Instructions governing the streaming of less complex claims at the Refugee Protection Division

Table of contents

1. Introduction
   1. 1.1. Purpose
   2. 1.2. Background
   3. 1.3. Legislative context
   4. 1.4. Principles
2. Instructions
   1. 2.1. File review process
   2. 2.2. Short hearing process
3. Implementation
4. Authority
5. Monitoring
6. References
7. Enquiries
8. Effective date
9. Approval

1. Introduction

1.1 Purpose

Strategic case management at the Refugee Protection Division (RPD or the Division) of the Immigration and Refugee Board of Canada (IRB) contributes to high quality administrative justice by allocating the appropriate level of resources to the matter being decided. This allows the RPD to use its resources as efficiently and effectively as possible while the parties who appear before it benefit from a more efficient resolution of their cases. These Instructions should be read in conjunction with the Refugee Protection Division Rules (RPD Rules)^{Note 1}, which continue to apply to all claims dealt with under these Instructions.

These Instructions set out the case management principles the RPD will use (i) to identify those claims which may be decided without a hearing (file-review process); and (ii) to identify those refugee claims which may be decided with a short hearing because the matter does not appear to present complex legal or factual issues (short-hearing process).

1.2 Background

The IRB is committed to adjudicating cases simply, quickly and fairly. In doing so it seeks to allocate the appropriate level of resources to the matter being decided.

The IRB has a long history of implementing strategic case management, both in terms of using short hearings to resolve straightforward refugee claims and by deciding claims without a hearing where appropriate. These initiatives have been supported by various policy instruments, notably the Fast Track Hearing Process^{Note 2} and the Expedited Process.^{Note 3} These Instructions build on the experience under those instruments and consolidate the case-management principles into one instrument.

These Instructions replace the Policy on the Expedited Processing of Refugee Claims by the Refugee Protection Division, Immigration and Refugee Board^{Note 4} and supersedes any other documents or portions of documents previously issued by the IRB that conflict with these Instructions.

1.3 Legislative context

Strategic case management is supported by the RPD’s enabling legislation. The Immigration and Refugee Protection Act^{Note 5} (IRPA) provides that the RPD must proceed both fairly and efficiently.^{Note 6}

In addition, the IRPA provides that the RPD must hold a hearing in all matters before it, except that it may allow a refugee claim without a hearing^{Note 7} if the Minister does not intervene in the time limit set out in the Refugee Protection Division Rules.^{Note 8}

1.4 Principles

The following principles form the foundation for these Instructions:

Member Independence: It is the responsibility of members to decide each claim before them on its own merits. Identifying claims to be decided with a short hearing or with a file review is a case management tool used to provide efficient administrative justice. Designation under these Instructions do not suggest a particular outcome.

Opportunity for parties to be heard: Parties must be given a reasonable opportunity to be heard. Therefore, because a Notice to Appear is not provided when a claim is accepted without a hearing, the Minister will be given notice where a claim is chosen for the file-review process. In addition, where a member determines that a claim cannot be accepted through the file-review process, the claimant will have an opportunity to present ​their case at a hearing.

System Integrity: Paragraph 170(f) of the IRPA provides the authority to allow certain claims without a hearing. Only claims which meet the criteria of these Instructions will be decided without a hearing. Members will decide all other claims following a hearing, as required under paragraph 170(b) of the IRPA. In addition, where the Minister intervenes in person, the claim will not be decided pursuant to these Instructions under either process.

System Efficiency: As an administrative tribunal the IRB seeks to continually improve in its delivery of administrative justice to maximize efficiency without sacrificing fairness. These Instructions contribute to this goal through the allocation of appropriate resources according to the requirements and complexity of individual claims.

Public Safety: All adult refugee claimants undergo security checks, referred to as front-end security screening. Security screening is conducted by the Canada Border Services Agency in partnership with the Canadian Security Intelligence Service. In the interest of public safety, no adult’s claim will be accepted under the file-review process before the IRB receives confirmation that security screening has been completed.^{Note 9} Cases assigned to the short hearing process will be treated in accordance with the Instructions Governing the Management of Refugee Protection Claims Awaiting Front-end Security Screening. In addition, where a claim raises issues of exclusion and the Minister is intervening in person, a claim will not be decided pursuant to these Instructions under either process.

