Français | Contact Us | Help | Search | Canada Site | |
Home | What's New | Site Map | Forms | Decisions |
|
TABLE OF CONTENTS
INTRODUCTIONThis handbook provides information that will assist you in performing your duties when called on to provide interpretation services at the Immigration and Refugee Board (IRB). It gives an overview of the processes in place within the IRB, in particular the purpose of a Convention refugee hearing, an appeal hearing, an admissibility hearing and a detention review, and explains what is expected of you in the context of these proceedings. It also contains a brief outline of the participants and procedures. The information contained in the handbook provides some explanation about what the interpreter should or should not do to comply with the Code of Conduct for Interpreters (the Code of Conduct). This Code forms part of the interpreter's contract with the IRB. All three documents, the contract, the Code of Conduct and the handbook, inform interpreters about their role, duties and responsibilities. About the IRBThe IRB is Canada's largest administrative tribunal. Its headquarters are situated in the National Capital Region and there are regional and district offices, the main ones being in Montreal, Toronto, Ottawa, Calgary and Vancouver. The processes of the IRB are linked to those of the Department of Citizenship and Immigration (CIC), but the IRB remains independent of the latter and of the political process. There are three divisions at the IRB: the Refugee Protection Division (Refugee Division or RPD), the Immigration Appeal Division (IAD) and the Immigration Division (ID). The IRB's mission, on behalf of Canadians, is to make well-reasoned decisions on immigration and refugee matters, efficiently, fairly and in accordance with the law. The Immigration and Refugee Protection Act provides for the Immigration and Refugee Board (IRB) to be made up of four divisions:
The Tribunal ProcessWhile each division of the IRB has unique responsibilities, they all follow a quasi-judicial tribunal process. The process is designed to ensure fair, efficient, and consistent, decisions in accordance with Canadian law and Canada's international obligations and humanitarian traditions. The tribunal process includes the following characteristics:
What is the Refugee Protection Division?The Refugee Protection Division decides claims for refugee protection made by persons in Canada. Citizenship and Immigration Canada (CIC) decides refugee protection claims made outside Canada, in Canadian embassies and consulates. The Refugee Protection Division also makes decision on loss of refugee protection status. These applications are brought by CIC. Canada has an obligation to grant protection to refugees and other persons in need of protection under a number of United Nations conventions, including the 1951 Convention Relating to the Status of Refugees, the 1966 International Covenant on Civil and Political Rights and the 1984 Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment. Who are "Convention refugees" and "persons in need of protection"?Convention refugees and persons in need of protection are people who are unable or, by reason of their fear, unwilling to be protected by their home country. Under the 1951 Convention, "Convention refugees" are people who have left their home country and have a well-founded fear of persecution based on:
"Persons in need of protection" are individuals whose removal to their home country would subject them personally:
As well, Convention refugees and persons in need of protection based on a risk to life, or of cruel and unusual treatment must face the risk throughout the country in question. The risk to life or of cruel and unusual treatment must be a personal risk and not one that applies generally to others in or from the country. Also, the risk must not come as a result of lawful sanctions that conform to international standards, and must not be caused by the country's inability to provide adequate health or medical care. Some persons are excluded from the definitions of a Convention refugee or a person in need of protection. They are people who:
What is the process for making a claim for refugee protection? Claims for refugee protection cannot be made directly to the Immigration and Refugee Board. A claim is made by notifying an officer of Citizenship and Immigration Canada (CIC) at any port of entry or at a Canada Immigration Centre. A CIC officer will determine whether the claim is eligible to be heard and will refer eligible claims to the Refugee Protection Division. The burden of proof rests on claimants to show that their claims are eligible to be referred to the IRB. Claims that are ineligible include those where:
Claimants who are referred to the Refugee Protection Division are provided with information about the hearing process. They are required to complete a Personal Information Form detailing the nature and facts of their claim for refugee protection. The claim is then reviewed to determine whether it will go through an expedited process or a full hearing. The expedited process is used when a claim appears to be manifestly well founded. In this process, a claimant is interviewed by an IRB employee called a refugee protection officer, who makes a recommendation about the claim. If the recommendation is favourable, the claim is then forwarded to a member who will decide if it should be accepted without a hearing. A full hearing is held if the claimant is not granted refugee protection status at the expedited interview. Full hearings follow the general tribunal process described earlier. The process is usually non-adversarial; it becomes adversarial when a representative of CIC participates in the case to argue against the claim. A refugee protection officer assists the member to ensure that credible and relevant evidence is presented. Representatives of the United Nations High Commissioner for Refugees may observe any hearing. Individuals whose