Policy no. 2003-06
Effective Date: July 1, 2000
Re-issued: September 10, 2003
POLICY ON ORAL DECISIONS AND ORAL REASONS
1. Purpose
This policy reaffirms oral decisions and reasons, delivered at the conclusion
of a hearing, is the norm for decision-making in the Immigration and Refugee
Board (IRB).
This policy also sets out the basic principles in support of the oral
decisions process.
2. Application
This policy replaces the Board's Policy on Oral Decisions and Oral
Reasons (#2000-01), which became effective on July 1, 2000.
It is reissued with amendments consequential to the coming into force
of the Immigration and Refugee Protection Act (IRPA) and the
Board's Rules. It builds on Division-specific policies and practices
and supersedes any documents or portions of documents or statements previously
issued by the IRB that conflict with this policy and supporting materials.
An Annex setting out the finality of decisions and other methods for meeting
the objectives of the policy has been removed. The finality of decisions
is now covered by the Board's Rules and division-specific initiatives
for meeting the objectives of the policy will continue to be dealt with
by each Division.
3. Context
An administrative tribunal has greater flexibility to permit timely and
more informal access to a fair adjudicative process. The IRB
seeks to deliver its decisions simply, quickly, and fairly. Oral decisions
and reasons delivered at the conclusion of a hearing contribute to the
objectives of quality and timeliness in decision-making, as well as a
more responsive and accessible administration of justice.
The Immigration Division already delivers oral decisions in virtually all cases.
Together with the Immigration Appeal Division (IAD) and the Refugee Protection
Division (RPD), the goal is to deliver oral decisions as the norm in the IRB.
There
are situations in which it may not be appropriate to render an oral decision.
In these cases, reserved written decisions and reasons shall be provided within
specified time frames. These situations include cases involving particularly
complex factual or evidentiary situations, or complex or novel legal issues.
The decision whether or not to issue an oral decision is also influenced by
matters such as the length of the hearing, security concerns and the impact
of the decision on the well-being of vulnerable persons before the IRB.
3.1. Quality of decision-making
The quality of decision-making is of paramount importance to the IRB,
both for decisions delivered orally as well as for decisions delivered
in writing.
The key determinants of quality remain the same whether
the decision and reasons are written or oral: sound application of the law;
good comprehension of the relevant facts and arguments; and clear analysis,
all of which lead to understandable and concise reasons for decision. Oral
decisions and reasons are fully capable of meeting these standards, although
it can be expected that they may not be as polished in format and phraseology
as reasons that are written after the matter has been heard and reserved.
The IRB
believes that the oral decisions process contributes to the quality and
timeliness of decision-making in several important ways.
First, in any adjudicative setting, the timeliness
with which decisions are rendered can be one measure of the quality of its
processes. Parties are on hold pending a decision, and a decision communicated
directly and immediately reduces uncertainty for the person who is awaiting
that decision, regardless of the substantive outcome. All courts are under
scrutiny with respect to the timeliness of their processes, and this is truer
of an administrative tribunal that has been established, in part, to make
decisions more informally, more responsively and more quickly than can be
expected in a court of law.
Second, the quality of decision-making is enhanced when
decisions and reasons are delivered while the evidence and the testimony of
witnesses are fresh in the minds of the decision-makers. Oral decisions and
reasons are particularly appropriate when a tribunal has a large number of
relatively short hearings, as is the case in the three divisions of the IRB.
Third, while case preparation is an essential component of the work of decision-makers,
delivery of oral decisions necessitates a renewed emphasis on, and a modified
approach to, case preparation. The case preparation required involves identifying
key issues from a thorough review of the file in advance of the hearing.
This enables decision-makers to conduct more focussed hearings, further enhancing
the overall quality of the decision-making process. This should lead to reduced
processing times and will assist decision-makers in managing their caseloads.
3.2. Statutory support
Paragraph 169(b) of IRPA requires that reasons
for decision must be given in all decisions. The authority for oral decisions
and reasons is explicitly provided for in paragraph 169(c) of IRPA,
which states that decisions may be rendered orally or in writing.
