Policy Making in the Immigration and Refugee Board of Canada

February 2006

Table of Contents


PART 1 - POLICY DEVELOPMENT AT THE IRB

What is policy at the IRB?

The scope and scale of the task the IRB has in adjudicating a diverse range of immigration and refugee matters in three Divisions means that the Board cannot rely solely on the guidance that legislation and judicial decisions provide. The Immigration and Refugee Protection Act and Regulations provide general guidance, but leave much latitude for interpretation. Judicial guidance is also limited: IRB decisions are subject to judicial review by the Federal Court, but only with leave, and the judicial review process does not resolve every ambiguity or gap in law or practice. Where it considers advisable, the IRB seeks to fill this gap through mechanisms it has generated to improve the quality of the justice it delivers. Its efforts in this regard constitute policy-making.

Policy is developed at the IRB in light of its status as an independent tribunal with an adjudicative mandate. The IRB adjudicates cases. It does not administer programs that deliver services to Canadians as government departments do. Accordingly, policy developed by the IRB reflects the fact that the Board, although a part of the executive arm of government, is institutionally independent and individual decision-makers are independent in their decision-making.

Policy developed by the Board is subordinate to the Board's statutory and common law authority and duties. Examples of the latter are the rules of natural justice and procedural fairness. While this is true of all public policy, the principle is constantly put to the test in the case of the IRB because the Board's adherence to that principle is consistently subjected to detailed scrutiny by the courts through judicial review.

Policy in the IRB serves to promote three core values: consistency, fairness and transparency. The Board seeks to achieve consistency, fairness and transparency by making its key practices and their underlying rationale known and understood both within the tribunal and by the external users of the tribunal.

How is policy created?

In the IRB policy is generated through two sources. The first is a series of consistent practices that evolve in the process of preparing, hearing and deciding cases. Most of the Board's policy is developed and applied in the hearing process. There are many practices which emerge in the hearing room and become the norm, thus evolving into policy. Because these practices evolve gradually and in response to situations raised in individual cases, the policy development process is less formal and structured when it occurs incrementally through the hearing process. While this form of policy development may depend on research and analysis, as well as adjudication, it most often does not result in the creation of a policy instrument.

The second is through a range of policy instruments that either codify or modify existing practices, or create new ones. These instruments can be as formal as the Rules of each Division or as informal as a Policy Note. They can range in substance from matters as central to the adjudication process as the extent of state protection in a country of origin, to matters of an operational nature that border on the administrative, such as the distribution of digital and tape recordings.

Categories of policy

IRB policy normally covers one of the following practice areas:

  • Adjudicative: practices related to the decision-making process, such as the structuring of discretion or the articulation of a preferred position on an issue which members have to decide;
  • Operational: practices that assist the preparation and hearing of cases and treatment of procedural issues; and
  • Legal and administrative: the legal support the Legal Services provide to the Board, such as principles that govern IRB's intervention in higher courts.

When are policy instruments used?

As indicated above, much of the Board's policy is generated and expressed in the preparation and hearing process and is not articulated in policy instruments. Rather, it is set out in practices which are known and understood simply as part of the way business is done at the Board.

However, where the Board needs to change an established practice, resolve an inconsistency in practice or create a new practice, the Board articulates policy in an instrument. It often does so because the practice is so important to the Board's operations that it needs to be clearly articulated, either to an internal audience, or to an external audience (counsel, stakeholders, courts) or to both. Fairness, consistency and transparency are served by spelling out the practice, the legal authority supporting it and the Board's purpose in adopting the practice.

In other instances the articulation of policy in an instrument may be appropriate, not because of the particular importance of the subject matter, but because the issue contains a degree of technical detail that should be spelt out in the interests of transparency, efficiency and to ensure a consistent practice nationally or across the Divisions.

Enabling functions of policy instruments

Policy is not an end in itself. The function of policy instruments is to enable the Board to manage and coordinate initiatives central to its mission.