claims for refugee protection are accepted by the IRB may apply to become permanent residents of Canada. Both the claimant and CIC may ask the Federal Court of Canada for leave (permission) to apply for judicial review of any decision of the Refugee Protection Division. If permission is granted and the judicial review is allowed, the claim is returned to the Refugee Protection Division for a new hearing. Unsuccessful claimants may have other recourses at CIC including a pre-removal risk assessment. Refugee Protection Determination Process* The claimant or CIC may ask the Federal Court of Canada for leave (permission) to apply for judicial review of any decision of the Refugee Protection Division. What is the Immigration Appeal Division?The Immigration Appeal Division hears and decides appeals on immigration matters such as appeals of removal orders and of refused sponsorship applications. The process is adversarial: the appellant has to satisfy the panel that the appeal should be allowed while the other party is supporting the opposite view. Hearings before the Appeal Division are public unless the panel issues an order to ensure the confidentiality of all or part of the proceedings. Who appears before the Immigration Appeal Division?Canadian citizens and permanent residents whose applications to sponsor close family members to Canada have been refused. However, they cannot appeal the refusal of persons who have been found inadmissible to Canada based on:
Permanent residents, Convention refugees, protected persons and foreign nationals with a permanent resident visa cannot appeal their removal order if they have been found inadmissible to Canada because of:
Permanent residents determined outside of Canada by an officer of Citizenship and Immigration Canada (CIC) not to have fulfilled their residency obligation, also have a right of appeal before the Immigration Appeal Division. CIC may appeal a decision made by the Immigration Division at an admissibility hearing. What are the grounds for an appeal?The Immigration Appeal Division may allow an appeal and set aside the original decision based on the grounds of an error in law or fact in the original decision, or of a breach of a principle of natural justice. In certain cases, the Immigration Appeal Division may also consider humanitarian and compassionate grounds, i. e. , consider all the circumstances of the case, such as taking into account the best interests of a child. What happens when a person appeals a sponsorship refusal?The sponsor has 30 days to make an appeal to the Immigration Appeal Division. The appeal will be heard by a member following the tribunal process described earlier. Some sponsorship appeals go through an alternative dispute resolution process. A dispute resolution officer (usually a member of the Immigration Appeal Division) attempts to resolve the appeal without a full hearing. If the appeal is allowed, CIC will resume processing the sponsorship application or it may challenge the decision of the Immigration Appeal Division by applying to the Federal Court of Canada for leave for judicial review. It is possible for CIC to refuse the application on other grounds. If the appeal is dismissed, the sponsor may apply to the Federal Court of Canada for leave for judicial review. The Federal Court will either dismiss the application by CIC or the sponsor or return the case to the Immigration Appeal Division for re-hearing. What happens when a person appeals a removal order?Appeals of removal orders must be made within 30 days of the removal order being issued. A member will hear the appeal following the tribunal process described earlier. If the appeal is allowed, the removal order is set aside and the person will be permitted to remain in Canada. If the appeal is dismissed, the removal order will be upheld and CIC may remove the person from Canada. The Immigration Appeal Division could decide to stay the removal order, which means that it would not be carried out for a set period as long as the person complies with certain conditions. The Immigration Appeal Division may change the conditions, cancel the stay or change the time period of the stay. If the Immigration Appeal Division cancels the stay, it will then allow or dismiss the appeal. As with sponsorship appeal decisions, the person concerned or CIC may challenge the decision of the Immigration Appeal Division by applying to the Federal Court of Canada for leave for judicial review. What happens when a person appeals a CIC decision made outside of Canada that the person has not complied with the residency obligation?The person who is alleged not to have complied with the residency obligation must make the appeal no later than 60 days after receiving the written decision. Upon application, the Immigration Appeal Division can issue an order that the person must physically appear at their hearing. Once the order is made, a CIC officer will issue a travel document allowing the person to return to Canada for the appeal hearing. A member will hear the appeal following the tribunal process described earlier. If the appeal regarding the residency obligation is allowed, the Immigration Appeal Division will set aside the decision of the officer and the person will not lose permanent resident status. If the appeal is dismissed and the person is in Canada, the person will lose permanent resident status and the IAD will make a removal order. The person or CIC can challenge any Immigration Appeal Division decision by making an application to the Federal Court of Canada for leave for judicial review. The Sponsorship Appeal Process* The sponsor or CIC may ask the Federal Court of Canada for leave (permission) to apply for judicial review of any decision of the Immigration Appeal Division. Removal Order Appeal Process* The person concerned or CIC may ask the Federal Court of Canada for leave (permission) to apply for judicial review of any decision of the Immigration Appeal Division. What is the Immigration