to footnote 58 referrer

Footnote 59

Examples of documentation that may be received are noted in section 14.3 of this Guideline regarding documentation relevant to the assessment of the merits of a case.

Return to footnote 59 referrer

Footnote 60

See also section 14.5 of this Guideline: Expert Evidence.

Return to footnote 60 referrer

Footnote 61

Subject to an assessment of the barriers in obtaining documentation noted in section 8.5.1. See Ehigiator v. Canada (Citizenship and Immigration), 2023 FC 308 at para. 112; Gill v. Canada (Citizenship and Immigration), 2023 FC 687 at para. 37.

Return to footnote 61 referrer

Footnote 62

This list is not to be treated as exhaustive, and supporting documentation may also include any form that the Board may make available.

Return to footnote 62 referrer

Footnote 63

For example, documents detailing an individual's past medical history such as copies of medical charts, prescriptions etc.

Return to footnote 63 referrer

Footnote 64

For example, from mental health professionals and other health care providers, counsellors, social workers, caregivers, community agency workers, friends, and family members.

Return to footnote 64 referrer

Footnote 65

Expert evidence is opinion evidence provided by an expert. An expert is a person who possesses special skills and knowledge acquired through study or experience that entitles them to speak authoritatively concerning their area of expertise. For more details on expert evidence, see IRB Legal Services reference paper: Immigration and Refugee Board. Weighing Evidence – Chapter 8: Expert/opinion evidence, Legal Services, December 31, 2020: https://irb.gc.ca/en/legal-policy/legal-concepts/Pages/EvidPreu08.aspx. An expert's evidence is intended to provide decision-makers with information that is outside of their expertise or knowledge. See, for example, R. v. Béland, [1987] 2 SCR 398 at para. 16; Trembliuk v. Canada (Minister of Citizenship and Immigration), 2003 FC 1264 at para. 12.

Return to footnote 65 referrer

Footnote 66

The IRB is not bound by any legal or technical rules of evidence, and expert witnesses may be permitted to give opinion evidence in IRB proceedings without undergoing the type of formal qualification process normally seen in court proceedings. See: IRPA, s. 170(g), 171(a.2), 173(c), and 175(1)(b). Additionally, the Federal Court has recognized that IRB decision makers are not medical professionals and “bring no specialized expertise to the question of the mental condition” of those appearing before them: Lozano Pulido v. Canada (Citizenship and Immigration), 2007 FC 209 at paras. 27-28. As such, individuals appearing before the IRB are encouraged to provide all relevant medical evidence to the Board to aid decision makers in understanding how a particular vulnerability may impact their ability to testify or otherwise present their case.

Return to footnote 66 referrer

Footnote 67

See, for example, Enam v. Canada (Immigration, Refugees and Citizenship), 2017 FC 1117 at paras. 28–29, where the Federal Court found that although the report was written by a registered clinical social worker who was not qualified to make a diagnosis under Ontario law, she was permitted to treat certain serious disorders and therefore had expertise that the RAD should have considered. See also Khan v. Canada (Immigration, Refugees, and Citizenship), 2018 FC 309 at para. 14.

Return to footnote 67 referrer

Footnote 68

RPD Rule 44(1)(e); RAD Rule 61(1)(e); ID Rule 32(1)(d); IAD Rule 55(1)(f).

Return to footnote 68 referrer

Footnote 69

See Joseph v. Canada (Citizenship and Immigration), 2015 FC 393 at paras. 45-48, and Belahmar v. Canada (Citizenship and Immigration), 2015 FC 812 at paras. 8-9. See also Enam v. Canada (Immigration, Refugees and Citizenship), 2017 FC 1117 at para. 29 and X (Re), 2019 CanLII 127902 (RAD) at para. 27.

Return to footnote 69 referrer

Footnote 70

Ye v. Canada (Citizenship and Immigration), 2014 FC 1184 at para. 20; Park v. Canada (Citizenship and Immigration), 2010 FC 1269 at paras. 46-47; Ameir v. Canada (Citizenship and Immigration), 2005 FC 876 at para. 27.