Paragraphs 169(d) and (e) of IRPA,
and the Board’s Rules,set out the circumstances in which
a Division must provide written reasons, regardless of whether or not the
decision was rendered orally at the conclusion of the hearing.
These provisions are applicable only to final decisions,
not interlocutory decisions.
4. Policy Statement
It is the norm in the IRB
that an oral decision and supporting reasons are delivered at the conclusion
of a hearing, and that the decision concludes the matter at issue. All
decision-makers are expected to deliver oral decisions and reasons in
all appropriate cases.
Decision-makers are expected to direct case preparation and conduct
the hearing with a view to delivering their final decision and supporting
reasons orally at the conclusion of the hearing.
Hearing-room participants should approach the hearing expecting that
the decision, with supporting reasons, will be rendered orally at the
conclusion of the hearing.
When an oral decision and supporting reasons are delivered, the record
should clearly indicate that the decision is final. Decision-makers
may indicate that they reserve the right to modify the written version
of the reasons in order to correct grammar, spelling, syntax, and to
add references to legal citations and country documents, as necessary.
However, decision-makers should not make any changes of substance to
the written version of their reasons.
Notwithstanding normal practice, decision-makers should reserve their
decision where the particular circumstances of a case make oral delivery
of the decision inappropriate. In making this assessment, decision-makers
take into account, among other factors, whether or not there are complex
evidentiary or legal issues requiring extensive consideration by the
decision-makers. As well, there may be security reasons or concerns
for the well-being of any person that make the delivery of an oral decision
inappropriate.
All employees of the IRB
will actively support the oral decisions and oral reasons process through
effective and timely case preparation, administrative support, professional
development, and other actions, as necessary.
Further, in the RPD, Refugee Protection Officers shall support the
oral decisions process by placing the necessary emphasis on the enhanced
case preparation that this policy necessitates. They shall ensure that
their contribution before and during the hearing facilitates the delivery
of an oral decision with supporting reasons at the conclusion of the
hearing.
5. Implementation
Oral decisions and reasons are the norm for the IRB. Each decision-maker, or panel,
hearing an individual case determines whether to reserve the decision or to
deliver it orally at the conclusion of the hearing.
5.1. Divisional objectives
Divisions are responsible for setting objectives for their
decision-makers and division-specific practices and procedures to ensure that
the delivery of oral decisions and reasons is the norm for the IRB.
Management and staff also play a role in supporting the
achievement of corporate objectives by actively supporting the oral decisions
process and maintaining conditions that facilitate this process.
5.2. Regional Executive Committees
Regional Executive Committees (RECs)
have an important role to play in supporting the
oral decisions process, and they will develop strategies to support this policy.
These strategies may involve, among other things, the development of specific
operational service standards, as well as commitments to monitor the achievements
of decision-makers and staff.
The RECs
will support the strategies of each division. The RECs
will address and resolve regional or district operational issues which
may inhibit the success of this initiative.
5.3. Training, research, and other support
The IRB
will provide ongoing training and develop materials, as required. The
RECs
are responsible for the identification of local professional development
needs and for informing the Professional Development Branch of any need for
action.
6. Monitoring
Divisions, RECs
and the Policy, Planning and Research Branch will establish strategies
to monitor the implementation and application of this policy. Ongoing
monitoring and evaluation of this policy will be integrated into the overall
program management of the IRB.
7. Legislative and Regulatory Provisions
Immigration and Refugee Protection Act,
paragraphs 169(a),(b),(c),(d) and (e).
Immigration Division Rules, rules 7, 11.
Refugee Protection Division Rules, rules
61-67.
Immigration Appeal Division Rules, rules
53-56.
8. Enquiries
For information contact:
Chief, Policy Development and Coordination Section
Policy, Planning and Research Branch
Canada Building (Minto Place)
344 Slater Street, 14th Floor
Ottawa, Ontario K1A 0K1
Fax: (613) 952-9083
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