Division?The Immigration Division conducts admissibility hearings for certain categories of people believed to be inadmissible to, or removable from, Canada under the law. It also conducts detention reviews for most persons being detained under the Immigration and Refugee Protection Act. Generally, admissibility hearings and detention reviews are conducted in public unless the member has decided to hold them in camera. Who appears before the Immigration Division?Admissibility hearings are held for foreign nationals or permanent residents suspected of being in violation of the Immigration and Refugee Protection Act. Admissibility hearings take place solely at the request of Citizenship and Immigration Canada (CIC) and do not apply to Canadian citizens. Straightforward cases are decided by CIC officers and do not require an admissibility hearing. The grounds of inadmissibility include security, violation of human rights, criminality, organized criminality, misrepresentation and failure to comply with the Act. Detention Reviews are held for individuals who have been detained by CIC under the Act and who:
Minors are only detained as a last resort. What happens when Citizenship and Immigration Canada requests an admissibility hearing?An admissibility hearing is held at the request of CIC only. CIC provides the Immigration Division with a report containing the reasons for which it believes that the person should not be admitted or allowed to stay in Canada. Admissibility hearings generally follow the tribunal process outlined earlier for all IRB hearings. However, in contrast to refugee determination hearings, admissibility hearings are adversarial: there are always two opposing parties. An officer represents CIC, while the individuals concerned may choose to be represented by counsel or represent themselves. After considering all the evidence, the member decides whether or not the allegations are founded. The member will then either order the person to leave Canada by issuing a removal order, or will admit or allow the person to remain in Canada. A person ordered removed may apply to the Federal Court of Canada for leave (permission) for judicial review of the member's decision. Some permanent residents and others who have been issued a removal order may appeal to the Immigration Appeal Division. Detention Review Process
* The person concerned or CIC may ask the Federal Court of Canada for leave (permission) to apply for judicial review of any decision rendered at a detention review hearing. What happens when a person is detained under the Immigration and Refugee Protection Act?When a person is detained, a detention review is held to determine whether there are sufficient reasons to continue the detention of the person under the Act. Detention review hearings generally follow the tribunal process described earlier. At the request of CIC, a detention review hearing is conducted within approximately 48 hours of detention. The member who conducts the hearing may release the person or order continued detention, if for example, the person is unlikely to appear for a hearing, is a danger to the public, or if the person's identity has not been established. In addition, the release of a person may be subject to certain conditions, such as the payment of a cash deposit or the posting of a guarantee for compliance with the conditions. If the member orders continued detention, the person is again brought before the Immigration Division within the following seven days for another hearing, and afterwards if the detention is continued, at least once each 30-day period. A detained person may request a review of detention at any time. The detained person or CIC may apply to the Federal Court for leave for judicial review of any decision on detention. About interpretation services at the IRBCanadian law recognizes that everyone has a right to a fair hearing. This means, in part, that all participants must fully understand every statement made and document produced in legal proceedings. As a tribunal, the IRB has the duty to provide interpretation for any party who does not understand or speak the language of the proceedings. In all its practices and processes, the IRB strives to act simply, quickly and fairly. It acknowledges that its clients have specific needs and will accommodate them to its utmost ability. Many people who appear before the IRB come from countries where various languages are spoken. Quite often, these people are not conversant in either English or French, the two official languages of Canada. Interpretation services are therefore required so that the IRB decision-makers and other participants in the proceedings are able to communicate with the person who is the subject of the proceedings and that the latter is given an opportunity to communicate in a language with which he/she is familiar. Interpreters, therefore, play an important role both for the IRB and for the persons concerned by assisting them to communicate accurately. The provision of interpretation services ensures fairness of the process, and thus helps the IRB to achieve its goals. PART I - ROLE OF THE INTERPRETERNature of the relationship between the interpreter and the IRBYou, as an interpreter, provide interpretation services as an independent contractors and when needed by the IRB. You are not an employee of the IRB. Signing a contract with the IRB does not guarantee that your services will be used any fixed or minimum number of times. The IRB has sole discretion to call upon your services during the course of the contract. As an interpreter, you must sign the Code of Conduct for Interpreters (the Code of Conduct) prior to being contracted by the IRB. The Code of Conduct sets the standards that you are expected to meet in providing interpretation services at the IRB. Type of interpretationYour task as an interpreter is to interpret orally all dialogue and, in some cases, short documents submitted during, before, or after the proceedings. You