Instructions for Gathering and Disclosing Information for Refugee Appeal Division Proceedings

Effective: May 30, 2016

Instructions Issued by the Chairperson Pursuant to Section 159(1)(a) of the Immigration and Refugee Protection Act

TABLE OF CONTENTS

  1. Application
  2. Definitions
  3. Background and Overview
  4. General Principles
  5. Gathering and Disclosing of Information for the Refugee Appeal Determination Process
    1. 1. Minister's Information
    2. 2. Country-of-origin Information
    3. 3. Specific Information
    4. 4. Change in the Process on Agreement among the Parties
    5. 5. Forensic Verification of Documents
    6. 6. Biometric Information
  6. Enquiries

A. Application

These Instructions are issued by the Chairperson of the Immigration and Refugee Board of Canada (IRB) and are effective May 30, 2016.

The Instructions describe how the Refugee Appeal Division (RAD) of the IRB will gather and disclose information for its proceedings.

B. Definitions

"Acquisition of Information Form" (AIF) —the form used to record and disclose to the parties the IRB initiatives to gather specific information.

"Biometric information" —the use of biological data such as fingerprints, photographs or iris scans that identify a person.

"Country-of-origin information" (COI) —reliable, timely, and publicly available information, including information obtained from the Internet that:

  1. does not and could not identify the person who is the subject of the appeal as an individual with a previous claim for refugee protection in Canada; and
  2. would not lead to a serious possibility that the life, liberty or security of the person who is the subject of the appeal or any other person would be endangered.

COI does not include information about persons who are the subject of the appeal, which is collected by Immigration, Refugees and Citizenship Canada (IRCC) or the Canada Border Services Agency (CBSA) under the Immigration and Refugee Protection ActNote 1 (IRPA)and related laws when they claimed refugee protection (i.e. Minister's information as defined below), or information gathered by the IRB that is specific to the persons who are the subject of the appeal (i.e. specific information as defined below).

"Information Request Form" (IRF) — the form used to request information on the conditions in a country of origin.

"Minister's information" — information about individual persons who are the subject of an appeal collected by officers of IRCC or the CBSA under the IRPA and related laws when they claimed refugee protection. Examples of Minister's information include:

  • copies of identity and travel documents, travel information and any other relevant documents regarding the person who is the subject of the appeal and concerning their claim for refugee protection;
  • any forms completed by IRCC, CBSA, or the person who is the subject of the appeal when they claimed refugee protection at the port of entry or the office in Canada that received the claim;
  • information from Canadian visa offices regarding Canadian visa applications made by the person who is the subject of the appeal;
  • results of Royal Canadian Mounted Police (RCMP) identity and criminal screening, which may include criminal record checks in other countries by the RCMP through INTERPOL;
  • biometric information;
  • information gathered by IRCC and CBSA for the purposes of the IRPA, the Department of Citizenship and Immigration ActNote 2 or the Canada Border Services Agency ActNote 3;
  • information gathered by IRCC and CBSA to help determine whether the Minister should intervene in a proceeding; and
  • any information regarding a previous claim for refugee protection elsewhere.

"Parties" — in the case of an appeal by a person who is the subject of an appeal, the person and, if the Minister intervenes in the appeal, the Minister; and in the case of an appeal by the Minister, the person who is the subject of the appeal and the Minister.

"Risk assessment" — assessment as to whether there is a serious possibility that the life, liberty or security of the person who is the subject of the appeal or any other person would be endangered through the gathering of the information.

"Specific information" — specific information about the person who is the subject of the appeal other than Minister's information or COI.

C. Background and Overview

In addition to the Refugee Protection Division (RPD) record and information provided by the parties, RAD members may identify other information needed for the adjudication of the appeal; they may gather this information which will be disclosed for the RAD proceeding. However, the Research Directorate (RD) is primarily responsible for gathering information from domestic and foreign sources. Information needs are generally identified by the assigned member, particularly where the RPD record and information provided by the parties fail to resolve certain issues that are before the RAD or if new issues arise.

