diff --git "a/data/processed/irb_guidelines.json" "b/data/processed/irb_guidelines.json" new file mode 100644--- /dev/null +++ "b/data/processed/irb_guidelines.json" @@ -0,0 +1,4088 @@ +[ + { + "id": "irbg-2-1", + "doc_type": "memorandum", + "act_code": "IRB-G2", + "act_short": "IRB Guideline 2", + "act_name": "IRB Chairperson's Guideline 2 — Detention", + "section": "G2 s. 1", + "marginal_note": "Table of Contents", + "part": "Detention", + "division": "", + "heading": "", + "text": "Objectives and principles\nGrounds for detention\n2.1 General principles\n2.2 Danger to the public (Section 58(1)(a))\n2.3 Unlikely to appear (Section 58(1)(b))\n2.4 Minister inquiring into security, violations of human or international rights, criminality, serious criminality or organized criminality (Section 58(1)(c))\n2.5 Identity of foreign national not established (Section 58(1)(d))\nRelease and alternatives to detention\n3.1 General principles\n3.2 Release considerations\n3.3 Bondspersons\n3.4 Change in conditions\nMinors\nVulnerable persons\nDesignated representatives\nConducting the detention review – Robust hearing\n7.1 Accessible hearings\n7.2 Fresh determination\n7.3 Disclosure and evidence\nSufficiency of reasons for decision\nStatutory timeframes\nEnquiries\nAnnex A – Immigration and Refugee Protection Act\nAnnex B – Immigration and Refugee Protection Regulations", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 2, s. 1 (Table of Contents)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir02.aspx" + }, + { + "id": "irbg-2-1-p1", + "doc_type": "memorandum", + "act_code": "IRB-G2", + "act_short": "IRB Guideline 2", + "act_name": "IRB Chairperson's Guideline 2 — Detention", + "section": "G2 s. 1", + "marginal_note": "Objectives and principles", + "part": "Detention", + "division": "", + "heading": "", + "text": "1.1.1 The objective of this Guideline\nFootnote\n1\nis to assist members of the Immigration Division of the Immigration and Refugee Board (\nIRB\n) in carrying out their duties as decision-makers by promoting consistency, coherence and fairness in the review of detention.\n1.1.2 Canadian law regards detention as an exceptional measure. This general principle emerges from statute and case law, and is enshrined in the\nCanadian Charter of Rights and Freedoms\nFootnote\n2\n(the\nCharter\n). International law, as reflected in the\nInternational Covenant on Civil and Political Rights\n, the\nOptional Protocol to the International Covenant on Civil and Political Rights\nand the\nConvention on the Rights of the Child\n, upholds the same principle.\nFootnote\n3\n1.1.3 The members of the\nIRB\n’s Immigration Division are required to conduct detention reviews regarding permanent residents and foreign nationals who are detained under Division 6 of Part 1 of the\nImmigration and Refugee Protection Act\n(\nIRPA\n).\nFootnote\n4\nThe detention reviews must be conducted in accordance with the\nIRPA\nFootnote\n5\n, the\nImmigration and Refugee Protection Regulations\n(\nIRPR\n), the\nImmigration Division Rules\n, the\nCharter\n, international law, and the jurisprudence.\n1.1.4 This Guideline provides guidance with respect to the detention review process under the\nIRPA\nfor the grounds enumerated in section 58(1).\nFootnote\n6\n1.1.5 Under the\nIRPA\n, members of the Immigration Division must order the release of a permanent resident or a foreign national unless one of the grounds for detention is met. At a detention review, the onus is always on the Minister\nFootnote\n7\nthroughout the detention review to demonstrate, on a balance of probabilities, that there are reasons which warrant detention in all circumstances of the case\nFootnote", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 2, s. 1 (Objectives and principles) (part 1 of 5)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir02.aspx" + }, + { + "id": "irbg-2-1-p2", + "doc_type": "memorandum", + "act_code": "IRB-G2", + "act_short": "IRB Guideline 2", + "act_name": "IRB Chairperson's Guideline 2 — Detention", + "section": "G2 s. 1", + "marginal_note": "Objectives and principles", + "part": "Detention", + "division": "", + "heading": "", + "text": "8\nMembers must ensure that the onus or legal and evidentiary burden remains on the Minister at every detention review.\nFootnote\n9\nWhile it may be in a person’s interest to introduce evidence in favour of release, this is not a shifting of the legal burden. It is rather, descriptive of the tactical decision by the person concerned whether to lead evidence at a detention review to prevent a potentially unfavourable outcome. However, the person concerned is not required in law to lead evidence.\nFootnote\n10\n1.1.6 Members must take into account the prescribed factors set out in Part 14 of the\nIRPR\nthat relate to the grounds for detention and release.\nFootnote\n11\nIf a member determines that there are grounds for continued detention, there must be a consideration of “other factors”\nFootnote\n12\nin section 248 of the\nIRPR\nbefore a decision is made on detention or release to determine whether further detention has been justified by the Minister in light of all the circumstances of the case. These factors are not exhaustive. Even when no evidence is offered by the detainee in response, the legal burden is on the Minister to make the case for detention on a balance of probabilities in respect of each of the s. 248 factors.\nFootnote\n13\n1.1.7 An express power in the Immigration Division to consider the nature or conditions of detention of the person concerned is not required. The Immigration Division can order release of a detainee on the grounds that the conditions of detention, on their own or in conjunction with other factors, are disproportionate and therefore contrary to the\nCharter\n.\nFootnote\n14\nThe consideration of conditions of detention is relevant to the consideration of proportionality and the overall legality of detention.\nFootnote\n15", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 2, s. 1 (Objectives and principles) (part 2 of 5)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir02.aspx" + }, + { + "id": "irbg-2-1-p3", + "doc_type": "memorandum", + "act_code": "IRB-G2", + "act_short": "IRB Guideline 2", + "act_name": "IRB Chairperson's Guideline 2 — Detention", + "section": "G2 s. 1", + "marginal_note": "Objectives and principles", + "part": "Detention", + "division": "", + "heading": "", + "text": "Conditions of detention may be identified as relevant in a balancing of the factors under section 248 of the\nIRPR\n, even where conditions of detention do not constitute cruel and unusual treatment or punishment under s. 12 of the\nCharter\n.\n1.1.8 The\nCharter\nrequires that a person subject to the detention review process under the\nIRPA\nis entitled to a meaningful and robust review that takes into account the context and circumstances of the individual case. Such persons must have a meaningful opportunity to challenge their detention.\nFootnote\n16\nMembers must consider the evidence and arguments afresh at each detention review and come to their own determinations. Members must also be aware that the evidentiary burden on the Minister to justify detention becomes heavier over time with the passing of each review.\nFootnote\n17\nParticular attention must be paid to\nCharter\nconsiderations where detention is lengthy, where the prospect of removal has become remote\nFootnote\n18\n, and/or where conditions of detention are disproportionate.\n1.1.9 Members have an obligation to consider sections 7, 9 and 12 of the\nCharter\nwhen determining whether or not detention is warranted.\nFootnote\n19\nAll detention and release decisions must be made with\nCharter\nconsiderations in mind.\nFootnote\n20\nDetention and other liberty constraints (including release on conditions) must be reasonable, necessary and proportionate, in the particular circumstances of the case.\n1.1.10 A minor shall be detained only as a measure of last resort.\nFootnote\n21\nThe\nConvention on the Rights of the Child", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 2, s. 1 (Objectives and principles) (part 3 of 5)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir02.aspx" + }, + { + "id": "irbg-2-1-p4", + "doc_type": "memorandum", + "act_code": "IRB-G2", + "act_short": "IRB Guideline 2", + "act_name": "IRB Chairperson's Guideline 2 — Detention", + "section": "G2 s. 1", + "marginal_note": "Objectives and principles", + "part": "Detention", + "division": "", + "heading": "", + "text": "states that “no child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time.”\nFootnote\n22\nMembers should make all efforts to ensure that an assessment of the best interests of the child is conducted by the Minister in each case, and by the member at each hearing, and that all options for alternatives to detention are canvassed before deciding to continue detention of a child or their parents or legal guardians.\n1.1.11 Vulnerable persons require special consideration, including making procedural accommodations for such persons so that they are not disadvantaged in presenting their cases. Members should take into account vulnerabilities when weighing evidence and determining release conditions, if any.\n1.1.12 The availability, effectiveness and appropriateness of alternatives to detention needs to be adequately assessed in each individual case. In cases where release from detention is ordered, conditions of release are not always required, but where they are, they should be tailored to the particular circumstances of the individual, given that they are restrictions on liberty. Conditions of release need to be proportionate with the level of risk determined and the specific risk determined. Members must ensure that the conditions imposed affect the liberty right of the person concerned as little as possible, while ensuring that their purpose is met.\n1.1.13 Members are subject to the standards of conduct set out in the Code of Conduct for Members of the\nIRB\n.\nFootnote\n23", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 2, s. 1 (Objectives and principles) (part 4 of 5)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir02.aspx" + }, + { + "id": "irbg-2-1-p5", + "doc_type": "memorandum", + "act_code": "IRB-G2", + "act_short": "IRB Guideline 2", + "act_name": "IRB Chairperson's Guideline 2 — Detention", + "section": "G2 s. 1", + "marginal_note": "Objectives and principles", + "part": "Detention", + "division": "", + "heading": "", + "text": "The Code requires members to conduct hearings in a courteous and respectful manner while ensuring that the proceedings are fair, orderly and efficient. It also requires members to comply with procedural fairness and natural justice. Members are expected to approach each case with an open mind and, at all times, must be, and must be seen to be, impartial and objective.", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 2, s. 1 (Objectives and principles) (part 5 of 5)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir02.aspx" + }, + { + "id": "irbg-2-2-1", + "doc_type": "memorandum", + "act_code": "IRB-G2", + "act_short": "IRB Guideline 2", + "act_name": "IRB Chairperson's Guideline 2 — Detention", + "section": "G2 s. 2.1", + "marginal_note": "General principles", + "part": "Detention", + "division": "", + "heading": "", + "text": "2.1.1 The Immigration Division shall order the release of a permanent resident or a foreign national unless it is satisfied, taking into account prescribed factors, that\nthey are a danger to the public;\nthey are unlikely to appear for examination, an admissibility hearing, removal from Canada, or at a proceeding that could lead to the making of a removal order by the Minister under subsection 44(2) (hereinafter “unlikely to appear”);\nthe Minister is taking necessary steps to inquire into a reasonable suspicion that they are inadmissible on grounds of security, violating human or international rights, serious criminality, criminality or organized criminality;\nthe Minister is of the opinion that the identity of the foreign national — other than a designated foreign national who was 16 years of age or older on the day of the arrival that is the subject of the designation in question — has not been, but may be, established and they have not reasonably cooperated with the Minister by providing relevant information for the purpose of establishing their identity or the Minister is making reasonable efforts to establish their identity; or\nthe Minister is of the opinion that the identity of the foreign national who is a designated foreign national and who was 16 years of age or older on the day of the arrival that is the subject of the designation in question has not been established.\n2.1.2 Set out below are specific considerations guiding the determination of each ground.\n2.1.3 While non-exhaustive, members must consider the prescribed factors listed in the\nIRPR\nwhen determining the grounds below, as well as any other relevant factors including those listed in section 248 of the\nIRPR\n. The legal burden is on the Minister to make the case for detention on a balance of probabilities in respect of each of the section 248 factors.\nFootnote\n24", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 2, s. 2.1 (General principles)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir02.aspx" + }, + { + "id": "irbg-2-2-2-p1", + "doc_type": "memorandum", + "act_code": "IRB-G2", + "act_short": "IRB Guideline 2", + "act_name": "IRB Chairperson's Guideline 2 — Detention", + "section": "G2 s. 2.2", + "marginal_note": "Danger to the public (Section 58(1)(a))", + "part": "Detention", + "division": "", + "heading": "", + "text": "2.2.1 The Immigration Division shall order the release of a permanent resident or a foreign national unless it is satisfied, taking into account prescribed factors, that the grounds set out in section 58(1) of the\nIRPA\nare met. Section 58(1)(a) sets out the ground of danger to the public.\nFootnote\n25\nNeither the\nIRPA\nnor the case law explicitly defines the phrase “danger to the public.” This phrase relates to the objectives of the\nIRPA\n, namely, “to protect public health and safety and to maintain the security of Canadian society.”\nFootnote\n26\n2.2.2 Members must consider the prescribed factors\nFootnote\n27\nlisted in the\nIRPR\nwhen determining whether the person concerned is a danger to the public, as well as any other relevant factors.\n2.2.3 Members must assess whether the person represents a “present and future danger to the public”. This assessment is being done under the\nIRPA\nand must be hinged to an immigration purpose. In determining future danger, the probability of danger has to be determined from the circumstances of each case.\n2.2.4 While danger to a single individual may be enough to justify danger to the public, it is not appropriate for a member to consider under this ground the self-harm that may occur as a result of the actions of the person concerned.", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 2, s. 2.2 (Danger to the public (Section 58(1)(a))) (part 1 of 3)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir02.aspx" + }, + { + "id": "irbg-2-2-2-p2", + "doc_type": "memorandum", + "act_code": "IRB-G2", + "act_short": "IRB Guideline 2", + "act_name": "IRB Chairperson's Guideline 2 — Detention", + "section": "G2 s. 2.2", + "marginal_note": "Danger to the public (Section 58(1)(a))", + "part": "Detention", + "division": "", + "heading": "", + "text": "2.2.1 It is often necessary for members to draw inferences from a person’s criminal record in determining whether that person poses a danger to the public. The more serious the criminal offences, the use of violence and weapons and the greater number of offences committed the more they weigh in favour of a finding of danger to the public. A member should also consider the circumstances of the offence, how much time has passed since the criminal conduct, the sentence imposed by the criminal court and any mitigating or aggravating factors at the time of the offence or since that time.\n2.2.6 Members must consider evidence that the person has associated with a criminal organization even if that person has no criminal convictions.\n2.2.7 While members are not bound to follow a determination of the Parole Board of Canada as to whether the person is a danger to the public, they should take into account the Parole Board’s evaluation of the risk posed by the person since their assessment usually takes into account recent conduct of the person.\n2.2.8 While members are not bound to follow determinations made in a criminal court with respect to the granting or not of bail, members should consider the court’s determinations while taking into account all the facts in the case within the immigration context.\n2.2.9 The Minister’s opinion that the person constitutes a danger to the public\nFootnote\n28\nis a factor to take into account at a detention review.\n2.2.10 Members should consider that danger to the public may dissipate over time given the passage of time since the offense and/or length of time that the person has been in detention or because evidence supporting the ground of detention has turned stale.\nFootnote\n29", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 2, s. 2.2 (Danger to the public (Section 58(1)(a))) (part 2 of 3)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir02.aspx" + }, + { + "id": "irbg-2-2-2-p3", + "doc_type": "memorandum", + "act_code": "IRB-G2", + "act_short": "IRB Guideline 2", + "act_name": "IRB Chairperson's Guideline 2 — Detention", + "section": "G2 s. 2.2", + "marginal_note": "Danger to the public (Section 58(1)(a))", + "part": "Detention", + "division": "", + "heading": "", + "text": "Therefore members should consider whether there is ongoing danger to the public, especially for persons who have been in detention for a long period of time.\n2.2.11 Members should also consider the circumstances that led to the original determination of danger to the public; for example, whether those circumstances involved a heightened level of vulnerability due to addiction or mental health issues, among others, and whether those vulnerabilities have been mitigated, e.g. through treatment or rehabilitation. However, members should be cautious regarding an absence of evidence of rehabilitation, as persons in detention often do not have access to rehabilitation programs.", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 2, s. 2.2 (Danger to the public (Section 58(1)(a))) (part 3 of 3)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir02.aspx" + }, + { + "id": "irbg-2-2-3", + "doc_type": "memorandum", + "act_code": "IRB-G2", + "act_short": "IRB Guideline 2", + "act_name": "IRB Chairperson's Guideline 2 — Detention", + "section": "G2 s. 2.3", + "marginal_note": "Unlikely to appear (Section 58(1)(b))", + "part": "Detention", + "division": "", + "heading": "", + "text": "2.3.1 The Immigration Division shall order the release of a permanent resident or a foreign national unless it is satisfied, taking into account prescribed factors, that the grounds set out in section 58(1) of the\nIRPA\nare met. Section 58(1)(b) sets out the ground “unlikely to appear for examination, an admissibility hearing, removal from Canada, or at a proceeding that could lead to the making of a removal order by the Minister under section 44(2).”\nFootnote\n30\n2.3.2 Members must consider the prescribed factors\nFootnote\n31\nlisted in the\nIRPR\nwhen determining whether the person concerned is unlikely to appear, as well as any other relevant factors.\n2.3.3 The prescribed factors listed in section 245 of the\nIRPR\nare not exhaustive and can include the best interests of a child of the person concerned in Canada as a factor in assessing whether the person will be motivated, because of the needs of the child, to comply with conditions of release, including being present when requested for removal.\n2.3.4 Factors to be considered, such as previous compliance or non-compliance, or the lack or existence of strong community or family ties in Canada, should not automatically lead to a conclusion that the person concerned is unlikely to appear. Rather, they should be considered in the specific context of the case. Where a member has concerns that these facts may give rise to risk that the person concerned is unlikely to appear, these concerns should be articulated to the person concerned for a response, as they may be able to address these concerns.\n2.3.5 When considering previous compliance and non-compliance, members need to consider the particular circumstances in each case, including mental illness, addiction or other vulnerabilities, the severity of the non-compliance, frequency, the type of compliance and the impact of non-compliance, as well as any evidence as to how the person concerned is addressing these issues.", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 2, s. 2.3 (Unlikely to appear (Section 58(1)(b)))", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir02.aspx" + }, + { + "id": "irbg-2-2-4", + "doc_type": "memorandum", + "act_code": "IRB-G2", + "act_short": "IRB Guideline 2", + "act_name": "IRB Chairperson's Guideline 2 — Detention", + "section": "G2 s. 2.4", + "marginal_note": "Minister inquiring into security, violations of human or international rights, criminality, serious criminality or organized criminality (Section 58(1)(c))", + "part": "Detention", + "division": "", + "heading": "", + "text": "2.4.1 The Immigration Division shall order the release of a permanent resident or a foreign national unless it is satisfied, taking into account prescribed factors, that the grounds set out in section 58(1) of the\nIRPA\nare met. Section 58(1)(c) sets out as a ground that the Minister is taking necessary steps to inquire into a reasonable suspicion that they are inadmissible on grounds of security, violating human or international rights, criminality, serious criminality or organized criminality.\nFootnote\n32\n2.4.2 It is up to the Minister to satisfy the member that the Minister is taking necessary steps to investigate their suspicion relating to security, violating human or international rights, criminality, serious criminality or organized criminality.\n2.4.3 The question that should be answered by the member is not whether the evidence relied upon by the Minister is true or compelling, but whether that evidence is reasonably capable of supporting the Minister’s suspicion of potential inadmissibility. It is for the Minister to decide what further investigatory steps are needed. The member’s supervisory jurisdiction on this issue is limited to examining whether the proposed steps have the potential to uncover relevant evidence bearing on the Minister’s suspicion and to ensuring that the Minister is conducting an ongoing investigation in good faith and within a reasonable time.\nFootnote\n33", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 2, s. 2.4 (Minister inquiring into security, violations of human or international rights, criminality, serious criminality or organized criminality (Section 58(1)(c)))", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir02.aspx" + }, + { + "id": "irbg-2-2-5-p1", + "doc_type": "memorandum", + "act_code": "IRB-G2", + "act_short": "IRB Guideline 2", + "act_name": "IRB Chairperson's Guideline 2 — Detention", + "section": "G2 s. 2.5", + "marginal_note": "Identity of foreign national not established (Section 58(1)(d))", + "part": "Detention", + "division": "", + "heading": "", + "text": "2.5.1 The Immigration Division shall order the release of a foreign national unless it is satisfied, taking into account prescribed factors, that the grounds set out in section 58(1) of the\nIRPA\nare met. Section 58(1)(d) sets out as a ground that the Minister is of the opinion that the identity of the foreign national – other than a designated foreign national who was 16 years of age or older on the day of the arrival that is subject of the designation in question – has not been, but may be, established and they have not reasonably cooperated with the Minister by providing relevant information for the purpose of establishing their identity or the Minister is making reasonable efforts to establish their identity.\nFootnote\n34\n2.5.2 At every detention review where the Minister has indicated an opinion that the identity of the foreign national has not been established but may be, the member must assess whether the Minister is making reasonable efforts to establish identity and whether the person has reasonably cooperated with the Minister by providing relevant information for the purpose of establishing their identity. Even if the foreign national has reasonably cooperated with the Minister, the ground may be established if the Minister shows that the Minister is making reasonable efforts to establish the identity of the foreign national. Members must consider the prescribed factors\nFootnote\n35\nin the\nIRPR\n, except for minors with respect to cooperation, when determining whether the person is a foreign national whose identity has not been established.", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 2, s. 2.5 (Identity of foreign national not established (Section 58(1)(d))) (part 1 of 2)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir02.aspx" + }, + { + "id": "irbg-2-2-5-p2", + "doc_type": "memorandum", + "act_code": "IRB-G2", + "act_short": "IRB Guideline 2", + "act_name": "IRB Chairperson's Guideline 2 — Detention", + "section": "G2 s. 2.5", + "marginal_note": "Identity of foreign national not established (Section 58(1)(d))", + "part": "Detention", + "division": "", + "heading": "", + "text": "2.5.3​ The obligation to establish one’s identity rests first and always with the foreign national. The Minister’s obligation is to make reasonable efforts but the determination of “reasonable efforts” may be conditioned by the efforts of the person who has an obligation to not obstruct and to cooperate and hence there must be an evaluation of the efforts on the part of both parties.\nFootnote\n36\nSpecial consideration should be given to claimants of refugee protection, particularly with respect to the availability or possibility of obtaining identity documents or information. The member should consider whether the level of cooperation requested of the person concerned is reasonable, particularly in the context of claimants of refugee protection, minors and other vulnerable persons. Depending on the circumstances of the case, conditions of detention may be relevant to a consideration of the degree to which the person concerned is able to cooperate in establishing their identity.\n2.5.4 In assessing the reasonableness of the Minister’s efforts to establish identity, the member must consider not what the member thinks should have been done. Rather the focus should be on whether what the Minister has done, is doing and intends to do is rationally connected to the purpose of the provision – that the steps have the potential to uncover relevant evidence and whether the Minister is acting in good faith.\nFootnote\n37\nThe member should be satisfied that the Minister has provided sufficient evidence of its efforts, as well as concrete plans and time estimates.", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 2, s. 2.5 (Identity of foreign national not established (Section 58(1)(d))) (part 2 of 2)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir02.aspx" + }, + { + "id": "irbg-2-3-1-p1", + "doc_type": "memorandum", + "act_code": "IRB-G2", + "act_short": "IRB Guideline 2", + "act_name": "IRB Chairperson's Guideline 2 — Detention", + "section": "G2 s. 3.1", + "marginal_note": "General principles", + "part": "Detention", + "division": "", + "heading": "", + "text": "3.1.1 Where the member is satisfied that one or more of the above grounds exists, the member must nevertheless assess whether to release the individual or maintain detention, having regard to all of the circumstances and relevant factors, including those listed in section 248, and bearing in mind sections 7, 9 and 12 of the\nCharter\n.\nFootnote\n38\n3.1.2 Release with minimum conditions without a deposit or a guarantee should be the first consideration, and members should apply conditions of release as necessary to manage heightened risk. Release conditions imposed should be tailored to the specific circumstances of the case. They should be linked to risk and be effective in adequately mitigating those risk factors. The principles of proportionality and attainability must apply to every interference with or deprivation of liberty. Each condition imposed is a restriction on a person’s liberty. There should be a justification for each condition. Therefore, any condition that is imposed should have a rational connection to the circumstances of the case and the specific ground of detention. This connection should be clearly explained in the reasons for decision.\n3.1.3 Members must actively consider and reassess alternatives to detention (\nATD\ns) at each review. This may include reassessing\nATD\ns previously considered and refused at previous detention reviews if those\nATD\ns are still available, recognizing that circumstances may change from one review to another.\n3.1.4 Where a member determines that an\nATD\nis necessary or may be appropriate, each element of a proposed\nATD", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 2, s. 3.1 (General principles) (part 1 of 7)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir02.aspx" + }, + { + "id": "irbg-2-3-1-p2", + "doc_type": "memorandum", + "act_code": "IRB-G2", + "act_short": "IRB Guideline 2", + "act_name": "IRB Chairperson's Guideline 2 — Detention", + "section": "G2 s. 3.1", + "marginal_note": "General principles", + "part": "Detention", + "division": "", + "heading": "", + "text": "should be weighed by the member in order to determine its overall adequacy and necessity in managing the applicable risk. Where appropriate, members are encouraged to seek clarification from the parties on details of the proposed\nATD\nbefore making a decision on its suitability. This may include hearing from witnesses. A member should ensure that a person concerned be made aware of the availability of early detention reviews if a response to a concern regarding an\nATD\ncannot be provided at the hearing.\n3.1.5 In circumstances where detention is lengthy, the member is under a heightened obligation to consider\nATD\ns, specifically release with appropriate conditions.\nFootnote\n39\nThe burden on the Minister to justify continued detention becomes heavier over time as the length of detention grows.\nFootnote\n40\n3.1.6 The Minister must establish that there is a nexus between detention and an immigration purpose. If that is missing, detention under the\nIRPA\nis no longer possible.\nFootnote\n41\n3.1.7 Where detention is for the purpose of removal, and there is no longer a possibility of removal, detention on this ground no longer facilitates the machinery of immigration control and the power of detention cannot be exercised.\nFootnote\n42\n3.1.8 The member must be satisfied, on the evidence, that removal is a possibility. The possibility must be realistic, not fanciful, and not based on speculation, assumption or conjecture. It must be grounded in the evidence, not supposition, and the evidence must be detailed and case-specific enough to be credible.\nFootnote\n43\n3.1.9 There are a number of circumstances that may impact the possibility of removal, such as the cooperation of the person concerned.\nFootnote\n44", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 2, s. 3.1 (General principles) (part 2 of 7)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir02.aspx" + }, + { + "id": "irbg-2-3-1-p3", + "doc_type": "memorandum", + "act_code": "IRB-G2", + "act_short": "IRB Guideline 2", + "act_name": "IRB Chairperson's Guideline 2 — Detention", + "section": "G2 s. 3.1", + "marginal_note": "General principles", + "part": "Detention", + "division": "", + "heading": "", + "text": "Where the impasse in effecting removal is disputed identity and the person concerned has refused to cooperate in confirming their identity, delays in removal cannot count against the Minister. However, the member must still consider all the factors in s. 248 of the\nIRPR\nwhen deciding whether to continue detention or order release. Ordering detention on the basis of non-cooperation alone is contrary to sections 7 and 9 of the\nCharter\n.\nFootnote\n45\n3.1.10 The possibility of removal may also be impacted when the receiving country either disputes the identity of the person concerned or is remiss in issuing the necessary travel documents to effect removal. Care must be taken not to attribute this impasse to the person concerned. The member must consider whether the Minister has a plan to circumvent the impasse and whether there is a real possibility that it will lead to removal.\nFootnote\n46\n3.1.11 Removal may also be impacted by the efforts of the Minister to effect removal. The member must consider whether the Minister has taken all reasonable steps to obtain the necessary travel documents and whether they have actively used the time between detention reviews to advance the person’s removal.\nFootnote\n47\nThe member must be satisfied that the Minister has acted with reasonable diligence and expeditiousness to effect removal of the person concerned. Where appropriate, members may also explore with the person concerned opportunities to help effect removal.\n3.1.12 The power of detention is exercised principally, but not exclusively, pending removal. The\nIRPA\nhas many purposes and objectives and section 58(1) of the\nIRPA\nis one of the means by which the purposes of the\nIRPA\nare realized. Section 58 of the\nIRPA", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 2, s. 3.1 (General principles) (part 3 of 7)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir02.aspx" + }, + { + "id": "irbg-2-3-1-p4", + "doc_type": "memorandum", + "act_code": "IRB-G2", + "act_short": "IRB Guideline 2", + "act_name": "IRB Chairperson's Guideline 2 — Detention", + "section": "G2 s. 3.1", + "marginal_note": "General principles", + "part": "Detention", + "division": "", + "heading": "", + "text": "authorizes detention for several purposes, including pending determination of identity, pending a determination of admissibility or on the grounds of public safety.\nFootnote\n48\nHowever, even if one of the grounds in section 58 of the\nIRPA\nis established, members must consider and weigh the factors in s. 248 of the\nIRPR\nbefore reaching a decision on detention.\n3.1.1.3 The starting requirement that there must be a nexus to an immigration purpose concerns whether continued detention can be ordered. But just because it can be ordered does not mean it should be ordered. It is at a second stage, namely whether detention should be ordered, that the proximity or remoteness of a removal date is engaged and must be considered. The length of the detention to date and the conditions of the detention are also relevant at this second stage,\nFootnote\n49\nwhich involves consideration of the non-exhaustive section 248 factors in the\nIRPR\n.\n3.1.14 Detention, even for valid reasons, cannot be indefinite\nFootnote\n50\n. Increased diligence is required in assessing viable\nATD\ns when detention becomes lengthy. The actual or anticipated length of detention under the\nIRPA\nis one factor to be considered at a detention review and could be determinative depending on the circumstances and other factors at issue. There may be circumstances where detention, by virtue of its duration or the conditions of detention, affects the liberty interest of the detainee so significantly that the\nCharter\nrights of the detainee are offended and release is warranted.\nFootnote\n51\n3.1.15 A heightened obligation to consider\nATD\ns also applies to cases involving vulnerable persons such as persons with mental illness, minors, the elderly, individuals with diverse sexual orientation and gender identity and expression", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 2, s. 3.1 (General principles) (part 4 of 7)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir02.aspx" + }, + { + "id": "irbg-2-3-1-p5", + "doc_type": "memorandum", + "act_code": "IRB-G2", + "act_short": "IRB Guideline 2", + "act_name": "IRB Chairperson's Guideline 2 — Detention", + "section": "G2 s. 3.1", + "marginal_note": "General principles", + "part": "Detention", + "division": "", + "heading": "", + "text": "Footnote\n52\n, survivors of torture, survivors of genocide and crimes against humanity, survivors of gender-related violence, and survivors of violence based on sexual orientation and gender identity.\nFootnote\n53\nAs the onus on the Minister is heightened, a member should also actively question the steps that the Minister has taken to make an\nATD\navailable in the circumstances of these cases.\n3.1.16 The lack of an established identity does not mean that a member may not consider\nATD\ns.\n3.1.17 Canada Border Services Agency (\nCBSA\n) has implemented an\nATD\nProgram\nFootnote\n54\n, which provides them with an expanded set of tools and programs that enables them to more effectively propose release of individuals into the community, commensurate with an individual’s risk profile, while ensuring that public safety is preserved. Members should encourage\nCBSA\nto consider the availability of the\nATD\nProgram for persons concerned. However, members should also ensure that the\nATD\ns considered are commensurate with the level of risk. In addition, members should ensure that other\nATD\ns are canvassed, outside of the\nCBSA\nProgram, that while not as comprehensive as the\nCBSA\nprogram may still offset risk.", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 2, s. 3.1 (General principles) (part 5 of 7)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir02.aspx" + }, + { + "id": "irbg-2-3-1-p6", + "doc_type": "memorandum", + "act_code": "IRB-G2", + "act_short": "IRB Guideline 2", + "act_name": "IRB Chairperson's Guideline 2 — Detention", + "section": "G2 s. 3.1", + "marginal_note": "General principles", + "part": "Detention", + "division": "", + "heading": "", + "text": "3.1.1.8 Parties may come to an agreement on proposed conditions of release before or during the detention review and submit the agreement to the member at the hearing. Members would ordinarily endorse release, after having reviewed the file and conducted the hearing. In the exceptional case where a member does not accept the joint submission due to concerns regarding the adequacy of release conditions, prior to issuing reasons for rejecting the joint submission and ordering continued detention, the member should give the parties notice of the member’s concerns and an opportunity to confer to see if a varied joint submission or different conditions can be presented. A member must provide a rationale for rejecting the release plan and continuing detention.