Policy no. 2003-07
Effective Date: October 27, 2003
This policy governs the exercise of the Chairperson's authority to issue written guidelines in the Immigration Division (ID), the Immigration Appeal Division (IAD) and the Refugee Protection Division (RPD) of the Immigration and Refugee Board (IRB, or the Board). This policy establishes:
- a framework that guides in which circumstances the exercise of that authority may be carried out, and
- the process for deciding to issue guidelines.
The Chairperson has the statutory authorityNote 1 to issue guidelines and to identify decisions as jurisprudential guides to assist members in carrying out their duties:
159. (1) The Chairperson is, by virtue of holding that office, a member of each Division of the Board and is the chief executive officer of the Board. In that capacity, the Chairperson
(h) may issue guidelines in writing to members of the Board and identify decisions of the Board as jurisprudential guides, after consulting with the Deputy Chairpersons and the Director General of the Immigration Division, to assist members in carrying out their duties;
A similar authority to issue guidelines existed under the former Immigration Act.Note 2 Four sets of guidelines were issued: Women Refugee Claimants Fearing Gender-Related Persecution; Child Refugee Claimants: Procedural and Evidentiary Issues; Civilian Non-Combatants Fearing Persecution in Civil War Situations; and Guidelines on Detention.
In Fouchong,Note 3 the Federal Court - Trial Division upheld the legality of the Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution:
The Guidelines are not law, but they are authorized under s. 65(3) of the Act. They are not binding but they are intended to be considered by members of the tribunal in appropriate cases.
The Court then referred to the part of the Chairperson's memorandum that accompanied the release of the guidelines regarding their effect.
More recently, the decision of the Supreme Court of Canada in Bell CanadaNote 4 strengthened the legitimacy of a tribunal's use of statutory tools, such as guidelines, to support its adjudication strategy.
The IRB's ability to establish a consistent and coherent body of jurisprudence depends, in part, on the establishment of a coordinated and rational approach to its adjudicative function, including its procedure.
To be most effective, each division must establish a selective and strategic approach to the adjudication of issues. One aspect of this adjudication strategy involves identifying the recurring issues that have the potential to shape the Board's jurisprudence or practice. As Chairperson's guidelines may possibly affect a great number of cases before the Board, they constitute a major part of any strategic approach to the adjudication of issues.
Another aspect of a division's adjudication strategy revolves around procedure. Each division must continually work towards having in place the most efficient national and regional procedures, in order to improve the quality, consistency and efficiency of decision-making, which is part of the Board's key strategic priorities. The Board must respond to these operational challenges on an institutional level, given the Board's position as the country's largest administrative tribunal, spread out across Canada in five regions, with many decision-makers who render tens of thousands of decisions every year.
A number of different options are available that, taken together, constitute the tools that the Board has at its disposal to support its adjudication strategy. These are not mutually exclusive options, and any or all of them could be exercised at any particular time. These tools include the following:
- Chairperson's guidelines
- Identification of decisions as jurisprudential guidesNote 5
- Identification of decisions as persuasive decisions
- Use of three-member panels (RPD and IAD)
- Conduct of a lead case
- Consultation amongst members on draft decisions in accordance with the principles in Consolidated-BathurstNote 6
- The Board seeking leave to intervene in a Higher Court proceedingNote 7
Guidelines and jurisprudential guides are complementary tools, the purpose of which is to promote consistency, coherence and fairness in the treatment of cases at the Board. The inclusion of such a statutory provision on guidelines and jurisprudential guides indicates Parliament's intent that the Chairperson should be involved in the adjudication strategy of the IRB as a whole, in order to assist decision-makers on matters of substantive and procedural importance.
Accordingly, the IRB has developed this policy, which governs the exercise of the Chairperson's authority to issue guidelines.
The relevant Division Head may, after consultation with the Executive Director on any operational impact, make a written submission to the Chairperson's Executive Committee (CEC), regarding any issue or matter that he or she believes is suitable for the issuance of a set of guidelines, using the criteria set out in section 3 below.