D. General Principles

The following principles apply to all requests for information other than information provided by the parties:

  1. Responsibility to present additional supporting evidence rests with the parties in conformity with the IRPA and the Refugee Appeal Division RulesNote 4 (RAD Rules). This responsibility remains even when the RAD decides to obtain information other than that provided in the RPD record and by the parties in the RAD proceedings.
  2. If the RAD decides to gather information, it will be through a transparent and standard process to ensure fairness in decision-making.
  3. The assigned member will request specific information about the person who is the subject of the appeal and use such information only when they have completed a risk assessment and are satisfied that there is no serious possibility that gathering the information would endanger the life, liberty or security of the person who is the subject of the appeal or any other person.
  4. Where the source of the information requires payment of a fee, the RD will inform the assigned member and the responsible Assistant Deputy Chairperson (ADC). The decision to pay any fee will be determined by the ADC in consultation with the assigned member.
  5. The information will be sought by the RAD only in instances where the information is deemed relevant to a determinative issue in the appeal, can be obtained in a timely manner, and is likely to result in obtaining new or conclusive information. Given the legislated timelines for the RAD to make a decision on an appeal (90 days after the day on which the appeal is perfected),Note 5 the assigned member will consult the ADC before initiating the request concerning the time required for obtaining the information. The assigned member will inform the ADC of any COI request, any specific information request and any forensic verification of documents request made in an appeal. Should the response to a COI request or, in regards to the person who is the subject of the appeal, a specific information request or a forensic verification of documents request, not be received within the anticipated response time, the assigned member will reassess the value of the requested information, and inform the RD, if there is a need for the information.

E. Gathering and Disclosing of Information for the Refugee Appeal Determination Process

1. Minister's Information

  1. 1.1 IRCC and CBSA officers routinely provide Minister's information to the RPD, which is included in the RPD record provided to the RAD for the appeal proceeding.
  2. 1.2 Where the Minister is a party, the Minister is responsible for providing documentary evidence that the Minister wants to rely on in the appeal in conformity with the IRPA and the RAD Rules.
  3. 1.3 If there is information that the Minister has not provided to the RPD, but the RAD believes that it may be required to resolve the appeal, the assigned member:
    1. i. may request the information under the procedures agreed upon between the IRB and IRCC or CBSA (e.g. information from Canadian visa offices regarding Canadian visa applications made by the person who is the subject of the appeal);
      or
    2. ii. may instruct the RAD Registry to obtain the information under the procedures agreed upon between the IRB and IRCC or CBSA.

2. Country-of-origin Information

  1. 2.1 General rules. Country documentation contained in the National Documentation Packages (NDPs) produced by the RD may be disclosed by providing the parties with a list of those documents or directions as to where those documents can be found on the IRB website. If the assigned member identifies for use in the appeal COI supplemental to that contained in the NDPs included in the RPD record, such COI will be disclosed to the parties by the RAD Registry.
  2. 2.2 Additional relevant country-of-origin information. The assigned member may decide to obtain additional COI other than that provided by the parties or included in the RPD record. The assigned member will use an IRF when submitting a request for additional COI to the RD. In making such a request, the assigned member will take into consideration whether the information is relevant to a determinative issue in the appeal and, with the assistance of the RD, will take into consideration the likelihood of obtaining new or conclusive information and whether the information can be obtained in a timely manner.
  3. 2.3 Proviso. If it is not clear whether the information to be obtained is COI or specific information about the person who is the subject of the appeal, the procedures set out in section 3 below will apply.

3. Specific Information

  1. 3.1 Request for specific information. The assigned member makes the decision to obtain specific information about the person who is the subject of the appeal to resolve an issue central to the appeal.
  2. 3.2 Factors to consider before deciding to gather information. The assigned member must consider whether:
    1. i. the information is needed to resolve an issue central to the appeal;
    2. ii. it is likely that the information can be acquired;
    3. iii. obtaining the information will not unreasonably delay the proceedings;
    4. iv. there is no serious possibility that the life, liberty or security of the person who is the subject of the appeal or any other person would be endangered through the gathering of the information (i.e. "risk assessment"); and
    5. v. the method for gathering the information complies with the Privacy ActNote 6.
  3. 3.3 Acquisition of Information Form. Where specific information about the person who is the subject of the appeal is required, the assigned member will prepare an AIF.

