Policy no. 2004-01
Dated: June 28, 2004
Policy on the Transfer of Files for Hearings by Videoconference
(Refugee Protection Division)
Operations Branch
TABLE OF CONTENTS
- Purpose
- Application
- Definitions
- Context
- 4.1 Quality of decision-making and natural
justice
- 4.2 Statutory Support
- Policy Statement
- 5.1 General
- 5.2 Who May Exercise this Authority
- 5.3 Criteria Applied Prior to Administrative
Transfer
- 5.4 Review of Transferred Files by Receiving
Region/Distric
- 5.5 Applications
- Implementation
- Monitoring
- References
- Enquiries
1. Purpose
The Immigration and Refugee Board (IRB)
was established as an administrative tribunal, in part, in order to make
well-reasoned decisions, quickly and fairly. It must deal with all proceedings
before it as informally and quickly as the circumstances and considerations
of fairness and natural justice permit. To do so, the Board must use its
discretion to apportion work where resources are available in order to
provide a fair hearing at the earliest opportunity. Dealing with cases
in a timely manner is an important element in the delivery of justice
and quality decision-making.
The administrative transfer of files is a critical tool for the IRB
to manage its workloads. In doing so, the IRB
remains responsive to persons awaiting decisions, as well as to Canadians
expecting a fair and efficient administration of justice.
The purpose of this policy is to outline the principles governing the
administrative transfer of files between regions/districts in the Refugee
Protection Division (RPD)
and the associated holding of hearings by videoconference. Specifically,
this policy sets out the circumstances in which administrative transfers
may or may not occur.
2. Application
This Policy is applicable to the Refugee Protection Division of the IRB.
3. Definitions
For the purposes of this policy:
“Administrative transfer of files” means a transfer
of files between regions/districts that takes place on the RPD's
own initiative. This is distinguished from transfers of files that occur
as a result of applications received from parties to change the location
of proceedings.
“Hearings” includes expedited interviews.
“Office, or region/district, that originally received the
claim(s)”
means the region/district to which the claim(s) were originally referred
by Citizenship and Immigration Canada (CIC).
“Receiving region/district” means the region/district
that receives the administrative transfer of files from another region/district.
4. Context
The IRB
is Canada's largest administrative tribunal. It is comprised of three
distinct tribunals, the largest being the RPD,
which operates out of five regional/district offices. As a tribunal, the
IRB
was established, in part, to deliver a procedurally simpler and quicker
version of justice than the courts. However, as a large administrative
organization, there are operational limits to the IRB's
flexibility and to its ability to re-allocate resources in response to
significant changes in its workload.
Since the creation of the IRB
a number of initiatives have been utilized to deal with periods of variable
workflows to the RPD
(formerly the Convention Refugee Determination Division), including the
appointment of additional members to the RPD
and the redeployment of members within both the Division and the organization
as a whole. A series of measures known as the “Chairperson's Action
Plan”, designed to increase the efficiency of the RPD
as a whole, were also introduced in 2003 in response to the unprecedented
increases in referrals of refugee claims which began in 1999. While these
measures provided some immediate results, further action was needed to
deal specifically with ongoing variations in the distribution of workload
between regions/districts. In March 2003, the inventory had peaked at
more than 52,000 claims with 70% of the RPD workload situated in the Toronto
region. The use of administrative transfer of files for hearings by videoconference
responds to such workload pressures.
4.1 Quality of decision-making and natural
justice
The quality of decision-making is of paramount importance to the IRB.
The key determinants of quality remain the same whether the hearing is
held in the presence of the claimant or by videoconference. The administrative
transfer of files for hearings by videoconference is in accordance with
the principles of natural justice and procedural fairness.
Natural justice is a principle of law that requires administrative tribunals
such as the IRB
to be procedurally fair. The administrative transfer of files and the
holding of hearings by videoconference adhere to the underlying principles
of natural justice, i.e. that a person must know the case that he or she
must meet and have an opportunity to be heard by an unbiased and impartial
decision-maker. The right to a full and proper hearing with an opportunity
to present evidence, question witnesses, and make representations exists.
All participants in the hearing process (including counsel and an interpreter,
where applicable) continue to be present in cases that are heard by way
of videoconference and evidence continues to be assessed in each case
in the same way as when all participants are in the same location.
4.2 Statutory Support:
4.2.1 Transfer of Files Between Regions/Districts
The Immigration and Refugee Protection Act (IRPA)
provides the authority for the Board to transfer files between regions
and/or districts. Section 159(1)(a) states that in his, or her,
capacity as chief executive officer of the Board, the Chairperson “has
supervision over and direction of the work and staff of the Board”. Furthermore,
section 162(2) states that “each Division shall deal with all proceedings
before it as informally and quickly as the circumstances and the considerations
of fairness and natural justice permit.”