Return to footnote 70 referrer

Footnote 71

Egbesola v. Canada (Citizenship and Immigration), 2016 FC 204 at para.12 and Irivbogbe v. Canada (Citizenship and Immigration), 2016 FC 710 at para. 36. See also Boyce v. Canada (Citizenship and Immigration), 2016 FC 922 at paras. 52-62, where the Court held that the jurisprudence provides that a psychological report based on a discredited story cannot rehabilitate that story, where the report was not based on any independent or clinical testing.

Return to footnote 71 referrer

Footnote 72

A.B. v. Canada (Citizenship and Immigration), 2020 FC 727 at para. 53.

Return to footnote 72 referrer

Footnote 73

Quinteros v. Canada (Public Safety and Emergency Preparedness), 2017 FC 990 at para. 29; Diaz Serrato v. Canada (Citizenship and Immigration), 2009 FC 176 at paras. 17-25; Asif v. Canada (Citizenship and Immigration), 2016 FC 1323 at para. 33; and Enam v. Canada (Immigration, Refugees and Citizenship), 2017 FC 1117 at paras. 28–29.

Return to footnote 73 referrer

Footnote 74

The Federal Court has held that ignoring or not properly addressing medical evidence that shows a causal relationship between a person's medical condition and their ability to testify or their credibility constitutes a reviewable error. See, for example, Lahpai v. Canada (Minister of Citizenship and Immigration), 2001 FCT 88, at para. 21 and Hassan v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 8795 (FC) at paras. 20-22.

Return to footnote 74 referrer

Footnote 75

See, for example, Akintola v. Canada (Citizenship and Immigration), 2020 FC 971 at para. 34, where the Court found that the memory loss mentioned in the psychological report did not explain the credibility issues, which were based on the plausibility of the events.

Return to footnote 75 referrer

Footnote 76

In the context of a claim for refugee protection, sworn testimony and statements are presumed to be true unless there is a valid reason—for example, other negative credibility findings—to doubt their truthfulness, see Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.).The case law on assessment of credibility is set out in more detail in an IRB Legal Services reference paper: Immigration and Refugee Board. Assessment of Credibility in Claims for Refugee Protection, Legal Services, https://irb.gc.ca/en/legal-policy/legal-concepts/Pages/Credib.aspx.

Return to footnote 76 referrer

Footnote 77

Jones v. Canada (Minister of Citizenship and Immigration), 2006 FC 405 at para. 16: “Generally, memory gaps may be a reason to draw an adverse credibility inference, but when the claimant is a victim of severe domestic abuse, the Board must be alive to the possibility that these gaps are psychological in nature.” See also Zamaseka v. Canada (Citizenship and Immigration), 2014 FC 418 at para. 25 and Niyongira v. Canada (Citizenship and Immigration), 2021 FC 911 at paras. 16-17.

Return to footnote 77 referrer

Footnote 78

Ozturk v. Canada (Minister of Citizenship and Immigration), 2003 FC 1219 at para. 13. See also Nwakanme v. Canada (Citizenship and Immigration), 2020 FC 738 at paras. 35-38; Warsame v. Canada (Immigration, Refugees and Immigration) 2019 FC 118, at para. 32; and Yasun v. Canada (Citizenship and Immigration), 2019 FC 342 at paras. 17-18.

Return to footnote 78 referrer

Footnote 79

See, for example, the IAD's decision in Laporte v Canada (Citizenship and Immigration), 2019 CanLII 129181 (IAD), where as a result of previous strokes, the appellant had “serious physical and cognitive difficulties and has difficulty with his short- and long-term memory”, all of which were taken into consideration in weighing his testimony.

Return to footnote 79 referrer

Footnote 80

See Chairperson's Guideline 3: Proceedings Involving Minors at the Immigration and Refugee Board; However, age on its own may not be an indication of vulnerability: see Shmagin v. Canada (Citizenship and Immigration), 2010 FC 1030 at paras. 14 -16, where the Court stated with respect to an 80-year-old refugee claimant that “age is not in itself a sufficient ground for concluding that the applicant was vulnerable”. See also, Duversin v. Canada (Citizenship and Immigration), 2018 FC 466 at para. 22, where the Court expressed that a person who is 60 years old is “not ‘elderly and vulnerable' unless they are affected by some kind of limitation or illness.”