will have to interpret both from the language of the person who is the subject of the proceedings into English or French, and from English or French into the language of that person, using consecutive interpretation. Whatever is said in one language should be interpreted faithfully and accurately into the other language using the exact equivalent meaning and structure. Means of interpretationWhile most of the time the participants in the process are all in the same room, it may happen that you will be required to interpret over the telephone or in the context of a videoconference. Ensuring fairnessWhile performing your duties, you must be objective and impartial. Your role is to provide interpretation, not to give advice or explanations to the person who is the subject of the proceedings. You should disclose to the case management officer, the clerk or the presiding decision-maker any real or potential conflict of interest you may have with the subject of the proceedings (see Rule 4 of the Code of Conduct). You are the vehicle for transferring the messages between the subject of the proceedings and other participants. You are asked to interpret only what is stated, without omitting, adding or altering what is said. It is both wrong in law and unfair in general that there be any deviation from the accepted principle that every statement be interpreted. By following this principle and the instructions of the presiding decision-maker in each instance, you will help ensure a fair and proper hearing. Context of interpretationThe IRB may need to retain your services in different settings: for a RPD hearing, an IAD hearing, an admissibility hearing, a detention review, or in other situations where the personnel of the IRB need to meet or speak with the subject of the proceedings. These proceedings are described below. The Immigration and Refugee Protection Act is the statute that governs the activities of the IRB although other statutes are also referred to. While certain words may have a common meaning, in the context of this legislation they may have a more refined legal meaning. We encourage you to refer to the Act to appreciate this distinction. During a hearing before the RPD, refugee claimants are requested to tell the panel what has led them to claim refugee status. In having to provide details about their circumstances, claimants often have to recall very sensitive and emotional moments of their life, about which they may find it difficult to speak. In those instances, your ability to demonstrate professionalism will inspire greater confidence and help facilitate a free-flowing exchange between the panel and the claimant. PART II - GUIDELINES FOR INTERPRETERSAs a freelance interpreter for the IRB, it is expected that you will strive to maintain a high level of professionalism. The importance of this cannot be understated. In the hearing room, the perception that people will have of your abilities is directly related to your general conduct and your respect for procedures. Your level of competence will be demonstrated partly by the skills and qualities you reveal and foremost by your adherence to the Code of Conduct, as well as by your appreciation of the interpretation process, and of your own role and responsibilities. The following guidelines provide details about the attitude and behaviour that are required from you. They are intended to give you some direction on what you should be doing and what you should refrain from doing when called on to provide services at the IRB. No appearance of bias, and no actual bias
Accurate interpretation
Preparation and tools
Appropriate communication
Professional conduct
PART III - GENERAL INFORMATIONAccreditationIn order to provide services to the IRB, you must successfully pass an accreditation test. In very exceptional circumstances and only where it is necessary to safeguard the fundamental rights of the subject of the proceedings, non-accredited interpreters may be retained. This situation may arise in cases where the subject of the proceedings only speaks a very rare language or dialect. Reliability checkPrior to being contracted by the IRB, you must consent to and pass an enhanced reliability screening. Code of conductWhen signing a contract with the IRB, you are obligated to comply with the Code of Conduct for Interpreters which sets out the rules you are expected to follow. DressYour clothing should be appropriate for a formal hearing and in keeping with the atmosphere of the hearing room. AttendanceYou must provide a minimum of 48 hours' notice if you are unable to attend a scheduled hearing. PunctualityIf, for any reason, you are prevented from being on time, advise the registrar or the interpreter coordinator of the IRB. Otherwise, report for duty 15 minutes before the scheduled commencement of the proceeding. DictionaryYou may use an ordinary dictionary, a legal dictionary, and this handbook during the proceedings. You may also want to have a pen and paper with you to make notes to help you during the proceedings. However, at the end of the hearing, all material related to the proceedings must be left in the room, and any notes you have made must be destroyed. CalendarYou may require a calendar to convert dates from some countries. Recording of ProceedingsRecording devices are used to make a verbatim record of all the dialogue in the proceedings. Consider the need for clarity for the tape recorder. When speaking in English or French, speak clearly and not too fast. If uncommon names or places are mentioned, spell them out or write them down for recording purposes. Use of telecommunicationsYou may be asked to provide interpretation services for proceedings conducted by telephone or videoconference. While it is not usually the practice to have interpretation rendered by telephone, it is sometimes necessary due to geographic limitations and interpreter availability. Please remember and comply with the instructions below when providing telephone interpretation.