    Where appropriate, the assigned member will seek the assistance of the RD in:

    1. i. estimating the time required for obtaining the information;
    2. ii. identifying potential sources and methods for gathering the information; and
    3. iii. assessing the likelihood of obtaining the information.
    4. The assigned member will make sure that the AIF includes the following:

    5. i. a description of the information required;
    6. ii. the specific source(s) to approach for the information, if known;
    7. iii. the purpose and method for gathering the information; and
    8. iv. the time required to obtain the information.
  4. 3.4 Consulting the parties and obtaining consent from the person who is the subject of the appeal. When the assigned member decides to proceed with an AIF, the RAD Registry will be instructed to:
    1. i. immediately provide a copy of the AIF to the parties and invite them to comment on it. Comments on the AIF must be submitted to the RAD Registry in writing, within five working days of receipt of the copy of the AIF, with proof that copies of a party's comments were sent to any other party; and
    2. ii. include with the AIF the Consent to Release Personal Information form identifying the sources of information (such consent is provided by completing the Consent to Release Personal Information form on page 3 of the AIF).

    While the source of the information may not require in every case a signed consent form from the person who is the subject of the appeal to provide information about that person, it is advised that the assigned member obtain from the person who is the subject of the appeal their signed Consent to Release Personal Information form in order to prevent any undue delays in obtaining the requested information.

    If the person who is the subject of the appeal does not sign the Consent to Release Personal Information form, the assigned member may proceed with the AIF. However, they must consider the factors identified in subsection 3.2, in particular the risk factors.

  5. 3.5 Final review of the AIF following comments. Once the period for receiving comments has elapsed, the assigned member will proceed with a final review of the AIF by:
    1. i. considering any comments from the parties, and revising the AIF if appropriate;
    2. ii. reviewing the AIF to ensure that the factors under subsection 3.2 have been met, and note this on the form; and
    3. iii. instructing the RAD Registry to send by email the AIF to the RD for action and provide a copy of the AIF to the parties for their information.
  6. 3.6 Cancelling an AIF after the parties have been consulted. If the assigned member determines that the factors under subsection 3.2 are not met, or decides for some other reason not to gather the information, this decision is noted on the AIF and the RAD Registry is instructed to provide a copy of the completed form to the parties without delay.
  7. 3.7 Proceeding with an AIF notwithstanding the comments of the parties or without a signed Consent to Release Personal Information form. The assigned member, after reviewing the comments to the AIF, may alter the AIF according to the suggestions of the parties or proceed without making any changes. The factors under subsection 3.2, in particular the risk assessment described in paragraph iv, must be taken into consideration when deciding to proceed without making changes or if the person who is the subject of the appeal has not signed the Consent to Release Personal Information form.
  8. The RD can only process the AIF without a signed Consent to Release Personal Information form if the identified source of the information has not previously informed the RD that such consent is required to release personal information.

    However, some identified sources of information will require a signed consent form. For example, a signed Consent to Release Personal Information form is required for verifying the immigration status of a person who is the subject of the appeal in any country. Furthermore, many government institutions, agencies and some non‑governmental organizations require a signed consent form before releasing personal information. If the identified source of information requires a signed consent form from the person who is the subject of the appeal and no signed Consent to Release Personal Information form is received within 20 days, the AIF will be cancelled by the RD and the assigned member will be informed of this action.

  9. 3.8 Agreement regarding the exchange of information with another organization. If the IRB has entered into a written agreement regarding the disclosure and exchange of information for use in determining claims for refugee protection with a federal or provincial department or agency, foreign government, or international governmental or non-governmental agency, the assigned member may, in the absence of evidence to the contrary, presume that:
    1. i. it is likely that the information can be obtained; and
    2. ii. there is no serious possibility that the life, liberty or security of the person who is the subject of the appeal or any other person would be endangered through the gathering of the information.
  10. 3.9 Receipt of the AIF results. Once the specific information about the person who is the subject of the appeal is received, the RAD Registry will provide a copy of the information to the parties without delay, and invite them to provide any written submissions on it by a date set by the assigned member. Each party will be required to provide a copy of their submissions to any other party.
  11. If there are indications that the specific information received might, if released to the parties, lead to a serious possibility that the life, liberty or security of the person who is the subject of the appeal or any other person being endangered, the assigned member will review the information and decide if it can be released to the parties.