Return to footnote 80 referrer

Footnote 81

For example, in Zararsiz v.Canada (Citizenship and Immigration), 2020 FC 692 at paras. 82-89, the Court found that the RAD reasonably concluded that the appellant's mental health condition, did not explain the deficiencies in his evidence. The issue was not his inability to recall details, but rather significant inconsistencies between his statements at the port of entry and various iterations of his Basis of Claim Form narrative. See also the IAD's decision in Johal v. Canada (Citizenship and Immigration), 2021 CanLII 132922 (IAD) at para. 21 where, as a result of the appellant's medical condition, the panel accorded a greater degree of latitude when considering discrepancies and knowledge gaps in the evidence but nevertheless found that the medical condition did not explain all of the discrepancies.

Return to footnote 81 referrer

Footnote 82

See, for example, Uwejeyah v. Canada (Citizenship and Immigration), 2020 FC 849 and Eije v. Canada (Citizenship and Immigration), 2021 FC 500.

Return to footnote 82 referrer

Footnote 83

See Daramie v. Canada (Citizenship and Immigration), 2022 FC 1570 at paras. 23-25, Okpanachi v. Canada (Citizenship and Immigration), 2022 FC 212 at paras. 23, 26-27, citing Harry v. Canada (Citizenship and Immigration), 2019 FC 85 at para. 34.

Return to footnote 83 referrer

Footnote 84

See, for example, A.B. v. Canada (Citizenship and Immigration), 2020 FC 727 at paras. 43-53; Joseph v. Canada (Citizenship and Immigration), 2015 FC 393 at paras. 33-41; Lozano Pulido v. Canada (Citizenship and Immigration), 2007 FC 209 at paras. 31-35; and Nwakanme v. Canada (Citizenship and Immigration), 2020 FC 738 at paras. 35-38.

Return to footnote 84 referrer

Footnote 85

See, for example, Olesniewicz v. Canada (Citizenship and Immigration), 2008 CanLII 64623 (IAD) at para. 12 where the IAD found that while the appellant's sincerity was never in doubt, “her mental condition was such that she was unable to provide coherent testimony relevant to the issues before the panel… The complete dearth of documentary evidence on the appellant's side also did not allow the panel to assess whether the appellant's testimony could be relied upon in any respect.”

Return to footnote 85 referrer

Footnote 86

See “Chapter 12 – Trauma and Self-care, Manual on Human Rights Monitoring”, OHCHR, 2011, https://www.ohchr.org/sites/default/files/Documents/Publications/Chapter12-MHRM.pdf, at p. 4 and Haskell and Randall, “The Impact of Trauma on Adult Sexual Assault Victims”, Report submitted to the Department of Justice, 2019, https://www.justice.gc.ca/eng/rp-pr/jr/trauma/index.html, at p. 22. See also Wardi v. Canada (Citizenship and Immigration), 2012 FC 1509 at para. 15-19 and Niyongira v. Canada (Citizenship and Immigration), 2021 FC 911 at 16-17. See also ss. 7.5 and 7.6 of Chairperson's Guideline 4: Gender Considerations in Proceedings Before the Immigration and Refugee Board.

Return to footnote 86 referrer

Footnote 87

Valtchev v. Canada (Minister of Citizenship and Immigration), 2001 FCT 776 at para. 7.

Return to footnote 87 referrer

Footnote 88

Palmo v. Canada (Citizenship and Immigration), 2016 FC 809 at paras. 22-23.

Return to footnote 88 referrer

Footnote 89

See section 4 of this Guideline: Myths, stereotypes and incorrect assumptions.

Return to footnote 89 referrer

Footnote 90

Matharoo v. Canada (Citizenship and Immigration), 2020 FC 664, paras. 41-43 and Min v. Canada (Minister of Citizenship and Immigration), 2004 FC 1676 at para. 6. See also ss. 7.9 and 7.10 of Chairperson's Guideline 4: Gender Considerations in Proceedings Before the Immigration and Refugee Board.