The Executive Director may, after consultation with the relevant Division Head, make a written submission to the CEC, regarding any operational issue or matter that he or she believes is suitable for the issuance of a set of guidelines, in accordance with the criterion set out in subsection 3.4 below.
Any such submission shall be accompanied by a memorandum from staff, countersigned by the General Counsel, evaluating the legal considerations that could flow from guidelines on that issue or matter. The CEC will recommend to the Chairperson if the issue or matter should be pursued as a set of guidelines. However, it is only the Chairperson who has the authority to decide to proceed with a set of guidelines.
Section 159(1)(h) of the Act gives the Chairperson two separate powers - 1) to issue guidelines and 2) to identify decisions as jurisprudential guides. The stated purpose for the exercise of both of these powers is the same - to assist members in carrying out their duties. Where appropriate, guidelines may be issued to apply to more than one division of the Board.
There are four circumstances in which the Chairperson may consider exercising his or her authority to issue a set of guidelines. These four circumstances are as follows:
The need to address specific legal issues has various components. For example, a division may identify one of the following needs:
- To address an emerging issue,
- To resolve an ambiguity in the law,
- To resolve inconsistency in decision-making, or
- To establish legal interpretations as preferred positions.
In addition to addressing issues that are strictly legal in nature as set out in section 3.1 above, guidelines may also provide guidance on questions of mixed fact and law.
Questions of mixed fact and law are found in between questions of law, which apply to all cases, and questions of fact, which apply only to the specific case. The Supreme Court of Canada distinguished them as follows in Southam:Note 8
Briefly stated, questions of law are questions about what the correct legal test is; questions of fact are questions about what actually took place between the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests.
Guidelines could address, for example, certain aspects of country conditions in a refugee source country.
There are many instances where the exercise of a decision-maker's discretion is not codified in the Act or the IRB Rules, nor set out in Higher Court jurisprudence. Absent any statutory or other direction, such guidelines may be issued. Guidelines may also be issued where such statutory or other direction has been provided, in order to give additional guidance to decision-makers.
For example, guidelines could set out the preferred approach to dealing with the exercise of discretion in a procedural matter.
Guidelines may be used to provide guidance on procedural issues. These guidelines would be different from the IRB Rules in that they would provide the Board with flexibility in managing procedural issues. They could be revised more easily than the IRB Rules, if necessary. Guidelines could be issued for specific procedural issues, such as the scheduling of proceedings, or they could be quite general in nature, such as providing broad guidance on how hearings are to be conducted.
Where the Chairperson has decided to exercise his or her authority to issue a set of guidelines, the Chairperson shall consult with the Deputy Chairpersons and the Director General of the ID, as applicable, as required by s. 159(1)(h) of the Act. Other consultation shall also take place, that is appropriate for the nature of the issue or matter being addressed in the guidelines, including consultation with the Executive Director.
External consultation shall also take place, the extent of which shall be determined at the discretion of the Chairperson.
Guidelines remain in effect unless and until the Chairperson expressly revokes them.
The Board will continue to monitor the review of IRB decisions by Higher Courts. In the event that a set of guidelines becomes inconsistent with a subsequent Higher Court decision, the guidelines will either be revised in order to be consistent with the Higher Court decision, or revoked. The decision whether to revise or revoke the guidelines shall be determined at the discretion of the Chairperson, after consulting with the Deputy Chairpersons, the Director General of the ID, and the Executive Director, as applicable.
In any other case, the decision whether or not to revoke a set of guidelines is left to the Chairperson's discretion, after consulting with the Deputy Chairpersons, the Director General of the ID, and the Executive Director, as applicable.
The issuance of a set of guidelines will be communicated to the public. Parties and their counsel will therefore be expected to know that a set of guidelines have been issued on a particular subject.
Although not binding, members are expected to follow guidelines, unless compelling or exceptional reasons exist to depart from them.
A member must explain in his or her reasoning why he or she is not following a set of guidelines when, based on the facts or circumstances of the case, they would otherwise be expected to follow them.