Termination of ProceedingsCheck with the officer responsible before leaving to ensure that your services are no longer required, and that the hours of work are properly recorded. Occasionally delays are encountered; therefore, you may wish to bring something to occupy your inactive time. Swearing inAt the beginning of the proceedings, you will be sworn in by the presiding decision-maker, to translate and interpret accurately and to the best of your ability. You may also be reminded of the confidentiality of the proceedings and the fact that you cannot, within or outside the IRB, discuss any matter for which you provide services to the IRB. Should you, as an interpreter, become aware of a conflict of interest in relation to the case that has not been previously raised with a case management officer or a refugee protection officer or the interpreter coordinator, it should be raised with the presiding decision-maker at the time of the swearing in. You will be asked to take an oath by swearing on the holy book of your choice or by making a solemn declaration. There are penalties provided by law for persons convicted of intentionally misleading justice. [Sample] OR [Sample] Contact addressMake sure you provide the interpreter coordinator with a current address and telephone number where you can be reached if the IRB needs to retain your services. Always notify the interpreter coordinator of any change of address or telephone number. PART IV - OTHER PARTICIPANTS AT THE PROCEEDINGSThe following paragraphs contain a brief description of the roles of the various participants in the proceedings. Presiding member
MemberThe person who sits on the RPD, IAD or ID hearing and is responsible for making the decision, on the basis of the facts of the case and in accordance with the law. Refugee protection officer (RPO)An employee of the IRB, who acts as a neutral participant at a RPD hearing and whose function is to assist the panel or member before, during and following the hearing. During the hearing, the RPO may file documentary evidence, call witnesses, question witnesses, and make written or oral observations and summations. Subject of the proceedings
Hearings officerThe party who represents the Minister of Citizenship and Immigration in matters before the IAD and the RPD. Case presenting officer (CPO)A senior immigration officer who represents the Minister of Citizenship and Immigration at admissibility hearings and detention reviews. The CPO is responsible for stating the case for the Minister. This officer calls witnesses to admissibility hearings and detention reviews, examines and cross-examines witnesses, and may also present documentary evidence. Case management officer (CMO) / Case officer (CO)An employee of the IRB who, while not necessarily present at the proceedings, is responsible for the administrative processing of cases. Designated representativeA person designated by the presiding decision-maker, to act in the best interests of the person who is the subject of the proceedings and make decisions that he/she would otherwise make, where the person who is the subject of the proceedings is under the age of eighteen years, or is unable to appreciate the nature of the proceedings. The designated representative may also retain someone to act as counsel on the person's behalf. Guardian (or parent)A lawfully appointed person having the right and duty of making decisions for the person who is the subject of the proceedings where the person who is the subject of the proceedings is under the age of eighteen years or is mentally disadvantaged. WitnessA person called upon to give evidence at the proceeding. ObserverA person not taking part in the hearing. An observer may attend at the request of the subject or with permission. The presiding decision-maker may require an observer to leave if that person is likely to impede the proceedings. At RPD hearings, a representative of the United Nations High Commission for Refugees (UNHCR) has a right to attend and observe. IRB representatives may also attend as non-public observers. CounselUnder the Immigration and Refugee Protection Act, a person who is the subject of a proceeding before the Board may be assisted or represented by "a barrister or solicitor or other counsel." "Counsel" is the general term that describes the person who provides such assistance, including providing advice, presenting evidence and making submissions; "counsel" also refers to the person who represents the Minister in a proceeding before the Board. The Immigration and Refugee Protection Regulations now restrict which persons may represent a person before the Board for a fee, that is, charge a fee for their services. The following provides a better understanding of the differences, for the purposes of appearing before the Board, between the various types of persons who can act as counsel. "Lawyer" A lawyer, also known as a "barrister or solicitor", represents, advises or consults with an individual who is the subject of an IRB proceeding. In order to qualify as a lawyer, a person must complete legal training and must be a member in good standing of a Canadian provincial or territorial law society. Law societies are governing bodies that regulate the qualifications and conduct of lawyers in their province or territory; law societies may receive complaints regarding a member's conduct and/or competence and may discipline a member who is found to have acted unprofessionally. "Immigration Consultant" An immigration consultant, sometimes called a "paralegal", is not a lawyer, but may represent, advise or consult with a person who is the subject of an IRB proceeding. In order to represent an individual before the Board for a fee, the immigration consultant must be a member in good standing of the Canadian Society of Immigration Consultants (CSIC). CSIC is a national governing body that regulates the qualifications and conduct of its members across Canada; it may receive complaints regarding a member's conduct and/or competence and may discipline a member who is found to have acted unprofessionally. If the immigration consultant is not a member of CSIC, he or she cannot represent a person before the Board if he or she is charging a fee for their services. "Other counsel" There are various types of "other counsel", including a notary who is a member in good standing of the Chambre des notaires du Québec, which is a governing body that regulates the qualifications and conduct of notaries in Québec; it may receive complaints regarding a member's conduct and/or competence and may discipline a member who is found to have acted unprofessionally. Other counsel also includes a student-at-law, usually called an "articling student", working under the supervision of a member in good standing of a Canadian provincial or territorial law society or the Chambre des notaires du Québec who represents the subject of the proceeding. Other counsel also includes any other person who is not charging a fee for their services; this person could be a relative, a friend, or any other person, such as a person from an NGO (non-governmental organization). PART V - REFUGEE PROTECTION DIVISION (RPD) HEARINGSThe principal purpose of an RPD hearing is to determine whether the person claiming refugee status meets the definition of Convention refugee as defined in the Immigration and Refugee Protection Act and the United Nations 1951 Convention and the 1967 Protocol Relating to the Status of Refugees. At a hearing, a claimant and his/her counsel (if the claimant is represented) will present information, evidence and arguments in support of the claim. Two members of the RPD usually conduct the hearings, although, where the claimant consents, one member may preside. The exchanges between the participants are non-adversarial. A senior immigration officer of CIC must first determine whether or not the claimant is eligible to have his or her refugee claim heard before the claim will be referred to the RPD for a hearing. ParticipantsThe participants at the hearing normally include the member(s) of the Refugee Protection Division, the claimant, a refugee protection officer (RPO), an interpreter if necessary, the claimant's counsel and any witnesses that may have been called. A Minister's representative may sometimes be present to address certain issues. A representative of the United Nations High Commissioner for Refugees may attend any hearing of the RPD. IRB representatives may also attend as non-public observers. The RPO may not be present at the hearing. Although RPD proceedings are confidential, a member of the public may also apply to have a hearing made public. If the application is granted, the RPD may allow members of the public to observe all or part of the hearing. Procedure at RPD hearingsThe following is a basic outline of the procedure that you may encounter at a "typical" hearing. Since members may develop an individual style, the order and content of the steps may vary. This procedural outline is therefore intended to serve as a guide only.