Return to footnote 90 referrer

Footnote 91

Valtchev v. Canada (Minister of Citizenship and Immigration), 2001 FCT 776 at paras. 24-25 and Rahal v. Canada (Citizenship and Immigration), 2012 FC 319 at para. 45.

Return to footnote 91 referrer

Footnote 92

Abdinur v. Canada (Citizenship and Immigration), 2020 FC 880 at paras. 47–49.

Return to footnote 92 referrer

Footnote 93

See also section 5 of this Guideline: Trauma-informed adjudication. The preconception that trauma survivors will necessarily be extremely emotional when discussing their experiences is particularly strong in cases of sexual violence, where survivors are often expected to express high levels of distress and shame. See “Chapter 12 – Trauma and Self-care, Manual on Human Rights Monitoring”, supra note 86. See also Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection under the 1951 Convention and the 1967 Protocol Relating to Status of Refugees, UNHCR, Geneva, reissued February 2019 https://www.unhcr.org/publications/legal/5ddfcdc47/handbookprocedures- criteria-determining-refugee-status-under-1951-convention.html.

Return to footnote 93 referrer

Footnote 94

The case law on refugee status determination is set out in more detail in an IRB Legal Services reference paper: Interpretation of Convention Refugee and Person in Need of Protection in the Case Law - Immigration and Refugee Board of Canada (irb-cisr.gc.ca) (December 31, 2020).

Return to footnote 94 referrer

Footnote 95

Liaqat v. Canada (Minister of Citizenship and Immigration), 2005 FC 893 at para. 29; Canada (Citizenship and Immigration) v. Oh, 2009 FC 506 at para. 10; Rodriguez Diaz v. Canada (Minister of Citizenship and Immigration), 2008 FC 1243 at paras. 32-34.

Return to footnote 95 referrer

Footnote 96

Persecution based on vulnerability may be cumulative, based on a combination of grounds or mixed motives, as well as be an individual ground. See, for example, Bayrak v. Canada (Citizenship and Immigration), 2013 FC 1056 at paras. 17-18 where the Court found that the dangers and the risks for the claimants were even more serious given their age and their vulnerability as a result of the inherent weaknesses associated with being elderly. See also X (Re), 2015 CanLII 111305 (RAD) at para. 18 where the RAD found the claimant to be a Convention Refugee on the basis of her clan affiliation, her age, her health, her lack of economic means, her lack of familial support in Somalia, and a history of problems in Somalia, and X (Re), 2020 CanLII 126924 (RAD), where although the Nigerian appellant had based his claim on his fear of persecution at the hands of an organization in the United States, the RAD allowed the appeal and accepted the claim based on evidence relating to the appellant's mental health condition which established a nexus to the Convention on the basis of his particular social group.

Return to footnote 96 referrer

Footnote 97

See section 6 of this Guideline: Intersectionality; Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection under the 1951 Convention and the 1967 Protocol Relating to Status of Refugees, UNHCR, Geneva, Reissued February 2019 at para. 55; Gorzsas v. Canada (Citizenship and Immigration), 2009 FC 458at paras. 36-40; Krishan v. Canada (Citizenship and Immigration), 2018 FC 1203 at paras.18 and 28-29; X (Re), 2020 CanLII 24189 (RAD) at paras. 8-14.

Return to footnote 97 referrer

Footnote 98

IRPA, s. 97(1)(b)(iv); See also Luse v. Canada (Citizenship and Immigration), 2017 FC 464, at para. 6, where the Court held that s. 97(1)(b)(iv) of the IRPA “excludes protection only when the inability to provide adequate medical care is the direct cause” of harm feared, and found that the officer erred in failing to consider whether the lack of adequate care or the prohibitive cost of medications used to manage the symptoms of schizophrenia could expose the applicant to a risk to his life or to a risk of cruel and unusual treatment or punishment if he were forced to return to his country of nationality. The Court additionally found that the applicant would have had a nexus to s. 96 under membership in a social group of "persons suffering from a mental disorder" and, as such, the officer should have also analyzed the Pre-Removal Risk Assessment (PRRA) application under s. 96.