\n3.1.19 Where a release plan is not presented, the member should encourage both parties to work jointly to develop and present acceptable release plans for future consideration. Members should also look for reasonable opportunities to review any previously unsuccessful proposed release plans presented by any party to the proceedings to determine whether such plans remain available and over time have become suitable. Members should encourage the person concerned to look at possible release plans on their own or with counsel.\n3.1.20 If ordering continued detention, members must indicate in their reasons the\nATD\noptions that were considered and why they are being rejected. Members should also highlight any specific elements that may be lacking to satisfy the member that the release plan appropriately addresses the risk associated to release.", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 2, s. 3.1 (General principles) (part 6 of 7)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir02.aspx" + }, + { + "id": "irbg-2-3-1-p7", + "doc_type": "memorandum", + "act_code": "IRB-G2", + "act_short": "IRB Guideline 2", + "act_name": "IRB Chairperson's Guideline 2 — Detention", + "section": "G2 s. 3.1", + "marginal_note": "General principles", + "part": "Detention", + "division": "", + "heading": "", + "text": "3.1.21 When considering release from immigration detention for a person who has been released by the Parole Board of Canada, members should take into consideration the conditions that have been imposed on the person concerned and the additional supervision that will be afforded by Correctional Service of Canada (Parole Officers). Any release conditions imposed by the member should not contradict the release conditions already imposed by the Parole Board.", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 2, s. 3.1 (General principles) (part 7 of 7)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir02.aspx" + }, + { + "id": "irbg-2-3-2", + "doc_type": "memorandum", + "act_code": "IRB-G2", + "act_short": "IRB Guideline 2", + "act_name": "IRB Chairperson's Guideline 2 — Detention", + "section": "G2 s. 3.2", + "marginal_note": "Release considerations", + "part": "Detention", + "division": "", + "heading": "", + "text": "3.2.1 Where conditions of release are imposed, they should include (1) provide an address and reside at that address; and (2) advise CBSA of a change of address prior to moving.\n3.2.2 If deemed necessary to offset a higher level of risk, additional conditions may be imposed\nFootnote\n55\n, taking into account proportionality and attainability, as well as a rational connection to the circumstances of the case and specific ground of detention. Conditions may include the following:\nreport to\nCBSA\nperiodically (in person or by telephone);\nappear whenever required by\nCBSA\n, including for removal;\na bondsperson to pay a deposit or post a guarantee for compliance with conditions;\nprovide\nCBSA\nwith a travel document or cooperate with\nCBSA\nin obtaining a travel document, except in the case of an asylum seeker or refugee who has not exhausted their legal remedies;\nreside with a bondsperson or other person considered capable of exercising control and influence over the person concerned;\nremain within (or outside) a particular location or geographic area;\nabide by a curfew;\nreside at community housing or a rehabilitation centre;\nnot have contact with certain people (e.g., the victim of domestic abuse);\nnot commit criminal offences;\nreport criminal charges or convictions to\nCBSA\n;\nabide by conditions of parole or conditions imposed by a justice of the peace or criminal court;\nxnot consume alcohol, drugs or other intoxicating substances, except in accordance with a medical prescription or in the context of a rehabilitative program, to be applied only for persons with a history of addiction and non-compliance;\nmake all reasonable efforts to obtain treatment for alcohol or drug abuse, mental illness or anger management;\nenroll in a community case management and supervision program;\nnot possess a firearm or other weapon;\nnot knowingly associate with individuals who have a criminal record;\nrefrain from using a cell phone or a computer or have no functioning internet connection in the person’s residence (as an exceptional measure);\npermit entry into the person’s residence at all times by CBSA or designated personnel (as an exceptional measure); and/or\nobtain and wear an electronic bracelet to track movements (as an exceptional measure).", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 2, s. 3.2 (Release considerations)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir02.aspx" + }, + { + "id": "irbg-2-3-3-p1", + "doc_type": "memorandum", + "act_code": "IRB-G2", + "act_short": "IRB Guideline 2", + "act_name": "IRB Chairperson's Guideline 2 — Detention", + "section": "G2 s. 3.3", + "marginal_note": "Bondspersons", + "part": "Detention", + "division": "", + "heading": "", + "text": "3.3.1 If a member determines that a bondsperson is necessary to motivate compliance by the person, the bond should be proportionate to the identified risk.\n3.3.2 When a bondsperson is present and available to testify, members must hear direct evidence from the bondsperson before determining that the person is not suitable to be a bondsperson. Members cannot rely on bondsperson interviews conducted outside of the hearing room and not in the presence of members in this context. However, upon a joint release recommendation or where the Minister does not object, a member can determine that the bondsperson is acceptable without hearing direct testimony.\n3.3.3 If the proposed bondsperson is unavailable to provide testimony, a member should determine whether an adjournment is required or a decision should be rendered with an early detention review scheduled, depending on the duration of the lack of availability.\n3.3.4 Members should ensure that relevant considerations relating to the proposed bondsperson are explored at the detention review in order to assess the suitability of the person put forward.\n3.3.5 Members should consider how long the proposed bondsperson has known the person concerned and the nature of their relationship.\n3.3.6 In instances where a proposed bondsperson was aware of the person’s past immigration or criminal history and did not take steps to ensure past compliance, members must consider whether the proposed bondsperson, in their new role as bondsperson, will exercise sufficient influence to motivate the person concerned to comply with conditions of release.", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 2, s. 3.3 (Bondspersons) (part 1 of 3)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir02.aspx" + }, + { + "id": "irbg-2-3-3-p2", + "doc_type": "memorandum", + "act_code": "IRB-G2", + "act_short": "IRB Guideline 2", + "act_name": "IRB Chairperson's Guideline 2 — Detention", + "section": "G2 s. 3.3", + "marginal_note": "Bondspersons", + "part": "Detention", + "division": "", + "heading": "", + "text": "3.3.7 In instances where a proposed bondsperson was unaware of the person’s past immigration or criminal history, members must consider whether the proposed bondsperson, now with that knowledge, is still willing to be considered as a bondsperson and whether they will exercise sufficient influence to motivate the person concerned to comply with conditions of release.\n3.3.8 Members should assess whether the proposed bondsperson is reliable and whether there has been a previous failure of that bondsperson to ensure compliance with conditions of release by the person concerned, if they were acting as a bondsperson or under a similar obligation in the prior circumstances. Members should assess whether the proposed bondsperson is able to exert influence, provide supervision, and motivate the person concerned to comply with the conditions of release.\n3.3.9 In assessing the adequacy of the bondsperson, the factors as set out in the\nIRPR\nneed to be considered and assessed against the objective of ensuring compliance by the person concerned, including the proportionality of the bond to the financial capacity of the bondsperson and the impact of forfeiture on the bondsperson.\n3.3.10 If a bondsperson meets the eligibility requirements under section 47 of the\nIRPR\nand has been rejected at a prior detention review, members should re-consider such bondspersons when taking a fresh look at the case, keeping in mind that an increased length of detention does not transform an unsuitable bondsperson into a suitable one.\nFootnote\n56\nMembers should articulate their reasons to depart from past decisions regarding previously considered bondspersons.\nFootnote\n57", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 2, s. 3.3 (Bondspersons) (part 2 of 3)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir02.aspx" + }, + { + "id": "irbg-2-3-3-p3", + "doc_type": "memorandum", + "act_code": "IRB-G2", + "act_short": "IRB Guideline 2", + "act_name": "IRB Chairperson's Guideline 2 — Detention", + "section": "G2 s. 3.3", + "marginal_note": "Bondspersons", + "part": "Detention", + "division": "", + "heading": "", + "text": "3.3.1.1 If a member determines that a bondsperson is necessary as a condition of release, it is preferable that a named bondsperson be included on the order for release, since it is usually necessary to consider the circumstances of the person putting up the deposit and their relationship to the person concerned.\nFootnote\n58\n3.3.12 In some instances the person concerned has no family network or friends in Canada and has been unable to present a proposal for a supervising bondsperson, which could result in a lengthier period of detention. In those circumstances members should encourage counsel for the person concerned, or the person concerned if unrepresented, to seek a suitable alternative to detention within the community\nFootnote\n59\n, including a group of individuals, such as a religious community, or a community program in lieu of a bondsperson, such as organizations that work to help with housing and other supports, and organizations that help in supporting individuals with mental illness or addictions.", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 2, s. 3.3 (Bondspersons) (part 3 of 3)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir02.aspx" + }, + { + "id": "irbg-2-3-4", + "doc_type": "memorandum", + "act_code": "IRB-G2", + "act_short": "IRB Guideline 2", + "act_name": "IRB Chairperson's Guideline 2 — Detention", + "section": "G2 s. 3.4", + "marginal_note": "Change in conditions", + "part": "Detention", + "division": "", + "heading": "", + "text": "3.4.1 An application for a change of conditions of release may be made by the Minister, the person concerned or his or her counsel. A response to the application must be received by the Division and the other party within five days. A decision will be rendered by the Immigration Division as soon as practicable and may include convocation of a hearing.\n3.4.2 A bondsperson may also apply to change conditions, such as a request to be removed.", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 2, s. 3.4 (Change in conditions)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir02.aspx" + }, + { + "id": "irbg-2-4-p1", + "doc_type": "memorandum", + "act_code": "IRB-G2", + "act_short": "IRB Guideline 2", + "act_name": "IRB Chairperson's Guideline 2 — Detention", + "section": "G2 s. 4", + "marginal_note": "Minors", + "part": "Detention", + "division": "", + "heading": "", + "text": "4.1.1 Pursuant to the requirements of the\nConvention on the Rights of the Child\nFootnote\n60\n, members must take into account the best interests of any child, whether detained under the\nIRPA\nor not, and whether housed with a parent or not, as an important consideration in any detention-related decision of the parent or guardian.\n4.1.2 Members must consider the prescribed factors in the\nIRPR\nwhen determining whether to release or continue detention, including the best interests of the child, as well as all other relevant circumstances.\nFootnote\n61\nMembers must only detain minors in the most exceptional circumstances, and for the shortest time possible.\n4.1.3 The Minister must submit its best interest of the child assessment at each detention review when it is detaining a child. The person concerned may also advance arguments regarding the best interest of a child, supported by evidence.\n4.1.4 The best interests of a directly affected child who is under 18 years of age must be considered before making a decision on detention of another person, such as the parent of the minor. The following is a non-exhaustive list of factors that the members must consider when determining a child’s best interests with respect to detention and release of the minor and of another person, such as their parent, regardless of whether the child is detained or housed:\nthe child’s physical, emotional and psychological well-being;\nthe child’s healthcare and educational needs;\nthe importance of maintaining relationships and the stability of the family environment, and the possible effect on the child of disrupting those relationships or that stability;\nthe care, protection and safety needs of the child; and", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 2, s. 4 (Minors) (part 1 of 2)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir02.aspx" + }, + { + "id": "irbg-2-4-p2", + "doc_type": "memorandum", + "act_code": "IRB-G2", + "act_short": "IRB Guideline 2", + "act_name": "IRB Chairperson's Guideline 2 — Detention", + "section": "G2 s. 4", + "marginal_note": "Minors", + "part": "Detention", + "division": "", + "heading": "", + "text": "the child’s views and preferences, provided the child is capable of forming their own views or expressing their preferences, taking into consideration the child’s age and maturity.\nThe level of dependence of the child on the person for whom there are grounds to detain should also be a consideration.\nFootnote\n62\n4.1.5 Members should explain in their reasons for decision how the best interests of the child were considered in the decision to detain the child or their parent or guardian.\n4.1.6 Early detention reviews are strongly encouraged to ensure that the file is progressing rapidly and the impacted minor is not unduly affected.\n4.1.7 In the extraordinary event that a minor is detained or housed,\nATD\ns should be actively considered and continually reassessed taking into consideration all past release proposals. Conditions of release should be crafted to protect as far as possible the child’s best interests.", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 2, s. 4 (Minors) (part 2 of 2)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir02.aspx" + }, + { + "id": "irbg-2-5", + "doc_type": "memorandum", + "act_code": "IRB-G2", + "act_short": "IRB Guideline 2", + "act_name": "IRB Chairperson's Guideline 2 — Detention", + "section": "G2 s. 5", + "marginal_note": "Vulnerable persons", + "part": "Detention", + "division": "", + "heading": "", + "text": "5.1.1 Members should consider how certain vulnerabilities,\nFootnote\n63\nsuch as mental illness, may affect the person’s ability to comply with conditions of release and whether a less restrictive alternative to detention would be viable before continuing detention.\n5.1.2 To help enable a vulnerable person concerned to present their case before the Division, the need for procedural accommodations may arise, pursuant to the Chairperson’s Guideline 8:\nProcedures With Respect to Vulnerable Persons Appearing before the\nIRB\n.\nFootnote\n64\n5.1.3 There is no need for a person to have been declared “vulnerable” pursuant to the Vulnerable Persons Guideline in order to take account of a mental health condition or other vulnerability that is either established by the evidence or apparent in the hearing context.\n5.1.4 Accommodations under Guideline 8 must be considered by the member, whether requested by a party or on the member’s own initiative, wherever it is appropriate to do so.\n5.1.5 Such vulnerabilities should also be accounted for when assessing all of the section 248 factors in the\nIRPR\n, including when determining a person’s ability and capacity to cooperate with removal arrangements and/or identity investigations. Such vulnerabilities may be a separate and relevant factor, in addition to the section 248 factors, for considering whether to release or detain. In addition, members should consider the impact of conditions of detention on vulnerable persons, including the way in which such conditions may be particularly harsh in light of their personal circumstances or exacerbate their vulnerabilities.\n5.1.6 Where vulnerabilities are identified, a member is under a heightened obligation to consider\nATD\ns and to impose attainable conditions that are connected to the circumstances of the vulnerable person concerned.\n5.1.7 Early detention reviews are strongly encouraged to ensure that the file is progressing rapidly and the vulnerable person concerned is not unduly affected.", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 2, s. 5 (Vulnerable persons)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir02.aspx" + }, + { + "id": "irbg-2-6", + "doc_type": "memorandum", + "act_code": "IRB-G2", + "act_short": "IRB Guideline 2", + "act_name": "IRB Chairperson's Guideline 2 — Detention", + "section": "G2 s. 6", + "marginal_note": "Designated representatives", + "part": "Detention", + "division": "", + "heading": "", + "text": "6.1.1 Members must designate a representative where the person concerned is under 18 years of age or the person is unable to appreciate the nature of the proceedings, at the earliest point at which the member becomes aware of those facts.\n6.1.2 When determining whether a person concerned is unable to appreciate the nature of the proceedings, the member should consider the following factors:\nwhether the person concerned can understand the reason for the proceeding and can instruct counsel;\nthe person concerned’s statements and behaviour at the proceeding;\nexpert evidence, if any, on the person concerned’s intellectual or physical faculties, age or mental condition; and\nwhether the person concerned has had a representative designated for a proceeding in another division of the Board.\n6.1.3 In cases where a designated representative is required, members are encouraged to retain the same designated representative in all proceedings before the Immigration Division. The designated representative should be provided with all relevant documents in the Division file as soon as possible.\n6.1.4 Members should question the designated representative on the steps taken to assist the person concerned, for instance in retaining counsel, informing the person concerned about the various stages in the detention review process, finding suitable\nATD\ns, including contacting potential bondspersons and gathering evidence. Members are encouraged to replace a designated representative when it is apparent that relevant and necessary steps to assist the person concerned have not been taken.", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 2, s. 6 (Designated representatives)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir02.aspx" + }, + { + "id": "irbg-2-7-1", + "doc_type": "memorandum", + "act_code": "IRB-G2", + "act_short": "IRB Guideline 2", + "act_name": "IRB Chairperson's Guideline 2 — Detention", + "section": "G2 s. 7.1", + "marginal_note": "Accessible hearings", + "part": "Detention", + "division": "", + "heading": "", + "text": "7.1.1 Detention reviews are public hearings. The open court principle (i.e., hearings being open and accessible to the public and the media) supports the integrity and transparency of the Immigration Division’s proceedings. An exception to the open court principle applies for a person who has a pending proceeding before the Refugee Protection Division or the Refugee Appeal Division, or a pending application for protection to the Minister.\nFootnote\n65\nThe Immigration Division may hold a detention review in the absence of the public under other exceptional circumstances\nFootnote\n66\n, such as for minors and other vulnerable persons, as appropriate.\n7.1.2 The Immigration Division shall deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit. In practice, hearings may take place at an\nIRB\noffice, at an Immigration Holding Centre, in provincial or federal correctional facilities, in CBSA offices and in other facilities such as Courts. Hearings may be held in person, by videoconference and by teleconference and parties can participate from multiple locations.\n7.1.3 While in-person hearings are preferable, the Immigration Division’s mandate is also to deal with proceedings as informally and quickly as the circumstances permit. Members should balance these interests when determining how best to proceed with the hearing when considering the circumstances of the individual case.", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 2, s. 7.1 (Accessible hearings)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir02.aspx" + }, + { + "id": "irbg-2-7-2-p1", + "doc_type": "memorandum", + "act_code": "IRB-G2", + "act_short": "IRB Guideline 2", + "act_name": "IRB Chairperson's Guideline 2 — Detention", + "section": "G2 s. 7.2", + "marginal_note": "Fresh determination", + "part": "Detention", + "division": "", + "heading": "", + "text": "7.2.1 Members should ensure that at each hearing the person concerned is aware of the Division’s duty to release under section 58(1) of the\nIRPA\nunless the Minister proves, on a balance of probabilities, that there is a statutory ground for detention and that continued detention is required, with the onus resting on the Minister throughout.\n7.2.2 Notwithstanding that the evidentiary burden on the Minister becomes heavier over time at each subsequent review\nFootnote\n67\n, the Minister may elect to rely on having previously established the grounds for detention. However, the member is not bound to accept the previous finding of a member at the last detention review if the Minister has failed to provide reasonably available evidence to justify the detention. Each member is required to undertake their own independent assessment of the case for and against detention. This is particularly relevant in long-term detention cases, and cases involving persons concerned with vulnerabilities, especially where the Minister leads insufficient evidence to justify the ground for detention, the length of detention or its uncertain duration, or the necessity of detention rather than less restrictive liberty restraints.\n7.2.3 Members should explain why they have rejected the\nATD\ns proposed and any barriers to release in their reasons for decisions when deciding to continue detention.\n7.2.4 At each detention review the Immigration Division member must come to a fresh determination on whether the detained person should continue to be detained.\nFootnote\n68", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 2, s. 7.2 (Fresh determination) (part 1 of 2)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir02.aspx" + }, + { + "id": "irbg-2-7-2-p2", + "doc_type": "memorandum", + "act_code": "IRB-G2", + "act_short": "IRB Guideline 2", + "act_name": "IRB Chairperson's Guideline 2 — Detention", + "section": "G2 s. 7.2", + "marginal_note": "Fresh determination", + "part": "Detention", + "division": "", + "heading": "", + "text": "The Minister bears an ongoing burden to prove that detention remains justified. However, previous decisions by the Immigration Division to detain the person concerned must be considered at subsequent reviews and the subsequent decision- maker must articulate their reasons for departing from previous decisions.\nFootnote\n69\n7.2.5 A departure from a prior decision could result from, but does not require, new evidence, a change in circumstances or new legal arguments. There is nothing in the\nIRPA\nor the\nIRPR\nthat places an obligation on the person concerned to lead fresh evidence between detention reviews in order for the member to reach a different result.\nFootnote\n70\nThe admission of relevant new evidence, a reassessment of the prior evidence based on new arguments or on a different assessment, the proposal of an acceptable alternative to detention, vulnerabilities of the person concerned, the passage of time since the last detention review or a prolonged detention could be a valid basis for departing from a prior decision to detain.\n7.2.6 The credibility of the person concerned and of witnesses is often an issue at detention reviews. Where a member had the opportunity to observe the demeanor of a witness and assess credibility, the subsequent decision-maker should give a clear explanation of why the prior decision-maker’s assessment of the evidence does not justify continued detention. In addition, a reassessment of the prior evidence based on new arguments could also be a sufficient reason to depart from a prior decision to detain. The member should expressly explain in the reasons what has changed and why the previous decision is no longer applicable.", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 2, s. 7.2 (Fresh determination) (part 2 of 2)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir02.aspx" + }, + { + "id": "irbg-2-7-3-p1", + "doc_type": "memorandum", + "act_code": "IRB-G2", + "act_short": "IRB Guideline 2", + "act_name": "IRB Chairperson's Guideline 2 — Detention", + "section": "G2 s. 7.3", + "marginal_note": "Disclosure and evidence", + "part": "Detention", + "division": "", + "heading": "", + "text": "7.3.1 Both parties have the right to present relevant evidence at a detention review, including witnesses, and to question those witnesses. Members should ensure that the person concerned understands and has an opportunity to testify, present evidence and counter the Minister’s evidence, including by presenting their own sworn testimony, calling witnesses, and/or cross-examining the Minister’s witnesses.\n7.3.2 To be meaningful, the disclosure obligation on the Minister cannot be limited to information on which the Minister intends to rely. All information and documents relevant to the particular circumstances of the particular detainee must be disclosed by the Minister, whether or not they intend to rely on it, and including information that is only to the advantage of the detainee.\nFootnote\n71\n7.3.3 Examples of the type of relevant information\nFootnote\n72\nthat the Minister is required to disclose to the person concerned are:\nInformation relating to the grounds for the detention\nInformation pertaining to the section 248 criteria\nInformation relating to an immigration nexus\nEvidence concerning the likelihood of removal\nEvidence the Minister relies on that removal remains a possibility\nEvidence of communications with a receiving country.\n7.3.4 The Minister is expected to provide the person concerned with timely disclosure of all relevant information in advance of the hearing. If relevant information has not been provided to the person concerned in a timely manner, the member should order the Minister to provide the disclosure.\nFootnote\n73", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 2, s. 7.3 (Disclosure and evidence) (part 1 of 3)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir02.aspx" + }, + { + "id": "irbg-2-7-3-p2", + "doc_type": "memorandum", + "act_code": "IRB-G2", + "act_short": "IRB Guideline 2", + "act_name": "IRB Chairperson's Guideline 2 — Detention", + "section": "G2 s. 7.3", + "marginal_note": "Disclosure and evidence", + "part": "Detention", + "division": "", + "heading": "", + "text": "7.3.5 The Minister cannot rely on a document they refuse or fail to disclose. Furthermore, evidence from the enforcement officer should be in the form of either a statutory declaration to be disclosed before the hearing or oral testimony. The type of evidence provided affects the weight to be afforded by the member. It is more appropriate for the Minister to present information when the primary source of the information has not been made available to the parties, unless the primary source of information is not compellable (e.g., a consular official).\n7.3.6 Members must ensure that the parties have provided each other with reasonable notice of the evidence or information that will be relied upon at the detention review. Members must consider any request to summon the enforcement officer to provide testimony at the detention review.\nFootnote\n74\nMembers should summon an enforcement officer on their own initiative if they believe that this would be likely to address important gaps in the evidentiary record, in particular where the person concerned is self-represented.\n7.3.7 In circumstances where the Minister’s counsel cannot answer questions posed by the member at the hearing, the member is encouraged to adjourn to allow the source of the information, such as a CBSA enforcement officer , to attend the hearing to answer questions or, where impractical or impossible for a timely decision, for the Minister’s counsel to obtain the information requested. In that event an early detention review may be scheduled as soon as possible.\n7.3.8 Where the Minister is unable to provide the information requested, the member must carefully consider whether the Minister has discharged its onus to justify continued detention.", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 2, s. 7.3 (Disclosure and evidence) (part 2 of 3)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir02.aspx" + }, + { + "id": "irbg-2-7-3-p3", + "doc_type": "memorandum", + "act_code": "IRB-G2", + "act_short": "IRB Guideline 2", + "act_name": "IRB Chairperson's Guideline 2 — Detention", + "section": "G2 s. 7.3", + "marginal_note": "Disclosure and evidence", + "part": "Detention", + "division": "", + "heading": "", + "text": "7.3.9 The member should play an active role in ensuring they have a sufficient evidentiary record upon which to base their decision, in particular where the person concerned is unrepresented. This may include but is not limited to:\nactive questioning to address any factual gaps, including whether there is a directly affected child;\ngiving notice of concerns to the person concerned in plain language and providing an opportunity for a response;\ntesting the Minister’s representations through active and, where necessary, probing questions to assess their evidentiary basis; and/or\ninsisting upon testimony from others with more direct knowledge of the case (for example, enforcement officers) where important questions remain after questioning of the Minister’s counsel and the person concerned.\n7.3.10 The member must look at the entire detention history of the person concerned as it forms part of the evidence at a detention review. Section 248 of the\nIRPR\nrequires the member to consider the length of time in detention which mandates a consideration of the entire history presented at previous reviews.", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 2, s. 7.3 (Disclosure and evidence) (part 3 of 3)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir02.aspx" + }, + { + "id": "irbg-2-8", + "doc_type": "memorandum", + "act_code": "IRB-G2", + "act_short": "IRB Guideline 2", + "act_name": "IRB Chairperson's Guideline 2 — Detention", + "section": "G2 s. 8", + "marginal_note": "Sufficiency of reasons for decision", + "part": "Detention", + "division": "", + "heading": "", + "text": "8.1.1 At the beginning of their reasons for decision, members should briefly set out the persons’ name, the initial date of detention and its purpose, and the grounds that the Minister is relying on for continued detention. The member should also state whether it is a private or public hearing, if there is a designated representative and if the person concerned is a minor or has been identified as a vulnerable person.\n8.1.2 Members should mention in their reasons for decision the most important evidence adduced at the detention review and how that evidence relates to the findings made in the reasons. All decisions must be grounded in the established factual record.\n8.1.3 While members are not required in their reasons for decision to deal with every matter or issue raised by the parties at a detention review, the reasons for decision should adequately explain the basis of their decisions, including any\nATD\ns proposed, and why a particular alternative to detention has been accepted or rejected.\n8.1.4 Reasons for decision should be sufficiently detailed to allow the reader to know what grounds and factors the member relied on in support of their decision to order continued detention or release, including the reasons for departing from previous decisions. The reasons should also explain possible\nATD\ns and any barriers to release which, in the members opinion, must be overcome by the person concerned prior to release.", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 2, s. 8 (Sufficiency of reasons for decision)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir02.aspx" + }, + { + "id": "irbg-2-9-p1", + "doc_type": "memorandum", + "act_code": "IRB-G2", + "act_short": "IRB Guideline 2", + "act_name": "IRB Chairperson's Guideline 2 — Detention", + "section": "G2 s. 9", + "marginal_note": "Statutory timeframes", + "part": "Detention", + "division": "", + "heading": "", + "text": "9.1.1 The timing of detention reviews must reflect the statutory scheme as set out in the\nIRPA\nas closely as possible. While the member has some discretion to postpone or adjourn a detention review or reserve a decision with respect to the issue of detention, that discretion should be exercised very cautiously. Generally, the detention review should be concluded on the same day that it begins. There is an obligation on the member to conduct a detention review and deliver a decision within the timeframes stated in the\nIRPA\n.\n9.1.2 The member may conduct a detention review outside the timeframes set out in the\nIRPA\nin limited circumstances to ensure a fair hearing. For example, a member may exercise discretion to vary the timeframes when an interpreter is not available until the day after the scheduled detention review, where counsel asks for an additional day to prepare in cases involving voluminous and complicated evidence, or where a bondsperson or another witness, such as an enforcement officer, is not available. Any variation in the timeframes, however, should be strictly limited to the time needed to conduct a fair hearing.\n9.1.3 In very limited circumstances it may be difficult for a member to give a decision within the statutory timeframes, such as following the receipt of voluminous evidence or extensive submissions by the parties or where the member is departing from previous decisions on a long-term detention. The member may reserve the decision for a brief period of time, as necessary, to consider the evidence and submissions.\n9.1.4 A party may apply for an early detention review, before the expiry of the seven- day or thirty-day period, if there are new facts that would justify an early review of detention.\nFootnote\n75", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 2, s. 9 (Statutory timeframes) (part 1 of 2)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir02.aspx" + }, + { + "id": "irbg-2-9-p2", + "doc_type": "memorandum", + "act_code": "IRB-G2", + "act_short": "IRB Guideline 2", + "act_name": "IRB Chairperson's Guideline 2 — Detention", + "section": "G2 s. 9", + "marginal_note": "Statutory timeframes", + "part": "Detention", + "division": "", + "heading": "", + "text": "Examples in which an early detention review may be granted are\nATD\ns to be presented, including the existence of a bondsperson or the acceptance into a program, a change in the circumstances surrounding removal efforts and satisfaction of identity.