PART VI - IMMIGRATION APPEAL DIVISION (IAD) HEARINGSThe primary function of the Immigration Appeal Division is to hear and decide:
Almost all IAD hearings involve a one-member panel. If the panel is comprised of three members, one member is designated as the presiding member. ParticipantsThe participants at an Immigration Appeal Division hearing include the member(s), the appellant and counsel, a hearings officer representing the Minister of Citizenship and Immigration, an interpreter if necessary, witnesses, and may include a clerk or an officer of the IRB and observers (unless the hearing is being conducted in camera). Procedure at Appeal Division hearings
PART VII - IMMIGRATION APPEAL DIVISION (IAD) HEARINGSALTERNATIVE DISPUTE RESOLUTION (ADR)What is an ADR Conference?An ADR (Alternative Dispute Resolution) Conference is not a regular appeal hearing. It is an informal meeting between an Appellant and an official from Citizenship and Immigration Canada (CIC) who is referred to as Minister's counsel. A Dispute Resolution Officer (DRO) from the Immigration Appeal Division assists the parties in an effort to resolve the case simply, quickly, and fairly. If the case is resolved through the ADR Conference, a hearing will not be required. Who will attend the ADR Conference?Attending the ADR Conference will be:
Appellants are requested to advise the DRO immediately if an Interpreter is required. Who will make decisions at the ADR Conference?The DRO will guide the meeting and encourage the parties to share information but will not decide the result. After reviewing the Appellant's file and meeting with the Appellant at the ADR Conference, Minister's counsel may agree that the appeal should be settled in the Appellant's favour. If Minister's counsel does not agree to settle, the Appellant may decide to withdraw the appeal or proceed to a hearing. How is an ADR Conference different from a hearing?An ADR Conference is an informal meeting. At an ADR Conference, each party gives their view as to why the appeal should be allowed or not. The Appellant may be asked questions at the meeting. If the Appellant has counsel at the ADR Conference, the Appellant will tell his/her story and counsel will provide support and advice. The ADR Conference will take approximately one hour to complete. Hearings generally take three hours or more. What will happen at the ADR Conference?
COMMONLY USED ADR TERMSADR (Alternative Dispute Resolution)"ADR" refers to a number of informal processes for settling cases outside of litigation. Examples of ADR processes include negotiation, mediation, and arbitration. ADR Conference"ADR Conference" is the term used in the Immigration Appeal Division's ADR Program to describe the informal session that is held with Appellants and Minister's counsel. The ADR Conference has been designed to give parties an opportunity to resolve appeals simply, quickly, and fairly. AppellantThe "Appellant" is the sponsor of a family member (Applicant) who has chosen to appeal the refusal of Citizenship and Immigration Canada to approve the sponsorship. ApplicantThe "Applicant" is the family member being sponsored by the Appellant. CaucusA "caucus" is a private meeting held between a DRO and a party (including any representative) to the ADR Conference in the absence of the other party. Caucuses are most often held to explore settlement options. Dispute Resolution Officer (DRO)The "DRO" is a member of the Immigration Appeal Division who assists the parties during the ADR Conference. If a particular case does not resolve at the ADR Conference, a different member will be assigned to hear that case. Mediation"Mediation" is an ADR process in which a mediator facilitates the negotiation between parties in an attempt to resolve the issues. It is an informal, private, and confidential process. The ADR Conference is a unique process that shares many of the characteristics of mediation. MediatorA "mediator" is a neutral who assists parties negotiate a resolution to the issues between them. A mediator explains the mediation process, clarifies issues, and helps the parties to communicate effectively. The mediator may also provide the parties with a view as to whether the case would be allowed or dismissed at hearing. Minister's Counsel"Minister's counsel" is the official of Citizenship and Immigration Canada that represents the Minister at the ADR Conference. At an ADR Conference, Minister's counsel has the authority to decide whether or not to recommend that an appeal be allowed. Opening StatementDROs begin the ADR Conference by making an "opening statement" that sets the tone for the session and gives the parties important information about the ADR process. ProtocolsThe Immigration Appeal Division has developed a number of "Protocols" relating to the conduct of its ADR Program. The "Opting-Out Protocol" for example, addresses how to handle cases that may be unsuitable for ADR. Sponsorship AppealA "sponsorship appeal" results from a refusal by an immigration or visa officer of Citizenship and Immigration Canada to approve a sponsored application for landing by a member of the family class. Summary of AgreementA "Summary of Agreement" is a document that allows an appeal. It is drafted by the DRO, signed by the parties, and approved by the Immigration Appeal Division. PART VIII - IMMIGRATION DIVISION, ADMISSIBILITY HEARINGAn admissibility hearing is a formal hearing requested by a senior immigration officer of Citizenship and Immigration, and presided by a member of the Immigration Division of the IRB, to determine:
The member makes the decision as to whether the person may be allowed to stay or be ordered to leave Canada. This decision is based on the evidence the member hears or sees during the admissibility hearing. ParticipantsThe participants at an admissibility hearing include the member, the person concerned, a case presenting officer from Citizenship and Immigration, and may include an interpreter, counsel for the person concerned and witnesses. Procedure at an Admissibility HearingThe following is a basic outline of the procedure that you may encounter at a "typical" admissibility hearing.
PART IX - IMMIGRATION DIVISION, DETENTION REVIEWSA person may be detained by a senior immigration officer of Citizenship and Immigration where there are reasonable grounds to believe that the person:
Such persons are detained by Citizenship and Immigration in facilities designed for this purpose or in provincial institutions. In many instances, the detention review takes place at the same time as the admissibility hearing. Persons detained under the Immigration and Refugee Protection Act must have their detention reviewed by a member as soon as possible after any detention. Subsequent reviews are conducted within 7 days following the initial review and henceforth every 30 days for as long as the person is detained. ParticipantsThe participants at a detention review are the member, a senior immigration officer (the Minister's representative, who is also the CPO at the admissibility hearing where they are both conducted at the same time), the person concerned, counsel for the person concerned (if any), other immigration officers (if necessary for security reasons), an interpreter (if required) and possibly observers (unless the review is being conducted in camera) and witnesses. Procedures at detention reviews
PART X - SELECTED SECTIONS OF THE IMMIGRATION AND REFUGEE PROTECTION ACT AND REGULATIONSAs mentioned previously, the activities of the IRB are governed by the Immigration and Refugee Protection Act. You are encouraged to familiarize yourself with the Act and Regulations, as well as the RPD, IAD and Immigration Division Rules. If you do not possess a copy of the Act, Regulations or Rules, you can obtain one from Public Works and Government Services of Canada or you can consult a copy at the Documentation Centre of the IRB. You may also wish to reference the IRB's Web site, or the Public Works and Government Services Translation Bureau Web site (Immigration and Citizenship glossary). Many sections of the Immigration and Refugee Protection Act, Regulations and Rules are often referred to during the proceedings. Being familiar with them will help you to interpret at them with greater ease. PART XI - COMMONLY USED TERMSLike any other specialized organization, the IRB has its own specific vocabulary. Some terms you will learn by studying the Immigration and Refugee Protection Act; others you will learn from experience. While you are getting accustomed to the new terminology, you may wish to take the time to look at the list of commonly used terms in the glossary and gradually work at finding the equivalent in your language of interpretation. You may even want to consult with other interpreters who speak your language of interpretation, as well as share your list with them. Although some words and expressions are commonly used throughout the IRB, others will apply only in one Division. For instance, the person concerned at an RPD hearing is a "claimant", but at the Appeal Division hearing, the person concerned is called an "appellant". Some words may be used either in their ordinary meaning or in a more legal or technical meaning in the context of the process. The terminology that you will hear mostly in RPD hearings relates to the circumstances a person will describe with respect to his/her refugee claim. The claimant's personal story will revolve around the definition of a "Convention Refugee", which reads as follows: Any person who by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, is outside the country of the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country, or not having a country of nationality, is outside the country of the person's former habitual residence and is unable or, by reason of that fear, is unwilling to return to that country. You may want to keep note of the terms that come up most often and extend your list of commonly used terms for quick reference. Being well prepared by becoming familiar with the terminology will greatly enhance your effectiveness and assist you in maintaining your focus. Commonly Used TermsAdversarial proceedings: A process involving opposing parties, where one is contesting the case of the other party. Administrative tribunal: A decision-making body with a licensing, certifying, approval or other adjudicative function. Although it is not a court of law, it directly affects the legal rights of a person. Canadian citizen: A person who was born in Canada or who has been granted Canadian citizenship. Convention refugee: A person who meets the definition of a refugee contained in the 1951 United Nations Convention Relating to the Status of Refugees. In general, it is someone who has left his or her home country and has a well-founded fear of persecution based on race, religion, nationality, political opinion, or membership in a particular social group, and is unable or, by