Return to footnote 98 referrer

Footnote 99

Salako v. Canada (Citizenship and Immigration), 2020 FC 630 at paras. 41-57. For examples in the mental health context see: Averin v. Canada (Citizenship and Immigration), 2012 FC 1457 at paras. 9-11 and Richmond v. Canada (Citizenship and Immigration), 2013 FC 228 at paras. 4 and 8.

Return to footnote 99 referrer

Footnote 100

A.B. v. Canada (Citizenship and Immigration), 2018 FC 373 at paras. 8-9; Selvarasu v. Canada (Citizenship and Immigration), 2015 FC 849 at para. 42.

Return to footnote 100 referrer

Footnote 101

See Mmono v. Canada (Citizenship and Immigration), 2013 FC 219 at para. 15 where the Court found that despite having rejected the Applicant's claim based on gender-based violence due to credibility concerns the RPD should have considered how she would be affected by her HIV positive status in Botswana. See also section 15 of this Guideline: Credibility.

Return to footnote 101 referrer

Footnote 102

See, for example: Yusuf v. Canada (Minister of Employment and Immigration) (C.A.), 1991 CanLII 13547 (FCA), [1992] 1 FC 629, at 630, where in a case involving a minor, the Court found that a refugee claim cannot be denied based on a lack of subjective fear, “whether out of courage or because of mental incapacity”. See also Canada (Minister of Citizenship and Immigration) v. Patel, 2008 FC 747 at para. 37.

Return to footnote 102 referrer

Footnote 103

In Canada (Attorney-General) v. Ward, [1993] 2 SCR 689, the Court found that the state's inability to protect is a crucial element in determining whether the claimant's fear is well-founded, and in assessing the objective reasonableness of a claimant's unwillingness to seek the protection of their country of nationality. See also Canada (Minister of Citizenship and Immigration) v. Olah, 2002 FCT 595 at para. 6, where the Court noted that the relevant evidence to determine the issue of state protection was not the claimant's subjective reluctance but the documentary evidence and her personal circumstances.

Return to footnote 103 referrer

Footnote 104

See, for example, Kandha v. Canada (Citizenship and Immigration), 2016 FC 430, para. 21 where the Court found that in light of the youngest applicant being 16 years old at the time of the events, the RAD should have considered the persecutor's position of authority in the household and the country at large. The Court agreed with the principle stated in Zhu v. Canada (Citizenship and Immigration), 2001 FCT 884, that the “claimant's reluctance to seek state protection must be assessed in light of his or her status as a minor, and the fact that children may be more reluctant to seek protection”. See also X (Re), 2013 CanLII 94673 (RPD) at para. 23 where in assessing state protection, the RPD found that based on the NDP, the sexual minorities in Nigeria were reluctant or unable to report violence perpetrated against them to the police because they are mocked, abused, fear being detained or charged in accordance with the laws, and because the perpetrators are not punished. See also Chairperson's Guideline 3: Proceedings Involving Minors at the Immigration and Refugee Board.

Return to footnote 104 referrer

Footnote 105

See section 6 of this Guideline: Intersectionality.

Return to footnote 105 referrer

Footnote 106

Gonzalez Torres v. Canada (Citizenship and Immigration), 2010 FC 234 at paras.37 and 40. See also Lakatos v. Canada (Citizenship and Immigration), 2018 FC 367 at paras. 22-23 where the Court found that the analysis of state protection analysis is highly contextual and depends on the claimant's personal circumstances. In some cases, for instance, a claimant may have an objectively reasonably fear of testing state protection given factors such as their age, background, and experiences, including prior responses to incidents.

Return to footnote 106 referrer

Footnote 107

For example, minors, persons facing trauma or persons with mental health conditions may face greater difficulty seeking state protection. In Hernandez v. Canada (Citizenship and Immigration), 2010 FC 953 at para. 8, the Court acknowledged that the RPD reasonably considered the applicant's mental health in assessing his access to state protection. In Rivas Montanez v. Canada (Citizenship and Immigration), 2010 FC 460 at para. 4, the Court found that it was not objectively reasonable for the applicant who was experiencing spousal abuse to seek state protection, due to her young age at marriage and situation of dependency. In Melo v. Canada (Citizenship and Immigration), 2008 FC 150 at para. 12, the Court found that evidence with respect to an applicant's mental state can be “very relevant” in the assessment of whether it was reasonable to have sought state protection. It also found that the RPD erred by failing to address the Applicants' explanations for not seeking out state protection, including evidence of their psychological condition.