\n9.1.5 If the Federal Court has ordered a stay of a previous release order and has not made any order as to whether or not the Immigration Division should continue to conduct detention reviews pending the outcome of the leave application and judicial review, the Immigration Division should conduct detention reviews according to the timeframes in the\nIRPA\n, while taking into account the order of the Federal Court.", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 2, s. 9 (Statutory timeframes) (part 2 of 2)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir02.aspx" + }, + { + "id": "irbg-2-10", + "doc_type": "memorandum", + "act_code": "IRB-G2", + "act_short": "IRB Guideline 2", + "act_name": "IRB Chairperson's Guideline 2 — Detention", + "section": "G2 s. 10", + "marginal_note": "Enquiries", + "part": "Detention", + "division": "", + "heading": "", + "text": "For information, contact:\nIRB.Engagement.CISR@irb-cisr.gc.ca\nOr\nSenior Director, Policy, Engagement, and Parliamentary Affairs Directorate\nStrategic Directions and Corporate Affairs Branch\nMinto Place – Canada Building\n344 Slater Street, 12th floor\nOttawa, Ontario K1A 0K1", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 2, s. 10 (Enquiries)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir02.aspx" + }, + { + "id": "irbg-2-26", + "doc_type": "memorandum", + "act_code": "IRB-G2", + "act_short": "IRB Guideline 2", + "act_name": "IRB Chairperson's Guideline 2 — Detention", + "section": "G2 s. 26", + "marginal_note": "Release — Immigration Division", + "part": "Detention", + "division": "", + "heading": "", + "text": "58 (1)\nThe Immigration Division shall order the release of a permanent resident or a foreign national unless it is satisfied, taking into account prescribed factors, that\nthey are a danger to the public;\nthey are unlikely to appear for examination, an admissibility hearing, removal from Canada, or at a proceeding that could lead to the making of a removal order by the Minister under subsection 44(2);\nthe Minister is taking necessary steps to inquire into a reasonable suspicion that they are inadmissible on grounds of security, violating human or international rights, serious criminality, criminality or organized criminality;\nthe Minister is of the opinion that the identity of the foreign national — other than a designated foreign national who was 16 years of age or older on the day of the arrival that is the subject of the designation in question — has not been, but may be, established and they have not reasonably cooperated with the Minister by providing relevant information for the purpose of establishing their identity or the Minister is making reasonable efforts to establish their identity; or\nthe Minister is of the opinion that the identity of the foreign national who is a designated foreign national and who was 16 years of age or older on the day of the arrival that is the subject of the designation in question has not been established.", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 2, s. 26 (Release — Immigration Division)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir02.aspx" + }, + { + "id": "irbg-2-27", + "doc_type": "memorandum", + "act_code": "IRB-G2", + "act_short": "IRB Guideline 2", + "act_name": "IRB Chairperson's Guideline 2 — Detention", + "section": "G2 s. 27", + "marginal_note": "Continued detention — designated foreign national", + "part": "Detention", + "division": "", + "heading": "", + "text": "(1.1)\nDespite subsection (1), on the conclusion of a review under subsection 57.1(1), the Immigration Division shall order the continued detention of the designated foreign national if it is satisfied that any of the grounds described in paragraphs (1)(a) to (c) and (e) exist, and it may not consider any other factors.", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 2, s. 27 (Continued detention — designated foreign national)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir02.aspx" + }, + { + "id": "irbg-2-28", + "doc_type": "memorandum", + "act_code": "IRB-G2", + "act_short": "IRB Guideline 2", + "act_name": "IRB Chairperson's Guideline 2 — Detention", + "section": "G2 s. 28", + "marginal_note": "Detention — Immigration Division", + "part": "Detention", + "division": "", + "heading": "", + "text": "(2)\nThe Immigration Division may order the detention of a permanent resident or a foreign national if it is satisfied that the permanent resident or the foreign national is the subject of an examination or an admissibility hearing or is subject to a removal order and that the permanent resident or the foreign national is a danger to the public or is unlikely to appear for examination, an admissibility hearing or removal from Canada.", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 2, s. 28 (Detention — Immigration Division)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir02.aspx" + }, + { + "id": "irbg-2-29", + "doc_type": "memorandum", + "act_code": "IRB-G2", + "act_short": "IRB Guideline 2", + "act_name": "IRB Chairperson's Guideline 2 — Detention", + "section": "G2 s. 29", + "marginal_note": "Conditions", + "part": "Detention", + "division": "", + "heading": "", + "text": "(3)\nIf the Immigration Division orders the release of a permanent resident or a foreign national, it may impose any conditions that it considers necessary, including the payment of a deposit or the posting of a guarantee for compliance with the conditions.", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 2, s. 29 (Conditions)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir02.aspx" + }, + { + "id": "irbg-2-30", + "doc_type": "memorandum", + "act_code": "IRB-G2", + "act_short": "IRB Guideline 2", + "act_name": "IRB Chairperson's Guideline 2 — Detention", + "section": "G2 s. 30", + "marginal_note": "Conditions — designated foreign national", + "part": "Detention", + "division": "", + "heading": "", + "text": "(4)\nIf the Immigration Division orders the release of a designated foreign national who was 16 years of age or older on the day of the arrival that is the subject of the designation in question, it shall also impose any condition that is prescribed.", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 2, s. 30 (Conditions — designated foreign national)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir02.aspx" + }, + { + "id": "irbg-2-31", + "doc_type": "memorandum", + "act_code": "IRB-G2", + "act_short": "IRB Guideline 2", + "act_name": "IRB Chairperson's Guideline 2 — Detention", + "section": "G2 s. 31", + "marginal_note": "Conditions — inadmissibility on grounds of security", + "part": "Detention", + "division": "", + "heading": "", + "text": "(5)\nIf the Immigration Division orders the release of a permanent resident or foreign national who is the subject of either a report on inadmissibility on grounds of security that is referred to the Immigration Division or a removal order for inadmissibility on grounds of security, it shall also impose the prescribed conditions on the person.", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 2, s. 31 (Conditions — inadmissibility on grounds of security)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir02.aspx" + }, + { + "id": "irbg-2-32", + "doc_type": "memorandum", + "act_code": "IRB-G2", + "act_short": "IRB Guideline 2", + "act_name": "IRB Chairperson's Guideline 2 — Detention", + "section": "G2 s. 32", + "marginal_note": "Duration of conditions", + "part": "Detention", + "division": "", + "heading": "", + "text": "(6)\nThe prescribed conditions imposed under subsection (5) cease to apply only when one of the events described in paragraphs 44(5)(a) to (e) occurs.", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 2, s. 32 (Duration of conditions)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir02.aspx" + }, + { + "id": "irbg-2-33", + "doc_type": "memorandum", + "act_code": "IRB-G2", + "act_short": "IRB Guideline 2", + "act_name": "IRB Chairperson's Guideline 2 — Detention", + "section": "G2 s. 33", + "marginal_note": "Release — on request", + "part": "Detention", + "division": "", + "heading": "", + "text": "58.1 (1)\nThe Minister may, on request of a designated foreign national who was 16 years of age or older on the day of the arrival that is the subject of the designation in question, order their release from detention if, in the Minister’s opinion, exceptional circumstances exist that warrant the release.", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 2, s. 33 (Release — on request)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir02.aspx" + }, + { + "id": "irbg-2-34", + "doc_type": "memorandum", + "act_code": "IRB-G2", + "act_short": "IRB Guideline 2", + "act_name": "IRB Chairperson's Guideline 2 — Detention", + "section": "G2 s. 34", + "marginal_note": "Release — Minister’s own initiative", + "part": "Detention", + "division": "", + "heading": "", + "text": "(2)\nThe Minister may, on the Minister’s own initiative, order the release of a designated foreign national who was 16 years of age or older on the day of the arrival that is the subject of the designation in question if, in the Minister’s opinion, the reasons for the detention no longer exist.", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 2, s. 34 (Release — Minister’s own initiative)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir02.aspx" + }, + { + "id": "irbg-2-35", + "doc_type": "memorandum", + "act_code": "IRB-G2", + "act_short": "IRB Guideline 2", + "act_name": "IRB Chairperson's Guideline 2 — Detention", + "section": "G2 s. 35", + "marginal_note": "Conditions", + "part": "Detention", + "division": "", + "heading": "", + "text": "(3)\nIf the Minister orders the release of a designated foreign national, the Minister may impose any conditions, including the payment of a deposit or the posting of a guarantee for compliance with the conditions, that he or she considers necessary.", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 2, s. 35 (Conditions)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir02.aspx" + }, + { + "id": "irbg-2-36", + "doc_type": "memorandum", + "act_code": "IRB-G2", + "act_short": "IRB Guideline 2", + "act_name": "IRB Chairperson's Guideline 2 — Detention", + "section": "G2 s. 36", + "marginal_note": "Conditions — inadmissibility on grounds of security", + "part": "Detention", + "division": "", + "heading": "", + "text": "(4)\nIf the Minister orders the release of a designated foreign national who is the subject of either a report on inadmissibility on grounds of security that is referred to the Immigration Division or a removal order for inadmissibility on grounds of security, the Minister must also impose the prescribed conditions on the person.", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 2, s. 36 (Conditions — inadmissibility on grounds of security)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir02.aspx" + }, + { + "id": "irbg-2-37", + "doc_type": "memorandum", + "act_code": "IRB-G2", + "act_short": "IRB Guideline 2", + "act_name": "IRB Chairperson's Guideline 2 — Detention", + "section": "G2 s. 37", + "marginal_note": "Duration of conditions", + "part": "Detention", + "division": "", + "heading": "", + "text": "(5)\nThe prescribed conditions imposed under subsection (4) cease to apply only when one of the events described in paragraphs 44(5)(a) to (e) occurs.", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 2, s. 37 (Duration of conditions)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir02.aspx" + }, + { + "id": "irbg-2-39-p1", + "doc_type": "memorandum", + "act_code": "IRB-G2", + "act_short": "IRB Guideline 2", + "act_name": "IRB Chairperson's Guideline 2 — Detention", + "section": "G2 s. 39", + "marginal_note": "Detention and Release", + "part": "Detention", + "division": "", + "heading": "", + "text": "Factors to be considered\n244\nFor the purposes of Division 6 of Part 1 of the Act, the factors set out in this Part shall be taken into consideration when assessing whether a person\nis unlikely to appear for examination, an admissibility hearing, removal from Canada, or at a proceeding that could lead to the making of a removal order by the Minister under subsection 44(2) of the Act;\nis a danger to the public; or\nis a foreign national whose identity has not been established.\nFlight risk\n245\nFor the purposes of paragraph 244(a), the factors are the following:\nbeing a fugitive from justice in a foreign jurisdiction in relation to an offence that, if committed in Canada, would constitute an offence under an Act of Parliament;\nvoluntary compliance with any previous departure order;\nvoluntary compliance with any previously required appearance at an immigration or criminal proceeding;\nprevious compliance with any conditions imposed in respect of entry, release or a stay of removal;\nany previous avoidance of examination or escape from custody, or any previous attempt to do so;\ninvolvement with a people smuggling or trafficking in persons operation that would likely lead the person to not appear for a measure referred to in paragraph 244(a) or to be vulnerable to being influenced or coerced by an organization involved in such an operation to not appear for such a measure; and\nthe existence of strong ties to a community in Canada.\nDanger to the public\n246\nFor the purposes of paragraph 244(b), the factors are the following:\nthe fact that the person constitutes, in the opinion of the Minister, a danger to the public in Canada or a danger to the security of Canada under paragraph 101(2)(b), subparagraph 113(d)(i) or (ii) or paragraph 115(2)(a) or (b) of the Act;", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 2, s. 39 (Detention and Release) (part 1 of 5)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir02.aspx" + }, + { + "id": "irbg-2-39-p2", + "doc_type": "memorandum", + "act_code": "IRB-G2", + "act_short": "IRB Guideline 2", + "act_name": "IRB Chairperson's Guideline 2 — Detention", + "section": "G2 s. 39", + "marginal_note": "Detention and Release", + "part": "Detention", + "division": "", + "heading": "", + "text": "association with a criminal organization within the meaning of subsection 121(2) of the Act;\nengagement in people smuggling or trafficking in persons;\nconviction in Canada under an Act of Parliament for\na sexual offence, or\nan offence involving violence or weapons;\nconviction for an offence in Canada under any of the following provisions of the\nControlled Drugs and Substances Act\n,\nnamely,\nsection 5 (trafficking),\nsection 6 (importing and exporting), and\nsection 7 (production);\nconviction outside Canada, or the existence of pending charges outside Canada, for an offence that, if committed in Canada, would constitute an offence under an Act of Parliament for\na sexual offence, or\nan offence involving violence or weapons;\nconviction outside Canada, or the existence of pending charges outside Canada, for an offence that, if committed in Canada, would constitute an offence under any of the following provisions of the\nControlled Drugs and Substances Act\n,\nnamely,\nsection 5 (trafficking),\nsection 6 (importing and exporting), and\nsection 7 (production);\nconviction for an offence in Canada under any of the following provisions of the\nCannabis Act\n, namely,\nsection 9 (distribution),\nsection 10 (selling),\nsection 11 (importing and exporting), and\nsection 12 (production); and\nconviction outside Canada, or the existence of pending charges outside Canada, for an offence that, if committed in Canada, would constitute an offence under any of the following provisions of the\nCannabis Act\n, namely,\nsection 9 (distribution),\nsection 10 (selling),\nsection 11 (importing and exporting), and\nsection 12 (production).\nIdentity not established\n247 (1)\nFor the purposes of paragraph 244(c), the factors are the following:", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 2, s. 39 (Detention and Release) (part 2 of 5)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir02.aspx" + }, + { + "id": "irbg-2-39-p3", + "doc_type": "memorandum", + "act_code": "IRB-G2", + "act_short": "IRB Guideline 2", + "act_name": "IRB Chairperson's Guideline 2 — Detention", + "section": "G2 s. 39", + "marginal_note": "Detention and Release", + "part": "Detention", + "division": "", + "heading": "", + "text": "the foreign national’s cooperation in providing evidence of their identity or assisting the Department or the Canada Border Services Agency in obtaining evidence of their identity, in providing the date and place of their birth as well as the names of their mother and father, in providing detailed information on the itinerary they followed in travelling to Canada or in completing an application for a travel document;\nin the case of a foreign national who makes a claim for refugee protection, the possibility of obtaining identity documents or information without divulging personal information to government officials of their country of nationality or, if there is no country of nationality, their country of former habitual residence;\nthe foreign national’s destruction of their identity or travel documents, or the use of fraudulent documents by the foreign national in order to mislead the Department or the Canada Border Services Agency, and the circumstances under which the foreign national acted;\nthe provision of contradictory information by the foreign national with respect to their identity during the processing of an application by the Department or the Canada Border Services Agency; and\nthe existence of documents that contradict information provided by the foreign national with respect to their identity.\nNon-application to minors\n(2)\nConsideration of the factors set out in paragraph (1)(a) shall not have an adverse impact with respect to minor children referred to in section 249.\nOther factors\n248\nIf it is determined that there are grounds for detention, the following factors shall be considered before a decision is made on detention or release:\nthe reason for detention;\nthe length of time in detention;", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 2, s. 39 (Detention and Release) (part 3 of 5)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir02.aspx" + }, + { + "id": "irbg-2-39-p4", + "doc_type": "memorandum", + "act_code": "IRB-G2", + "act_short": "IRB Guideline 2", + "act_name": "IRB Chairperson's Guideline 2 — Detention", + "section": "G2 s. 39", + "marginal_note": "Detention and Release", + "part": "Detention", + "division": "", + "heading": "", + "text": "whether there are any elements that can assist in determining the length of time that detention is likely to continue and, if so, that length of time;\nany unexplained delays or unexplained lack of diligence caused by the Department, the Canada Border Services Agency or the person concerned; and\nthe existence of alternatives to detention: and\nthe best interests of a directly affected child who is under 18 years of age.\nBest interests of the child\n248.1 (1)\nFor the purpose of paragraph 248(f) and for the application, in respect of children who are under 18 years of age, of the principle affirmed in section 60 of the Act, that a minor child shall be detained only as a measure of last resort, the following factors must be considered when determining the best interests of the child:\nthe child’s physical, emotional and psychological well-being;\nthe child’s healthcare and educational needs;\nthe importance of maintaining relationships and the stability of the family environment, and the possible effect on the child of disrupting those relationships or that stability;\nthe care, protection and safety needs of the child; and\nthe child’s views and preferences, provided the child is capable of forming their own views or expressing their preferences, taking into consideration the child’s age and maturity.\nDegree of dependence\n(2)\nFor the purpose of paragraph 248(f), the level of dependency of the child on the person for whom there are grounds to detain shall also be considered when determining the best interests of the child.\nSpecial considerations for minor children\n249", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 2, s. 39 (Detention and Release) (part 4 of 5)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir02.aspx" + }, + { + "id": "irbg-2-39-p5", + "doc_type": "memorandum", + "act_code": "IRB-G2", + "act_short": "IRB Guideline 2", + "act_name": "IRB Chairperson's Guideline 2 — Detention", + "section": "G2 s. 39", + "marginal_note": "Detention and Release", + "part": "Detention", + "division": "", + "heading": "", + "text": "For the application of the principle affirmed in section 60 of the Act that a minor child shall be detained only as a measure of last resort, the special considerations that apply in relation to the detention of minor children who are less than 18 years of age are\nthe availability of alternative arrangements with local child-care agencies or child protection services for the care and protection of the minor children;\nthe anticipated length of detention;\nthe risk of continued control by the human smugglers or traffickers who brought the children to Canada;\nthe type of detention facility envisaged and the conditions of detention;\nthe availability of accommodation that allows for the segregation of the minor children from adult detainees who are not the parent of or the adult legally responsible for the detained minor children; and\nthe availability of services in the detention facility, including education, counselling and recreation.\nApplications for travel documents\n250\nIf a completed application for a passport or travel document must be provided as a condition of release from detention, any completed application provided by a foreign national who makes a claim for refugee protection shall not be divulged to government officials of their country of nationality or, if there is no country of nationality, their country of previous habitual residence, as long as the removal order to which the foreign national is subject is not enforceable.", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 2, s. 39 (Detention and Release) (part 5 of 5)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir02.aspx" + }, + { + "id": "irbg-2-40-p1", + "doc_type": "memorandum", + "act_code": "IRB-G2", + "act_short": "IRB Guideline 2", + "act_name": "IRB Chairperson's Guideline 2 — Detention", + "section": "G2 s. 40", + "marginal_note": "Prescribed conditions", + "part": "Detention", + "division": "", + "heading": "", + "text": "Inadmissibility on grounds of security — conditions\n250.1\nFor the purposes of subsections 44(4), 56(3), 58(5), 58.1(4), 77.1(1) and 82(6) of the Act, the conditions that must be imposed on a foreign national or permanent resident are the following:\nto inform the Canada Border Services Agency in writing of their address and, in advance, of any change in that address;\nto inform the Canada Border Services Agency in writing of their employer’s name and the address of their place of employment and, in advance, of any change in that information;\nunless they are otherwise required to report to the Canada Border Services Agency because of a condition imposed under subsection 44(3), 56(1), 58(3) or 58.1(3) or paragraph 82(5)(b) of the Act, to report once each month to the Agency;\nto present themselves at the time and place that an officer, the Immigration Division, the Minister or the Federal Court requires them to appear to comply with any obligation imposed on them under the Act;\nto produce to the Canada Border Services Agency without delay the original of any passport and travel and identity documents that they hold, or that they obtain, in order to permit the Agency to make copies of those documents;\nif a removal order made against them comes into force, to surrender to the Canada Border Services Agency without delay any passport and travel document that they hold;\nif a removal order made against them comes into force and they do not hold a document that is required to remove them from Canada, to take without delay any action that is necessary to ensure that the document is provided to the Canada Border Services Agency, such as by producing an application or producing evidence verifying their identity;", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 2, s. 40 (Prescribed conditions) (part 1 of 8)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir02.aspx" + }, + { + "id": "irbg-2-40-p2", + "doc_type": "memorandum", + "act_code": "IRB-G2", + "act_short": "IRB Guideline 2", + "act_name": "IRB Chairperson's Guideline 2 — Detention", + "section": "G2 s. 40", + "marginal_note": "Prescribed conditions", + "part": "Detention", + "division": "", + "heading": "", + "text": "to not commit an offence under an Act of Parliament or an offence that, if committed in Canada, would constitute an offence under an Act of Parliament;\nif they are charged with an offence under an Act of Parliament or an offence that, if committed in Canada, would constitute an offence under an Act of Parliament, to inform the Canada Border Services Agency of that charge in writing and without delay;\nif they are convicted of an offence under an Act of Parliament or an offence that, if committed in Canada, would constitute an offence under an Act of Parliament, to inform the Canada Border Services Agency of that conviction in writing and without delay; and\nif they intend to leave Canada, to inform the Canada Border Services Agency in writing of the date on which they intend to leave Canada.\n​\nNotes\nNote 1\nPolicy on the use of Chairperson’s Guidelines, Policy no. 2003-07 of the Immigration and Refugee Board of Canada (\nIRB\n), October 27, 2003.\nReturn to note\n1\nreferrer\nNote 2\nCanadian Charter of Rights and Freedoms\n, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982, (UK), 1982, c. 11.\nReturn to note\n2\nreferrer\nNote 3\nInternational Covenant on Civil and Political Rights, (1976) 999 UNTS 107, in force on March 23, 1976, sections 9, 10 and 11, and Optional Protocol to the International Covenant on Civil and Political Rights, (1976) 999 UNTS 216, in force on March 23, 1976. These two instruments confer status in law on the civil and political rights set out in the Universal Declaration of Human Rights, U.N. Doc. A/810, p. 71 (1948). The United Nations. “Convention on the Rights of the Child,” Treaty Series 1577 (1989), in force on September 2, 1990, Article 37(b).\nReturn to note\n3\nreferrer\nNote 4\nS.C. 2001, c. 27. Section 54 of the\nIRPA", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 2, s. 40 (Prescribed conditions) (part 2 of 8)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir02.aspx" + }, + { + "id": "irbg-2-40-p3", + "doc_type": "memorandum", + "act_code": "IRB-G2", + "act_short": "IRB Guideline 2", + "act_name": "IRB Chairperson's Guideline 2 — Detention", + "section": "G2 s. 40", + "marginal_note": "Prescribed conditions", + "part": "Detention", + "division": "", + "heading": "", + "text": "states that the “Immigration Division is the competent Division of the Board with respect to the review of reasons for detention under this Division.”\nReturn to note\n4\nreferrer\nNote 5\nSection 3(3)(d) of the\nIRPA\nstates that the Act is to be construed and applied in a manner that ensures that decisions taken are consistent with the\nCharter\n. In addition, Section 3(3)(f) of the\nIRPA\nstates that the Act is to be construed and applied in a manner that complies with international human rights instruments to which Canada is a signatory.\nReturn to note\n5\nreferrer\nNote 6\nSee Annex A of this Guideline.\nReturn to note\n6\nreferrer\nNote 7\nThe Minister in these Guidelines refers to the Minister of Public Safety and Emergency Preparedness, through its hearings officers.\nReturn to note\n7\nreferrer\nNote 8\nBrown v. Canada (Citizenship and Immigration)\n, 2020 FCA 130 (August 7, 2020). Leave to appeal to the Supreme Court of Canada filed on November 27, 2020 (File no. 39408).\nReturn to note\n8\nreferrer\nNote 9\nIbid. See also\nCanada (Minister of Citizenship and Immigration) v. Thanabalasingham\n, [2004] 3 F.C.R. 572 (F.C.A.); 2004 FCA 4.\nReturn to note\n9\nreferrer\nNote 10\nBrown, supra\n, footnote 8.\nReturn to note\n10\nreferrer\nNote 11\nIRPR\n, ss. 245, 246, 247 (See Annex B of this Guideline).\nReturn to note\n11\nreferrer\nNote 12\nIRPR\n, s. 248 (See Annex B of this Guideline). Section 248 codifies the factors developed by the Federal Court to ensure that continued detention is consistent with the rights guaranteed by section 7 of the\nCharter\n, and these factors, the so-called “\nSahin factors,\n” are relevant in all cases involving detention. See\nSahin v. Canada (Minister of Citizenship and Immigration)\n, [1995] 1 F.C. 214 (T.D.), appeal dismissed in\nSahin, Bektas v. M.C.I.", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 2, s. 40 (Prescribed conditions) (part 3 of 8)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir02.aspx" + }, + { + "id": "irbg-2-40-p4", + "doc_type": "memorandum", + "act_code": "IRB-G2", + "act_short": "IRB Guideline 2", + "act_name": "IRB Chairperson's Guideline 2 — Detention", + "section": "G2 s. 40", + "marginal_note": "Prescribed conditions", + "part": "Detention", + "division": "", + "heading": "", + "text": "(F.C.A., no. A-575-94), Stone MacGuigan, Robertson, June 8, 1995.\nReturn to note\n12\nreferrer\nNote 13\nBrown, supra\n, footnote 8.\nReturn to note\n13\nreferrer\nNote 14\nIbid.\nReturn to note\n14\nreferrer\nNote 15\nIbid.\nReturn to note\n15\nreferrer\nNote 16\nCharkaoui v. Canada (Citizenship and Immigration)\n, [2007] 1 S.C.R. 350.\nReturn to note\n16\nreferrer\nNote 17\nBrown, supra\n, footnote 8.\nReturn to note\n17\nreferrer\nNote 18\nBrown Alvin John and End Immigration Detention Network v. M.C.I. and M.P.S.E.P.\n(F.C., no. IMM- 364- 15), Fothergill, July 25, 2017; 2017 FC 710.While the Courts have found that the provisions in the\nIRPA\nand the\nIRPR\ncomply with the\nCharter\n​, for a review of detention to be\nCharter\ncompliant the provisions must be properly interpreted and applied.\n​\nReturn to note\n18\nreferrer\nter,\nNote 19\nBrown, supra,\nfootnote 8.\nReturn to note\n19\nreferrer\nNote 20\nSahin v. Canada (Minister of Citizenship and Immigration)\n, [1995] 1 F.C. 214 (T.D.), appeal dismissed.\nReturn to note\n20\nreferrer\nNote 21\nIRPA\n, s. 60.\nReturn to note\n21\nreferrer\nNote 22\nThe United Nations. “\nConvention on the Rights of the Child\n,” Treaty Series 1577 (1989), in force on September 2, 1990, Article 37(b).\nReturn to note\n22\nreferrer\nNote 23\nCode of Conduct for Members of the\nIRB\nof Canada\nReturn to note\n23\nreferrer\nNote 24\nBrown, supra\n, footnote 8.\nReturn to note\n24\nreferrer\nNote 25\nIRPA\n, s. 58(1)(a).\nReturn to note\n25\nreferrer\nNote 26\nIRPA\n, s. 3(1)(h).\nReturn to note\n26\nreferrer\nNote 27\nIRPR\n, ss. 244(b), 246 and 248.\nReturn to note\n27\nreferrer\nNote 28\nIRPR\n, s. 246(a).\nReturn to note\n28\nreferrer\nNote 29\nM.C.I. v. Sittampalam, Jothiravi\n(F.C. nos. IMM-3876-04 and IMM-8256-04), Blais, December 17, 2004; 2004 FC 1756.\nReturn to note\n29\nreferrer\nNote 30\nIRPA\n, s. 58(1)(b).\nReturn to note\n30\nreferrer", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 2, s. 40 (Prescribed conditions) (part 4 of 8)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir02.aspx" + }, + { + "id": "irbg-2-40-p5", + "doc_type": "memorandum", + "act_code": "IRB-G2", + "act_short": "IRB Guideline 2", + "act_name": "IRB Chairperson's Guideline 2 — Detention", + "section": "G2 s. 40", + "marginal_note": "Prescribed conditions", + "part": "Detention", + "division": "", + "heading": "", + "text": "Note 31\nIRPR\n, ss. 244(a), 245 and 248.\nReturn to note\n31\nreferrer\nNote 32\nIRPA\n, s. 58(1)(c).\nReturn to note\n32\nreferrer\nNote 33\nCanada (Citizenship and Immigration) v. X\n, [2011] 1 F.C.R. 493; 2010 FC 112.\nReturn to note\n33\nreferrer\nNote 34\nIRPA\n, s. 58(1)(d).\nReturn to note\n34\nreferrer\nNote 35\nIRPR\n, s. 247.\nReturn to note\n35\nreferrer\nNote 36\nM.C.I. v. X\n(F.C., no. IMM-5427-10), Phelan, November 5, 2010; 2010 FC 1095.\nReturn to note\n36\nreferrer\nNote 37\nIbid.\nReturn to note\n37\nreferrer\nNote 38\nBrown, supra\n, footnote 8.\nReturn to note\n38\nreferrer\nNote 39\nAhmed v. Canada (Citizenship and Immigration)\n, 2015 FC 876 at para 34.\nReturn to note\n39\nreferrer\nNote 40\nBrown, supra\n, footnote 8.\nReturn to note\n40\nreferrer\nNote 41\nIbid.\nReturn to note\n41\nreferrer\nNote 42\nIbid.\nReturn to note\n42\nreferrer\nNote 43\nIbid.\nReturn to note\n43\nreferrer\nNote 44\nIbid.\nReturn to note\n44\nreferrer\nNote 45\nIbid. See\nM.P.S.E.P v. Lunyamila\n(F.C. no. IMM-3428-16 et al), Crampton, October 27, 2016; 2016 FC 1199. Appeal dismissed in\nLunyamila v. Canada (Public Safety and Emergency Preparedness)\n(A-444-16), Stratas, Woods, Laskin, January 19, 2018; 2018 FCA 22 without consideration of the certified question. The Chief Justice said that in situations of “extremely lengthy” detention due to the person’s failure to fully cooperate with the Minister’s removal efforts, it should be resolved in favour of continued detention; however this assumes no material changes in the other factors required to be considered under s. 248 of the\nIRPR\n, including alternatives to detention. In\nAli\n, 2017 ONSC 2660 the Court said that to hold a person indefinitely, solely on the basis of non-cooperation, would be fundamentally inconsistent with the principles underlying ss. 7 and 9 of the\nCharter\n. In\nAli", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 2, s. 40 (Prescribed conditions) (part 5 of 8)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir02.aspx" + }, + { + "id": "irbg-2-40-p6", + "doc_type": "memorandum", + "act_code": "IRB-G2", + "act_short": "IRB Guideline 2", + "act_name": "IRB Chairperson's Guideline 2 — Detention", + "section": "G2 s. 40", + "marginal_note": "Prescribed conditions", + "part": "Detention", + "division": "", + "heading": "", + "text": ", the Court also confirmed that detention under the\nIRPA\ncannot be for the purpose of punishment, but must be necessary to further a legitimate immigration purpose.\nReturn to note\n45\nreferrer\nNote 46\nBrown, supra\n, footnote 8.\nReturn to note\n46\nreferrer\nNote 47\nIbid\nReturn to note\n47\nreferrer\nNote 48\nIbid\nReturn to note\n48\nreferrer\nNote 49\nIbid\nReturn to note\n49\nreferrer\nNote 50\nCharkaoui, supra\n, footnote 9.\nReturn to note\n50\nreferrer\nNote 51\nBrown, supra\n, footnote 8.\nReturn to note\n51\nreferrer\nNote 52\nIRB\nChairperson Guideline 9: Proceedings Before the\nIRB\nInvolving Sexual Orientation and Gender Identity and Expression.\nReturn to note\n52\nreferrer\nNote 53\nIRB\nChairperson Guideline 8: Procedures With Respect to Vulnerable Persons Appearing Before the\nIRB\n.\nReturn to note\n53\nreferrer\nNote 54\nhttps://www.cbsa-asfc.gc.ca/security-securite/detent/nidf-cndi-eng.html\nReturn to note\n54\nreferrer\nNote 55\nThis list is not exhaustive.\nReturn to note\n55\nreferrer\nNote 56\nMuhammad, Arshad v. M.P.S.E.P.\n(F.C. no. IMM-844-13), Martineau, February 27, 2013; 2013 FC 203.\nSee also\nM.C.I. v. B 147\n(F.C. no. IMM-2451-12), Rennie, May 29, 2012; 2012 FC 655.\nReturn to note\n56\nreferrer\nNote 57\nIbid.\nReturn to note\n57\nreferrer\nNote 58\nCanada (Minister of Citizenship and Immigration) v. Zhang\n, 2001 FCT 522, 205 F.T.R. 91, affirmed in\nM.P.S.E.P. and M.C.I. v. Iamkhong, Suwalee\n(F.C. no. IMM-254-09), Shore, January 21, 2009; 2009 FC 52.\nReturn to note\n58\nreferrer\nNote 59\nRe Almrei\n(F.C. no. DES -3-08), Mosley, January 2, 2009; 2009 FC 3.\nReturn to note\n59\nreferrer\nNote 60\nSection 3(3)(f) of the\nIRPA\nstates that the Act is to be construed and applied in a manner that complies with international human rights instruments to which Canada is a signatory.\nReturn to note\n60\nreferrer\nNote 61\nIRPA", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 2, s. 40 (Prescribed conditions) (part 6 of 8)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir02.aspx" + }, + { + "id": "irbg-2-40-p7", + "doc_type": "memorandum", + "act_code": "IRB-G2", + "act_short": "IRB Guideline 2", + "act_name": "IRB Chairperson's Guideline 2 — Detention", + "section": "G2 s. 40", + "marginal_note": "Prescribed conditions", + "part": "Detention", + "division": "", + "heading": "", + "text": ", s. 60, and\nIRPR\n, s. 249.\nReturn to note\n61\nreferrer\nNote 62\nIRPR\n​, s. 248(f) and s. 248.1.\nReturn to note\n62\nreferrer\nNote 63\nIRB\nChairperson Guideline 8: Procedures With Respect to Vulnerable Persons Appearing Before the\nIRB\n. Section 2.1 defines “vulnerable persons” as “individuals whose ability to present their cases before the\nIRB\nis severely impaired” and includes “the mentally ill.” Some other vulnerabilities are listed in section 3.1.15. of this Detention Guideline.\nReturn to note\n63\nreferrer\nNote 64\nThe\nIRB\nhas a broad discretion to tailor procedures to meet the particular needs of a vulnerable person, and, where appropriate and permitted by law, the\nIRB\nmay accommodate a person's vulnerability by various means, including: a. allowing the vulnerable person to provide evidence by videoconference or other means; b. allowing a support person to participate in a hearing; c. creating a more informal setting for a hearing; d. varying the order of questioning; e. excluding non-parties from the hearing room; f. providing a panel and interpreter of a particular gender; g. explaining\nIRB\n​ processes to the vulnerable person; and h. allowing any other procedural accommodations that may be reasonable in the circumstances.\nReturn to note\n64\nreferrer\nNote 65\nIRPA\n, s. 166.\nReturn to note\n65\nreferrer\nNote 66\nIRPA\n​, s. 166(b).\nReturn to note\n66\nreferrer\nNote 67\nBrown, supra, footnote 8.\nReturn to note\n67\nreferrer\nNote 68\nIbid.\nReturn to note\n68\nreferrer\nNote 69\nThe FCA in Brown rejected the argument that the requirement in\nThanabalasingham\n, supra, footnote 9, for a member to provide “clear and compelling reasons” when departing from a prior decision requires a change in circumstances or fresh evidence.\nReturn to note\n69\nreferrer\nNote 70\nBrown, supra, footnote 8.", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 2, s. 40 (Prescribed conditions) (part 7 of 8)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir02.aspx" + }, + { + "id": "irbg-2-40-p8", + "doc_type": "memorandum", + "act_code": "IRB-G2", + "act_short": "IRB Guideline 2", + "act_name": "IRB Chairperson's Guideline 2 — Detention", + "section": "G2 s. 40", + "marginal_note": "Prescribed conditions", + "part": "Detention", + "division": "", + "heading": "", + "text": "Return to note\n70\nreferrer\nNote 71\nBrown, supra\n, footnote 8. The FCA in\nBrown\nsaid that section 26 of the ID Rules does not fulfill the minimum requirements of the common law duty of fairness. The Minister’s disclosure obligation is not limited to the requirement as that found in section 26 because the rule requires disclosure of a document only if the party wishes to use the document at the hearing whereas a detainee is entitled to know the case against them, not just the information on which the Minister intends to rely.\nReturn to note\n71\nreferrer\nNote 72\nIbid.\nReturn to note\n72\nreferrer\nNote 73\nIbid. The cooperation of the person concerned is irrelevant in terms of procedural fairness, and the Minister’s disclosure obligation exists independent of any lack of cooperation by the person concerned.\nReturn to note\n73\nreferrer\nNote 74\nBrown, Alvin John and End Immigration Detention Network, supra\n, footnote 17.\nReturn to note\n74\nreferrer\nNote 75\nImmigration Division Rules, s. 9.\nReturn to note\n75\nreferrer", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 2, s. 40 (Prescribed conditions) (part 8 of 8)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir02.aspx" + }, + { + "id": "irbg-2-41-p1", + "doc_type": "memorandum", + "act_code": "IRB-G2", + "act_short": "IRB Guideline 2", + "act_name": "IRB Chairperson's Guideline 2 — Detention", + "section": "G2 s. 41", + "marginal_note": "Notes", + "part": "Detention", + "division": "", + "heading": "", + "text": "Note 1\nPolicy on the use of Chairperson’s Guidelines, Policy no. 2003-07 of the Immigration and Refugee Board of Canada (\nIRB\n), October 27, 2003.\nReturn to note\n1\nreferrer\nNote 2\nCanadian Charter of Rights and Freedoms\n, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982, (UK), 1982, c. 11.\nReturn to note\n2\nreferrer\nNote 3\nInternational Covenant on Civil and Political Rights, (1976) 999 UNTS 107, in force on March 23, 1976, sections 9, 10 and 11, and Optional Protocol to the International Covenant on Civil and Political Rights, (1976) 999 UNTS 216, in force on March 23, 1976. These two instruments confer status in law on the civil and political rights set out in the Universal Declaration of Human Rights, U.N. Doc. A/810, p. 71 (1948). The United Nations. “Convention on the Rights of the Child,” Treaty Series 1577 (1989), in force on September 2, 1990, Article 37(b).\nReturn to note\n3\nreferrer\nNote 4\nS.C. 2001, c. 27. Section 54 of the\nIRPA\nstates that the “Immigration Division is the competent Division of the Board with respect to the review of reasons for detention under this Division.”\nReturn to note\n4\nreferrer\nNote 5\nSection 3(3)(d) of the\nIRPA\nstates that the Act is to be construed and applied in a manner that ensures that decisions taken are consistent with the\nCharter\n. In addition, Section 3(3)(f) of the\nIRPA\nstates that the Act is to be construed and applied in a manner that complies with international human rights instruments to which Canada is a signatory.\nReturn to note\n5\nreferrer\nNote 6\nSee Annex A of this Guideline.\nReturn to note\n6\nreferrer\nNote 7\nThe Minister in these Guidelines refers to the Minister of Public Safety and Emergency Preparedness, through its hearings officers.\nReturn to note\n7\nreferrer\nNote 8", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 2, s. 41 (Notes) (part 1 of 7)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir02.aspx" + }, + { + "id": "irbg-2-41-p2", + "doc_type": "memorandum", + "act_code": "IRB-G2", + "act_short": "IRB Guideline 2", + "act_name": "IRB Chairperson's Guideline 2 — Detention", + "section": "G2 s. 41", + "marginal_note": "Notes", + "part": "Detention", + "division": "", + "heading": "", + "text": "Brown v. Canada (Citizenship and Immigration)\n, 2020 FCA 130 (August 7, 2020). Leave to appeal to the Supreme Court of Canada filed on November 27, 2020 (File no. 39408).\nReturn to note\n8\nreferrer\nNote 9\nIbid. See also\nCanada (Minister of Citizenship and Immigration) v. Thanabalasingham\n, [2004] 3 F.C.R. 572 (F.C.A.); 2004 FCA 4.