2. Instructions

2.1 File-review process

2.1.1 Overview

For the purpose of these Instructions, the file-review process refers to claims which may be decided pursuant to paragraph 170(f) of the IRPA without a hearing.  However, where a claim has been identified as suitable for this process, the presiding member retains discretion to send the claim to a hearing, if he or she deems it appropriate to do so.

The process focuses on those claims that appear to be manifestly founded upon initial review and can be fairly determined without the allocation of the resources necessary for a hearing.

2.1.2 Application

The RPD will determine which cases are suitable to be assigned to the file-review process, relying on its knowledge of country conditions and claim types, and experience in how claims are decided. In addition, the presiding member, having regard to the criteria set out in these Instructions, may also identify a specific claim as being suitable for this process, but will not decide the claim without a hearing until the established procedures are followed, including notifying the Minister. 

The RPD will not decide any claim without a hearing in the following circumstances:

• confirmation of front-end security screening has not been received;
• the Minister has filed a Notice of Intervention to intervene in person;
• A Notice has been sent under the RPD Rules notifying the Minister of a possible exclusion, inadmissibility or integrity issue;
• there are issues related to the claimant’s identity which require further examination;
• there are serious credibility issues that arise from the documents in the file;
• the claim is inconsistent with country information; or
• there are complex legal or factual issues that require a hearing to resolve.

2.2 Short-hearing process

2.2.1 Overview

For the purpose of these Instructions, a refugee claim that is suitable for the short-hearing process is a refugee claim in which one or two issues, apart from the claimant’s credibility, appear to be determinative of the claim. The hearing of such a claim can usually be concluded within two hours.

2.2.2 Application

The RPD will determine which cases are suitable to be assigned to the short-hearing process, relying on its knowledge of country conditions and claim types, and its experience in how claims are decided in a hearing. In addition, the presiding member, having regard to the criteria set out in these Instructions, may also identify a specific claim as being suitable for this process.

No claims are eligible to be decided in a short-hearing process in the following circumstances:

• the Minister has filed a Notice of Intervention to intervene in person; or
• a Notice has been sent under the RPD Rules notifying the Minister of a possible exclusion, inadmissibility or integrity issue.

Processing and preparation time should be proportionate to the complexity of a claim. Where the RPD has identified a claim for a short hearing, parties are expected to prepare for the hearing such that it will be completed in the time allocated.

2.2.3 Procedures

The RPD will implement procedures to process claims under these Instructions. The procedures may be adjusted from time to time and will be posted on the IRB website. The procedures will respect the principles set out in these Instructions.

The RPD will also publish, from time to time, lists of countries and claim types on the IRB website which the RPD generally considers as appropriate for processing under these Instructions, either under the file-review or short-hearing process.

In addition, the RPD may, at any time, remove a claim from the file-review or short-hearing process. For example, this will occur if it becomes clear in the course of processing that the claim is more complex than it originally appeared.

3. Implementation

The Deputy Chairperson of the RPD is responsible for the implementation of these Instructions.

4. Authority

The Chairperson of the IRB has supervision over the direction of the work and staff of the Board, the authority to apportion work and fix the place, date and time of proceedings as well as the authority to take any action that may be necessary to ensure that members of the Board are able to carry out their duties efficiently and without undue delay.^{Note 10}

5. Monitoring

Program monitoring, reporting and evaluation of these Instructions will be carried out by the Policy, Planning and Corporate Affairs Branch in consultation with the Refugee Protection Division.

6. References

• Fast Track Policy: Hearing Process, effective date March 14, 2005; Repealed December 15, 2012
• IRB Policy on the Expedited Process (policy no. 2001-01, effective date June 1, 2001); Updated March 14, 2005; Repealed December 15, 2012. A new Policy on the Expedited Processing of Refugee Claims by the Refugee Protection Division, Immigration and Refugee Board was issued on September 18, 2015
• Immigration and Refugee Protection Act, S.C. 2001, c. 27
• Refugee Protection Division Rules.
• Chairperson’s Instructions Governing the Management of Refugee Protection Claims Awaiting Front-end Security Screening, December 15, 2012.

7. Enquiries

For information contact:

Senior Director, Policy, Outreach and Engagement Directorate
Canada Building (Minto Place)
344 Slater Street, 12^th Floor
Ottawa, Ontario K1A 0K1

8. Effective date

These Instructions are effective on the date they are signed.

9. Approval

Signed by Richard Wex
Chairperson

Date
January 29, 2019