4.2.2 Hearings by videoconference
Section 164 of IRPA
explicitly provides that “where a hearing is held by a Division,
it may, in the Division's discretion, be conducted in the presence of,
or by means of live telecommunication with, the person who is the subject
of the proceedings.”
5. Policy Statement
5.1 General
The administrative transfer of files for hearings by videoconference
is guided by the following principles:
The administrative transfer of files does not require a claimant
to attend the hearing in person in the regional/district office to
which the file has been transferred. The hearing is held by videoconference
and the claimant and his or her representative (if one has been retained)
are present in the office where the claim was initially received,
while the member, the refugee protection officer (if assigned), and
the interpreter (if necessary) are present in the office to which
the file has been transferred. However, a claimant, and counsel, if
any, may choose to attend the hearing in person in the receiving region
at claimant's own expense.
Subject to the circumstances noted below, the IRB
may, in its discretion, administratively transfer any file for a hearing
to be conducted by videoconference. This includes files involving
cases to be dealt with by expedited interviews. The administrative
transfer of files between IRB
offices, and the holding of hearings by videoconference, will occur
in accordance with operational requirements and where there are resource
capacities in other IRB
offices that have previously dealt with claims from the same source
countries.
5.2 Who May Exercise this Authority
The administrative transfer of files may occur where it has been
determined by the Executive Director and the RPD
Deputy Chairperson, that a disproportionate share of the
RPD's
workload is found in one or more regions/districts.
Once such a determination has been made, Regional Directors/District
Managers of sending and receiving offices will provide directions
to their respective registries regarding the inventory of files that
are to be administratively transferred. This will be based upon recommendations
from the RPD
Operations Committee, as approved by the Executive Director and the
RPD
Deputy Chairperson.
No files are to be transferred prior to the receipt of completed
Personal Information Forms (PIFs).
5.3 Criteria Applied Prior to Administrative
Transfer
The IRB
recognizes that there may be circumstances in which it would not
be appropriate to transfer a file and hold a hearing by videoconference.
The following criteria outline those circumstances and will be applied
by the regional/district office that originally received the claim:
- Cases involving unaccompanied minors and persons who, in the opinion
of the RPD,
are unable to appreciate the nature of the proceedings;
- Cases involving detained persons (priority processing);
- Cases in which the Minister's counsel is intervening and participating
at the hearing in person (high incidence of case complexity); and,
- Cases involving the joining of family members as identified in
RPD
Rule 49(1) (claims automatically joined), may be transferred. However,
cases involving a large number of persons not otherwise identified
in RPD
Rule 49(1) should be retained in the region that originally received
the claims (high incidence of case complexity).
5.4 Review of Transferred Files by Receiving
Region/District
Following the receipt of transferred files by the receiving region/district,
the files will be reviewed regarding their complexity. Significant
case complexities will be sufficient reason for returning a file to
the office that originally received the claim.
The receiving region/district will also determine, with respect to
the criteria set out in section 5.3 above, whether any new information
has come forth that may also necessitate the return of a file to the
office that originally received the claim. Files will be returned
to the office that originally received the claim only in limited circumstances,
for example, cases likely to involve multiple sittings, those involving
in-person Ministerial interventions where case complexities have been
confirmed, or those involving the joining of multiple files where
significant case complexities exist.
5.5 Applications
Furthermore, the RPD
recognizes that circumstances may also be brought to its attention after
a file has been transferred, that could make it more appropriate to
hold the hearing in person in the regional/district office that originally
received the claim. Board members will assess such circumstances on
a case-by-case basis when they are brought to their attention in the
form of a properly submitted application to change the location of the
proceeding to the region/district where the claim was initially received.
That decision will be based on relevant factors, including those listed
in Rule 47(4). The complexity of the case is a relevant factor.
6. Implementation
Regional and district management is accountable for the overall implementation
of this policy.
7. Monitoring
Ongoing monitoring and evaluation of this policy will be carried out
under the direction of the RPD
Operations Committee, with the support of regional executive committees
and the Policy, Planning and Research Branch.
8. References
Relevant Legislation
Immigration and Refugee Protection Act, sections 159(1)(a),
162 (2), and 164.
Refugee Protection Division Rules, rules 47, 49, and 69.
9. Enquiries
For information, contact:
Chief, Policy, Development and Coordination Section
Canada Building (Minto Place)
344 Slater Street, 14th
Floor
Ottawa, Ontario K1A 0K1
Fax: (613) 952-9083
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