\nReturn to note\n9\nreferrer\nNote 10\nBrown, supra\n, footnote 8.\nReturn to note\n10\nreferrer\nNote 11\nIRPR\n, ss. 245, 246, 247 (See Annex B of this Guideline).\nReturn to note\n11\nreferrer\nNote 12\nIRPR\n, s. 248 (See Annex B of this Guideline). Section 248 codifies the factors developed by the Federal Court to ensure that continued detention is consistent with the rights guaranteed by section 7 of the\nCharter\n, and these factors, the so-called “\nSahin factors,\n” are relevant in all cases involving detention. See\nSahin v. Canada (Minister of Citizenship and Immigration)\n, [1995] 1 F.C. 214 (T.D.), appeal dismissed in\nSahin, Bektas v. M.C.I.\n(F.C.A., no. A-575-94), Stone MacGuigan, Robertson, June 8, 1995.\nReturn to note\n12\nreferrer\nNote 13\nBrown, supra\n, footnote 8.\nReturn to note\n13\nreferrer\nNote 14\nIbid.\nReturn to note\n14\nreferrer\nNote 15\nIbid.\nReturn to note\n15\nreferrer\nNote 16\nCharkaoui v. Canada (Citizenship and Immigration)\n, [2007] 1 S.C.R. 350.\nReturn to note\n16\nreferrer\nNote 17\nBrown, supra\n, footnote 8.\nReturn to note\n17\nreferrer\nNote 18\nBrown Alvin John and End Immigration Detention Network v. M.C.I. and M.P.S.E.P.\n(F.C., no. IMM- 364- 15), Fothergill, July 25, 2017; 2017 FC 710.While the Courts have found that the provisions in the\nIRPA\nand the\nIRPR\ncomply with the\nCharter\n​, for a review of detention to be\nCharter\ncompliant the provisions must be properly interpreted and applied.\n​\nReturn to note\n18\nreferrer\nter,\nNote 19\nBrown, supra,", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 2, s. 41 (Notes) (part 2 of 7)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir02.aspx" + }, + { + "id": "irbg-2-41-p3", + "doc_type": "memorandum", + "act_code": "IRB-G2", + "act_short": "IRB Guideline 2", + "act_name": "IRB Chairperson's Guideline 2 — Detention", + "section": "G2 s. 41", + "marginal_note": "Notes", + "part": "Detention", + "division": "", + "heading": "", + "text": "footnote 8.\nReturn to note\n19\nreferrer\nNote 20\nSahin v. Canada (Minister of Citizenship and Immigration)\n, [1995] 1 F.C. 214 (T.D.), appeal dismissed.\nReturn to note\n20\nreferrer\nNote 21\nIRPA\n, s. 60.\nReturn to note\n21\nreferrer\nNote 22\nThe United Nations. “\nConvention on the Rights of the Child\n,” Treaty Series 1577 (1989), in force on September 2, 1990, Article 37(b).\nReturn to note\n22\nreferrer\nNote 23\nCode of Conduct for Members of the\nIRB\nof Canada\nReturn to note\n23\nreferrer\nNote 24\nBrown, supra\n, footnote 8.\nReturn to note\n24\nreferrer\nNote 25\nIRPA\n, s. 58(1)(a).\nReturn to note\n25\nreferrer\nNote 26\nIRPA\n, s. 3(1)(h).\nReturn to note\n26\nreferrer\nNote 27\nIRPR\n, ss. 244(b), 246 and 248.\nReturn to note\n27\nreferrer\nNote 28\nIRPR\n, s. 246(a).\nReturn to note\n28\nreferrer\nNote 29\nM.C.I. v. Sittampalam, Jothiravi\n(F.C. nos. IMM-3876-04 and IMM-8256-04), Blais, December 17, 2004; 2004 FC 1756.\nReturn to note\n29\nreferrer\nNote 30\nIRPA\n, s. 58(1)(b).\nReturn to note\n30\nreferrer\nNote 31\nIRPR\n, ss. 244(a), 245 and 248.\nReturn to note\n31\nreferrer\nNote 32\nIRPA\n, s. 58(1)(c).\nReturn to note\n32\nreferrer\nNote 33\nCanada (Citizenship and Immigration) v. X\n, [2011] 1 F.C.R. 493; 2010 FC 112.\nReturn to note\n33\nreferrer\nNote 34\nIRPA\n, s. 58(1)(d).\nReturn to note\n34\nreferrer\nNote 35\nIRPR\n, s. 247.\nReturn to note\n35\nreferrer\nNote 36\nM.C.I. v. X\n(F.C., no. IMM-5427-10), Phelan, November 5, 2010; 2010 FC 1095.\nReturn to note\n36\nreferrer\nNote 37\nIbid.\nReturn to note\n37\nreferrer\nNote 38\nBrown, supra\n, footnote 8.\nReturn to note\n38\nreferrer\nNote 39\nAhmed v. Canada (Citizenship and Immigration)\n, 2015 FC 876 at para 34.\nReturn to note\n39\nreferrer\nNote 40\nBrown, supra\n, footnote 8.\nReturn to note\n40\nreferrer\nNote 41\nIbid.\nReturn to note\n41\nreferrer\nNote 42\nIbid.\nReturn to note\n42\nreferrer\nNote 43\nIbid.", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 2, s. 41 (Notes) (part 3 of 7)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir02.aspx" + }, + { + "id": "irbg-2-41-p4", + "doc_type": "memorandum", + "act_code": "IRB-G2", + "act_short": "IRB Guideline 2", + "act_name": "IRB Chairperson's Guideline 2 — Detention", + "section": "G2 s. 41", + "marginal_note": "Notes", + "part": "Detention", + "division": "", + "heading": "", + "text": "Return to note\n43\nreferrer\nNote 44\nIbid.\nReturn to note\n44\nreferrer\nNote 45\nIbid. See\nM.P.S.E.P v. Lunyamila\n(F.C. no. IMM-3428-16 et al), Crampton, October 27, 2016; 2016 FC 1199. Appeal dismissed in\nLunyamila v. Canada (Public Safety and Emergency Preparedness)\n(A-444-16), Stratas, Woods, Laskin, January 19, 2018; 2018 FCA 22 without consideration of the certified question. The Chief Justice said that in situations of “extremely lengthy” detention due to the person’s failure to fully cooperate with the Minister’s removal efforts, it should be resolved in favour of continued detention; however this assumes no material changes in the other factors required to be considered under s. 248 of the\nIRPR\n, including alternatives to detention. In\nAli\n, 2017 ONSC 2660 the Court said that to hold a person indefinitely, solely on the basis of non-cooperation, would be fundamentally inconsistent with the principles underlying ss. 7 and 9 of the\nCharter\n. In\nAli\n, the Court also confirmed that detention under the\nIRPA\ncannot be for the purpose of punishment, but must be necessary to further a legitimate immigration purpose.\nReturn to note\n45\nreferrer\nNote 46\nBrown, supra\n, footnote 8.\nReturn to note\n46\nreferrer\nNote 47\nIbid\nReturn to note\n47\nreferrer\nNote 48\nIbid\nReturn to note\n48\nreferrer\nNote 49\nIbid\nReturn to note\n49\nreferrer\nNote 50\nCharkaoui, supra\n, footnote 9.\nReturn to note\n50\nreferrer\nNote 51\nBrown, supra\n, footnote 8.\nReturn to note\n51\nreferrer\nNote 52\nIRB\nChairperson Guideline 9: Proceedings Before the\nIRB\nInvolving Sexual Orientation and Gender Identity and Expression.\nReturn to note\n52\nreferrer\nNote 53\nIRB\nChairperson Guideline 8: Procedures With Respect to Vulnerable Persons Appearing Before the\nIRB\n.\nReturn to note\n53\nreferrer\nNote 54", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 2, s. 41 (Notes) (part 4 of 7)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir02.aspx" + }, + { + "id": "irbg-2-41-p5", + "doc_type": "memorandum", + "act_code": "IRB-G2", + "act_short": "IRB Guideline 2", + "act_name": "IRB Chairperson's Guideline 2 — Detention", + "section": "G2 s. 41", + "marginal_note": "Notes", + "part": "Detention", + "division": "", + "heading": "", + "text": "https://www.cbsa-asfc.gc.ca/security-securite/detent/nidf-cndi-eng.html\nReturn to note\n54\nreferrer\nNote 55\nThis list is not exhaustive.\nReturn to note\n55\nreferrer\nNote 56\nMuhammad, Arshad v. M.P.S.E.P.\n(F.C. no. IMM-844-13), Martineau, February 27, 2013; 2013 FC 203.\nSee also\nM.C.I. v. B 147\n(F.C. no. IMM-2451-12), Rennie, May 29, 2012; 2012 FC 655.\nReturn to note\n56\nreferrer\nNote 57\nIbid.\nReturn to note\n57\nreferrer\nNote 58\nCanada (Minister of Citizenship and Immigration) v. Zhang\n, 2001 FCT 522, 205 F.T.R. 91, affirmed in\nM.P.S.E.P. and M.C.I. v. Iamkhong, Suwalee\n(F.C. no. IMM-254-09), Shore, January 21, 2009; 2009 FC 52.\nReturn to note\n58\nreferrer\nNote 59\nRe Almrei\n(F.C. no. DES -3-08), Mosley, January 2, 2009; 2009 FC 3.\nReturn to note\n59\nreferrer\nNote 60\nSection 3(3)(f) of the\nIRPA\nstates that the Act is to be construed and applied in a manner that complies with international human rights instruments to which Canada is a signatory.\nReturn to note\n60\nreferrer\nNote 61\nIRPA\n, s. 60, and\nIRPR\n, s. 249.\nReturn to note\n61\nreferrer\nNote 62\nIRPR\n​, s. 248(f) and s. 248.1.\nReturn to note\n62\nreferrer\nNote 63\nIRB\nChairperson Guideline 8: Procedures With Respect to Vulnerable Persons Appearing Before the\nIRB\n. Section 2.1 defines “vulnerable persons” as “individuals whose ability to present their cases before the\nIRB\nis severely impaired” and includes “the mentally ill.” Some other vulnerabilities are listed in section 3.1.15. of this Detention Guideline.\nReturn to note\n63\nreferrer\nNote 64\nThe\nIRB\nhas a broad discretion to tailor procedures to meet the particular needs of a vulnerable person, and, where appropriate and permitted by law, the\nIRB", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 2, s. 41 (Notes) (part 5 of 7)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir02.aspx" + }, + { + "id": "irbg-2-41-p6", + "doc_type": "memorandum", + "act_code": "IRB-G2", + "act_short": "IRB Guideline 2", + "act_name": "IRB Chairperson's Guideline 2 — Detention", + "section": "G2 s. 41", + "marginal_note": "Notes", + "part": "Detention", + "division": "", + "heading": "", + "text": "may accommodate a person's vulnerability by various means, including: a. allowing the vulnerable person to provide evidence by videoconference or other means; b. allowing a support person to participate in a hearing; c. creating a more informal setting for a hearing; d. varying the order of questioning; e. excluding non-parties from the hearing room; f. providing a panel and interpreter of a particular gender; g. explaining\nIRB\n​ processes to the vulnerable person; and h. allowing any other procedural accommodations that may be reasonable in the circumstances.\nReturn to note\n64\nreferrer\nNote 65\nIRPA\n, s. 166.\nReturn to note\n65\nreferrer\nNote 66\nIRPA\n​, s. 166(b).\nReturn to note\n66\nreferrer\nNote 67\nBrown, supra, footnote 8.\nReturn to note\n67\nreferrer\nNote 68\nIbid.\nReturn to note\n68\nreferrer\nNote 69\nThe FCA in Brown rejected the argument that the requirement in\nThanabalasingham\n, supra, footnote 9, for a member to provide “clear and compelling reasons” when departing from a prior decision requires a change in circumstances or fresh evidence.\nReturn to note\n69\nreferrer\nNote 70\nBrown, supra, footnote 8.\nReturn to note\n70\nreferrer\nNote 71\nBrown, supra\n, footnote 8. The FCA in\nBrown\nsaid that section 26 of the ID Rules does not fulfill the minimum requirements of the common law duty of fairness. The Minister’s disclosure obligation is not limited to the requirement as that found in section 26 because the rule requires disclosure of a document only if the party wishes to use the document at the hearing whereas a detainee is entitled to know the case against them, not just the information on which the Minister intends to rely.\nReturn to note\n71\nreferrer\nNote 72\nIbid.\nReturn to note\n72\nreferrer\nNote 73", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 2, s. 41 (Notes) (part 6 of 7)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir02.aspx" + }, + { + "id": "irbg-2-41-p7", + "doc_type": "memorandum", + "act_code": "IRB-G2", + "act_short": "IRB Guideline 2", + "act_name": "IRB Chairperson's Guideline 2 — Detention", + "section": "G2 s. 41", + "marginal_note": "Notes", + "part": "Detention", + "division": "", + "heading": "", + "text": "Ibid. The cooperation of the person concerned is irrelevant in terms of procedural fairness, and the Minister’s disclosure obligation exists independent of any lack of cooperation by the person concerned.\nReturn to note\n73\nreferrer\nNote 74\nBrown, Alvin John and End Immigration Detention Network, supra\n, footnote 17.\nReturn to note\n74\nreferrer\nNote 75\nImmigration Division Rules, s. 9.\nReturn to note\n75\nreferrer", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 2, s. 41 (Notes) (part 7 of 7)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir02.aspx" + }, + { + "id": "irbg-3-1", + "doc_type": "memorandum", + "act_code": "IRB-G3", + "act_short": "IRB Guideline 3", + "act_name": "IRB Chairperson's Guideline 3 — Child Refugee Claimants: Procedural and Evidentiary Issues", + "section": "G3 s. 1", + "marginal_note": "Table of contents", + "part": "Child Refugee Claimants: Procedural and Evidentiary Issues", + "division": "", + "heading": "", + "text": "1.\nPurpose\n2.\nApplication\n3.\nBackground\nPart 1 –\nPrinciples applicable to all proceedings\n4.\nThe Best Interests of the Child\n​​4.1\nIntroduction\n4.2\nDefinition\n4.3\nProcedural application of the\nBIOC\nto all matters involving minors\n5.\nDesignated Representative\n5.1\nIntroduction\n5.2\nRequirements\n5.3\nRole and responsibilities\n5.4\nMinor reaching 18 years of age\n5.5\nEnding the designation of the representative\n5.5.1\nCompetency issues\n5.5.2\nConflict of interest or unable to act in the best interests of the minor\n6.\nProcessing cases involving minors appearing before the\nIRB\n6.1\nIntroduction\n6.2\nConcerns related to a minor’s safety\n6.3\nPresence during the hearing\n6.4\nMatters involving accompanied minors\n6.4.1\nSeparating proceedings\n6.5\nMatters involving unaccompanied or separated minors\n6.6\nProcedural accommodations\n6.7\nCase conferences\n6.8\nProtection of confidential information\n7.\nEvidentiary issues\n7.1\nEliciting evidence\n7.2\nAlternative sources of evidence\n7.3\nMinors testifying during a hearing\n7.3.1\nCapacity to testify and solemn declaration\n7.3.2\nChild-sensitive approach to questioning\n8.\nAssessing the evidence\n8.1\nCredibility\n8.2\nSeeking an explanation\n8.3\nIntersectional approach to credibility assessment\n8.4\nThe impact of trauma on testimony\n8.5\nDemeanour\nPart 2 –\nGuidance specific to each Division\n9.\nProceedings before the Refugee Protection Division and Refugee Appeal Division\n9.1\nPersecution\n​\n9.2\nNexus to the particular social group of the family\n9.3\nInternal Flight Alternative\n9.4\nState protection\n9.5\nSubjective fear\n9.6\nPotential abduction of a minor\n10.\nProceedings before the Immigration Division\n10.1\nDetention Reviews\n10.2\nAdmissibility hearings\n11.\nProceedings before the Immigration Appeal Division\n11.1\nBest Interests of the Child\n12.\nInquiries​", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 3, s. 1 (Table of contents)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir03.aspx" + }, + { + "id": "irbg-3-1", + "doc_type": "memorandum", + "act_code": "IRB-G3", + "act_short": "IRB Guideline 3", + "act_name": "IRB Chairperson's Guideline 3 — Child Refugee Claimants: Procedural and Evidentiary Issues", + "section": "G3 s. 1", + "marginal_note": "Purpose", + "part": "Child Refugee Claimants: Procedural and Evidentiary Issues", + "division": "", + "heading": "", + "text": "1.1 The objective of this Guideline is to foster consistency and fairness in the conduct of proceedings and in decision-making for minors appearing at the Immigration and Refugee Board (\nIRB\n).\n1.2 The term “minor” in this Guideline applies to all persons under the age of 18. References to a “child” or to “children” in source material have been retained.\n1.3 The Guideline provides direction on procedural and substantive elements\nFootnote\n1\nto be considered when processing matters involving minors, including:\ndefinition and application of the Best Interests of the Child (\nBIOC\n) principle;\ndesignated representatives (\nDR\ns);\nprocedural considerations;\nevidentiary issues; and\ndivision-specific guidance.\n1.4 This Guideline assists adjudicative support staff and members in carrying out their duties to conduct fair hearings and render well-reasoned decisions. It does not alter the legal requirements set out in legislation and case law. The standard of proof that applies to any proceeding and the legal tests remain the same.\n1.5 This Guideline recognizes the principle that minors have the same human rights as adults as well as distinctive rights and procedural needs when they participate in proceedings at the\nIRB\n. The Guideline also illustrates how a minor's particular circumstances may impact decision-making.", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 3, s. 1 (Purpose)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir03.aspx" + }, + { + "id": "irbg-3-2", + "doc_type": "memorandum", + "act_code": "IRB-G3", + "act_short": "IRB Guideline 3", + "act_name": "IRB Chairperson's Guideline 3 — Child Refugee Claimants: Procedural and Evidentiary Issues", + "section": "G3 s. 2", + "marginal_note": "Application", + "part": "Child Refugee Claimants: Procedural and Evidentiary Issues", + "division": "", + "heading": "", + "text": "2.1 This Guideline replaces\nGuideline 3 – Child Refugee Claimants Procedural and Evidentiary Issues\n(September 30, 1996).\n2.2 This Guideline applies to proceedings in all four Divisions of the\nIRB\n:\nRefugee Protection Division (\nRPD\n)\nRefugee Appeal Division (\nRAD\n)\nImmigration Division (\nID\n)\nImmigration Appeal Division (\nIAD\n)\n2.3 This Guideline is to be applied by members and other\nIRB\npersonnel who are involved in the processing or adjudication of\nIRB\ncases involving minors.\n2.4 Definitions of terms used in this Guideline are provided either in the main text where the term is introduced or in the footnotes to this Guideline.", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 3, s. 2 (Application)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir03.aspx" + }, + { + "id": "irbg-3-3", + "doc_type": "memorandum", + "act_code": "IRB-G3", + "act_short": "IRB Guideline 3", + "act_name": "IRB Chairperson's Guideline 3 — Child Refugee Claimants: Procedural and Evidentiary Issues", + "section": "G3 s. 3", + "marginal_note": "Background", + "part": "Child Refugee Claimants: Procedural and Evidentiary Issues", + "division": "", + "heading": "", + "text": "3.1 This Guideline updates the 1996 Guideline based on developments in the case law, legislative changes, and updated research regarding minors in judicial procedures.\n3.2 The international community recognizes that minors have different requirements than adults in legal proceedings. The United Nations Convention on the Rights of the Child (\nCRC\n)\nFootnote\n2\nrecognizes the importance of a government taking measures to ensure that administrative authorities or legislative bodies make the\nBIOC\na primary consideration in all actions concerning minors.\n3.3 There are three main categories of minors who appear before the\nIRB\nFootnote\n3\n. Reference to these categories is made throughout this Guideline to highlight unique procedural and evidentiary issues.\nAccompanied minor\n: minor who arrives in Canada at the same time as one or more parent or legal guardian, or who reunites with one or more parent or legal guardian in Canada.\nSeparated minor:\nFootnote\n4\nminor who is separated from both parents or from their legal guardian, but not necessarily from other adult family members in a caregiving role.\nFootnote\n5\nUnaccompanied minor\n: minor who is alone in Canada without their parents or anyone who purports to be a family member in a caregiving role or legal guardian.\n3.4 For the purposes of the application of this Guideline, separated and unaccompanied minors benefit from the same recommended procedural considerations (see section 6.6).\n3.5 Some minors may be in situations that are not captured by these categories, or, because of a change in circumstances, may move from one category to another. For this reason, these categories should be viewed with flexibility and applied with the best interests of the minor in mind.", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 3, s. 3 (Background)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir03.aspx" + }, + { + "id": "irbg-3-4-1", + "doc_type": "memorandum", + "act_code": "IRB-G3", + "act_short": "IRB Guideline 3", + "act_name": "IRB Chairperson's Guideline 3 — Child Refugee Claimants: Procedural and Evidentiary Issues", + "section": "G3 s. 4.1", + "marginal_note": "Introduction", + "part": "Child Refugee Claimants: Procedural and Evidentiary Issues", + "division": "", + "heading": "", + "text": "4.1.1 In determining the procedure to be followed for a case involving a minor, the\nIRB\nshould give primary consideration to the\nBIOC\nin every interaction with that minor.", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 3, s. 4.1 (Introduction)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir03.aspx" + }, + { + "id": "irbg-3-4-2", + "doc_type": "memorandum", + "act_code": "IRB-G3", + "act_short": "IRB Guideline 3", + "act_name": "IRB Chairperson's Guideline 3 — Child Refugee Claimants: Procedural and Evidentiary Issues", + "section": "G3 s. 4.2", + "marginal_note": "Definition", + "part": "Child Refugee Claimants: Procedural and Evidentiary Issues", + "division": "", + "heading": "", + "text": "4.2.1 The\nBIOC\nis a term used to recognize that minors require special procedural safeguards and care, and that particular attention must be paid to their interests, needs, and rights. The\nBIOC\nis recognized by the international community as a fundamental right of minors.\nFootnote\n6\n4.2.2 Because the\nBIOC\nis a broad term, its interpretation depends on the circumstances of each case. A minor's right to have their best interests prioritized must therefore be applied in a manner responsive to their age, capacity, needs, and maturity.\nFootnote\n7\nThis means determining what environment, in the circumstances, appears most likely to be conducive for each minor to receive the needed care and attention they require in their dealings with the\nIRB\n.\nFootnote\n8\n4.2.3 Members must examine each case involving a minor using an intersectional approach\nFootnote\n9\nthat considers how multiple identity factors may interact and affect the minor's interests. Without limitation, such identity factors may include: age, race, religion, gender, education and literacy, cultural and family background, Indigenous identity, experiences of trauma, maturity, ethnicity, disability, sexual orientation, gender expression and identity and sex characteristics (\nSOGIESC\n)\nFootnote\n10\n, and any other factor that could impact the application of the\nBIOC\n.", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 3, s. 4.2 (Definition)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir03.aspx" + }, + { + "id": "irbg-3-4-3", + "doc_type": "memorandum", + "act_code": "IRB-G3", + "act_short": "IRB Guideline 3", + "act_name": "IRB Chairperson's Guideline 3 — Child Refugee Claimants: Procedural and Evidentiary Issues", + "section": "G3 s. 4.3", + "marginal_note": "Procedural application of the BIOC to all matters involving minors", + "part": "Child Refugee Claimants: Procedural and Evidentiary Issues", + "division": "", + "heading": "", + "text": "4.3.1 The\nBIOC\napplies to all procedural considerations whenever a minor is involved in a proceeding at the\nIRB\n, whether the minor is accompanied, separated, or unaccompanied.\nFootnote\n11\n4.3.2 In proceedings at the\nID\nand\nIAD\n, the\nBIOC\nis also a substantive consideration in decision-making. For more information, see\nPart 2 – Guidance Specific to Each Division.", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 3, s. 4.3 (Procedural application of the BIOC to all matters involving minors)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir03.aspx" + }, + { + "id": "irbg-3-5-1", + "doc_type": "memorandum", + "act_code": "IRB-G3", + "act_short": "IRB Guideline 3", + "act_name": "IRB Chairperson's Guideline 3 — Child Refugee Claimants: Procedural and Evidentiary Issues", + "section": "G3 s. 5.1", + "marginal_note": "Introduction", + "part": "Child Refugee Claimants: Procedural and Evidentiary Issues", + "division": "", + "heading": "", + "text": "5.1.1 The\nImmigration and Refugee Protection Act\n(\nIRPA\n) requires persons under the age of 18, or who are unable to appreciate the nature of the proceedings, to have a\nDR\n.\nFootnote\n12\nA\nDR\nmust be appointed as early as possible.\nFootnote\n13\nA\nDR\ncan be a parent, family member, legal guardian, friend, or a person appointed by the\nIRB\nunder contract (contracted\nDR\ns). If the minor is accompanied by their parent(s) or legal guardian(s), one of these individuals will be appointed as the\nDR\n, subject to the requirements under sections 5.2 and 5.3 of this Guideline and the respective rules of each Division. For separated or unaccompanied minors, the Division appoints an appropriate\nDR\n, taking into consideration the particular circumstances of the case.\n5.1.2 This designation applies to all aspects of the proceedings. This includes gathering evidence, preparing for the hearing, appearing for the hearing and filing an appeal, if appropriate.\n5.1.3 In addition to the\nDR\n, the minor has a right to be represented by legal or other counsel.\nFootnote\n14\nThe role of the\nDR\nis not the same as that of counsel. The\nDR\nis responsible for deciding whether to retain counsel and, if counsel is retained, to instruct counsel or assist the minor in instructing counsel. Counsel provides advice on presenting the case and represents the minor at the hearing. In the best interest of the minor, it is expected that the\nDR\nand counsel work collaboratively.\nFootnote\n15", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 3, s. 5.1 (Introduction)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir03.aspx" + }, + { + "id": "irbg-3-5-2", + "doc_type": "memorandum", + "act_code": "IRB-G3", + "act_short": "IRB Guideline 3", + "act_name": "IRB Chairperson's Guideline 3 — Child Refugee Claimants: Procedural and Evidentiary Issues", + "section": "G3 s. 5.2", + "marginal_note": "Requirements", + "part": "Child Refugee Claimants: Procedural and Evidentiary Issues", + "division": "", + "heading": "", + "text": "5.2.1 A minor's\nDR\nmust:\nFootnote\n16\nbe 18 years of age or older;\nunderstand the nature of the proceedings;\nbe willing and able to act in the best interests of the minor;\nnot have interests that conflict with those of the minor;\nAdditionally, they must:​\ncomply with the\nDesignated Representative Guide (\nDR\nGuide)\n; and\ncomply with the\nCode of Conduct for Designated Representatives\nif they are a contracted\nDR\n.\n5.2.2 Before designating a person as the\nDR\nof a minor, that person must confirm that they understand and are able to carry out the duties of a\nDR\n.", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 3, s. 5.2 (Requirements)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir03.aspx" + }, + { + "id": "irbg-3-5-3", + "doc_type": "memorandum", + "act_code": "IRB-G3", + "act_short": "IRB Guideline 3", + "act_name": "IRB Chairperson's Guideline 3 — Child Refugee Claimants: Procedural and Evidentiary Issues", + "section": "G3 s. 5.3", + "marginal_note": "Role and responsibilities", + "part": "Child Refugee Claimants: Procedural and Evidentiary Issues", + "division": "", + "heading": "", + "text": "5.3.1 The role of the\nDR\nis to ensure that the minor's interests are protected and advanced in proceedings at the\nIRB\n. The role and responsibilities of\nDR\ns can be found in the\nDesignated Representative Guide\nFootnote\n17\nand some Divisional rules.\nFootnote\n18", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 3, s. 5.3 (Role and responsibilities)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir03.aspx" + }, + { + "id": "irbg-3-5-4", + "doc_type": "memorandum", + "act_code": "IRB-G3", + "act_short": "IRB Guideline 3", + "act_name": "IRB Chairperson's Guideline 3 — Child Refugee Claimants: Procedural and Evidentiary Issues", + "section": "G3 s. 5.4", + "marginal_note": "Minor reaching 18 years of age", + "part": "Child Refugee Claimants: Procedural and Evidentiary Issues", + "division": "", + "heading": "", + "text": "5.4.1 When a subject of the proceedings turns 18 years of age, the member can only continue the designation of the representative if the member determines that they are unable to appreciate the nature of the proceedings. Otherwise, the designation ends.\nFootnote\n19\n5.4.2 Members should anticipate and plan for cases where the designation will end because the subject of the proceedings will no longer be a minor before the conclusion of the proceedings. Members should consult with the minor, their counsel, and the\nDR\non ensuring that the minor will be able to adequately pursue their case when the\nDR\n's appointment ends. For example, the\nDR\nmay explain future processes, endeavour to complete as much of the preparation as possible before the designation ends or be called to testify at a future hearing.", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 3, s. 5.4 (Minor reaching 18 years of age)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir03.aspx" + }, + { + "id": "irbg-3-5-5", + "doc_type": "memorandum", + "act_code": "IRB-G3", + "act_short": "IRB Guideline 3", + "act_name": "IRB Chairperson's Guideline 3 — Child Refugee Claimants: Procedural and Evidentiary Issues", + "section": "G3 s. 5.5", + "marginal_note": "Ending the designation of the representative", + "part": "Child Refugee Claimants: Procedural and Evidentiary Issues", + "division": "", + "heading": "", + "text": "5.5​.0​.1​ There may be situations where the\nDR\nceases to be an appropriate representative for the minor. The most common situations are when there are competency issues associated with the\nDR\nor the\nDR\nis in a conflict of interest with the minor. In these situations, a new\nDR\nmay be appointed.\n5.5.1 Competency issues\n5.5.1.1 Competency issues may arise when the\nDR\nfails to adequately advance the minor's interests. For example, when the\nDR\nis unwilling or unable to make themselves available to meet with the minor to prepare for a proceeding. Issues related to competency may also be raised by the minor or their counsel. In these situations, members may end the designation and designate another appropriate representative.Generally, the member should seek to clarify issues with the\nDR\n, counsel, and the minor (if they can provide their view), before ending the designation of the\nDR\ndue to competency concerns.\n5.5.2 Conflict of interest or unable to act in the best interests of the minor\n5.5.2.1 Members must replace the\nDR\nif there is a conflict of interest between the\nDR\nand the minor or if the\nDR\nis unable to act in the best interests of the minor.\nFootnote\n20\nFor example, if there is evidence that the minor experienced violence from a parent appointed as the\nDR\n, or if the parents' beliefs\nFootnote\n21\nare harmful to the minor, the\nDR\nmust be replaced, as they would no longer meet the requirements of the role.\n5.5.2.2 In cases where a conflict of interest arises between a minor and their\nDR\nwho is also a co-party of the proceeding, members should consider separating the cases in addition to designating a new\nDR\n. Separating the cases may be appropriate where, for example, there is evidence that the minor suffered physical or emotional abuse from the\nDR\n; or where aspects of the minor's case should be kept confidential, such as their\nSOGIESC\n. See section 6.4.1 for further details.", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 3, s. 5.5 (Ending the designation of the representative)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir03.aspx" + }, + { + "id": "irbg-3-6-1", + "doc_type": "memorandum", + "act_code": "IRB-G3", + "act_short": "IRB Guideline 3", + "act_name": "IRB Chairperson's Guideline 3 — Child Refugee Claimants: Procedural and Evidentiary Issues", + "section": "G3 s. 6.1", + "marginal_note": "Introduction", + "part": "Child Refugee Claimants: Procedural and Evidentiary Issues", + "division": "", + "heading": "", + "text": "6.1.1 The\nBIOC\nshould be applied at every step of the process where a minor is involved in a proceeding at the\nIRB\n. When determining the appropriate process for the case involving a minor, adjudicative support staff and members should ask themselves: What procedure is in the best interests of this minor?\n6.1.2 Applying the\nBIOC\nto the process also involves adopting child-sensitive behaviours. For example, communicating with a minor should be done in a sensitive manner that provides opportunity for the minor to engage and ask questions. See section 7 for more information.\n6.1.3 Adjudicative support staff and members should also recognize that the interests of a minor may change or evolve throughout the proceedings, which may require adapting the process to meet these new needs. Counsel and the\nDR\nshould be engaged to ensure that a minor's needs are known and to establish the best way to meet these needs.", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 3, s. 6.1 (Introduction)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir03.aspx" + }, + { + "id": "irbg-3-6-2", + "doc_type": "memorandum", + "act_code": "IRB-G3", + "act_short": "IRB Guideline 3", + "act_name": "IRB Chairperson's Guideline 3 — Child Refugee Claimants: Procedural and Evidentiary Issues", + "section": "G3 s. 6.2", + "marginal_note": "Concerns related to a minor's safety", + "part": "Child Refugee Claimants: Procedural and Evidentiary Issues", + "division": "", + "heading": "", + "text": "6.2.1 Adjudicative support staff and members should be attentive to signs that a minor is at risk in Canada, such as being a victim of abduction, trafficking, abuse or harm. Evidence that a minor may be at risk may be found in statements in the Basis of Claim form, submitted evidence, unsolicited information, information from counsel or the\nDR\n, or statements made during a hearing.\n6.2.2 If adjudicative support staff or members suspect that a child may be at risk in Canada, they should follow internal policies established for this situation. When there is a possibility that a minor is at risk, for example, when there are reasons to believe the minor is abducted or trafficked, members should also consider taking increased procedural and security precautions such as:\nordering that the hearing be conducted in-person to ensure that nobody is pressuring the minor to testify in a certain way and that no unauthorized persons are present at the hearing;\nmaking a confidentiality order to ensure the matter is or remains private;\nappointing a third-party\nDR\n, not related to the minor; and\nholding conferences with counsel for the parties to discuss the concerns.", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 3, s. 6.2 (Concerns related to a minor's safety)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir03.aspx" + }, + { + "id": "irbg-3-6-3", + "doc_type": "memorandum", + "act_code": "IRB-G3", + "act_short": "IRB Guideline 3", + "act_name": "IRB Chairperson's Guideline 3 — Child Refugee Claimants: Procedural and Evidentiary Issues", + "section": "G3 s. 6.3", + "marginal_note": "Presence during the hearing", + "part": "Child Refugee Claimants: Procedural and Evidentiary Issues", + "division": "", + "heading": "", + "text": "6.3.1 A minor can be excused from the hearing in appropriate circumstances. A minor's interests must be protected when they are excused from the hearing, namely by ensuring that a\nDR\nis fulfilling their role and responsibilities.\n6.3.2 In all circumstances, the member retains the discretion to require that a minor be present at the hearing. The following considerations, among others, should be examined when determining whether a minor should be required to attend the hearing:\nthe minor's ability to provide evidence;\nthe minor's expressed desire to attend the hearing;\nissues regarding the minor's identity which might require their attendance;\nwhether the minor's case is factually distinct from their parents;\nif there are questions regarding a parent's relationship with the minor;\nconcerns that the minor may be a victim of abduction or human trafficking;\nwhether the minor's testimony is necessary to resolve the issues in the case; and\nany other issues members identify as relevant which require the minor's attendance at the hearing.\n6.3.3 When the presence of a minor is necessary, members must be attentive to the minor's needs and consider implementing procedural accommodations. See section 6.6 for guidance on procedural accommodations.", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 3, s. 6.3 (Presence during the hearing)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir03.aspx" + }, + { + "id": "irbg-3-6-4", + "doc_type": "memorandum", + "act_code": "IRB-G3", + "act_short": "IRB Guideline 3", + "act_name": "IRB Chairperson's Guideline 3 — Child Refugee Claimants: Procedural and Evidentiary Issues", + "section": "G3 s. 6.4", + "marginal_note": "Matters involving accompanied minors", + "part": "Child Refugee Claimants: Procedural and Evidentiary Issues", + "division": "", + "heading": "", + "text": "6.4.0.1 Accompanied minors have a distinct right to have their interests heard. These must be considered throughout the process.\n6.4.1 Separating proceedings\n6.4.1.1 In some instances, family members may want to testify in the absence of other parties. For example, a minor may not be comfortable testifying in the presence of other family members about their\nSOGIESC\n. Similarly, parents or legal guardians may want to protect the minor from hearing about traumatic events. If a party to a joint proceeding wishes to testify in the absence of a co-party, the party should make a request to the\nIRB\nat the earliest opportunity. Approval of such request should be determined on a case-by-case basis.\n6.4.1.2 Some situations may require that a minor's case be separated from other family members. For example, a member should consider separating a case where the presence of another party would inhibit the minor's ability to present their case, or where there may be a potential conflict of interest between the minor and another co-party.\n6.4.1.3 In cases where an application to separate a proceeding is based on a minor's reluctance to disclose sensitive personal information to another family member, members should consider using their discretion to excuse the minor from providing a copy of that application to the co-party.\nFootnote\n22", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 3, s. 6.4 (Matters involving accompanied minors)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir03.aspx" + }, + { + "id": "irbg-3-6-5", + "doc_type": "memorandum", + "act_code": "IRB-G3", + "act_short": "IRB Guideline 3", + "act_name": "IRB Chairperson's Guideline 3 — Child Refugee Claimants: Procedural and Evidentiary Issues", + "section": "G3 s. 6.5", + "marginal_note": "Matters involving unaccompanied or separated minors", + "part": "Child Refugee Claimants: Procedural and Evidentiary Issues", + "division": "", + "heading": "", + "text": "6.5.1 Being separated from parents or legal guardians can be difficult for a minor. Unaccompanied or separated minors may face significant challenges in presenting their case because of the potential negative effects of this separation on their mental health. Similarly, being separated from parents or legal guardians may create significant challenges in collecting corroborating evidence.\n6.5.2 Members must therefore pay particular attention to the best interests of separated or unaccompanied minors and implement accommodations, where possible, to create the best environment to present their case. Although the precise application of the\nBIOC\nfor these categories of minors will depend on the circumstances of each case, the following procedures should be followed, when appropriate:\nRegistry staff should identify matters involving unaccompanied and separated minors as soon as possible.