  12. 3.10 Anticipated response time. Should the response to the request for specific information about the person who is the subject of the appeal not be received within the anticipated response time, the assigned member will reassess the value of the requested information. Following instructions by the assigned member, if applicable, the RAD Registry will inform the parties and the RD of any decision to cancel the specific information request.

4. Change in the Process on Agreement among the Parties

  1. 4.1 The process set out in section 3 may be changed upon agreement among the parties; however, all of the factors set out in subsection 3.2 with respect to the gathering of specific information about the person who is the subject of the appeal must be satisfied in all cases.

5. Forensic Verification of Documents

  1. 5.1 Where the assigned member forms the opinion that forensic verification is necessary, the assigned member may direct the RAD Registry to send the document to the RCMP Forensic Laboratory Services for verification.
  2. 5.2 Where the IRB has the original of a document to be verified, the RAD Registry will send it to the RCMP Forensic Laboratory Services. Where IRCC or CBSA has the original of a document to be verified, the RAD Registry will request a verification of the original document in writing to IRCC or CBSA as appropriate and the written results. The RAD Registry will provide a copy of the request for verification to the parties without delay. Where the person who is the subject of the appeal has the original of the document to be verified, the RAD Registry will request the person who is the subject of the appeal to provide the original to the RAD. Once received, the RAD Registry will send it to the RCMP Forensic Laboratory Services.
  3. The RAD Registry will provide a copy of the report received from the RCMP Forensic Laboratory Services, IRCC or CBSA to the parties without delay, and invite them to make submissions on the report, in writing, to the Registry by a date set by the assigned member.

6. Biometric Information

  1. 6.1 Biometric information is the use of biologically-based data such as fingerprints, photographs or iris scans that identify a person. Biometric identification is the automated identification of individuals through the matching of one or more of these unique features with a previously obtained sample of the same data. For the purpose of the IRB, biometrics is the result of the biometric identification process. It does not include the data per se such as the actual fingerprints, but rather the results of the information matches, if any. IRCC or other government agencies may from time to time enter into agreements with specific foreign countries regarding the sharing of biometric information.
  2. 6.2 The IRB is not involved in selecting cases for biometric processing or the processing of fingerprints or sharing biometric data with foreign countries. When the Minister shares biometric information with the IRB, received pursuant to these agreements, it is sent to the RD for processing.
  3. 6.3 The RD provides biometric information received from IRCC to the relevant RAD Registry which in turn discloses the information to the parties.

F. Enquiries

For information, contact:

Policy and Procedures Directorate
Policy, Planning and Corporate Affairs Branch
Immigration and Refugee Board of Canada
Canada Building (Minto Place)
344 Slater Street
Ottawa, Ontario K1A 0K1

Available in English and French on the IRB's Internet site: www.irb-cisr.gc.ca
Disponible en anglais et en français sur le site Internet de la CISR : www.cisr-irb.gc.ca

G. Approval

Signed by Mario Dion
Chairperson
May 30, 2016
Date

Notes

Note 1

Immigration and Refugee Protection Act, S.C. 2001, c. 27.

Return to note 1 referrer

Note 2

Department of Citizenship and Immigration Act, S.C. 1994, c. 31.

Return to note 2 referrer

Note 3

Canada Border Services Agency Act, S.C. 2005, c. 38.

Return to note 3 referrer

Note 4

Refugee Appeal Division Rules, SOR/2012-257.

Return to note 4 referrer

Note 5

Section 159.92 of the Immigration and Refugee Protection Regulations, SOR/2002-227.

Return to note 5 referrer

Note 6

Privacy Act, R.S.C., 1985, c. P-21.

Return to note 6 referrer