reasons of his or her fear, unwilling to seek the protection of the home country. Detention review: A formal review of the circumstances and reasons for detaining a foreign national or permanent resident under the Immigration and Refugee Protection Act. Excluded persons: Persons who are excluded from the definition of a Convention refugee or person in need of protection. Excluded persons are, among others, persons who have committed a serious non-political crime outside Canada, a crime against peace, a war crime, a crime against humanity, or, are guilty of acts contrary to the purposes and principles of the United Nations, or have taken up residence in a country where they have rights and obligations similar to those of a national of that country. Expedited process: A shortened process used for determining refugee protection claims that appear to be manifestly well founded. A refugee protection officer interviews a refugee protection claimant, and if the officer makes a favourable recommendation, the claim is forwarded to a member for a decision on the claim. A full hearing is held if the claimant is not granted refugee protection at the expedited process. Foreign national: A person who is not a Canadian citizen or permanent resident. Judicial review: A judicial review is different from an appeal on the merits of the case. The Federal Court of Canada will allow an application for judicial review of a decision, where the applicant shows, for example, that the decision under review contains an error of law or of fact, or that a principle of natural justice has not been respected. Immigrant: A person who comes to settle in Canada as a permanent resident. Immigration admissibility hearing: A hearing conducted to determine whether a foreign national or permanent resident may lawfully enter or remain in Canada. Immigration and Refugee Protection Act: The Act of Parliament that governs matters concerning immigration and refugee protection in Canada. The Act came into force on June 28, 2002. Leave for judicial review: Means the permission of the Federal Court of Canada to begin an application for judicial review. Member: A person who makes decisions on cases in one of the divisions of the Immigration and Refugee Board. Non-adversarial proceedings: Proceedings in which no one is opposing the case. Permanent resident: A person who has been granted admission as an immigrant, but who has not become a Canadian citizen. Permanent resident visa holder: A person who holds a visa for permanent residence, but has not yet been admitted to Canada as a permanent resident by an immigration officer. Person in need of protection: A person whose removal to his or her home country would subject him or her to a danger of torture or to a risk to life or a risk of cruel and unusual treatment or punishment. Pre-removal risk assessment: An assessment conducted by Citizenship and Immigration Canada of the risk to a person of removing him or her from Canada. Canada adheres to the principle of non-refoulement. Based on that principle, a person must not be removed to a country where the person would be at risk. A person under a removal order may apply to the Minister of Citizenship and Immigration for a Pre-Removal Risk Assessment. Principles of natural justice: The principles of natural justice include the right to be heard, the right to be represented by counsel and the right to be judged by an impartial and independent decision maker. Quasi-judicial: Similar to a court proceeding. "Quasi-judicial" refers to decisions made by administrative tribunals, which are not courts of law but to which the principles of natural justice apply. Refugee protection claimant: A refugee protection claimant is a person in Canada who requests protection as a Convention refugee or as a person in need of protection. If refugee protection is granted, the person may apply for permanent residence. Refugee protection determination hearing: A hearing in which a member of the Refugee Protection Division of the IRB decides a claim for refugee protection. Refugee protection officer: An employee of the IRB who participates in the refugee protection determination process. Refugee protection officers are "neutral", i.e., they have no interest in the outcome of the case and their role is not to oppose the refugee protection claim. Regional Documentation Centres: Documentation centres of the IRB's Research Directorate that are open to the public. The Research Directorate collects and disseminates information on international affairs, human rights, and immigration and refugee issues (see addresses at the end of this booklet). Removal order: A departure, an exclusion or a deportation order requiring a person to leave Canada. Safe third country: A country designated under the Immigration and Refugee Protection Regulations as a safe country of transit or residence in which an individual could have found protection as a refugee before arriving in the country where the person is now claiming refugee protection. Sponsor: A Canadian citizen or permanent resident who sponsors a member of the family class to enter or remain in Canada as a permanent resident. Visitor or a temporary resident: a person other than a Canadian citizen, permanent resident or Minister's Permit holder, who is lawfully in Canada or who seeks to come to Canada for a temporary stay. If you wish to apply for employment as an interpreter at the IRB, please fill out the Interpreter Information Sheet. |
|