\nA member should be immediately assigned to the case, and if possible, should remain assigned until completion.\nThe case should be given scheduling and processing priority. There may be circumstances, however, where in the best interests of the minor the case should be delayed. For example, if the minor is experiencing physical or mental health issues more time may be needed before scheduling a proceeding. These determinations should be made on a case-by-case basis.\nA\nDR\nmust be appointed as soon as possible. Where possible, the same\nDR\nshould represent the minor in all proceedings before the\nIRB\n.\nA pre-hearing conference should be scheduled as soon as possible after a member is assigned to discuss procedural and evidentiary matters with the\nDR\nand counsel. For more information on case conferences, see section 6.7.", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 3, s. 6.5 (Matters involving unaccompanied or separated minors)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir03.aspx" + }, + { + "id": "irbg-3-6-6", + "doc_type": "memorandum", + "act_code": "IRB-G3", + "act_short": "IRB Guideline 3", + "act_name": "IRB Chairperson's Guideline 3 — Child Refugee Claimants: Procedural and Evidentiary Issues", + "section": "G3 s. 6.6", + "marginal_note": "Procedural accommodations", + "part": "Child Refugee Claimants: Procedural and Evidentiary Issues", + "division": "", + "heading": "", + "text": "6.6.1 A minor may benefit from procedural accommodations to facilitate their participation in the proceeding. Members should be attentive to the needs and unique circumstances of a minor when deciding whether to implement these accommodations.\n6.6.2 A minor's\nDR\nor counsel is best placed to identify these needs and should communicate requests for accommodations as soon as possible. Members are encouraged to be attentive to evidence on file that suggests the minor may find it difficult to participate in the proceeding. For example, trauma may impact the minor's ability to present evidence during a hearing. In this case, members should engage with the\nDR\nand counsel to explore appropriate accommodations for the minor to minimize the impact of the hearing process. Examples of these accommodations include:\ncreating a more informal setting, such as holding the hearing in a meeting room or holding a virtual hearing;\nassigning a member or an interpreter of a particular gender;\nexploring alternative ways of eliciting testimony (see section 7.2);\nallowing a support person to be present at the hearing;\nallowing the minor's counsel to be the first to question the minor despite the rules of the Division requiring a different order to the questioning; and\nallowing for breaks throughout the proceeding.\n6.6.3 The needs of a minor may evolve throughout the proceeding and members are encouraged to remain attentive to these needs and adjust accommodations as required. When appropriate, members should use case conferencing to regularly engage with the\nDR\nand counsel on how best to accommodate a minor.\n6.6.4 When a minor turns 18 years of age during the proceeding, members should consider keeping, where appropriate, the accommodations that were in place when the person was a minor.", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 3, s. 6.6 (Procedural accommodations)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir03.aspx" + }, + { + "id": "irbg-3-6-7", + "doc_type": "memorandum", + "act_code": "IRB-G3", + "act_short": "IRB Guideline 3", + "act_name": "IRB Chairperson's Guideline 3 — Child Refugee Claimants: Procedural and Evidentiary Issues", + "section": "G3 s. 6.7", + "marginal_note": "Case conferences", + "part": "Child Refugee Claimants: Procedural and Evidentiary Issues", + "division": "", + "heading": "", + "text": "6.7.1 The use of pre-hearing case conferences is recommended for cases that involve separated or unaccompanied minors to:\nidentify procedural accommodations including whether and how the minor will provide testimony;\nidentify and communicate any concerns apparent upon review of the case, including anticipating the transition of the minor into adulthood during the proceeding;\nidentify what evidence can be produced;\nidentify potential issues that may affect whether the case should be separated or joined; and\nidentify whether measures should be taken to ensure the confidentiality of sensitive information.\n6.7.2 Members should use case conferences throughout the proceedings to address additional issues as they arise.", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 3, s. 6.7 (Case conferences)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir03.aspx" + }, + { + "id": "irbg-3-6-8", + "doc_type": "memorandum", + "act_code": "IRB-G3", + "act_short": "IRB Guideline 3", + "act_name": "IRB Chairperson's Guideline 3 — Child Refugee Claimants: Procedural and Evidentiary Issues", + "section": "G3 s. 6.8", + "marginal_note": "Protection of confidential information", + "part": "Child Refugee Claimants: Procedural and Evidentiary Issues", + "division": "", + "heading": "", + "text": "6.8.1 While proceedings before the\nRPD\nand the\nRAD\nare private, those at the\nID\nand the\nIAD\nare usually public and sensitive information may be discussed.\nFootnote\n23\nAdditionally, if a case is before the Federal Court for judicial review, the information in the file pertaining to the case becomes publicly accessible, even from the\nRPD\nand the\nRAD\n, unless the Court makes a confidentiality order.\n6.8.2 As a result, upon request by the parties or at the initiative of members, additional safeguards for the protection of sensitive information related to minors may be considered. Members may, pursuant to section 166 of the\nIRPA\n, order that particularly sensitive information be treated as confidential where the factors under section 166 have been met.\nFootnote\n24\n6.8.3 Additionally, members should, wherever possible, only include in their reasons the personal information that is necessary to explain the reasoning of the decision.\nFootnote\n25", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 3, s. 6.8 (Protection of confidential information)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir03.aspx" + }, + { + "id": "irbg-3-7-1", + "doc_type": "memorandum", + "act_code": "IRB-G3", + "act_short": "IRB Guideline 3", + "act_name": "IRB Chairperson's Guideline 3 — Child Refugee Claimants: Procedural and Evidentiary Issues", + "section": "G3 s. 7.1", + "marginal_note": "Eliciting evidence", + "part": "Child Refugee Claimants: Procedural and Evidentiary Issues", + "division": "", + "heading": "", + "text": "7.1.1 All parties to a proceeding, including a minor, have a right to be heard.\nFootnote\n26\n7.1.2 There are circumstances where it may not be appropriate or necessary to call upon a minor to testify orally. For example, evidence on file may indicate that the hearing environment could be triggering for a minor who has experienced trauma. Similarly, a minor may not have witnessed events that are central to the case or have been privy to certain information involving adults. In some cases, the minor may be too young or may not have the sufficient level of maturity to provide testimony.\n7.1.3 For these reasons, an assessment should be made as to what evidence, if any, a minor is able to provide and the best way to elicit that evidence. When deciding whether to question a minor, members should consider the minor's:\nage and maturity level;\ncultural norms;\nexperiences of trauma;\nexpressed desire to testify; and\nthe parties' views on the need to hear the minor's testimony.\n7.1.4 To minimize any potential impact of calling upon a minor to testify at a hearing, where appropriate, members should consider alternative sources of obtaining evidence (see section 7.2).", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 3, s. 7.1 (Eliciting evidence)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir03.aspx" + }, + { + "id": "irbg-3-7-2", + "doc_type": "memorandum", + "act_code": "IRB-G3", + "act_short": "IRB Guideline 3", + "act_name": "IRB Chairperson's Guideline 3 — Child Refugee Claimants: Procedural and Evidentiary Issues", + "section": "G3 s. 7.2", + "marginal_note": "Alternative sources of evidence", + "part": "Child Refugee Claimants: Procedural and Evidentiary Issues", + "division": "", + "heading": "", + "text": "7.2.1 Members can consider the following alternatives to a minor's testimony:\nFrom the minor themselves:\naffidavit evidence or pre-recorded testimony\nFrom others who have a relationship with the minor:\nevidence presented by the\nDR\nevidence from family members\nevidence from members of the minor's community\nevidence from teachers, social workers, community workers and others who have interacted with the minor\nevidence from health care personnel\nDocumentary evidence:\ndocumentary evidence of persons similarly situated to the minor\ncountry conditions documentation", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 3, s. 7.2 (Alternative sources of evidence)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir03.aspx" + }, + { + "id": "irbg-3-7-3-p1", + "doc_type": "memorandum", + "act_code": "IRB-G3", + "act_short": "IRB Guideline 3", + "act_name": "IRB Chairperson's Guideline 3 — Child Refugee Claimants: Procedural and Evidentiary Issues", + "section": "G3 s. 7.3", + "marginal_note": "Minors testifying during a hearing", + "part": "Child Refugee Claimants: Procedural and Evidentiary Issues", + "division": "", + "heading": "", + "text": "7.3.1 Capacity to testify and solemn declaration\n7.3.1.1 The\nIRB\nis not bound by technical rules of evidence and may base its determination on any evidence it considers credible or trustworthy in the circumstances of the proceeding.\nFootnote\n27\nMembers should therefore approach the giving of testimony by minors with flexibility, taking into account the unique vulnerabilities and challenges they may face.\n7.3.1.2 However, Canadian legislation sets out principles that members should follow regarding the capacity of minors to testify and whether they should take an oath or solemn declaration.\nFootnote\n28\n7.3.1.3 When a minor 14 years of age or older testifies, they should be required to do so under oath or solemn affirmation.\n7.3.1.4 When a minor under the age of 14 testifies, Canadian legislation\nFootnote\n29\nsets out the following requirements:\nThey are presumed to have the capacity to testify.\nThey shall not take an oath or make a solemn affirmation before testifying.\nThey shall be required by the member to promise to tell the truth while testifying.\nThey shall have their testimony received if they are able to understand and respond to questions. A party who challenges this ability has the burden of demonstrating that there is an issue as to the capacity of understanding and responding to questions.\nThey shall not be asked if they understand what promising to tell the truth means.\nTheir testimony shall have the same effect as if it were taken under oath.\n7.3.2 Child-sensitive approach to questioning", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 3, s. 7.3 (Minors testifying during a hearing) (part 1 of 3)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir03.aspx" + }, + { + "id": "irbg-3-7-3-p2", + "doc_type": "memorandum", + "act_code": "IRB-G3", + "act_short": "IRB Guideline 3", + "act_name": "IRB Chairperson's Guideline 3 — Child Refugee Claimants: Procedural and Evidentiary Issues", + "section": "G3 s. 7.3", + "marginal_note": "Minors testifying during a hearing", + "part": "Child Refugee Claimants: Procedural and Evidentiary Issues", + "division": "", + "heading": "", + "text": "7.3.2.1 A child-sensitive approach to questioning should be used whenever a minor is testifying. Questioning minors should be done with the highest degree of sensitivity, care, and consideration to minimize any negative impacts that the hearing process may have, and to elicit the most reliable testimony. All participants in\nIRB\nproceedings should apply a child-sensitive approach to questioning a minor.\n7.3.2.2 A child-sensitive approach to questioning involves taking steps that allow meaningful participation in the process. This entails considering the particular circumstances of the minor and their views to create an environment that is the most favourable for the minor to respond to questions and present their case. Questions should be adapted to consider barriers that may inhibit testimony. For instance, questioning a minor should involve:\nusing plain language to explain the member's role and the hearing process throughout the proceedings;\nadopting an informal approach to questioning, like a conversation, rather than a question-and-answer format;\ndiscussing any concerns that the minor may have throughout the hearing;\nbeing attentive to limitations that could impact the minor's understanding of the questions;\nformulating questions that take into consideration the age of the minor, their maturity, state of physical and mental health, level of education, cultural background, gender, and other factors that could impact their understanding. These factors can also impact the level of information a minor may have about an issue;\navoiding asking a minor to speculate about matters of which they have no knowledge. For example, in the refugee determination context, minors may not be aware of the motives of an agent of harm;", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 3, s. 7.3 (Minors testifying during a hearing) (part 2 of 3)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir03.aspx" + }, + { + "id": "irbg-3-7-3-p3", + "doc_type": "memorandum", + "act_code": "IRB-G3", + "act_short": "IRB Guideline 3", + "act_name": "IRB Chairperson's Guideline 3 — Child Refugee Claimants: Procedural and Evidentiary Issues", + "section": "G3 s. 7.3", + "marginal_note": "Minors testifying during a hearing", + "part": "Child Refugee Claimants: Procedural and Evidentiary Issues", + "division": "", + "heading": "", + "text": "recognizing that minors may be susceptible to influence, and that questions should be asked in an open-ended manner to the extent possible; and\ntaking particular care to avoid re-traumatizing a minor where there is evidence of past trauma.", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 3, s. 7.3 (Minors testifying during a hearing) (part 3 of 3)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir03.aspx" + }, + { + "id": "irbg-3-8-1-p1", + "doc_type": "memorandum", + "act_code": "IRB-G3", + "act_short": "IRB Guideline 3", + "act_name": "IRB Chairperson's Guideline 3 — Child Refugee Claimants: Procedural and Evidentiary Issues", + "section": "G3 s. 8.1", + "marginal_note": "Credibility", + "part": "Child Refugee Claimants: Procedural and Evidentiary Issues", + "division": "", + "heading": "", + "text": "8.1.1 Nothing in this section should be construed to imply that there is a different standard of proof or different legal tests for proceedings involving minors.\n8.1.2 Minors have different reasoning and communication skills than adults that can impact how they testify.\nFootnote\n30\nHowever, there is nothing inherently unreliable about a minor‘s testimony.\n8.1.3 When assessing the weight to be given to the testimony of a minor, members should consider the age and level of maturity of the minor, as well as any barriers that could inhibit testimony.\n8.1.4 Credibility determinations must be made on a case-by-case basis and take into consideration the following factors:\nMinors may not be able to present evidence with the same degree of precision as adults with respect to context, timing, and details.\nFootnote\n31\nFor example, a minor may indicate that men in uniform came to the house but not know what type of uniform they were wearing. Similarly, a minor may not know the political views of their adult family members.\nA lack of precision does not necessarily mean that the minor is not credible or is unreliable. For example, an unaccompanied minor whose travel was arranged by someone else may not know the details of their journey. If a minor's testimony lacks detail about certain events, members should consider whether they are able to infer details from the evidence presented or rely on corroborating evidence.\nInconsistencies in a minor's testimony may not be an indication that they are being dishonest. For example, if an event occurred in the distant past, their testimony may be impacted by their current age and the age at which the events occurred, as well as other factors specific to the minor (e.g., experiences of trauma).", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 3, s. 8.1 (Credibility) (part 1 of 2)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir03.aspx" + }, + { + "id": "irbg-3-8-1-p2", + "doc_type": "memorandum", + "act_code": "IRB-G3", + "act_short": "IRB Guideline 3", + "act_name": "IRB Chairperson's Guideline 3 — Child Refugee Claimants: Procedural and Evidentiary Issues", + "section": "G3 s. 8.1", + "marginal_note": "Credibility", + "part": "Child Refugee Claimants: Procedural and Evidentiary Issues", + "division": "", + "heading": "", + "text": "Notes taken by a Border Services Officer at the point of entry should be weighed against a careful assessment of the conditions in which the interview was conducted. This can include:\nthe circumstances of travel and arrival prior to the interview;\nwhether the minor was accompanied or assisted at the point of entry;\nthe types of questions asked to the minor; and\nany other factor that may have impacted the minor's ability to answer questions.\nMembers should be alert to the difficulties faced by minors, especially separated or unaccompanied minors, when considering whether it would be reasonable to expect corroborating evidence to be available. Minors may face significant challenges in obtaining documents to corroborate aspects of their case, including, for example, obtaining identity documents.", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 3, s. 8.1 (Credibility) (part 2 of 2)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir03.aspx" + }, + { + "id": "irbg-3-8-2", + "doc_type": "memorandum", + "act_code": "IRB-G3", + "act_short": "IRB Guideline 3", + "act_name": "IRB Chairperson's Guideline 3 — Child Refugee Claimants: Procedural and Evidentiary Issues", + "section": "G3 s. 8.2", + "marginal_note": "Seeking an explanation", + "part": "Child Refugee Claimants: Procedural and Evidentiary Issues", + "division": "", + "heading": "", + "text": "8.2.1 Questioning a minor on perceived credibility issues must be done in a sensitive manner. Adopting a confrontational approach to questioning can impact a minor's ability to answer questions, possibly resulting in the minor becoming unable to answer questions for the remainder of the hearing. Additionally, such an approach could re-traumatize minors who have experienced trauma.\n8.2.2 When credibility issues are noticed, members should illustrate, using plain language and a non-confrontational tone, where they believe there is an issue and allow the minor to respond. It is recommended to frame the issue using phrases like “can you help me understand the difference between what you said earlier and how you are explaining this event now?”.", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 3, s. 8.2 (Seeking an explanation)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir03.aspx" + }, + { + "id": "irbg-3-8-3", + "doc_type": "memorandum", + "act_code": "IRB-G3", + "act_short": "IRB Guideline 3", + "act_name": "IRB Chairperson's Guideline 3 — Child Refugee Claimants: Procedural and Evidentiary Issues", + "section": "G3 s. 8.3", + "marginal_note": "Intersectional approach to credibility assessment", + "part": "Child Refugee Claimants: Procedural and Evidentiary Issues", + "division": "", + "heading": "", + "text": "8.3.1 An intersectional approach should be used when evaluating factors that may influence a minor's capacity to observe and express information, including consideration of their age and maturity, gender, education and literacy, cultural and ethnic background, life experience, health, and disabilities. Other factors such as fear, memory difficulties, experiences of trauma or post-traumatic stress disorder, and their perception of the process in the hearing should also be considered.\nFootnote\n32\n8.3.2 Adopting an intersectional approach does not prevent a member from making an adverse credibility finding from material inconsistencies, omissions, or implausibilities in the evidence that have no reasonable explanations.\nFootnote\n33\n8.3.3 Members should demonstrate in their reasons that they considered the principles in this Guideline when assessing credibility and not separately after the credibility assessment.\nFootnote\n34\n8.3.4 When a minor has given oral testimony, the member must assess the weight to be given to the testimony.\nFootnote\n35\nIn determining the weight to be given, members should consider the opportunity the minor had for observation of relevant events, their capacity to observe accurately and to express what they observed, and their ability to remember the facts as observed.\nFootnote\n36", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 3, s. 8.3 (Intersectional approach to credibility assessment)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir03.aspx" + }, + { + "id": "irbg-3-8-4", + "doc_type": "memorandum", + "act_code": "IRB-G3", + "act_short": "IRB Guideline 3", + "act_name": "IRB Chairperson's Guideline 3 — Child Refugee Claimants: Procedural and Evidentiary Issues", + "section": "G3 s. 8.4", + "marginal_note": "The impact of trauma on testimony", + "part": "Child Refugee Claimants: Procedural and Evidentiary Issues", + "division": "", + "heading": "", + "text": "8.4.1 Trauma can have a significant negative impact on the cognitive development of a minor.\nFootnote\n37\nMinors may be seeking protection in Canada because they have been exposed to a single traumatic event or to repeated trauma over time.\n8.4.2 Exposure to trauma can have severe consequences on brain and language development and on memory, making a person more prone to dissociation, which may manifest itself as an emotionally numb state. In the hearing room, this can manifest itself as showing no emotion while testifying.\nFootnote\n38\n8.4.3 Members should consider the potential impacts of trauma on minors and refer to Chairperson's Guideline 8 for more information about adopting a trauma-informed approach to adjudication for matters where there is evidence of a past trauma.", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 3, s. 8.4 (The impact of trauma on testimony)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir03.aspx" + }, + { + "id": "irbg-3-8-5", + "doc_type": "memorandum", + "act_code": "IRB-G3", + "act_short": "IRB Guideline 3", + "act_name": "IRB Chairperson's Guideline 3 — Child Refugee Claimants: Procedural and Evidentiary Issues", + "section": "G3 s. 8.5", + "marginal_note": "Demeanour", + "part": "Child Refugee Claimants: Procedural and Evidentiary Issues", + "division": "", + "heading": "", + "text": "8.5.1 Members should not expect a minor to behave in a certain way when recounting traumatic experiences, and credibility findings should not be based on the absence or presence of such behaviours.\nFootnote\n39\n8.5.2 Members may consider a person's outward behaviour or demeanour when assessing the credibility of testimony. This should however be approached with caution.\nFootnote\n40\nFor example, the demeanour of persons from different cultural backgrounds or those who have suffered harm may be particularly difficult to assess.\nFootnote\n41\nClear and cogent reasons must be given for findings of credibility based on demeanour.\nFootnote\n42\nOnly in exceptional cases would demeanour alone be sufficient to undermine the credibility of the testimony.", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 3, s. 8.5 (Demeanour)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir03.aspx" + }, + { + "id": "irbg-3-9-1", + "doc_type": "memorandum", + "act_code": "IRB-G3", + "act_short": "IRB Guideline 3", + "act_name": "IRB Chairperson's Guideline 3 — Child Refugee Claimants: Procedural and Evidentiary Issues", + "section": "G3 s. 9.1", + "marginal_note": "Persecution", + "part": "Child Refugee Claimants: Procedural and Evidentiary Issues", + "division": "", + "heading": "", + "text": "9.1.1 Persecution is defined as a sustained or systematic violation of basic human rights, which demonstrates a failure of state protection.\nFootnote\n43\nMembers must be mindful that minors have distinctive rights that recognize their vulnerabilities when assessing whether particular acts amount to persecution​.\nFootnote\n44\n9.1.2 There is no distinct test for minors to determine whether they qualify for protection under section 96 of the\nIRPA\n. With respect to the merits of the minor's claim, all the elements of the Convention definition must be satisfied. Minors also have the same evidentiary burden as adults. However, because of their vulnerability, minors may be persecuted in ways that would not amount to persecution for adults. When determining whether the harm feared by a minor reaches the required threshold, members must consider its impact on the minor's physical and mental development.\nFootnote\n45\n9.1.3 For example, where there is a serious possibility that a minor would be deprived of the necessities of life, such as a caregiver, emotional support, access to education or adequate health care, this may amount to persecution.\nFootnote\n46\n9.1.4 Members must conduct an independent analysis of the risks faced by minors for claims or appeals that are joined with other family members.\nFootnote\n47\n9.1.5 Minor claimants and appellants cannot be expected to eliminate risks by reducing or severing their ties to their family members.\nFootnote\n48", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 3, s. 9.1 (Persecution)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir03.aspx" + }, + { + "id": "irbg-3-9-2", + "doc_type": "memorandum", + "act_code": "IRB-G3", + "act_short": "IRB Guideline 3", + "act_name": "IRB Chairperson's Guideline 3 — Child Refugee Claimants: Procedural and Evidentiary Issues", + "section": "G3 s. 9.2", + "marginal_note": "Nexus to the particular social group of the family", + "part": "Child Refugee Claimants: Procedural and Evidentiary Issues", + "division": "", + "heading": "", + "text": "9.2.1 In order to establish a nexus to the particular social group of the family, claimants or appellants must establish that their family member faces persecution because of a Convention ground, and that they themselves will be targeted by agents of persecution because of their family connection.\nFootnote\n49\nIn other words, a person, including a minor, cannot be considered a refugee merely because a family member is persecuted. They must also demonstrate a serious possibility of persecution because of this family connection.", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 3, s. 9.2 (Nexus to the particular social group of the family)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir03.aspx" + }, + { + "id": "irbg-3-9-3-p1", + "doc_type": "memorandum", + "act_code": "IRB-G3", + "act_short": "IRB Guideline 3", + "act_name": "IRB Chairperson's Guideline 3 — Child Refugee Claimants: Procedural and Evidentiary Issues", + "section": "G3 s. 9.3", + "marginal_note": "Internal Flight Alternative", + "part": "Child Refugee Claimants: Procedural and Evidentiary Issues", + "division": "", + "heading": "", + "text": "9.3.1 Both prongs of the\nIFA\ntest should take into consideration a claimant or appellant's age. When assessing the first prong of the test, members should consider whether there are child-specific forms of persecution that would render an\nIFA\nunsafe. Regarding the second prong of the test, members must remain attentive to a minor's vulnerabilities when assessing the reasonableness of an\nIFA\n.\n9.3.2 Assessing the reasonableness of an\nIFA\nmust take into consideration the particular circumstances of the minor, such as age, maturity, and gender, and whether these circumstances render the\nIFA\nlocation unreasonable.\nFootnote\n50\nMembers must also assess whether these circumstances make it unreasonable to travel to the proposed\nIFA\narea.\nFootnote\n51\n9.3.3 Members must remain mindful that what might be a mere inconvenience for an adult could constitute undue hardship for a minor.\nFootnote\n52\nIn particular, members should consider the following factors when assessing whether an\nIFA\nis reasonable for a minor:\nWhether conditions in the\nIFA\nallow for the minor's development and future livelihood;\nFootnote\n53\nAny medical conditions or disabilities, including both physical and psychological needs, and the availability of support and/or treatment for such in the proposed\nIFA\n;\nFootnote\n54\nAccess to education, health care, and other social services;\nFootnote\n55\nCultural and familial factors including language spoken in the\nIFA\nFootnote\n56\n​, religious and moral upbringing;\nAvailability and adequacy of individuals able to initially receive the minor in the\nIFA\nand assist in their settlement;\nFootnote\n57\nAvailability of adequate ongoing care and support for the minor, in consideration of their age at the time of relocation;\nFootnote\n58", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 3, s. 9.3 (Internal Flight Alternative) (part 1 of 2)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir03.aspx" + }, + { + "id": "irbg-3-9-3-p2", + "doc_type": "memorandum", + "act_code": "IRB-G3", + "act_short": "IRB Guideline 3", + "act_name": "IRB Chairperson's Guideline 3 — Child Refugee Claimants: Procedural and Evidentiary Issues", + "section": "G3 s. 9.3", + "marginal_note": "Internal Flight Alternative", + "part": "Child Refugee Claimants: Procedural and Evidentiary Issues", + "division": "", + "heading": "", + "text": "The presence of other family members must be assessed in cases where a minor will be relocating without parents or legal guardians;\nFootnote\n59\nand\nWhen applicable, whether relocating with the child's parent(s) or legal guardian(s) would cause undue hardship to the parent(s) or legal guardian(s).\nFootnote\n60\n9.3.4 When there are numerous minors claiming together, the analysis requires an independent evaluation of the reasonableness of the\nIFA\nbased on the context and needs of each minor since their interests may differ.\n9.3.5 Members should consider whether child custody arrangements affect the viability of an\nIFA\n.\nFootnote\n61\nFor example, depending on the country conditions, in cases where a minor is accompanied by one parent that has fled family or intimate partner violence, their names and addresses may have to be shared with an agent of harm in the context of family law or child custody proceedings. Similarly, where an agent of harm shares custody of a child with the claimant or appellant, they may be able to use their rights of parental access to obtain contact information and continue the abuse.", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 3, s. 9.3 (Internal Flight Alternative) (part 2 of 2)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir03.aspx" + }, + { + "id": "irbg-3-9-4", + "doc_type": "memorandum", + "act_code": "IRB-G3", + "act_short": "IRB Guideline 3", + "act_name": "IRB Chairperson's Guideline 3 — Child Refugee Claimants: Procedural and Evidentiary Issues", + "section": "G3 s. 9.4", + "marginal_note": "State protection", + "part": "Child Refugee Claimants: Procedural and Evidentiary Issues", + "division": "", + "heading": "", + "text": "9.4.1 Members should analyze state protection through the lens of the minor's personal circumstances.\nFootnote\n62\nIn some cases, it may not be feasible for a minor to seek out state protection. When assessing whether it was reasonable for a minor to approach the state for protection, members should consider whether the agent of harm is the state. To that end, they should also consider the form of persecution feared by the minor and by any adult to whom the minor is connected.\n9.4.2 Minors may be more reluctant to seek protection or may be inhibited from seeking state protection if it requires them to act against their parents' directions.\nFootnote\n63\n9.4.3 Fear of negative repercussions may be a reasonable explanation for a minor who has failed to seek state protection.\nFootnote\n64\n9.4.4 In cases where the agent of harm is not a parent, members may consider whether it was reasonable for the parents to seek out state protection for the minor.\nFootnote\n65", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 3, s. 9.4 (State protection)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir03.aspx" + }, + { + "id": "irbg-3-9-5", + "doc_type": "memorandum", + "act_code": "IRB-G3", + "act_short": "IRB Guideline 3", + "act_name": "IRB Chairperson's Guideline 3 — Child Refugee Claimants: Procedural and Evidentiary Issues", + "section": "G3 s. 9.5", + "marginal_note": "Subjective fear", + "part": "Child Refugee Claimants: Procedural and Evidentiary Issues", + "division": "", + "heading": "", + "text": "9.5.1 A minor may not be able to articulate their fear in the same way as an adult. In such cases, members should consider whether the subjective fear of a minor can be inferred from the evidence presented, including the testimony of other witnesses who may speak on the minor’s behalf.\nFootnote\n66\n9.5.2 Members should consider the minor's perspective, as well as their age and maturity, gender, instructions from their parents, and experienced trauma before drawing a negative inference about their subjective fear.\nFootnote\n67\nCultural background, and any stigma attached to their experience of harm should also be considered.\nFootnote\n68\n9.5.3 When a minor failed to claim refugee status in a third country or in a country in transit to Canada, members should first consider the minor's personal circumstances before finding that their behaviour undermines their subjective fear of persecution.\nFootnote\n69", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 3, s. 9.5 (Subjective fear)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir03.aspx" + }, + { + "id": "irbg-3-9-6", + "doc_type": "memorandum", + "act_code": "IRB-G3", + "act_short": "IRB Guideline 3", + "act_name": "IRB Chairperson's Guideline 3 — Child Refugee Claimants: Procedural and Evidentiary Issues", + "section": "G3 s. 9.6", + "marginal_note": "Potential abduction of a minorFootnote 70", + "part": "Child Refugee Claimants: Procedural and Evidentiary Issues", + "division": "", + "heading": "", + "text": "9.6.1 In some cases, adjudicative support staff or members may suspect that a minor has been abducted. This will typically manifest itself when one parent is claiming refugee protection with children in the absence of the other parent. In some cases, the obligation to notify the Minister may arise pursuant to\nRPD\nRule 26 due to a possible exclusion under Article 1F(b) of the Convention for potential child abduction.\nFootnote\n71\n9.6.2 The Division will generally seek evidence that the claiming parent has full custody of the minor claimant or permission from the other parent to travel to Canada with them.\n9.6.3 In certain situations, especially where the other parent is the alleged agent of harm, it may be difficult to obtain the consent of that parent. When there is no evidence of full custody for the claiming parent or consent from the non-accompanying parent, members should consider the circumstances of the claim before providing notice to the Minister under\nRPD\nRule 26, including:\nthe context of the allegations and whether it is reasonable to expect the adult claimant to obtain permission from the non-accompanying parent;\nany identity issues with respect to either the adult or minor claimant(s) and whether there is evidence of a parent-child relationship between the adult and minor claimant(s);\nwhether the legal system in the country of origin allows the adult claimant to exercise parental authority over the child;\nwhether proceedings have been commenced under the\nHague Convention\nFootnote\n72\nby the non-accompanying parent; and\nany other evidence in the file or that arises during the hearing that raises suspicions that the minor claimants may have been unlawfully removed from their country of nationality.\n9.6.4 Members should consider whether the defence of imminent harm under section 285 of the\nCriminal Code\napplies in cases where exclusion is based on serious reasons for considering that claimant or appellant committed child abduction.\nFootnote\n73\n9.6.5 Where the Minister has been notified of a potential exclusion under Article 1F(b) of the\nRefugee Convention\nrelated to child abduction, the accompanying parent is no longer an appropriate\nDR\n, and a new representative should be appointed.", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 3, s. 9.6 (Potential abduction of a minorFootnote 70)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir03.aspx" + }, + { + "id": "irbg-3-10-1", + "doc_type": "memorandum", + "act_code": "IRB-G3", + "act_short": "IRB Guideline 3", + "act_name": "IRB Chairperson's Guideline 3 — Child Refugee Claimants: Procedural and Evidentiary Issues", + "section": "G3 s. 10.1", + "marginal_note": "Detention Reviews", + "part": "Child Refugee Claimants: Procedural and Evidentiary Issues", + "division": "", + "heading": "", + "text": "10.1.1 See\nIRB\n's Guideline 2 on the application of the\nBIOC\nprinciple during detention reviews involving minors.\nFootnote\n74", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 3, s. 10.1 (Detention Reviews)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir03.aspx" + }, + { + "id": "irbg-3-10-2", + "doc_type": "memorandum", + "act_code": "IRB-G3", + "act_short": "IRB Guideline 3", + "act_name": "IRB Chairperson's Guideline 3 — Child Refugee Claimants: Procedural and Evidentiary Issues", + "section": "G3 s. 10.2", + "marginal_note": "Admissibility hearings", + "part": "Child Refugee Claimants: Procedural and Evidentiary Issues", + "division": "", + "heading": "", + "text": "10.2.1 Members must consider whether the minor had the requisite knowledge or mental capacity to understand the nature and effect of their actions.\nFootnote\n75\nThis is specifically relevant, although not limited to, the assessment of whether the minor was a member of an organization for the purposes of section 34 or 37 of the\nIRPA\n, whether they were complicit under section 35 of the\nIRPA\n, or whether they had the required\nmens rea\n, or intent, for the purposes of section 36 of the\nIRPA\nif this was not already considered in the foreign jurisdiction\nFootnote\n76\n10.2.2 The assessment of whether the minor had the knowledge or mental capacity required for a finding of inadmissibility is focused on the age of the minor during the entire period in which the alleged conduct or membership occurred.\nFootnote\n77\n10.2.3 The requisite knowledge or mental capacity should be viewed on a continuum. For cases at the\nID\n, it is presumed that a young minor (i.e., age of 12 and under) does not have the requisite knowledge or mental capacity.