More particularly, policy instruments:

  • Define the context within which activities or practices can thrive, thus allowing the Board to fulfill its mandate and achieve expected results;
  • Provide appropriate direction or orientation for a course of action in a practice area and structure discretion for making decisions regarding a specific issue;
  • Give appropriate instructions that commit managers and decision-makers to implement a specific action;
  • Formalize an established practice and explain its relevance for an efficient and fair tribunal process;
  • Create new practices and processes in order to achieve expected results; and
  • Provide a means to resolve an inconsistency generated by informal or unregulated practices.

PART 2 - GOVERNANCE OF POLICY DEVELOPMENT

The Chairperson's Policy Advisory Committee, established in May of 2005, is the forum which provides advice to the Chairperson in setting the policy direction of the IRB. The Committee focuses on policy questions of strategic importance to the IRB and in setting the overall policy agenda of the Board. The development of operational policy continues to be overseen by the Operations Committee of each Division.

The terms of reference of the Chairperson's Policy Advisory Committee are set out below.

Policy Advisory Committee - Terms of Reference

Purpose

  • To advise the Chairperson in developing the policy direction and setting the policy priorities of the IRB in the processing and adjudication of immigration and refugee matters, in accordance with the mission, vision and strategic direction of the Board. To assist the Chairperson in ensuring that the policies of the IRB become the means by which the Board achieves the goals it has set for itself in its strategic direction.
  • To ensure that while the Board develops and implements policy, it does so in a manner that respects the essence of adjudicative independence, namely that each case is decided on the basis of the evidence before the panel and the applicable law.

Mandate

To provide advice and counsel to assist the Chairperson in:

  • Reviewing and approving the overall policy agenda of the IRB on an annual cycle, and in setting priorities within that agenda;
  • Directing the research and analysis of issues of strategic importance that may require a policy response, in order to provide the Chairperson with the necessary information to determine whether a policy response is in fact required;
  • Ensuring coherence and coordination in policy development, including, where appropriate, ensuring the cross-divisional application of policies;
  • Setting the adjudication strategy for each Division and for the Board as a whole;
  • Developing Guidelines, and identifying decisions as jurisprudential guides in accordance with existing Board policy on the process for developing such instruments;
  • Developing or amending rules of practice; and
  • Directing the policy which supports the processing of refugee and immigration cases

Guiding Principles

  • Policy development and the work of the committee are conducted within the limits that are particular to the Board as an administrative tribunal with an adjudicative function. Specifically, the process of policy development and the work of the committee must respect and be consistent with the principle of adjudicative independence on an individual and an institutional level.
  • At the same time, it is both legitimate and necessary for an adjudicative tribunal to have a strong corporate role and presence in the decision-making process on an institutional level. The delivery of justice, which is fair and equal, demands that the Board's decisions be consistent, coherent and of the highest quality. The Board has a positive duty to foster consistency, coherence and quality. The development and implementation of policy is a significant means by which the Board can discharge that duty and shape decision-making on an institutional level.
  • The committee will be guided in its work by a balancing which fosters institutional decision-making through the policy process, while safeguarding adjudicative independence at both an individual and institutional level.
  • In order to provide the committee with a comprehensive perspective on any given issue, strategic policy proposals will be the product of a process of co-development.
  • In order to provide the committee with a broad range of information to make informed decisions, strategic policy proposals will include:
    • Alternative policy options for achieving a particular objective, including the appropriate choice of instrument;
    • An assessment of the likely impact of each option, including an assessment of legal and strategic risks; and
    • A consideration of the need for formal consultation both within and outside of the Board.
  • Founded on the belief that rigorous analysis is an essential foundation for policy development, policy options presented to the committee are, wherever possible, evidence-based.

Composition

Chair: Chairperson

Members: Executive Director; Deputy Chairperson, RPD; Assistant Deputy Chairperson, RPD Toronto Deputy Chairperson, IAD; Director-General, ID; General Counsel; Director-General, Operations

Secretariat: Director-General, Operations

There will be no substitution of members unless previously approved by the Chair of the committee.