Return to footnote 107 referrer

Footnote 108

See Kauhonina v. Canada (Immigration, Refugees and Citizenship), 2018 FC 1300 at paras. 17-18; Gonzalez Torres v. Canada (Citizenship and Immigration), 2010 FC 234 at para. 41.

Return to footnote 108 referrer

Footnote 109

See Salako v. Canada (Citizenship and Immigration), 2020 FC 630 at paras. 45-57, Csoke v. Canada (Citizenship and Immigration), 2015 FC 1169 at para. 18, X (Re), 2018 CanLII 141797 (RAD) at para. 11, and X (Re), 2019 CanLII 128547 (RAD) at paras. 50-53.

Return to footnote 109 referrer

Footnote 110

A.B. v. Canada (Citizenship and Immigration), 2019 FC 1339 at paras. 20-24; Burai v. Canada (Citizenship and Immigration), 2020 FC 966 at para. 25.

Return to footnote 110 referrer

Footnote 111

See, for example: Level v. Canada (Citizenship and Immigration), 2010 FC 251 at para. 64.

Return to footnote 111 referrer

Footnote 112

Okafor v. Canada (Citizenship and Immigration), 2011 FC 1002 at para. 13, citing Cartagena v. Canada (Citizenship and Immigration), 2008 FC 289.

Return to footnote 112 referrer

Footnote 113

Thirunavukkarasu v. Canada (Minister of Employment and Immigration), 1993 CanLII 3011 (FCA), [1994] 1 FC 589.

Return to footnote 113 referrer

Footnote 114

Cardenas v. Canada (Citizenship and Immigration), 2017 FC 1194 at para. 21.

Return to footnote 114 referrer

Footnote 115

Enweliku v. Canada (Citizenship and Immigration), 2022 FC 228 at para. 37, citing Attama v. Canada (Citizenship and Immigration), 2021 FC 903 at para. 20.

Return to footnote 115 referrer

Footnote 116

See also section 14.5 of this Guideline: Expert Evidence.

Return to footnote 116 referrer

Footnote 117

Asif v. Canada (Citizenship and Immigration), 2016 FC 1323, at para. 33.

Return to footnote 117 referrer

Footnote 118

Attama v. Canada (Citizenship and Immigration), 2021 FC 903 at paras. 18-20; Feboke v. Canada (Citizenship and Immigration), 2020 FC 155 at paras. 57-59.

Return to footnote 118 referrer

Footnote 119

Egbesola v. Canada (Citizenship and Immigration), 2016 FC 204 at paras. 13-15, citing Molefe v Canada (Minister of Citizenship and Immigration), 2015 FC 317.

Return to footnote 119 referrer

Footnote 120

Immigration and Refugee Protection Regulations, SOR/2002-227.

Return to footnote 120 referrer

Footnote 121

See Lee v. Canada (Public Safety and Emergency Preparedness), 2022 FC 383 at paras. 62-64.

Return to footnote 121 referrer

Footnote 122

For example, see Chairperson's Guideline 2: Detention, at s. 3.1.15 which provides a non-exhaustive list of detainees who may be considered vulnerable.

Return to footnote 122 referrer

Footnote 123

See Lee v. Canada (Citizenship and Immigration), 2022 FC 344 at para. 65.

Return to footnote 123 referrer

Footnote 124

Atem v. Canada (Public Safety and Emergency Preparedness), 2023 FC 165 at para. 66.

Return to footnote 124 referrer

Footnote 125

Canada (Public Safety and Emergency Preparedness) v. Gaytan, 2021 FCA 163.

Return to footnote 125 referrer

Footnote 126

Ibid. at para. 119.

Return to footnote 126 referrer

Footnote 127

See, for example, Sidhu v. Canada (Citizenship and Immigration), 2019 FCA 169 at para. 79.