\nFootnote\n78\nIn such cases, the age of the minor itself would be\nprima facie\nevidence of an absence of the requisite knowledge or mental capacity, and the\nID\nis obligated to carefully consider the level of understanding of such a minor.\nFootnote\n79\nThere is also a presumption that the closer the minor is to 18 years of age, the greater will be the likelihood that the minor possessed the requisite knowledge or mental capacity.\nFootnote\n80\n10.2.4 Where relevant and appropriate,\nFootnote\n81\nmembers should consider the environment and context in which the minor's actions occurred as well as the possibility of duress or coercion.\n10.2.5 These considerations also apply to inadmissibility appeals at the\nIAD\n.", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 3, s. 10.2 (Admissibility hearings)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir03.aspx" + }, + { + "id": "irbg-3-11-1", + "doc_type": "memorandum", + "act_code": "IRB-G3", + "act_short": "IRB Guideline 3", + "act_name": "IRB Chairperson's Guideline 3 — Child Refugee Claimants: Procedural and Evidentiary Issues", + "section": "G3 s. 11.1", + "marginal_note": "Best Interests of the Child", + "part": "Child Refugee Claimants: Procedural and Evidentiary Issues", + "division": "", + "heading": "", + "text": "11.1.1 The\nBIOC\nmust receive singularly significant focus in every\nIAD\nappeal engaging humanitarian and compassionate (H and C) considerations where a child is directly affected. The\nBIOC\nmust be applied in an intersectional, non-formulaic, contextual manner that considers the particular circumstances of all minors directly affected by the decision, identifying each minor's interests and focusing on the effects of the decision on the minor and not the degree of hardship the minor would undergo.\n11.1.2 The following non-exhaustive list of factors may guide members in engaging with minors impacted by proceedings at the\nIAD\n:\nthe minor's age;\nthe level of dependency between the minor and their caregiver or person impacted by the appeal;\nthe degree of the minor's establishment in Canada;\nthe minor's links to the country in relation to which the assessment is being considered;\nthe conditions of that country and the potential impact on the minor;\nmedical issues or special needs the minor may have;\nthe impact to the minor's education; and\nspecific vulnerabilities that may arise from the minor's gender,\nSOGIESC\n, past trauma, or mental health concerns.", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 3, s. 11.1 (Best Interests of the Child)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir03.aspx" + }, + { + "id": "irbg-3-12", + "doc_type": "memorandum", + "act_code": "IRB-G3", + "act_short": "IRB Guideline 3", + "act_name": "IRB Chairperson's Guideline 3 — Child Refugee Claimants: Procedural and Evidentiary Issues", + "section": "G3 s. 12", + "marginal_note": "Inquiries", + "part": "Child Refugee Claimants: Procedural and Evidentiary Issues", + "division": "", + "heading": "", + "text": "For more information, please contact:\nIRB.Policy-Politiques.CISR@irb-cisr.gc.ca\nOR\nSenior Director, Policy, Engagement and Parliamentary Affairs Directorate\nStrategic Directions and Corporate Affairs Branch\nMinto Place - Canada Building\n344 Slater Street, 14th Floor\nOttawa, Ontario K1A 0K1", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 3, s. 12 (Inquiries)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir03.aspx" + }, + { + "id": "irbg-3-50-p1", + "doc_type": "memorandum", + "act_code": "IRB-G3", + "act_short": "IRB Guideline 3", + "act_name": "IRB Chairperson's Guideline 3 — Child Refugee Claimants: Procedural and Evidentiary Issues", + "section": "G3 s. 50", + "marginal_note": "Approval", + "part": "Child Refugee Claimants: Procedural and Evidentiary Issues", + "division": "", + "heading": "", + "text": "Richard Wex\nChairperson\nDate: July 19​, 2023\nFootnotes\nFootnote 1\nProcedural and substantive considerations are guided by the law or jurisprudence. A\nprocedural consideration\nrefers to the process used by members to manage the proceedings. A\nsubstantive consideration\nis one that applies in decision-making. Substantive considerations will generally be comprised of elements that must be weighed by members to arrive at a decision. They relate to\nwhat\nthe member is deciding (e.g., Is the minor a refugee? Has the minor met their residency obligation in Canada?).\nReturn to footnote\n1\nreferrer\nFootnote 2\nArticle 3 of the United Nations ​\nConvention of the Rights of the Child\n(\nCRC\n), November 20, 1989. Canada signed and ratified the\nCRC\n, and although it has not been directly incorporated into national law, it serves as an important interpretive instrument for legal proceedings involving minors.\nReturn to footnote\n2\nreferrer\nFootnote 3\nAt the Immigration Appeal Division (\nIAD\n), there are appeals where minors outside of Canada may be involved in the proceedings.\nReturn to footnote\n3\nreferrer\nFootnote 4\nThe term “separated minor” is used to reflect the potential negative impacts on minors of being separated from their parents or usual caregivers.\nReturn to footnote\n4\nreferrer\nFootnote 5\nThere are instances where a minor may be accompanied by a family member that is not in a caregiver role. For example, a young adult sibling accompanying a minor may not be fulfilling a caregiving role. In these cases, the minor should therefore be considered unaccompanied.\nReturn to footnote\n5\nreferrer\nFootnote 6\nArticle 3(1) of the\nCRC\n,\nsupra\nnote 2, and the United Nations Committee on the Rights of the Child,", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 3, s. 50 (Approval) (part 1 of 11)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir03.aspx" + }, + { + "id": "irbg-3-50-p2", + "doc_type": "memorandum", + "act_code": "IRB-G3", + "act_short": "IRB Guideline 3", + "act_name": "IRB Chairperson's Guideline 3 — Child Refugee Claimants: Procedural and Evidentiary Issues", + "section": "G3 s. 50", + "marginal_note": "Approval", + "part": "Child Refugee Claimants: Procedural and Evidentiary Issues", + "division": "", + "heading": "", + "text": "General comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration\n(May 29, 2013), in particular paragraphs 1, 6 and 32-35.\nReturn to footnote\n6\nreferrer\nFootnote 7\nKanthasamy v. Canada (Citizenship and Immigration),\n2015 SCC 61 at\nparas. 35-36\n.\nReturn to footnote\n7\nreferrer\nFootnote 8\nIbid\n. at para.\n37\n.\nReturn to footnote\n8\nreferrer\nFootnote 9\nSection 6,\nChairperson’s Guideline 4:\nGender Considerations in Proceedings Before the Immigration and Refugee Board\n- Immigration and Refugee Board of Canada (irb-cisr.gc.ca) and section 8,\nChairperson's Guideline 9:\nProceedings Before the IRB Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics\n- Immigration and Refugee Board of Canada (irb-cisr.gc.ca).\nReturn to footnote\n9\nreferrer\nFootnote 10\nFor more information on\nSOGIESC\n, see\nChairperson's Guideline 9\n,\nibid\n.\nReturn to footnote\n10\nreferrer\nFootnote 11\nThe UN Committee on the Rights of the Child\n,\nGeneral comment No. 14\n(2013)\n, supra\nnote 6, in particular paragraphs 1, 6 and 14.\nReturn to footnote\n11\nreferrer\nFootnote 12\nSubsection 167(2),\nImmigration and Refugee Protection Act\n,\nS.C. 2001, c. 27\n(\nIRPA\n).\nReturn to footnote\n12\nreferrer\nFootnote 13\nStumf v. Canada (Minister of Citizenship and Immigration),\n2002 FCA 148 at para. 6; and\nDuale v. Canada (Minister of Citizenship and Immigration)\n, 2004 FC 150 at paras. 1-3. See also\nDesignated representatives\n- Immigration and Refugee Board of Canada (irb-cisr.gc.ca).\nReturn to footnote\n13\nreferrer\nFootnote 14\nSubsection 167(1) of the\nIRPA\n.\nReturn to footnote\n14\nreferrer\nFootnote 15\nDesignated representative guide\n- Immigration and Refugee Board of Canada (irb-cisr.gc.ca).\nReturn to footnote\n15\nreferrer\nFootnote 16\nRule 20(4) of the", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 3, s. 50 (Approval) (part 2 of 11)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir03.aspx" + }, + { + "id": "irbg-3-50-p3", + "doc_type": "memorandum", + "act_code": "IRB-G3", + "act_short": "IRB Guideline 3", + "act_name": "IRB Chairperson's Guideline 3 — Child Refugee Claimants: Procedural and Evidentiary Issues", + "section": "G3 s. 50", + "marginal_note": "Approval", + "part": "Child Refugee Claimants: Procedural and Evidentiary Issues", + "division": "", + "heading": "", + "text": "Refugee Protection Division Rules\n; Rule 23(5) of the\nRefugee Appeal Division Rules\n; Rule 19 of the\nImmigration Division Rules\n; and Rule 48 of the\nImmigration Appeal Division Rules\n.\nReturn to footnote\n16\nreferrer\nFootnote 17\nDesignated representative guide\n,\nsupra\nnote 15.\nReturn to footnote\n17\nreferrer\nFootnote 18\nRule 20(10) of the\nRefugee Protection Division Rules\n; Rule 23(11) of the\nRefugee Appeal Division Rules\nand Rule 49 of the\nImmigration Appeal Division Rules\n.\nReturn to footnote\n18\nreferrer\nFootnote 19\nRule 20(7) of the\nRefugee Protection Division Rules\n; Rule 23(8) of the\nRefugee Appeal Division Rules\nand Rule 51 of the\nImmigration Appeal Division Rules\n.\nReturn to footnote\n19\nreferrer\nFootnote 20\nRule 20(8) of the\nRefugee Protection Division Rules\nand Rule 23(9) of the\nRefugee Appeal Division Rules\nprovide that the member may terminate a designation if they are of the opinion that the representative is no longer required or suitable and, if required, may designate a new representative. Rule 50 of the\nImmigration Appeal Division Rules\nprovides that a member may, on their own initiative or on the request of a party, terminate a designation if the member is of the opinion that the representative is no longer required or suitable. If required, the member may designate a new representative.\nReturn to footnote\n20\nreferrer\nFootnote 21\nFor example, a person who supports practices that threaten the minor's physical or mental health or integrity (e.g., female genital mutilation) or holds hostile views about the minor's identity (e.g., their\nSOGIESC", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 3, s. 50 (Approval) (part 3 of 11)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir03.aspx" + }, + { + "id": "irbg-3-50-p4", + "doc_type": "memorandum", + "act_code": "IRB-G3", + "act_short": "IRB Guideline 3", + "act_name": "IRB Chairperson's Guideline 3 — Child Refugee Claimants: Procedural and Evidentiary Issues", + "section": "G3 s. 50", + "marginal_note": "Approval", + "part": "Child Refugee Claimants: Procedural and Evidentiary Issues", + "division": "", + "heading": "", + "text": ") or beliefs (e.g., their political opinion) would be seen as no longer being able to act in the best interest of a minor. Similarly, concerns related to filiation or whether the minor may be a victim of child trafficking would necessitate a new Designated Representative.\nReturn to footnote\n21\nreferrer\nFootnote 22\nRule 56(3) of the\nRefugee Protection Division Rules\nand Rule 41(3) of the\nRefugee Appeal Division Rules\nstate that a party who applies to separate a claim or an appeal is required to provide a copy of the application to any person who will be affected by the Division's decision on that application. The authority to excuse a person from that requirement is found in Rule 70(c) of the\nRefugee Protection Division Rules\nand Rule 53(c) of the\nRefugee Appeal Division Rules\n.\nReturn to footnote\n22\nreferrer\nFootnote 23\nParagraph 166(c.1) of the\nIRPA\nprovides that proceedings before the Immigration Division must be held in private if they concern a person who is the subject of a proceeding before the RPD or the RAD that is pending or who has made an application for protection to the Minister that is pending.\nReturn to footnote\n23\nreferrer\nFootnote 24\nParagraphs 166(b), (c) and (c.1) of the\nIRPA\n.\nReturn to footnote\n24\nreferrer\nFootnote 25\nCode of Conduct for Members of the Immigration and Refugee Board of Canada\n- Immigration and Refugee Board of Canada (irb-cisr.gc.ca) at para. 38: “Members have a responsibility to consider the privacy interests of individuals in the conduct of proceedings and the writing of decisions, ensuring that decisions contain only the personal information that is necessary to explain the reasoning of the decision.”\nReturn to footnote\n25\nreferrer\nFootnote 26\nArticle 12 of the\nCRC\n,\nsupra\nnote 2 and UN Committee on the Rights of the Child\n,", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 3, s. 50 (Approval) (part 4 of 11)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir03.aspx" + }, + { + "id": "irbg-3-50-p5", + "doc_type": "memorandum", + "act_code": "IRB-G3", + "act_short": "IRB Guideline 3", + "act_name": "IRB Chairperson's Guideline 3 — Child Refugee Claimants: Procedural and Evidentiary Issues", + "section": "G3 s. 50", + "marginal_note": "Approval", + "part": "Child Refugee Claimants: Procedural and Evidentiary Issues", + "division": "", + "heading": "", + "text": "General comment No. 14\n(2013)\n, supra\nnote 6 at paras. 43-45.\nReturn to footnote\n26\nreferrer\nFootnote 27\nSubsections 170(g) and (h), 171(a.2) and (a.3), 173(c) and (d), and 175(b) and (c) of the\nIRPA\n. For example, the rule of evidence against hearsay does not apply in IRB proceedings.\nReturn to footnote\n27\nreferrer\nFootnote 28\nSection 16.1 of the\nCanada Evidence Act,\nR.S.C. 1985, c. C-5\n.\nReturn to footnote\n28\nreferrer\nFootnote 29\nIbid\n.\nReturn to footnote\n29\nreferrer\nFootnote 30\nSee\nR. v. B. (G.), [1990] 2 SCR 30\n; and\nR. v. W. (R.),\n[1992] 2 SCR 122\n.\nReturn to footnote\n30\nreferrer\nFootnote 31\nWeighing Evidence\n– Immigration and Refugee Board of Canada (ibr-cisr.gc.ca).\nReturn to footnote\n31\nreferrer\nFootnote 32\nBema v. Canada (Citizenship and Immigration)\n, 2007 FC 845 at paras. 23-24;\nBin v. Canada (Minister of Citizenship and Immigration)\n, 2001 FCT 1246 at para. 16;\nDiagana v. Canada (Citizenship and Immigration)\n, 2007 FC 330 at paras. 23, 26-27; and\nUthayakumar v. Canada (Minister of Citizenship and Immigration)\n, 1999 CanLII 8280 (FC) at paras. 24-28.\nReturn to footnote\n32\nreferrer\nFootnote 33\nBin\n,\nibid\n. at paras. 16-23; and\nDiagana\n,\nibid\n. at paras. 26-27.\nReturn to footnote\n33\nreferrer\nFootnote 34\nOkpanachi v. Canada (Citizenship and Immigration)\n, 2022 FC 212 at paras. 21-27.\nReturn to footnote\n34\nreferrer\nFootnote 35\nBin\n,\nsupra\nnote 32 at paras. 15-16.\nReturn to footnote\n35\nreferrer\nFootnote 36\nBoluka v. Canada (Citizenship and Immigration),\n2015 FC 37at paras. 8, 19-20;\nDiagana\n,\nsupra\nnote 32 at paras. 23, 26-27;.\nReturn to footnote\n36\nreferrer\nFootnote 37\nThe Heart of the Matter: Assessing Credibility when Children Apply for Asylum in the European Union,\nUNHCR and European Refugee Fund of the European Commission\n, at pages 62-63.\nReturn to footnote", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 3, s. 50 (Approval) (part 5 of 11)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir03.aspx" + }, + { + "id": "irbg-3-50-p6", + "doc_type": "memorandum", + "act_code": "IRB-G3", + "act_short": "IRB Guideline 3", + "act_name": "IRB Chairperson's Guideline 3 — Child Refugee Claimants: Procedural and Evidentiary Issues", + "section": "G3 s. 50", + "marginal_note": "Approval", + "part": "Child Refugee Claimants: Procedural and Evidentiary Issues", + "division": "", + "heading": "", + "text": "37\nreferrer\nFootnote 38\nIbid\n.\nReturn to footnote\n38\nreferrer\nFootnote 39\nManual on Human Rights Monitoring\n, OHCHR (2011), chapter 12: Trauma and Self-care at page 6: “Credibility should not be based on assumptions about how trauma survivors should feel or behave”.\nReturn to footnote\n39\nreferrer\nFootnote 40\nHe v. Canada (Citizenship and Immigration)\n, 2019 FC 2 at para. 23.\nReturn to footnote\n40\nreferrer\nFootnote 41\nValtchev v. Canada (Minister of Citizenship and Immigration)\n, 2001 FCT 776 at paras. 24-25. See also\nRahal v. Canada (Citizenship and Immigration)\n, 2012 FC 319 at para. 45.\nReturn to footnote\n41\nreferrer\nFootnote 42\nAbdinur v. Canada (Citizenship and Immigration)\n, 2020 FC 880 at paras. 47-49. Justice McHaffie wrote at paragraph 49 that, “…in my view it is insufficient to simply refer to a witness's 'demeanour' without any indication as to what aspects of their demeanour undermined their credibility. It does not allow this Court to reach a conclusion as to whether the assessment of demeanour, or the reliance on it, was reasonable. While I appreciate that defining a non-credible ‘demeanour’ may be difficult (one of the identified problems with relying on it), a mere statement that a finding of credibility is based on ‘demeanour,’ without more, is of little value.”​\nReturn to footnote\n42\nreferrer\nFootnote 43\nCanada (Attorney General) v. Ward,\n1993 CanLII 105 (SCC), [1993] 2 SCR 689 at p. 734.\nReturn to footnote\n43\nreferrer\nFootnote 44\nKim v. Canada (Citizenship and Immigration)\n, 2010 FC 149 at para. 57 and 58.\nReturn to footnote\n44\nreferrer\nFootnote 45\nX (Re)\n, 2021 CanLII 131196 (RAD) at para. 21, citing\nKim\n,\nibid\n. at paras. 57-61.\nReturn to footnote\n45\nreferrer\nFootnote 46\nCanada (Minister of Citizenship and Immigration) v. Patel", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 3, s. 50 (Approval) (part 6 of 11)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir03.aspx" + }, + { + "id": "irbg-3-50-p7", + "doc_type": "memorandum", + "act_code": "IRB-G3", + "act_short": "IRB Guideline 3", + "act_name": "IRB Chairperson's Guideline 3 — Child Refugee Claimants: Procedural and Evidentiary Issues", + "section": "G3 s. 50", + "marginal_note": "Approval", + "part": "Child Refugee Claimants: Procedural and Evidentiary Issues", + "division": "", + "heading": "", + "text": ", 2008 FC 747, [2009] 2 FCR 196 at paras. 39–43. The\nCRC\n,\nsupra\nnote 2, recognizes that minors have distinctive fundamental rights such as the right to primary education (article 28) and be free from economic exploitation (article 32). These should be considered when assessing whether the harm feared amounts to persecution.\nReturn to footnote\n46\nreferrer\nFootnote 47\nAli v. Canada (Citizenship and Immigration)\n, 2015 FC 1061 at paras. 25-26;\nKaniz v. Canada (Citizenship and Immigration)\n, 2013 FC 63 at paras. 7, 16-19; and\nKulendrarajah v. Canada (Minister of Citizenship and Immigration)\n, 2004 FC 79 at paras. 14-19.\nReturn to footnote\n47\nreferrer\nFootnote 48\nA.B. v. Canada (Citizenship and Immigration)\n, 2020 FC 915 at paras. 21-23; and\nAli v. Canada (Citizenship and Immigration)\n, 2020 FC 93 at paras. 48-50.\nReturn to footnote\n48\nreferrer\nFootnote 49\nTheodore v. Canada (Citizenship and Immigration)\n, 2021 FC 651 at para. 8, citing\nRamirez Estrada v. Canada\n(Citizenship and Immigration)\n, 2015 FC 1019 at paras. 8-10.\nReturn to footnote\n49\nreferrer\nFootnote 50\nHassan v. Canada (Minister of Citizenship and Immigration),\n173 FTR 313, 1999 CanLII 7809 (FC) at paras. 5-6; and\nX (Re),\n2021CanLII 150418 (RAD) at paras. 46-48.\nReturn to footnote\n50\nreferrer\nFootnote 51\nElmi v. Canada (Minister of Citizenship and Immigration)\n​, 50 Imm LR (2d) 89, 1999 CanLII 7688 (FC) at paras. 11-14\nReturn to footnote\n51\nreferrer\nFootnote 52\nIbid\nat paras. 11-15.\nReturn to footnote\n52\nreferrer\nFootnote 53\nElmi\n​, supra note 51 at para. 14.\nReturn to footnote\n53\nreferrer\nFootnote 54\nX (Re),\n2019 CanLII 140777 at paras. 85‑88; and\nChandidas v. Canada (Citizenship and Immigration)\n, 2013 FC 257 at para. 48-49. In\nChandidas\n, the Court found that the reasonableness branch of the\nIFA", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 3, s. 50 (Approval) (part 7 of 11)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir03.aspx" + }, + { + "id": "irbg-3-50-p8", + "doc_type": "memorandum", + "act_code": "IRB-G3", + "act_short": "IRB Guideline 3", + "act_name": "IRB Chairperson's Guideline 3 — Child Refugee Claimants: Procedural and Evidentiary Issues", + "section": "G3 s. 50", + "marginal_note": "Approval", + "part": "Child Refugee Claimants: Procedural and Evidentiary Issues", + "division": "", + "heading": "", + "text": "assessment had not been met, as required medical treatment was not readily available in the proposed\nIFA\n.\nReturn to footnote\n54\nreferrer\nFootnote 55\nAdeyemo v. Canada (Citizenship and Immigration),\n2022 FC 785 at para. 26.\nReturn to footnote\n55\nreferrer\nFootnote 56\nJones v. Canada (Citizenship and Immigration)\n, 2020 FC 1172 at para. 12;\nAdebayo v. Canada (Immigration, Refugees and Citizenship),\n2019 FC 330 at paras. 58-59.\nReturn to footnote\n56\nreferrer\nFootnote 57\nHassan, supra\nnote 50 at paras. 5-6.\nReturn to footnote\n57\nreferrer\nFootnote 58\nElmi\n,\nsupra\nnote 51 at paras. 11-15.\nReturn to footnote\n58\nreferrer\nFootnote 59\nIbid\n. at paras. 4, 14-15.\nReturn to footnote\n59\nreferrer\nFootnote 60\nArmando v. Canada (Citizenship and Immigration)\n, 2020 FC 94 at paras. 50-57. In\nArmando\n, the issue was the reasonableness of the\nIFA\nbecause the minor argued that his mother would be unable to access adequate medical care. The Court noted the mother‘s access to care was a valid consideration, but dismissed the application, finding the RAD reasonable in its assessment of the evidence supporting the allegation.\nReturn to footnote\n60\nreferrer\nFootnote 61\nCalderon v. Canada (Citizenship and Immigration)\n, 2010 FC 263 at paras. 16-22.\nReturn to footnote\n61\nreferrer\nFootnote 62\nIn\nJames v. Canada (Citizenship and Immigration\n), 2010 FC 546 at para. 18, the Court found that it was unreasonable to expect a sexually​-abused minor to seek out state protection where the aggressor had threatened the minor and her mother if they disclosed the abuse.\nReturn to footnote\n62\nreferrer\nFootnote 63\nZhu v. MCI\n, 16 Imm LR (3d) 227, 2001 FCT 884 (CanLII) at para. 28.\nReturn to footnote\n63\nreferrer\nFootnote 64\nX (Re),\n2017 CanLII 98897 (RAD) at para. 19.\nReturn to footnote\n64\nreferrer\nFootnote 65", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 3, s. 50 (Approval) (part 8 of 11)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir03.aspx" + }, + { + "id": "irbg-3-50-p9", + "doc_type": "memorandum", + "act_code": "IRB-G3", + "act_short": "IRB Guideline 3", + "act_name": "IRB Chairperson's Guideline 3 — Child Refugee Claimants: Procedural and Evidentiary Issues", + "section": "G3 s. 50", + "marginal_note": "Approval", + "part": "Child Refugee Claimants: Procedural and Evidentiary Issues", + "division": "", + "heading": "", + "text": "Ayala Nunez v. Canada (Citizenship and Immigration)\n, 2012 FC 255 at para. 21; and\nVelasquez v. Canada (Citizenship and Immigration)\n, 2009 FC 109 at para. 22.\nReturn to footnote\n65\nreferrer\nFootnote 66\nCanada (Minister of Citizenship and Immigration) v. Patel\n,\nsupra\nnote 46 at paras. 29, 32–33, and 38, citing\nYusuf v. Canada (Minister of Employment and Immigration) (C.A.)\n, [1992] 1 FC 629, 1991 CanLII 13547 (FCA);\nX (Re)\n, 2019 CanLII 116785 (RAD) at paras. 28–29.\nReturn to footnote\n66\nreferrer\nFootnote 67\nManege v. Canada (Citizenship and Immigration)\n, 2014 FC 374 at para. 39. In\nManege\nthe parents had instructed the two minor teenaged claimants to go to Canada and to make an asylum claim upon arrival because they had family in Canada. It was unreasonable for the Board to draw a negative inference from their failure to claim in another country while they were in transit.\nReturn to footnote\n67\nreferrer\nFootnote 68\nGebremichael v. Canada (Minister of Citizenship and Immigration)\n, 2006 FC 547 at para. 48.\nReturn to footnote\n68\nreferrer\nFootnote 69\nManege\n,\nsupra\nnote 67 at para. 39. See also\nX (Re)\n, 2013 CanLII 87476 (RAD) at paras. 62-67.\nReturn to footnote\n69\nreferrer\nFootnote 70\nAlso see section 11.7,\nChairperson’s Guideline 4\n,\nsupra\nnote 9.\nReturn to footnote\n70\nreferrer\nFootnote 71\nRule 26(1) of the\nRefugee Protection Division Rules\nstates: “If the Division believes, before a hearing begins, that there is a possibility that section E or F of Article 1 of the Refugee Convention applies to the claim, the Division must without delay notify the Minister in writing and provide any relevant information to the Minister.”\nReturn to footnote\n71\nreferrer\nFootnote 72", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 3, s. 50 (Approval) (part 9 of 11)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir03.aspx" + }, + { + "id": "irbg-3-50-p10", + "doc_type": "memorandum", + "act_code": "IRB-G3", + "act_short": "IRB Guideline 3", + "act_name": "IRB Chairperson's Guideline 3 — Child Refugee Claimants: Procedural and Evidentiary Issues", + "section": "G3 s. 50", + "marginal_note": "Approval", + "part": "Child Refugee Claimants: Procedural and Evidentiary Issues", + "division": "", + "heading": "", + "text": "A Canadian court decision regarding the Hague Convention is not binding on RPD proceedings. However, court findings should be considered by members where they are directly relevant to the facts before them. See\nKovacs v. Canada (Minister of Citizenship and Immigration)\n, 2005 FC 1473 at paras. 9-10, 37-46.\nReturn to footnote\n72\nreferrer\nFootnote 73\nA claimant or appellant should not be excluded where a member is satisfied that they took action that was necessary to protect a child or themselves from danger of imminent harm. See for example,\nX (Re)\n, 2020 CanLII 121378 (RAD) at paras. 21-34. Where the member is not persuaded that the defence of imminent harm applies, they should still analyse whether the parental abduction is serious enough to warrant exclusion. For example, see\nA.B. v. Canada (Citizenship and Immigration)\n, 2016 FC 1385 at paras. 62-67, where the Court said that the RPD should have considered the sentencing range had the offence occurred in Canada.\nReturn to footnote\n73\nreferrer\nFootnote 74\nChairperson’s Guideline 2: Detention\n- Immigration and Refugee Board of Canada (irb-cisr.gc.ca) and in particular section 4.\nReturn to footnote\n74\nreferrer\nFootnote 75\nPoshteh v. Canada (Minister of Citizenship and Immigration) (F.C.A)\n, 2005 FCA 85 at para. 47.\nReturn to footnote\n75\nreferrer\nFootnote 76\nWhile\nPoshteh ibid.\n, was decided in the context of paragraph 34(1)(f) of the\nIRPA\n, the principles with respect to minors have been applied in other inadmissibility contexts since then. See\nM'Bosso v. Canada (Citizenship and Immigration),\n2011 FC 302.\nReturn to footnote\n76\nreferrer\nFootnote 77\nMonge Contreras v. Canada (Citizenship and Immigration),\n2010 FC 246 at para. 30.\nReturn to footnote\n77\nreferrer\nFootnote 78\nPoshteh\n,\nsupra\nnote 75 at para. 48.", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 3, s. 50 (Approval) (part 10 of 11)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir03.aspx" + }, + { + "id": "irbg-3-50-p11", + "doc_type": "memorandum", + "act_code": "IRB-G3", + "act_short": "IRB Guideline 3", + "act_name": "IRB Chairperson's Guideline 3 — Child Refugee Claimants: Procedural and Evidentiary Issues", + "section": "G3 s. 50", + "marginal_note": "Approval", + "part": "Child Refugee Claimants: Procedural and Evidentiary Issues", + "division": "", + "heading": "", + "text": "Return to footnote\n78\nreferrer\nFootnote 79\nIbid\n.\nReturn to footnote\n79\nreferrer\nFootnote 80\nIbid\n. at para. 51.\nReturn to footnote\n80\nreferrer\nFootnote 81\nKrishnamoorthy v. Canada (Citizenship and Immigration),\n2011 FC 1342 at para. 28; and\nPoshteh\n,\nsupra\nnote 75 at para. 52.\nReturn to footnote\n81\nreferrer\n​\n​", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 3, s. 50 (Approval) (part 11 of 11)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir03.aspx" + }, + { + "id": "irbg-3-51-p1", + "doc_type": "memorandum", + "act_code": "IRB-G3", + "act_short": "IRB Guideline 3", + "act_name": "IRB Chairperson's Guideline 3 — Child Refugee Claimants: Procedural and Evidentiary Issues", + "section": "G3 s. 51", + "marginal_note": "Footnotes", + "part": "Child Refugee Claimants: Procedural and Evidentiary Issues", + "division": "", + "heading": "", + "text": "Footnote 1\nProcedural and substantive considerations are guided by the law or jurisprudence. A\nprocedural consideration\nrefers to the process used by members to manage the proceedings. A\nsubstantive consideration\nis one that applies in decision-making. Substantive considerations will generally be comprised of elements that must be weighed by members to arrive at a decision. They relate to\nwhat\nthe member is deciding (e.g., Is the minor a refugee? Has the minor met their residency obligation in Canada?).\nReturn to footnote\n1\nreferrer\nFootnote 2\nArticle 3 of the United Nations ​\nConvention of the Rights of the Child\n(\nCRC\n), November 20, 1989. Canada signed and ratified the\nCRC\n, and although it has not been directly incorporated into national law, it serves as an important interpretive instrument for legal proceedings involving minors.\nReturn to footnote\n2\nreferrer\nFootnote 3\nAt the Immigration Appeal Division (\nIAD\n), there are appeals where minors outside of Canada may be involved in the proceedings.\nReturn to footnote\n3\nreferrer\nFootnote 4\nThe term “separated minor” is used to reflect the potential negative impacts on minors of being separated from their parents or usual caregivers.\nReturn to footnote\n4\nreferrer\nFootnote 5\nThere are instances where a minor may be accompanied by a family member that is not in a caregiver role. For example, a young adult sibling accompanying a minor may not be fulfilling a caregiving role. In these cases, the minor should therefore be considered unaccompanied.\nReturn to footnote\n5\nreferrer\nFootnote 6\nArticle 3(1) of the\nCRC\n,\nsupra\nnote 2, and the United Nations Committee on the Rights of the Child,\nGeneral comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 3, s. 51 (Footnotes) (part 1 of 10)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir03.aspx" + }, + { + "id": "irbg-3-51-p2", + "doc_type": "memorandum", + "act_code": "IRB-G3", + "act_short": "IRB Guideline 3", + "act_name": "IRB Chairperson's Guideline 3 — Child Refugee Claimants: Procedural and Evidentiary Issues", + "section": "G3 s. 51", + "marginal_note": "Footnotes", + "part": "Child Refugee Claimants: Procedural and Evidentiary Issues", + "division": "", + "heading": "", + "text": "(May 29, 2013), in particular paragraphs 1, 6 and 32-35.\nReturn to footnote\n6\nreferrer\nFootnote 7\nKanthasamy v. Canada (Citizenship and Immigration),\n2015 SCC 61 at\nparas. 35-36\n.\nReturn to footnote\n7\nreferrer\nFootnote 8\nIbid\n. at para.\n37\n.\nReturn to footnote\n8\nreferrer\nFootnote 9\nSection 6,\nChairperson’s Guideline 4:\nGender Considerations in Proceedings Before the Immigration and Refugee Board\n- Immigration and Refugee Board of Canada (irb-cisr.gc.ca) and section 8,\nChairperson's Guideline 9:\nProceedings Before the IRB Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics\n- Immigration and Refugee Board of Canada (irb-cisr.gc.ca).\nReturn to footnote\n9\nreferrer\nFootnote 10\nFor more information on\nSOGIESC\n, see\nChairperson's Guideline 9\n,\nibid\n.\nReturn to footnote\n10\nreferrer\nFootnote 11\nThe UN Committee on the Rights of the Child\n,\nGeneral comment No. 14\n(2013)\n, supra\nnote 6, in particular paragraphs 1, 6 and 14.\nReturn to footnote\n11\nreferrer\nFootnote 12\nSubsection 167(2),\nImmigration and Refugee Protection Act\n,\nS.C. 2001, c. 27\n(\nIRPA\n).\nReturn to footnote\n12\nreferrer\nFootnote 13\nStumf v. Canada (Minister of Citizenship and Immigration),\n2002 FCA 148 at para. 6; and\nDuale v. Canada (Minister of Citizenship and Immigration)\n, 2004 FC 150 at paras. 1-3. See also\nDesignated representatives\n- Immigration and Refugee Board of Canada (irb-cisr.gc.ca).\nReturn to footnote\n13\nreferrer\nFootnote 14\nSubsection 167(1) of the\nIRPA\n.\nReturn to footnote\n14\nreferrer\nFootnote 15\nDesignated representative guide\n- Immigration and Refugee Board of Canada (irb-cisr.gc.ca).\nReturn to footnote\n15\nreferrer\nFootnote 16\nRule 20(4) of the\nRefugee Protection Division Rules\n; Rule 23(5) of the\nRefugee Appeal Division Rules\n; Rule 19 of the", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 3, s. 51 (Footnotes) (part 2 of 10)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir03.aspx" + }, + { + "id": "irbg-3-51-p3", + "doc_type": "memorandum", + "act_code": "IRB-G3", + "act_short": "IRB Guideline 3", + "act_name": "IRB Chairperson's Guideline 3 — Child Refugee Claimants: Procedural and Evidentiary Issues", + "section": "G3 s. 51", + "marginal_note": "Footnotes", + "part": "Child Refugee Claimants: Procedural and Evidentiary Issues", + "division": "", + "heading": "", + "text": "Immigration Division Rules\n; and Rule 48 of the\nImmigration Appeal Division Rules\n.\nReturn to footnote\n16\nreferrer\nFootnote 17\nDesignated representative guide\n,\nsupra\nnote 15.\nReturn to footnote\n17\nreferrer\nFootnote 18\nRule 20(10) of the\nRefugee Protection Division Rules\n; Rule 23(11) of the\nRefugee Appeal Division Rules\nand Rule 49 of the\nImmigration Appeal Division Rules\n.\nReturn to footnote\n18\nreferrer\nFootnote 19\nRule 20(7) of the\nRefugee Protection Division Rules\n; Rule 23(8) of the\nRefugee Appeal Division Rules\nand Rule 51 of the\nImmigration Appeal Division Rules\n.\nReturn to footnote\n19\nreferrer\nFootnote 20\nRule 20(8) of the\nRefugee Protection Division Rules\nand Rule 23(9) of the\nRefugee Appeal Division Rules\nprovide that the member may terminate a designation if they are of the opinion that the representative is no longer required or suitable and, if required, may designate a new representative. Rule 50 of the\nImmigration Appeal Division Rules\nprovides that a member may, on their own initiative or on the request of a party, terminate a designation if the member is of the opinion that the representative is no longer required or suitable. If required, the member may designate a new representative.\nReturn to footnote\n20\nreferrer\nFootnote 21\nFor example, a person who supports practices that threaten the minor's physical or mental health or integrity (e.g., female genital mutilation) or holds hostile views about the minor's identity (e.g., their\nSOGIESC\n) or beliefs (e.g., their political opinion) would be seen as no longer being able to act in the best interest of a minor. Similarly, concerns related to filiation or whether the minor may be a victim of child trafficking would necessitate a new Designated Representative.\nReturn to footnote\n21\nreferrer\nFootnote 22", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 3, s. 51 (Footnotes) (part 3 of 10)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir03.aspx" + }, + { + "id": "irbg-3-51-p4", + "doc_type": "memorandum", + "act_code": "IRB-G3", + "act_short": "IRB Guideline 3", + "act_name": "IRB Chairperson's Guideline 3 — Child Refugee Claimants: Procedural and Evidentiary Issues", + "section": "G3 s. 51", + "marginal_note": "Footnotes", + "part": "Child Refugee Claimants: Procedural and Evidentiary Issues", + "division": "", + "heading": "", + "text": "Rule 56(3) of the\nRefugee Protection Division Rules\nand Rule 41(3) of the\nRefugee Appeal Division Rules\nstate that a party who applies to separate a claim or an appeal is required to provide a copy of the application to any person who will be affected by the Division's decision on that application. The authority to excuse a person from that requirement is found in Rule 70(c) of the\nRefugee Protection Division Rules\nand Rule 53(c) of the\nRefugee Appeal Division Rules\n.\nReturn to footnote\n22\nreferrer\nFootnote 23\nParagraph 166(c.1) of the\nIRPA\nprovides that proceedings before the Immigration Division must be held in private if they concern a person who is the subject of a proceeding before the RPD or the RAD that is pending or who has made an application for protection to the Minister that is pending.\nReturn to footnote\n23\nreferrer\nFootnote 24\nParagraphs 166(b), (c) and (c.1) of the\nIRPA\n.\nReturn to footnote\n24\nreferrer\nFootnote 25\nCode of Conduct for Members of the Immigration and Refugee Board of Canada\n- Immigration and Refugee Board of Canada (irb-cisr.gc.ca) at para. 38: “Members have a responsibility to consider the privacy interests of individuals in the conduct of proceedings and the writing of decisions, ensuring that decisions contain only the personal information that is necessary to explain the reasoning of the decision.”\nReturn to footnote\n25\nreferrer\nFootnote 26\nArticle 12 of the\nCRC\n,\nsupra\nnote 2 and UN Committee on the Rights of the Child\n,\nGeneral comment No. 14\n(2013)\n, supra\nnote 6 at paras. 43-45.\nReturn to footnote\n26\nreferrer\nFootnote 27\nSubsections 170(g) and (h), 171(a.2) and (a.3), 173(c) and (d), and 175(b) and (c) of the\nIRPA\n. For example, the rule of evidence against hearsay does not apply in IRB proceedings.\nReturn to footnote\n27\nreferrer", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 3, s. 51 (Footnotes) (part 4 of 10)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir03.aspx" + }, + { + "id": "irbg-3-51-p5", + "doc_type": "memorandum", + "act_code": "IRB-G3", + "act_short": "IRB Guideline 3", + "act_name": "IRB Chairperson's Guideline 3 — Child Refugee Claimants: Procedural and Evidentiary Issues", + "section": "G3 s. 51", + "marginal_note": "Footnotes", + "part": "Child Refugee Claimants: Procedural and Evidentiary Issues", + "division": "", + "heading": "", + "text": "Footnote 28\nSection 16.1 of the\nCanada Evidence Act,\nR.S.C. 1985, c. C-5\n.\nReturn to footnote\n28\nreferrer\nFootnote 29\nIbid\n.\nReturn to footnote\n29\nreferrer\nFootnote 30\nSee\nR. v. B. (G.), [1990] 2 SCR 30\n; and\nR. v. W. (R.),\n[1992] 2 SCR 122\n.\nReturn to footnote\n30\nreferrer\nFootnote 31\nWeighing Evidence\n– Immigration and Refugee Board of Canada (ibr-cisr.gc.ca).\nReturn to footnote\n31\nreferrer\nFootnote 32\nBema v. Canada (Citizenship and Immigration)\n, 2007 FC 845 at paras. 23-24;\nBin v. Canada (Minister of Citizenship and Immigration)\n, 2001 FCT 1246 at para. 16;\nDiagana v. Canada (Citizenship and Immigration)\n, 2007 FC 330 at paras. 23, 26-27; and\nUthayakumar v. Canada (Minister of Citizenship and Immigration)\n, 1999 CanLII 8280 (FC) at paras. 24-28.\nReturn to footnote\n32\nreferrer\nFootnote 33\nBin\n,\nibid\n. at paras. 16-23; and\nDiagana\n,\nibid\n. at paras. 26-27.\nReturn to footnote\n33\nreferrer\nFootnote 34\nOkpanachi v. Canada (Citizenship and Immigration)\n, 2022 FC 212 at paras. 21-27.\nReturn to footnote\n34\nreferrer\nFootnote 35\nBin\n,\nsupra\nnote 32 at paras. 15-16.\nReturn to footnote\n35\nreferrer\nFootnote 36\nBoluka v. Canada (Citizenship and Immigration),\n2015 FC 37at paras. 8, 19-20;\nDiagana\n,\nsupra\nnote 32 at paras. 23, 26-27;.\nReturn to footnote\n36\nreferrer\nFootnote 37\nThe Heart of the Matter: Assessing Credibility when Children Apply for Asylum in the European Union,\nUNHCR and European Refugee Fund of the European Commission\n, at pages 62-63.