Procedures

  • The committee will meet every two months. The first meeting will be just prior to the beginning of the fiscal year in order to adopt the policy agenda for the coming year.
  • In addition, the committee will meet as needed, at the direction of the Chairperson, in order to enable the Board to respond rapidly to policy questions of importance to the Board.
  • The author of a policy proposal will attend to present the proposal and respond to questions from committee members.

PART 3 - IRB POLICY INSTRUMENTS

Types of policy instruments

The Chairperson, acting on the advice of the Policy Advisory Committee, has decided that IRB policy will be expressed through the following instrument types, set out in hierarchical order:

  • Rules
  • Chairperson's Guidelines
  • Jurisprudential Guides
  • Persuasive Decisions
  • Policies
  • Chairperson's Instructions
  • Policy Notes

There are two determinative factors underlying the selection of these instrument types and the order in which they are placed: express authority in the Immigration and Refugee Protection Act and the scope of actions and practices which an instrument covers.

Each set of Divisional Rules establishes the activities, practices and required procedures for the Division. The Rules of each Division are binding, although certain Rules expressly grant discretion. Rules provide direction to decision-makers and serve to direct users of the tribunals in their presentation of cases before the Board. The Rules also define roles and responsibilities of IRB personnel supporting the adjudicative functions of the tribunals. The Immigration and Refugee Protection Act, s. 161(1) provides statutory authority for the Rules.

The Chairperson's Guidelines provide guiding principles for adjudicating and managing cases. They serve primarily as source of guidance for decision-makers, but also for the personnel supporting adjudicative functions. They may have an adjudicative or an operational content. While they are not mandatory, decision-makers are expected to apply them or provide a reasoned justification for not doing so. Within the IRB Guidelines have generally been employed to achieve strategic objectives, as opposed to simply managing daily operations. The Immigration and Refugee Protection Act, s. 159(1)( h) provides statutory authority for the Guidelines.

Jurisprudential Guides are policy instruments that support consistency in adjudicating cases which share essential similarities. A Jurisprudential Guide serves to build a Division's jurisprudence upon well reasoned decisions. Drawing on the common law tradition of precedent and the tribunal tradition of policy-making through adjudication, Jurisprudential Guides articulate policy through the application of the law set out in a decision of the Board to the specific facts of another individual case before a decision-maker. This is to be contrasted with Guidelines, which are general statements, not incorporated in any decision of the Board. The application of a Jurisprudential Guide is not mandatory. However, decision-makers are expected to apply Jurisprudential Guides in cases with similar facts or provide reasoned justifications for not doing so. The Immigration and Refugee Protection Act, s. 159(1)( h) provides statutory authority for the use of Jurisprudential Guides.

Persuasive Decisions are decisions that have been identified by a Division head as being of persuasive value in developing the jurisprudence of the Division. They are decisions which decision-makers are encouraged to rely upon in the interests of consistency and collegiality. The application of persuasive decisions by the Division enables the Division to move toward a consistent and transparent application of questions of law or mixed law and fact. Their designation promotes efficiency in the hearing and reasons-writing process by making use of quality work done by colleagues within the tribunal. Unlike Jurisprudential Guides, decision-makers are not required to explain their decision not to apply a persuasive decision in appropriate circumstances. Their application is voluntary.

Policies are formal statements which explain the purpose and the mechanics of operational initiatives at the Board. A policy may spell out specific responsibilities for action by decision-makers and personnel supporting the adjudicative process. Policies are flexible instruments, and the degree to which they are mandatory varies with the content of the policy. They often contain elements which are mandatory, but may also provide general guidance or define areas in which the exercise of discretion is required.

The Chairperson's Instructions provide formal direction that obliges specific IRB personnel to take or to avoid specific actions. In contrast to Policies, Instructions are limited to a specific and narrow practice area and may also include organizational concerns (e.g. relations between decision-makers and Refugee Protection Officers) that define roles and responsibilities consistent with the principle of adjudicative independence and impartiality.

Policy Notes are memoranda which serve as an informal way of providing policy guidance and are consistent with independent and impartial decision-making. They are used to address areas of concern which may be of short duration or limited to the Board's operations in a single region.