Return to footnote 127 referrer

Footnote 128

See also section 17.2 of this Guideline regarding admissibility hearings at the Immigration Division, where applicable.

Return to footnote 128 referrer

Footnote 129

Grewal v. Canada (Citizenship and Immigration), 2020 FC 1186 at paras. 42-43; Sejdiu v. Canada (Citizenship and Immigration), 2023 FC 466 at para. 17.

Return to footnote 129 referrer

Footnote 130

IRPA, ss. 63(3) and (4).

Return to footnote 130 referrer

Footnote 131

See, for example, Bougherara v. Canada (Citizenship and Immigration), 2021 CanLII 81145 (IAD) at paras. 9 to 14.

Return to footnote 131 referrer

Footnote 132

See for example, Phagura v. Canada (Public Safety and Emergency Preparedness), 2019 CanLII 42301 (IAD) at paras. 40-46.

Return to footnote 132 referrer

Footnote 133

Mouaj v. Canada (Public Safety and Emergency Preparedness), 2008 CanLII 74755 (IAD) at para. 21.

Return to footnote 133 referrer

Footnote 134

Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61 at para. 56; Ylanan v. Canada (Public Safety and Emergency Preparedness), 2019 FC 1063 at paras. 38-41; Khir v. Canada (Citizenship and Immigration), 2021 FC 160 at para. 62; See also the IAD's decision in Bains v. Canada (Public Safety and Emergency Preparedness), 2022 CanLII 65232 (IAD) at paras. 347-355.

Return to footnote 134 referrer

Footnote 135

Dwyer v. Canada (Public Safety and Emergency Preparedness), 2020 FC 919 at para. 75; Kanthasamy, supra note 134 at para. 48.

Return to footnote 135 referrer

Footnote 136

Kanthasamy, supra note 134 at para. 48.

Return to footnote 136 referrer

Footnote 137

Palmer v. Canada (Public Safety and Emergency Preparedness), 2012 FC 1277 at para. 25; Lawrence v. Canada (Public Safety and Emergency Preparedness), 2022 CanLII 94492 (IAD) at para. 69; Maxwell v. Canada (Citizenship and Immigration), 2000 CanLII 22876 (IAD); Jones v. Canada (Citizenship and Immigration), 2005 CanLII 56946 (IAD) at para. 11.

Return to footnote 137 referrer

Footnote 138

Addressing the issue of appropriate bail conditions in the criminal law context, the Supreme Court of Canada explained in R. v.Zora, 2020 SCC 14 at para. 79, that “…onerous conditions disproportionately impact vulnerable and marginalized populations. Those living in poverty or with addictions or mental illnesses often struggle to meet conditions by which they cannot reasonably abide...” [references omitted].

Return to footnote 138 referrer

Footnote 139

Doe v. Canada (Public Safety and Emergency Preparedness), 2021 CanLII 51041 (IAD) at paras. 36-37; See also the following IAD decisions, where the panel recognized that lapses in addiction recovery should not be unexpected and are not necessarily an indication of poor rehabilitation prospects: Dhinsa v. Canada (Citizenship and Immigration), 2018 CanLII 112423 (IAD) at paras. 23-24; Behuncik v. Canada (Public Safety and Emergency Preparedness), 2012 CanLII 101753 (IAD) at para. 9, Flood v. Canada (Public Safety and Emergency Preparedness), 2009 CanLII 84871 (IAD) at para. 27.

Return to footnote 139 referrer

Footnote 140

Consent may be withdrawn by way of application pursuant to IAD Rule 84, or at a hearing. See, for example, Docherty v. Canada (Public Safety and Emergency Preparedness), 2015 CanLII 90708 (IAD) at para. 10.

Return to footnote 140 referrer

Footnote 141

See the IAD's decision in Passawe v. Canada (Public Safety and Emergency Preparedness), 2019 CanLII 124057 (IAD) at paras. 6 and 44-47, where the appellant was functioning at a pre-kindergarten level and was unable to read and write, but had strong support in the community; See also Canada (Citizenship and Immigration) v. Antonin, 2009 FC 1140 at paras. 44-48.

Return to footnote 141 referrer