\nReturn to footnote\n37\nreferrer\nFootnote 38\nIbid\n.\nReturn to footnote\n38\nreferrer\nFootnote 39\nManual on Human Rights Monitoring\n, OHCHR (2011), chapter 12: Trauma and Self-care at page 6: “Credibility should not be based on assumptions about how trauma survivors should feel or behave”.\nReturn to footnote\n39\nreferrer\nFootnote 40", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 3, s. 51 (Footnotes) (part 5 of 10)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir03.aspx" + }, + { + "id": "irbg-3-51-p6", + "doc_type": "memorandum", + "act_code": "IRB-G3", + "act_short": "IRB Guideline 3", + "act_name": "IRB Chairperson's Guideline 3 — Child Refugee Claimants: Procedural and Evidentiary Issues", + "section": "G3 s. 51", + "marginal_note": "Footnotes", + "part": "Child Refugee Claimants: Procedural and Evidentiary Issues", + "division": "", + "heading": "", + "text": "He v. Canada (Citizenship and Immigration)\n, 2019 FC 2 at para. 23.\nReturn to footnote\n40\nreferrer\nFootnote 41\nValtchev v. Canada (Minister of Citizenship and Immigration)\n, 2001 FCT 776 at paras. 24-25. See also\nRahal v. Canada (Citizenship and Immigration)\n, 2012 FC 319 at para. 45.\nReturn to footnote\n41\nreferrer\nFootnote 42\nAbdinur v. Canada (Citizenship and Immigration)\n, 2020 FC 880 at paras. 47-49. Justice McHaffie wrote at paragraph 49 that, “…in my view it is insufficient to simply refer to a witness's 'demeanour' without any indication as to what aspects of their demeanour undermined their credibility. It does not allow this Court to reach a conclusion as to whether the assessment of demeanour, or the reliance on it, was reasonable. While I appreciate that defining a non-credible ‘demeanour’ may be difficult (one of the identified problems with relying on it), a mere statement that a finding of credibility is based on ‘demeanour,’ without more, is of little value.”​\nReturn to footnote\n42\nreferrer\nFootnote 43\nCanada (Attorney General) v. Ward,\n1993 CanLII 105 (SCC), [1993] 2 SCR 689 at p. 734.\nReturn to footnote\n43\nreferrer\nFootnote 44\nKim v. Canada (Citizenship and Immigration)\n, 2010 FC 149 at para. 57 and 58.\nReturn to footnote\n44\nreferrer\nFootnote 45\nX (Re)\n, 2021 CanLII 131196 (RAD) at para. 21, citing\nKim\n,\nibid\n. at paras. 57-61.\nReturn to footnote\n45\nreferrer\nFootnote 46\nCanada (Minister of Citizenship and Immigration) v. Patel\n, 2008 FC 747, [2009] 2 FCR 196 at paras. 39–43. The\nCRC\n,\nsupra\nnote 2, recognizes that minors have distinctive fundamental rights such as the right to primary education (article 28) and be free from economic exploitation (article 32). These should be considered when assessing whether the harm feared amounts to persecution.", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 3, s. 51 (Footnotes) (part 6 of 10)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir03.aspx" + }, + { + "id": "irbg-3-51-p7", + "doc_type": "memorandum", + "act_code": "IRB-G3", + "act_short": "IRB Guideline 3", + "act_name": "IRB Chairperson's Guideline 3 — Child Refugee Claimants: Procedural and Evidentiary Issues", + "section": "G3 s. 51", + "marginal_note": "Footnotes", + "part": "Child Refugee Claimants: Procedural and Evidentiary Issues", + "division": "", + "heading": "", + "text": "Return to footnote\n46\nreferrer\nFootnote 47\nAli v. Canada (Citizenship and Immigration)\n, 2015 FC 1061 at paras. 25-26;\nKaniz v. Canada (Citizenship and Immigration)\n, 2013 FC 63 at paras. 7, 16-19; and\nKulendrarajah v. Canada (Minister of Citizenship and Immigration)\n, 2004 FC 79 at paras. 14-19.\nReturn to footnote\n47\nreferrer\nFootnote 48\nA.B. v. Canada (Citizenship and Immigration)\n, 2020 FC 915 at paras. 21-23; and\nAli v. Canada (Citizenship and Immigration)\n, 2020 FC 93 at paras. 48-50.\nReturn to footnote\n48\nreferrer\nFootnote 49\nTheodore v. Canada (Citizenship and Immigration)\n, 2021 FC 651 at para. 8, citing\nRamirez Estrada v. Canada\n(Citizenship and Immigration)\n, 2015 FC 1019 at paras. 8-10.\nReturn to footnote\n49\nreferrer\nFootnote 50\nHassan v. Canada (Minister of Citizenship and Immigration),\n173 FTR 313, 1999 CanLII 7809 (FC) at paras. 5-6; and\nX (Re),\n2021CanLII 150418 (RAD) at paras. 46-48.\nReturn to footnote\n50\nreferrer\nFootnote 51\nElmi v. Canada (Minister of Citizenship and Immigration)\n​, 50 Imm LR (2d) 89, 1999 CanLII 7688 (FC) at paras. 11-14\nReturn to footnote\n51\nreferrer\nFootnote 52\nIbid\nat paras. 11-15.\nReturn to footnote\n52\nreferrer\nFootnote 53\nElmi\n​, supra note 51 at para. 14.\nReturn to footnote\n53\nreferrer\nFootnote 54\nX (Re),\n2019 CanLII 140777 at paras. 85‑88; and\nChandidas v. Canada (Citizenship and Immigration)\n, 2013 FC 257 at para. 48-49. In\nChandidas\n, the Court found that the reasonableness branch of the\nIFA\nassessment had not been met, as required medical treatment was not readily available in the proposed\nIFA\n.\nReturn to footnote\n54\nreferrer\nFootnote 55\nAdeyemo v. Canada (Citizenship and Immigration),\n2022 FC 785 at para. 26.\nReturn to footnote\n55\nreferrer\nFootnote 56\nJones v. Canada (Citizenship and Immigration)\n, 2020 FC 1172 at para. 12;", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 3, s. 51 (Footnotes) (part 7 of 10)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir03.aspx" + }, + { + "id": "irbg-3-51-p8", + "doc_type": "memorandum", + "act_code": "IRB-G3", + "act_short": "IRB Guideline 3", + "act_name": "IRB Chairperson's Guideline 3 — Child Refugee Claimants: Procedural and Evidentiary Issues", + "section": "G3 s. 51", + "marginal_note": "Footnotes", + "part": "Child Refugee Claimants: Procedural and Evidentiary Issues", + "division": "", + "heading": "", + "text": "Adebayo v. Canada (Immigration, Refugees and Citizenship),\n2019 FC 330 at paras. 58-59.\nReturn to footnote\n56\nreferrer\nFootnote 57\nHassan, supra\nnote 50 at paras. 5-6.\nReturn to footnote\n57\nreferrer\nFootnote 58\nElmi\n,\nsupra\nnote 51 at paras. 11-15.\nReturn to footnote\n58\nreferrer\nFootnote 59\nIbid\n. at paras. 4, 14-15.\nReturn to footnote\n59\nreferrer\nFootnote 60\nArmando v. Canada (Citizenship and Immigration)\n, 2020 FC 94 at paras. 50-57. In\nArmando\n, the issue was the reasonableness of the\nIFA\nbecause the minor argued that his mother would be unable to access adequate medical care. The Court noted the mother‘s access to care was a valid consideration, but dismissed the application, finding the RAD reasonable in its assessment of the evidence supporting the allegation.\nReturn to footnote\n60\nreferrer\nFootnote 61\nCalderon v. Canada (Citizenship and Immigration)\n, 2010 FC 263 at paras. 16-22.\nReturn to footnote\n61\nreferrer\nFootnote 62\nIn\nJames v. Canada (Citizenship and Immigration\n), 2010 FC 546 at para. 18, the Court found that it was unreasonable to expect a sexually​-abused minor to seek out state protection where the aggressor had threatened the minor and her mother if they disclosed the abuse.\nReturn to footnote\n62\nreferrer\nFootnote 63\nZhu v. MCI\n, 16 Imm LR (3d) 227, 2001 FCT 884 (CanLII) at para. 28.\nReturn to footnote\n63\nreferrer\nFootnote 64\nX (Re),\n2017 CanLII 98897 (RAD) at para. 19.\nReturn to footnote\n64\nreferrer\nFootnote 65\nAyala Nunez v. Canada (Citizenship and Immigration)\n, 2012 FC 255 at para. 21; and\nVelasquez v. Canada (Citizenship and Immigration)\n, 2009 FC 109 at para. 22.\nReturn to footnote\n65\nreferrer\nFootnote 66\nCanada (Minister of Citizenship and Immigration) v. Patel\n,\nsupra\nnote 46 at paras. 29, 32–33, and 38, citing", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 3, s. 51 (Footnotes) (part 8 of 10)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir03.aspx" + }, + { + "id": "irbg-3-51-p9", + "doc_type": "memorandum", + "act_code": "IRB-G3", + "act_short": "IRB Guideline 3", + "act_name": "IRB Chairperson's Guideline 3 — Child Refugee Claimants: Procedural and Evidentiary Issues", + "section": "G3 s. 51", + "marginal_note": "Footnotes", + "part": "Child Refugee Claimants: Procedural and Evidentiary Issues", + "division": "", + "heading": "", + "text": "Yusuf v. Canada (Minister of Employment and Immigration) (C.A.)\n, [1992] 1 FC 629, 1991 CanLII 13547 (FCA);\nX (Re)\n, 2019 CanLII 116785 (RAD) at paras. 28–29.\nReturn to footnote\n66\nreferrer\nFootnote 67\nManege v. Canada (Citizenship and Immigration)\n, 2014 FC 374 at para. 39. In\nManege\nthe parents had instructed the two minor teenaged claimants to go to Canada and to make an asylum claim upon arrival because they had family in Canada. It was unreasonable for the Board to draw a negative inference from their failure to claim in another country while they were in transit.\nReturn to footnote\n67\nreferrer\nFootnote 68\nGebremichael v. Canada (Minister of Citizenship and Immigration)\n, 2006 FC 547 at para. 48.\nReturn to footnote\n68\nreferrer\nFootnote 69\nManege\n,\nsupra\nnote 67 at para. 39. See also\nX (Re)\n, 2013 CanLII 87476 (RAD) at paras. 62-67.\nReturn to footnote\n69\nreferrer\nFootnote 70\nAlso see section 11.7,\nChairperson’s Guideline 4\n,\nsupra\nnote 9.\nReturn to footnote\n70\nreferrer\nFootnote 71\nRule 26(1) of the\nRefugee Protection Division Rules\nstates: “If the Division believes, before a hearing begins, that there is a possibility that section E or F of Article 1 of the Refugee Convention applies to the claim, the Division must without delay notify the Minister in writing and provide any relevant information to the Minister.”\nReturn to footnote\n71\nreferrer\nFootnote 72\nA Canadian court decision regarding the Hague Convention is not binding on RPD proceedings. However, court findings should be considered by members where they are directly relevant to the facts before them. See\nKovacs v. Canada (Minister of Citizenship and Immigration)\n, 2005 FC 1473 at paras. 9-10, 37-46.\nReturn to footnote\n72\nreferrer\nFootnote 73", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 3, s. 51 (Footnotes) (part 9 of 10)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir03.aspx" + }, + { + "id": "irbg-3-51-p10", + "doc_type": "memorandum", + "act_code": "IRB-G3", + "act_short": "IRB Guideline 3", + "act_name": "IRB Chairperson's Guideline 3 — Child Refugee Claimants: Procedural and Evidentiary Issues", + "section": "G3 s. 51", + "marginal_note": "Footnotes", + "part": "Child Refugee Claimants: Procedural and Evidentiary Issues", + "division": "", + "heading": "", + "text": "A claimant or appellant should not be excluded where a member is satisfied that they took action that was necessary to protect a child or themselves from danger of imminent harm. See for example,\nX (Re)\n, 2020 CanLII 121378 (RAD) at paras. 21-34. Where the member is not persuaded that the defence of imminent harm applies, they should still analyse whether the parental abduction is serious enough to warrant exclusion. For example, see\nA.B. v. Canada (Citizenship and Immigration)\n, 2016 FC 1385 at paras. 62-67, where the Court said that the RPD should have considered the sentencing range had the offence occurred in Canada.\nReturn to footnote\n73\nreferrer\nFootnote 74\nChairperson’s Guideline 2: Detention\n- Immigration and Refugee Board of Canada (irb-cisr.gc.ca) and in particular section 4.\nReturn to footnote\n74\nreferrer\nFootnote 75\nPoshteh v. Canada (Minister of Citizenship and Immigration) (F.C.A)\n, 2005 FCA 85 at para. 47.\nReturn to footnote\n75\nreferrer\nFootnote 76\nWhile\nPoshteh ibid.\n, was decided in the context of paragraph 34(1)(f) of the\nIRPA\n, the principles with respect to minors have been applied in other inadmissibility contexts since then. See\nM'Bosso v. Canada (Citizenship and Immigration),\n2011 FC 302.\nReturn to footnote\n76\nreferrer\nFootnote 77\nMonge Contreras v. Canada (Citizenship and Immigration),\n2010 FC 246 at para. 30.\nReturn to footnote\n77\nreferrer\nFootnote 78\nPoshteh\n,\nsupra\nnote 75 at para. 48.\nReturn to footnote\n78\nreferrer\nFootnote 79\nIbid\n.\nReturn to footnote\n79\nreferrer\nFootnote 80\nIbid\n. at para. 51.\nReturn to footnote\n80\nreferrer\nFootnote 81\nKrishnamoorthy v. Canada (Citizenship and Immigration),\n2011 FC 1342 at para. 28; and\nPoshteh\n,\nsupra\nnote 75 at para. 52.\nReturn to footnote\n81\nreferrer", + "history": "", + "last_amended": "", + "current_to": "", + "citation": "Chairperson's Guideline 3, s. 51 (Footnotes) (part 10 of 10)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir03.aspx" + }, + { + "id": "irbg-8-1", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 1", + "marginal_note": "Table of contents​", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": "1.\nPurpose\n2.\nApplication\nPart I –\nPrinciples applicable to all proceedings\n3.\nUse of appropriate language\n4.\nMyths, stereotypes and incorrect assumptions\n5.\nTrauma-informed adjudication\n6.\nIntersectionality\n7.\nProtection of confidential information\nPart II –\nGuidance applicable to procedural accommodations\n8.\nGuiding principle\n9.\nIndividuals who may request accommodations\n10.\nProcedural accommodations\n11.\nEarly identification\n12.\nRequests for accommodations\n13.\nDocumentation to support a request for accommodation\nPart III –\nGuidance applicable to the assessment of the merits of a case\n14.\nDocumentation relevant to the assessment of the merits of a case\n15.\nCredibility\n16.\nProceedings before the Refugee Protection Division and Refugee Appeal Division\n17.\nProceedings before the Immigration Division\n18.\nProceedings before the Immigration Appeal Division\n19.\nInquiries\n​", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 1 (Table of contents​)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-1", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 1", + "marginal_note": "Purpose", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": "1.1 The objective of this Guideline is to enhance access to justice at the Immigration and Refugee Board of Canada (\nIRB\nor the Board) by providing guidance on:\ngranting procedural accommodations (or “accommodations”), including:\nidentifying when accommodations are legally required.\nencouraging the\nIRB\nto provide accommodations when doing so would assist an individual even if there is no legal requirement to do so.\nidentifying when supporting documentation may be needed.\nsituations where a person's disability, vulnerability\nFootnote\n1\n, and/or personal characteristics may be relevant to the assessment of the merits of the case.\nthe use of appropriate language; avoiding myths and stereotypes; the principles of trauma-informed adjudication and intersectionality; and the protection of confidential information.\n1.2 This Guideline replaces Guideline 8 –\nProcedures with Respect to Vulnerable Persons Appearing Before the\nIRB\n(Amended December 15, 2012). Notably, this Guideline:\nremoves the need to designate and consequently label\nFootnote\n2\nan individual as a “vulnerable person”.\nFootnote\n3\nremoves the requirement for an individual to establish that their ability to present their case before the\nIRB\nis “severely impaired”.\nFootnote\n4\n1.3 This Guideline assists members in carrying out their duties to conduct fair hearings and render well-reasoned decisions. It does not change the legal requirements set out in legislation and case law.", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 1 (Purpose)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-2", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 2", + "marginal_note": "Application", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": "2.1 This Guideline applies to all Divisions of the\nIRB\n. These are: the Refugee Protection Division (\nRPD\n), the Refugee Appeal Division (\nRAD\n), the Immigration Division (\nID\n), and the Immigration Appeal Division (\nIAD\n).\n2.2 This Guideline is to be applied by members and other\nIRB\npersonnel involved in the adjudication or early resolution of cases at the\nIRB\n(“members and adjudicative staff”).\n2.3 Where more than one Chairperson's Guideline applies, this Guideline is to be applied together with other Chairperson's Guidelines as appropriate.", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 2 (Application)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-3", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 3", + "marginal_note": "Use of appropriate language", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": "3.1 There is no standard terminology that adequately captures the diversity of the individuals who may benefit from the application of this Guideline. Members should not assume that individuals appearing before the\nIRB\nwill use the terms contained in this Guideline to describe their individual circumstances. Culture and worldview can impact how individuals interpret personal topics which can affect how they describe their experiences.\nFootnote\n5\n3.2 Members should use the same terminology used by the person appearing before them to respect the person's choice to describe their own experience. For example, a person may use “person-first” language to describe themselves, while others may use “identity-first” language. An example of person-first language would be to describe someone as “a person living with schizophrenia”. An example of identity-first language would be to describe someone as “a deaf person”.\nFootnote\n6\n3.3 Similarly, individuals appearing before the Board may describe their experiences of trauma in different ways. For example, a person may refer to themselves as a “victim” or a “survivor”, while others may not use either of these terms.", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 3 (Use of appropriate language)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-4", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 4", + "marginal_note": "Myths, stereotypes and incorrect assumptions", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": "4.1 Direct and indirect reliance on myths, stereotypes, and incorrect assumptions relating to vulnerabilities, disabilities, and/or personal characteristics can adversely impact the adjudication process.\n4.2 Members should avoid the application of such myths, stereotypes, and incorrect assumptions when questioning witnesses and when making findings of mixed fact and law, with particular attention to credibility findings. All participants in\nIRB\nproceedings should avoid the application of such myths, stereotypes, and incorrect assumptions when questioning witnesses and making submissions.\n4.3 Examples of myths, stereotypes, and incorrect assumptions relating to vulnerabilities, disabilities, and personal characteristics include:\nA person with a disability is inherently vulnerable.\nFootnote\n7\nA person with a disability will always require accommodation.\nDisabilities and vulnerabilities are always visible or apparent.\nFootnote\n8\nPhysical disability necessarily has some bearing on intellectual ability.\nFootnote\n9\nCommunication impairment is a reflection of cognitive impairment.\nVulnerability in some situations means a person is vulnerable in all situations.\nFootnote\n10\nA person with a mental health condition, intellectual disability, or substance use disorder will necessarily seek out access to care and/or support in the country of origin or in Canada.\nFootnote\n11\nA person with an invisible disability would have necessarily disclosed it to their family members or acquaintances.\nFootnote\n12\nThe testimony of a person who lives with a mental health condition is necessarily unreliable\nFootnote\n13\nor incoherent.\nAll persons will react to traumatic events in a similar way.\nFootnote\n14", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 4 (Myths, stereotypes and incorrect assumptions)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-5-1", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 5.1", + "marginal_note": "Definition of trauma", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": "5.1.1 Trauma is both the experience of, and response to, an overwhelmingly negative event or series of events, including violence.\nFootnote\n15\nTrauma is experienced by an individual as physically or emotionally harmful or life threatening and that has lasting adverse effects on the individual's functioning and well-being.\nFootnote\n16\n5.1.2 Trauma may completely overwhelm an individual's ability to cope with, or integrate the ideas and emotions involved in that experience. A traumatic event can elicit intense feelings of fear, terror, helplessness, hopelessness, and despair often subjectively experienced as a threat to the person's survival.\nFootnote\n17", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 5.1 (Definition of trauma)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-5-2", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 5.2", + "marginal_note": "Principles of trauma-informed adjudication", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": "5.2.1 Where the impact of trauma creates barriers to access to justice, the\nIRB\nis committed to removing these barriers.\n5.2.2 Members and adjudicative staff should apply trauma-informed adjudication principles to cases where trauma impacts a person's ability to fully participate in the proceedings. This includes situations where trauma:\nis disclosed,\nclearly arises from the record, or\nbecomes apparent during the course of the proceeding.\nFootnote\n18\n5.2.3 The following principles should be applied by all those engaged in the\nadjudication process:\nlead the proceeding with sensitivity to help prevent re-traumatization through the\nIRB\ndecision-making process;\nanticipate the possibility that trauma may impact a person's memory and ability to provide testimony\nFootnote\n19\n; and\ncreate a safe adjudicative environment for all participants to facilitate the giving of testimony.\n5.2.4 Trauma-informed adjudication is a form of a trauma-​informed approach that is specifically tailored to adjudicative processes. The principles of trauma-informed adjudication should not be interpreted or applied in a way that infringes on the independence of members or the Board. These principles also cannot infringe on the procedural fairness the\nIRB\nequally owes to all parties to a proceeding.\nFootnote\n20", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 5.2 (Principles of trauma-informed adjudication)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-5-3", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 5.3", + "marginal_note": "Facilitating participation in a proceeding", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": "5.3.1 Members should respond to the individual's verbal cues and body language in a way that creates a safe space to facilitate the giving of testimony. This can be achieved through rapport-building, explaining the context of questioning, and timing breaks responsively. A calm and sensitive approach can enhance the flow of communication, build trust, and assist in the recollection of details.\nFootnote\n21\n5.3.2 Members should conduct the hearing and their questioning in a trauma-informed manner.\nFootnote\n22\nMembers should, to the extent possible, prevent individuals from becoming traumatized or re-traumatized by the hearing process. For example, members should avoid any line of questioning at a hearing, or reasoning in a decision, that suggests that a person is responsible for the trauma that they suffered.\nFootnote\n23\n5.3.3 In some cases, it may not be necessary for the individual to testify about past trauma when sufficiently credible documentary evidence has been submitted in support of the allegations.\nFootnote\n24\nAlternatively, where there are serious credibility concerns, it may be necessary for the member to question the individual about difficult matters that could relate to trauma. It is appropriate for members to do this, but they must be conscious of the trauma-informed adjudication principles set out in this Guideline.\n5.3.4 Members should avoid asking the person to speculate about matters of which they have no knowledge. For example, a person may not be aware of the motives or methods of the agent of harm.\nFootnote\n25", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 5.3 (Facilitating participation in a proceeding)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-6", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 6", + "marginal_note": "Intersectionality", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": "6.1 Intersectionality is a framework for understanding how multiple identity factors including, but not limited to gender, disability, race, religion, indigenous identity, age, or sexual orientation may interact to create distinct and compounded forms of discrimination, mistreatment or marginalization. Applying intersectional frameworks has become an important analytical tool in a wide variety of policy and adjudicative contexts and is already in use at the Board.\nFootnote\n26\n6.2 An intersectional approach takes into account the historical, social and political context of the individual's unique experience and recognizes that such experience is based on the intersection of all relevant factors.\n6.3 Members should apply an intersectional approach in all proceedings to which this Guideline applies, based on the evidence of the proceeding.\nFootnote\n27\nTherefore, members should consider how an individual may face distinct forms of harm, risk, or vulnerability based on their identity factors and lived experience. For example, an intersectional approach would consider how an elderly, person with a disability who also belongs to a racial or ethnic minority may have faced distinct forms of discrimination based on the intersection of the person’s age, disability, and race or ethnicity​.\n6.4 There is no single type of marginalization or discrimination for all those who share a common identity factor, although patterns may emerge from the experiences of similarly situated individuals.\nFootnote\n28", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 6 (Intersectionality)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-7", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 7", + "marginal_note": "Protection of confidential information", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": "7.1 In all\nIRB\nproceedings, members have a responsibility to consider the privacy interests of individuals, which may include sensitive information regarding an individual's vulnerability, disability and/or personal characteristics.\n7.2 While proceedings before the\nRPD\nand the\nRAD\nare private, proceedings at the\nID\nand the\nIAD\nare generally public. This means that, in accordance with the open court principle, sensitive information, including information about an individual's disability and/or vulnerability, may be accessible to the public.\nFootnote\n29\nAdditionally, even though proceedings before the\nRPD\nand the\nRAD\nare private, if a case is before the Federal Court for judicial review, the information in the Federal Court file pertaining to the case becomes publicly accessible.\n7.3 As a result, upon request by the parties or at the initiative of members, additional safeguards for the protection of sensitive information related to a disability and/or vulnerability may be considered. Members may, pursuant to s. 166 of the\nImmigration and Refugee Protection Act\n, S.C. 2001, c. 27 (\nIRPA\n), order that particularly sensitive information be treated as confidential where the factors under s. 166 have been met.\nFootnote\n30\n7.4 Members should select or craft the confidentiality measure so that it is minimally restrictive to the open court principle for public proceedings.\nFootnote\n31\n7.5 In all cases, whether or not a confidentiality measure has been put into place, in drafting reasons for decision, members should, wherever possible, avoid the use of personal or sensitive information that is not necessary to explain the reasoning in the decision.\nFootnote\n32", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 7 (Protection of confidential information)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-8", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 8", + "marginal_note": "Guiding principle", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": "8.1 Members are encouraged to provide accommodations and eliminate barriers individuals face to participating in the proceedings\nFootnote\n33\nby working with all parties and participants to develop solutions on a case-by-case basis.", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 8 (Guiding principle)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-9", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 9", + "marginal_note": "Individuals who may request accommodations", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": "9.1 Anyone participating in a proceeding at the\nIRB\ncan make a request for accommodation.\n9.2 Although most individuals will not need to request procedural accommodations to ensure they are treated fairly by the Board, standard processes may create barriers which result in unfairness. Fairness may mean treating people differently based on their individual needs and circumstances.\n9.3 The\nIRB\nmust provide reasonable\nFootnote\n34\naccommodations:\nto individuals requiring such accommodation taking into account any disability,\nFootnote\n35\nvulnerability or personal characteristics, whether identified in the\nCanadian Human Rights Act\n(\nCHRA\n)\nFootnote\n36\nor not. This may include but is not limited to:\ndisability including physical, cognitive, or sensory differences, mental illness, or alcohol or substance use disorders,\nneurodiversity,\nlow literacy,\nage, such as minors and the elderly,\nsexual orientation, gender identity and expression, and sex characteristics,\npast or continuing trauma including survivors of torture, genocide and crimes against humanity, and gender-related violence.\n​where necessary to ensure the fairness of the proceedings.\n9.4 Individuals may require accommodation due to one or more personal characteristics, disabilities and/or vulnerabilities, or their combined effect.\nFootnote\n37\n9.5 Members and adjudicative staff are encouraged to provide procedural accommodations to assist an individual, even when there is no legal requirement to do so, as long as doing so would not negatively impact\nFootnote\n38\nthe\nIRB\nor the procedural fairness rights of another party.\nFootnote\n39", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 9 (Individuals who may request accommodations)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-10", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 10", + "marginal_note": "Procedural accommodations", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": "10.1 Accommodations should be personalized as much as reasonably possible, taking into account the nature and extent of an individual's needs, and recognizing that these needs may fluctuate over the course of the proceeding.\nFootnote\n40\n10.2 The\nIRB\nmay accommodate a person's disability, vulnerability and/or personal characteristics by various means, including, but not limited to:\nproviding priority scheduling where appropriate, for example where uncertainty and delay may cause increased anxiety that is particularly detrimental to the individual as a result of a disability, vulnerability and/or personal characteristic, or where the individual is in detention.\nFootnote\n41\nallowing for alternative scheduling of a hearing where appropriate, for example a full day or several half days or at a particular time of day.\nFootnote\n42\nallowing a support person (for example, family member, friend, social worker, counsellor) to accompany an individual in a proceeding.\ncreating a more informal setting for a hearing.\nFootnote\n43\nvarying the order of questioning.\noffering breaks during the proceedings (including informing the individual that they can request it).\nexcluding non-parties from the hearing.\nFootnote\n44\nproviding a panel and/or interpreter of a particular gender.\nwhen asking about sensitive matters, using techniques to mitigate the person's distress or allowing testimony by other means.\nallowing the use of live transcription and/or a virtual chat function, for example, for a deaf person or a person with hearing loss.\npermitting the individual to move during the proceeding if necessary for their health condition.\nexplaining\nIRB\nprocesses to the individual in plain language.\nholding a pre-hearing conference to discuss any potential triggers related to trauma identified by counsel or the individual and potential alternative ways of eliciting testimony.\ndelivering decisions and reasons for decisions as soon as possible,\nFootnote\n45\nfor example where uncertainty and delay may cause increased anxiety that is particularly detrimental to the individual as a result of a disability, vulnerability and/or personal characteristic, or where the individual is in detention.\nallowing for alternative delivery of a decision and reasons.\nFootnote\n46\nallowing any other procedural accommodations that may be reasonable in the circumstances.", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 10 (Procedural accommodations)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-10-3", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 10.3", + "marginal_note": "Designated representatives", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": "10.3.1 The need for accommodation is distinct from the need for a designated representative (\nDR\n). Accommodations may be granted in circumstances where the appointment of a designated representative is not required.\nFootnote\n47\n10.3.2 The appointment of a designated representative does not, however, preclude the need for accommodations. Designated representatives are expected to determine whether the person they represent requires accommodation, and if needed, request such accommodation as soon as possible.", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 10.3 (Designated representatives)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-11", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 11", + "marginal_note": "Early identification", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": "11.1 While accommodations may be provided at any point in a proceeding, they should be granted at the earliest possible opportunity, and where possible, well before an appearance before the Board.\n11.2 Counsel and\nDR\ns are in the best position to bring the need for accommodation to the attention of the\nIRB\nand are expected to do so as soon as possible.\nFootnote\n48\nSimilarly, unrepresented individuals may also be best placed to do the same and are encouraged to do so as well.\n11.3 If counsel for the Minister is aware of facts indicating that a person may benefit from accommodations, they are also encouraged to advise the\nIRB\nas soon as possible.\n11.4 In the course of reviewing the file, the\nIRB\nmay come across information indicating that an individual may face barriers to their full participation in the proceeding. In such situations, the\nIRB\nmay act on its own initiative granting accommodations or by contacting the unrepresented individual, counsel or appointed\nDR\nto determine the nature and extent of any accommodations needed.\nFootnote\n49\n11.5 Similarly, when reviewing a request for accommodation, if the\nIRB\nneeds further information, it may request such information, or hold a pre-hearing conference.\nFootnote\n50\n11.6 Decisions to grant a request for accommodation are the responsibility of the member or the member manager. When another member or member manager grants an accommodation, the member who presides over the hearing is not bound by that decision.\nFootnote\n51\nThe presiding member may grant additional accommodations, change, or discontinue previously granted accommodations, where appropriate, after the individual being accommodated is given notice of the reason for the proposed change or discontinuation and an opportunity to respond.\nFootnote\n52", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 11 (Early identification)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-12", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 12", + "marginal_note": "Requests for accommodations", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": "12.1 A person who is seeking accommodations should make an application to the Board under the\nRules\nof the applicable Division.\nFootnote\n53\n12.2 Strict compliance with the\nRules\nmay be a barrier to some individuals, for example, individuals who are not represented or individuals who face barriers that impact their ability to interpret and apply this Guideline or the\nRules.\nMembers are encouraged to be flexible in assessing whether the requirements of the\nRules\nhave been met\nFootnote\n54\nand should consider any form of written request\nFootnote\n55\nreceived prior to an appearance at the\nIRB\n.\nFootnote\n56\n12.3 In order for the\nIRB\nto grant an accommodation, the request should:\nBe made as early as possible.\nSpecify the accommodation needed.\nFootnote\n57\nBe provided to all parties.\n12.4 In order to enable the\nIRB\nto accommodate the individual's specific needs, the request should provide as much detail as possible on the particular type of accommodation needed and the barriers the individual faces to participation.\n12.5 Accommodations provided for individuals before the Board must not have the effect of denying any party\nFootnote\n58\na fair opportunity to present their case and participate fully in the proceeding.\n12.6 The views of all parties will be sought before granting any accommodations other than accommodations that are minor or administrative.\n12.7\nEven where no prior request was made, members should consider any oral request made at the hearing, where feasible. In addition, members can act on their own initiative and provide accommodations to an individual where it becomes clear during a hearing that it is necessary for the individual to fully participate.", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 12 (Requests for accommodations)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-13", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 13", + "marginal_note": "Documentation to support a request for accommodation", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": "13.1 Members should consider whether they need any supporting documentation to grant a procedural accommodation on a case-by-case basis. The need for such documentation should be proportionate to the accommodation being requested. For example, a member may determine that no supporting documentation is required to allow for more breaks in a hearing while a request for priority scheduling of a hearing may require supporting documentation.\nFootnote\n59\n13.2 Expert evidence is generally not required to support a request for procedural accommodation and as noted in section 14.5.1 below, members should consider the barriers individuals may face in obtaining expert evidence. However, expert evidence can be of assistance to the\nIRB\nin applying this Guideline if it addresses the accommodations required for a person to fully participate in the proceedings, or the person's ability to give reliable testimony or otherwise present evidence.\nFootnote\n60\n13.3 If a member needs documentation to assess a request for accommodation, they should provide the individual an opportunity to either provide the documentation or\nexplain why it will not be provided.", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 13 (Documentation to support a request for accommodation)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-14", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 14", + "marginal_note": "Documentation relevant to the assessment of the merits of a case", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": "14.1 While there may be little or no need for supporting documentation in order to request an accommodation, supporting documentation may be needed for the assessment of the merits of a case for individuals with a disability and/or vulnerability, including for the assessment of credibility.\nFootnote\n61\n14.2 A decision granting a procedural accommodation does not mean that any documentation provided in support of that request has been found credible or that members will arrive at a particular decision in the assessment of the merits of the proceeding.\n14.3 Supporting documentation\nFootnote\n62\nfor the assessment of the merits of a case may include:\nExpert reports\nMedical records\nFootnote\n63\nAffidavits or letters of support\nFootnote\n64\n14.4 If a member finds that supporting documentation is necessary to assess the merits of a case for individuals with a disability and/or vulnerability and it has not been provided, the member should give the individual an opportunity to explain why it was not provided.", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 14 (Documentation relevant to the assessment of the merits of a case)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-14-5", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 14.5", + "marginal_note": "Expert evidence", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": "14.5.1 While expert reports\nFootnote\n65\nmay be of assistance\nFootnote\n66\n, members should consider that many individuals face financial, geographical, psychological or social barriers to seeking treatment and obtaining an expert report.\n14.5.2 Expert evidence includes reports by medical professionals including psychologists, and other experts, such as social workers, who provide evidence within their area of expertise.\nFootnote\n67\n14.5.3 Generally, expert reports prepared for use in proceedings before the Board should contain the following information:\nthe particular qualifications and experience of the professional that demonstrate an expertise relevant to the subject matter on which they are providing an opinion.\nFootnote\n68\nthe factual foundation underlying the expert's opinion.\nif applicable, the expert's opinion about the person's ability to fully participate in\nIRB\nproceedings, including their ability to testify or otherwise present their case.\nthe methodology used by the expert in assessing the person, including whether an interview was conducted, the number and length of interviews, whether tests were administered, and, if so, what those tests were and the significance of the results, and;\nif applicable, whether the person is receiving treatment and, if so, the nature of the treatment and the effectiveness of the treatment.\n14.5.4 Members should not necessarily discount the weight to be given to an expert report if it does not contain all the information recommended in this Guideline.", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 14.5 (Expert evidence)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-14-6", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 14.6", + "marginal_note": "Assessment of expert evidence", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": "14.6.1 In order to determine the weight that should be assigned to an expert report, members should assess the specific contents of the report and the member's reasons for the decision should explain this assessment.\nFootnote\n69\n14.6.2 A medical report may corroborate a person's allegations regarding past events through an independent medical evaluation, including clinical observations.\nFootnote\n70\n14.6.3 The recounting of events to an expert does not, by itself, affirm the credibility of the events.\nFootnote\n71\nHowever, medical reports should not be discounted for that reason alone and should be assessed in light of the purpose for which they were submitted.\nFootnote\n72\n14.6.4 Members may disregard portions of a report that engage in advocacy or offer opinions outside the expertise of the expert.\nFootnote\n73", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 14.6 (Assessment of expert evidence)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-15-p1", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 15", + "marginal_note": "Credibility", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": "15.1 When assessing credibility, members should consider an individual's particular disability and/or vulnerability, including evidence of any potential impact on the individual's ability to testify.\nFootnote\n74\nHowever, not all vulnerabilities and/or disabilities will impact a person's ability to provide credible and trustworthy evidence.\nFootnote\n75\n15.2 Credibility determinations must be made on a case-by-case basis.\nFootnote\n76\nFactors that may impact an individual's ability to present their case can include past trauma,\nFootnote\n77\nmedical or psychological conditions,\nFootnote\n78\ncognitive difficulties,\nFootnote\n79\nand limitations related to age.\nFootnote\n80\n15.3 The presence of any of these factors does not prevent members from making an adverse credibility finding.\nFootnote\n81\nMembers may draw a negative inference from material inconsistencies, omissions, or implausibility in the evidence that have no reasonable explanations.\nFootnote\n82\nHowever, the principles from this Guideline should be considered when assessing the individual's credibility and not separately after the credibility assessment.\nFootnote\n83\n15.4 Where there is evidence that an individual's personal situation or circumstances may impact their ability to testify, members should avoid making an adverse credibility finding without considering how the evidence might explain inconsistencies, omissions, memory failures and other deficiencies in the person's testimony.\nFootnote\n84\n15.5 In cases where an individual's testimony appears to be unreliable as a result of a disability and/or vulnerability, members should consider whether independent corroborative evidence is necessary to assess whether the individual's testimony can be relied upon in any respect.\nFootnote\n85", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 15 (Credibility) (part 1 of 3)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-15-p2", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 15", + "marginal_note": "Credibility", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": "15.6 Where a credibility concern arises from a person's evidence or testimony, and there is evidence that the person has a vulnerability and/or disability that may impact their credibility, members should:\nexplain the concern to the person;\nprovide an opportunity for the person to respond to the concern;\nconsider the person's response and whether any of the individual's disabilities and/or vulnerabilities may reasonably explain the credibility concern;\nevaluate the totality of the circumstances and the internal consistency of the evidence; and\nexplain in their reasons for decision whether the response reasonably accounts for the credibility concern.\n15.7 The assessment of whether an explanation is reasonable is contextual and should include the potential impact of the individual's personal circumstances on memory. For example, trauma may impact memory, which can produce inconsistencies, omissions, and vagueness in the individual's testimony.\nFootnote\n86\n15.8 Implausibility findings should only be made in the clearest of cases.\nFootnote\n87\nA reasonable finding of implausibility should consider the cultural, economic, and political context of the individual and the country in question.\nFootnote\n88\nMembers should not rely on myths, stereotypes, and incorrect assumptions, whether to the advantage or detriment of the individual.\nFootnote\n89\n15.9 Members may consider demeanour when assessing the credibility of testimony, however, this should be approached with great caution.\nFootnote\n90\nFor example, the demeanour of persons from different cultural backgrounds or those who have suffered harm may be particularly difficult to assess.\nFootnote\n91\nTherefore, clear and cogent reasons must be given for findings of credibility based on demeanour.\nFootnote\n92", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 15 (Credibility) (part 2 of 3)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-15-p3", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 15", + "marginal_note": "Credibility", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": "It is only in an exceptional case that demeanour alone would be sufficient to undermine the credibility of the testimony provided in support of the case.\n15.10 Members should not expect a person appearing before the\nIRB\nto behave in a certain way when recounting traumatic experiences, and credibility findings should not be based on the absence or presence of such behaviours.\nFootnote\n93", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 15 (Credibility) (part 3 of 3)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-16", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 16", + "marginal_note": "Proceedings before the Refugee Protection Division and Refugee Appeal Division", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": "16.1 Following are some points relevant to the assessment of the merits of refugee cases involving individuals with a disability and/or vulnerability.\nFootnote\n94\nIn this section, “claimant” refers to the subject of the proceedings before the\nRPD\nor the\nRAD\n.", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 16 (Proceedings before the Refugee Protection Division and Refugee Appeal Division)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-16-2-p1", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 16.2", + "marginal_note": "Assessing Convention grounds and persecution", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": "16.2.1 The definition of a Convention refugee requires that the persecution be linked to a Convention ground (i.e., a nexus). In determining whether a nexus exists, members must consider all relevant grounds for protection, including those based on disabilities and/or vulnerabilities. For example, individuals with physical or mental health conditions may meet the requirements for membership in a particular social group where they can demonstrate that they belong to a group defined by an innate or unchangeable characteristic.\nFootnote\n95\n16.2.2 An individual's experience of harm due to their disability and/or vulnerability may amount to persecution in some cases.\nFootnote\n96\nActs of harassment or discrimination that may not amount to persecution individually, may cumulatively constitute persecution. The cumulative impact of discriminatory treatment should be assessed using an intersectional approach.\nFootnote\n97\n16.2.3 Where individuals, including those with a disability and/or vulnerability, present evidence of risk caused by an inability of their country to provide adequate health or medical care, they will not qualify as a person in need of protection on this basis alone.\nFootnote\n98\nHowever, if an individual is able to show that they would be refused health care or treatment for reasons related to a Convention ground, members will need to consider the claim under s. 96 of\nIRPA\n. For example, a refusal of health care or medical treatment of an individual with HIV positive status based on stigma may be linked with one of the Convention grounds and amount to persecution.\nFootnote\n99\n16.2.4 Even where credibility concerns arise from certain aspects of a claim, the claim may still be accepted if the claimant faces a risk based on their profile.\nFootnote\n100", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 16.2 (Assessing Convention grounds and persecution) (part 1 of 2)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-16-2-p2", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 16.2", + "marginal_note": "Assessing Convention grounds and persecution", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": "For example, a claim may succeed if the claimant faces a serious possibility of persecution based on a disability and/or vulnerability, despite the lack of credibility in respect of the allegations based on another ground.\nFootnote\n101\n16.2.5 In some cases, an individual may not have or be able to express a subjective fear of persecution because of their disability and/or vulnerability. However, there may be evidence of an objective forward looking risk in their country of origin. Therefore, it may be necessary to put more weight on the objective rather than the subjective elements of the claim.\nFootnote\n102", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 16.2 (Assessing Convention grounds and persecution) (part 2 of 2)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-16-3", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 16.3", + "marginal_note": "State protection", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": "16.3.1 The claimant's subjective reluctance to seek state protection does not rebut the presumption of state protection.\nFootnote\n103\nHowever, members must consider the impact of an individual's personal circumstances on their ability to access state protection. For example, individuals with a disability and/or vulnerability may not seek assistance or state protection due to past negative experiences with state authorities, internalized and community shame, fear of not being believed, or personal risks associated with seeking assistance.\nFootnote\n104\n16.3.2 A contextual and intersectional approach\nFootnote\n105\nshould be used to determine whether a claimant's reluctance to seek state protection was reasonable.\nFootnote\n106\nWhere relevant, such an approach should consider factors such as:\nthe profile of the claimant, including their gender, race, age, education level, support network, experience of trauma, mental or physical health issues, and any other relevant factors;\nFootnote\n107\nthe profile of the agent of harm, including financial status and political, professional, or criminal connections;\nthe nature of the relationship between the claimant and the agent of harm;\nwhether the pursuit of state protection would have risked further endangerment;\nany previous efforts to seek state protection, including the response from authorities;\nFootnote\n108\nand\nthe country conditions, including cultural and societal norms that stigmatize certain conditions, such as HIV positive status.\nFootnote\n109\n16.3.3 Members should assess the adequacy of state protection at the operational level rather than the efforts or intention of the state.\nFootnote\n110\nWhile a country's laws may formally protect against certain types of persecution, such as discrimination due to mental or physical disability, social and cultural attitudes or stigma may obstruct such protection in practice.\nFootnote\n111", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 16.3 (State protection)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-16-4", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 16.4", + "marginal_note": "Internal flight alternative", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": "16.4.1 When assessing the reasonableness of an internal flight alternative (\nIFA\n), members must look at the specific circumstances of the claimant, including any disabilities and/or vulnerabilities.\nFootnote\n112\n16.4.2 A claimant's physical or mental health may affect the reasonableness of an\nIFA\n. The responsibility is on the claimant to establish that they would be unable to access adequate medical treatment in the proposed\nIFA\nwhich would make the\nIFA\nunreasonable.\nFootnote\n113\n16.4.3 If a claimant has a medical condition requiring regular treatment and assistance, it may be unreasonable to expect the claimant to relocate to an area where such medical treatment or assistance is not available.\nFootnote\n114\n16.4.4 When assessing the reasonableness of a proposed\nIFA\n, members should not limit the analysis to the availability and affordability of medical treatment in the proposed\nIFA\n. Members should consider the impact of return on the claimant's mental or physical health.\nFootnote\n115\n16.4.5 Medical evidence\nFootnote\n116\nmay be relevant to the question of whether an\nIFA\nis reasonable and must be considered. However, members may give reduced weight to portions of medical evidence where the following concerns arise:\nthe report provides an opinion on the availability of care in the proposed\nIFA\n, unless the expert is qualified to give such an opinion.\nFootnote\n117\nthe report does not address the extent to which or reasons why the physical or mental health condition would worsen if the claimant relocated to the proposed\nIFA\n.\nFootnote\n118\nthe report engages in advocacy by providing an opinion on the merits of the underlying claim, including the viability of an\nIFA\n.\nFootnote\n119", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 16.4 (Internal flight alternative)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-17-1", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 17.1", + "marginal_note": "Detention reviews", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": "17.1.1 Disabilities and/or vulnerabilities should be accounted for when assessing all the factors in s. 248 of the\nImmigration and Refugee Protection Regulations\n(\nIRPR\n),\nFootnote\n120\nincluding when determining an individual's ability and capacity to cooperate with removal arrangements\nFootnote\n121\nand/or identity investigations.\n17.1.2 The existence of such disabilities and/or vulnerabilities may be a separate and relevant factor, in addition to the s. 248 factors, for considering whether to release or detain. However, the member must still consider all the factors in s. 248 of the\nIRPR\nwhen deciding whether to continue detention or order release.\n17.1.3 Where disabilities and/or vulnerabilities are identified, members are under a heightened obligation to consider alternatives to detention (ATDs) and to impose attainable conditions that are connected to the circumstances of the individual.\nFootnote\n122\nMembers should consider how certain disabilities and/or vulnerabilities, including those related to mental health, may affect the person's ability to comply with conditions of release.\n17.1.4 Members should also consider the impact of conditions of detention on an individual with a disability and/or vulnerability, including the way in which such conditions may be particularly harsh in light of their personal circumstances or exacerbate their personal circumstances.\nFootnote\n123\nThese considerations include the availability of medical treatment as well as access to psychiatric assessment and treatment.\nFootnote\n124\n17.1.5 Early detention reviews are strongly encouraged to ensure that the file is progressing rapidly, and a person concerned with a disability and/or vulnerability is not unduly affected.", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 17.1 (Detention reviews)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-17-2", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 17.2", + "marginal_note": "Admissibility hearings", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": "17.2.1 Where the vulnerability of the person concerned is related to diminished mental capacity, such evidence may be relevant to the application of various inadmissibility provisions, including but not limited to whether the individual was a member of an organization for the purposes of ss. 34 or 37 of the\nIRPA\n, or whether they were complicit under s. 35 of the\nIRPA\n.\n17.2.2 An individual's disability and/or vulnerability, such as, but not limited to a substance use disorder, are relevant to the assessment of the defences of duress or coercion.\nFootnote\n125\nThis includes the individual's ability to make a rational assessment of their potential safe avenues of escape.\nFootnote\n126\n17.2.3 Members should consider the social and cultural background of the person concerned when assessing the person's credibility in the context of a misrepresentation. For example, the individual may lack knowledge of their family's political involvement or immigration history, because they were not privy to such information due to the barriers they face.\nFootnote\n127", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 17.2 (Admissibility hearings)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-18-1", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 18.1", + "marginal_note": "Sponsorship appeals", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": "18.1.1 When assessing the genuineness of a spousal or conjugal relationship, members should consider the personal attributes that make up an individual, and not treat an individual's disability and/or vulnerability as their defining feature.\nFootnote\n129", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 18.1 (Sponsorship appeals)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-18-2", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 18.2", + "marginal_note": "Humanitarian and compassionate considerations", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": "18.2.1 In exercising their ability to grant discretionary relief on humanitarian and compassionate (H&C) grounds, members should consider whether a person's disability and/or vulnerability are relevant to that assessment. For example:\nwhen an appellant has not met their residency obligation,\nFootnote\n130\nwhether the appellant's particular disability and/or vulnerability impacted their departure from Canada, ability to return to Canada, or decision to remain outside Canada.\nFootnote\n131\nin appeals involving findings of misrepresentation, whether the appellant's particular disability and/or vulnerability are relevant to their level of responsibility, including whether they knew about and/or participated in the misrepresentation.\nFootnote\n132\nwhen assessing the potential hardship in another country, the individual's experience of discrimination, stigma and/or trauma,\nFootnote\n133\nand/or violence against individuals living with physical or cognitive disabilities, mental health challenges and/or a substance use disorder.\nFootnote\n134\nAccess to and the availability of appropriate treatment, care and support are also relevant considerations.\nFootnote\n135\nwhen assessing the impact of removal from Canada on the individual's mental health, whether their condition would likely worsen if removed from Canada. This is a relevant consideration that should be identified and weighed regardless of whether there is a treatment available in the country of removal.\nFootnote\n136\nwhen assessing the appellant's establishment in Canada, whether their limited establishment is attributable to such factors as a physical or cognitive disability or mental health condition. Members should consider the severity of the appellant's condition, the extent of care that their condition requires, and the degree to which they are currently dependent on the community-based medical and social support they are receiving in Canada.\nFootnote\n137", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 18.2 (Humanitarian and compassionate considerations)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-18-3", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 18.3", + "marginal_note": "Stays in removal order appeals", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": "18.3.1 Members should impose stay conditions that are designed for a successful stay.\nFootnote\n138\nFor example, members should consider whether conditions relating to abstinence of drugs and alcohol are realistic in the particular circumstances.\nFootnote\n139\n18.3.2 In cases involving underlying mental health issues and/or substance use disorders, members are encouraged to consider participation in rehabilitation​ treatment. A condition that an appellant attend a treatment program should only be imposed if the appellant agrees\nFootnote\n140\nand the member is satisfied that it will assist in the rehabilitation process.\n18.3.3 Depending on an appellant's personal circumstances, including the nature of any disabilities and/or vulnerabilities, they may require assistance with following the conditions of a stay. In such cases, it is open to members to rely on evidence that the appellant has the necessary supports in place to assist with compliance.\nFootnote\n141", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 18.3 (Stays in removal order appeals)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-19", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 19", + "marginal_note": "Inquiries", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": "For more information, please contact:\nIRB\n.Policy-Politiques.CISR@irb-cisr.gc.ca\nOR\nSenior Director, Policy, Engagement and Parliamentary Affairs Directorate\nStrategic Directions and Corporate Affairs Branch\nMinto Place - Canada Building\n344 Slater Street, 14th Floor\nOttawa, Ontario K1A 0K1", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 19 (Inquiries)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-39-p1", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 39", + "marginal_note": "Approval", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": "Richard Wex\nChairperson\nDate:​ July 19​, 2023\nFootnotes\nFootnote 1\nFor the purposes of this Guideline, the term\nvulnerability\nshould be interpreted broadly, as the concept of vulnerability remains difficult to define. The focus should be on whether an individual has any vulnerabilities that negatively impact their ability to fully participate at the\nIRB\nand to have a fair hearing. For sources discussing the difficulties in defining vulnerability, see Melissa Mary Anderson and Dagmar Soennecken,\nLocating the Concept of Vulnerability in Canada's Refugee Policies at Home and Abroad\n, 2022 11-2 Laws | An Open Access Journal from MDPI, 2022 CanLIIDocs 853; Purkey, Anna, Laws (2022), Vol. 11 No. 2,\nVulnerability and the Quest for Protection: A Review of Canadian Migration Case Law\n, and; Kaga, M., Nakache, D., et al.,\nVulnerability in the Canadian Protection Regime: Research Report on the Policy Framework\n. 2021. VULNER Research Report 1.\nReturn to footnote\n1\nreferrer\nFootnote 2\nSee, for example, the language used in the Global Compact for Safe, Orderly and Regular Migration, adopted by Canada in 2018:\nMicrosoft Word - 180711_Final Draft.docx (un.org)\nand\nCanada adopts historic agreement to address migration - Canada.ca\nReturn to footnote\n2\nreferrer\nFootnote 3\nMembers should take this Guideline into account when exercising discretion under the\nRefugee Protection Division Rules\n, SOR/2012-256 (\nRPD\nRules), and the\nRefugee Appeal Division Rules\n, SOR/2012-257 (\nRAD\nRules). This guidance applies in particular to\nRPD\nRules 10(5), 53(4) and 54(4) and to\nRAD\nRules 66(4)(f) and 67(5)(j).\nReturn to footnote\n3\nreferrer\nFootnote 4\nUnder the prior Guideline 8, the\nIRB", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 39 (Approval) (part 1 of 29)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-39-p2", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 39", + "marginal_note": "Approval", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": "was frequently providing accommodations without designating a person as vulnerable because individuals often did not meet the “severely impaired” threshold. This change now brings that practice and those accommodations in line with the Guideline.\nReturn to footnote\n4\nreferrer\nFootnote 5\nRanjbar, Noshene et al.\nTrauma-Informed Care and Cultural Humility in the Mental Health Care of People from Minoritized Communities.\nFocus: The Journal of Lifelong Learning in Psychiatry, Vol. 18, No. 1., published online January 24, 2020.\nReturn to footnote\n5\nreferrer\nFootnote 6\nPerson-first language is the most widely accepted language for referring to persons with disabilities. Far fewer use identity-first language (for example in the deaf community). Person-first language focuses on the individual while de-emphasizing the illness, disability, or condition. Identity-first language is rooted in the relationship between a personal-cultural identity and a disability and focuses on an individual's unique abilities rather than the disability. See HRSDC,\nA Way with Words and Images: Suggestions for the portrayal of people with disabilities\n, 2022:\nway_with_words.pdf (canada.ca)\n; Mental Health Commission of Canada, Language Matters:\nlanguage_matters_cheat_sheet_eng.pdf (mentalhealthcommission.ca)\n; United Nations,\nDisability Inclusive Language Guidelines:\nDisability Inclusive Language Guidelines | UN GENEVA\nReturn to footnote\n6\nreferrer\nFootnote 7\nSee, for example, Snipstad, Øyvind Ibrahim Marøy, “Concerns regarding the use of the vulnerability concept in research on people with intellectual disability”, British Journal of Learning Disabilities Volume 50, Issue 1, 2022, pp. 107-114.\nReturn to footnote\n7\nreferrer\nFootnote 8", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 39 (Approval) (part 2 of 29)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-39-p3", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 39", + "marginal_note": "Approval", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": "See Government of Canada, Employment and Social Development Canada, “A Way with Words and Images: Suggestions for the portrayal of people with disabilities”,\nsupra\nnote 6.\nReturn to footnote\n8\nreferrer\nFootnote 9\nGovernment of Canada, Department of Justice Canada, “Serious Problems Experienced by Diverse People with Disabilities: Western Canada: A Qualitative Study p.39.\nReturn to footnote\n9\nreferrer\nFootnote 10\nUnited Nations Geneva, “Disability-Inclusive Language Guidelines” (\nhttps://www.ungeneva.org/sites/default/files/2021-01/Disability-Inclusive-Language-Guidelines.pdf\n)\nReturn to footnote\n10\nreferrer\nFootnote 11\nOntario Human Rights Commission, Policy on preventing discrimination based on mental health disabilities and addictions, 2014, Chapter 5 (\nPolicy on preventing discrimination based on Mental health disabilities and addictions (ohrc.on.ca)\n).\nReturn to footnote\n11\nreferrer\nFootnote 12\nIbid\n.\nReturn to footnote\n12\nreferrer\nFootnote 13\nR. v. Brazier\n, 2022 ONSC 3807 at para. 58, citing the Supreme Court of Canada in\nR. v. O'Connor\n, [1995] 4 S.C.R. 411 at para. 143.\nReturn to footnote\n13\nreferrer\nFootnote 14\nThe preconception that trauma survivors will necessarily be extremely emotional when discussing their experiences is particularly strong in cases of sexual violence, where survivors are often expected to express high levels of distress and shame. See UNHCHR, Manual on Human Rights Monitoring, 2011, Chapter 12 “Trauma and Self-care”\nhttps://www.ohchr.org/sites/default/files/Documents/Publications/Chapter12-MHRM.pdf\n.\nReturn to footnote\n14\nreferrer\nFootnote 15\nPublic Health Agency of Canada.\nTrauma and violence-informed approaches to policy and practice\nupdated February 2, 2020. Online:", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 39 (Approval) (part 3 of 29)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-39-p4", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 39", + "marginal_note": "Approval", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": "https://www.canada.ca/en/public-health/services/publications/health-risks-safety/trauma-violence-informed-approaches-policy-practice.html\n. This Guideline does not incorporate all principles in the PHAC document as it is written in the public health context and not all the principles are applicable to the adjudicative context at the\nIRB\n.\nReturn to footnote\n15\nreferrer\nFootnote 16\nCenter for Substance Abuse Treatment (US).\nTrauma-Informed Care in Behavioral Health Services\n, Rockville (MD): Substance Abuse and Mental Health Services Administration (US); 2014. (Treatment Improvement Protocol (TIP) Series, No. 57.)\nhttps://www.ncbi.nlm.nih.gov/books/NBK207201/\n.\nReturn to footnote\n16\nreferrer\nFootnote 17\nRandall, Melanie and Haskell, Lori, “Trauma-Informed Approaches to Law: Why Restorative Justice Must Understand Trauma and Psychological Coping”,\nDalhousie Law Journal\n, Fall (2013), p. 507 Trauma-Informed Approaches to Law: Why Restorative Justice Must Understand Trauma and Psychological Coping (dal.ca) referring to the work of Kammerer, Nina & Mazelis, Ruta “After the Crisis Initiative: Healing from Trauma after Disasters” (Paper presented at the “After the Crisis: Healing from Trauma after Disasters”, Expert Panel Meeting, Bethesda, MD, April 24-25, 2006).\nReturn to footnote\n17\nreferrer\nFootnote 18\nEvidence of trauma can include descriptions of experiences, behaviour, or medical reports.\nSee Niyongira v. Canada (Citizenship and Immigration)\n, 2021 FC 911 at paras. 16-17, where the Court acknowledged the importance of considering the impact of torture on a claimant's ability to participate in the proceeding, including on their capacity to give evidence. See also\nHillary v. Canada (Citizenship and Immigration)", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 39 (Approval) (part 4 of 29)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-39-p5", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 39", + "marginal_note": "Approval", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": ", 2010 FC 638 at para. 75. For an example of a trauma-informed approach to decision making at the Refugee Appeal Division, see\nX (Re)\n, 2021 CanLII 68622 (\nRAD\n).\nReturn to footnote\n18\nreferrer\nFootnote 19\nJones v. Canada (Minister of Citizenship and Immigration)\n, 2006 FC 405 at para. 15.\nReturn to footnote\n19\nreferrer\nFootnote 20\nThe trauma-informed principles set out by the Public Health Agency of Canada,\nsupra\nnote 15, include principles that foster choice and collaboration by giving someone dealing with trauma the choice to accept or reject medical treatment. However, offering the choice of whether or how to participate within adjudicative processes will not be possible where doing so infringes on adjudicative independence or the rights of other individuals in the proceedings. See also\nTrauma-Informed Practice Guide\navailable on the website of the Public Health Agency of Canada, May 2013. Online:\nhttps://cewh.ca/wp-content/uploads/2012/05/2013_TIP-Guide.pdf\n.\nReturn to footnote\n20\nreferrer\nFootnote 21\nSee Haskell and Randall, “The Impact of Trauma on Adult Sexual Assault Victims”, Report submitted to the Department of Justice, 2019,\nhttps://www.justice.gc.ca/eng/rp-pr/jr/trauma/index.html\n, p. 23: “This knowledge [of the science of memory and trauma] is of critical importance to sexual assault investigations: if a victim is interviewed in a stressful way – for example, if they are not treated with compassion, if their narrative is interrupted, if they receive only expressions of doubt about what they are reporting – they will not be able to recall potentially crucial information that is stored in the brain”.\nReturn to footnote\n21\nreferrer\nFootnote 22\nSee also\nCode of ​\nConduct for Members of the Immigration and Refugee Board of Canada", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 39 (Approval) (part 5 of 29)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-39-p6", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 39", + "marginal_note": "Approval", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": "(modified April 1, 2022): “9. Members shall conduct hearings in a courteous and respectful manner.”\nReturn to footnote\n22\nreferrer\nFootnote 23\nFor example, questions regarding the cause of gender-based violence are unnecessary and risk engaging in victim-blaming. In\nChavez v. Canada (Citizenship and Immigration)\n, 2015 FC 442 at para. 7, the Court held that the\nRPD\nerred by making a credibility finding based on the source of the abuse, which came “too close to blaming the victim instead of the perpetrator for the assaults on the Applicant's person”.\nReturn to footnote\n23\nreferrer\nFootnote 24\nOlah v. Canada (Citizenship and Immigration)\n, 2019 FC 401 at para. 38;\nX (Re)\n, 2019 CanLII 132811 (\nRAD\n) at para. 8.\nReturn to footnote\n24\nreferrer\nFootnote 25\nX (Re)\n, 2018 CanLII 147831 (\nRAD\n) at para. 17;\nX (Re)\n, 2019 CanLII 134984 (\nRAD\n) at paras. 20-21.\nReturn to footnote\n25\nreferrer\nFootnote 26\nThe concept of intersectionality was first introduced by Kimberlé Crenshaw, see “Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics”. University of Chicago Legal Forum, Volume 1989, Issue 1, Article 8. For how the approach can be applied in practice to understand the factors impacting a person's lived experience see:\nUnderstanding the Intersectional Forms of Discrimination Impacting Persons with Disabilities\n. Canadian Centre on Disability Studies (CCDS). March 2018,\nccds-int-dis--151110-final-report-en-full.pdf (disabilitystudies.ca)\nIn the legislative and judicial contexts, see section 3.1 of the\nCanadian Human Rights Act\nand\nTurner v. Canada (Attorney General)\n, 2012 FCA 159 at para. 49. See also\nMabuya v. Canada (Citizenship and Immigration)\n, 2013 FC 372 at para. 10.", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 39 (Approval) (part 6 of 29)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-39-p7", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 39", + "marginal_note": "Approval", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": "Return to footnote\n26\nreferrer\nFootnote 27\nIn\nRodriguez Ramos v. Canada (Citizenship and Immigration),\n2022 FC 41 at paras. 9-21, the Federal Court found that a PRRA officer failed to conduct a cumulative and intersectional risk assessment regarding an applicant who alleged a risk of persecution or harm in El Salvador due to his profile as a returnee with severe mental illness being deported due to serious criminality. In\nGorzsas v. Canada (Citizenship and Immigration)\n, 2009 FC 458 at para. 36 the Federal Court emphasized the importance of an intersectional analysis when assessing the claim involving a gay male HIV-positive Roma.\nReturn to footnote\n27\nreferrer\nFootnote 28\nAjele, Grace and McGill, Jenna, Women's Legal Education and Action Fund (LEAF), “Intersectionality in Law and Legal Contexts” https://www.leaf.ca/publication/intersectionality-in-law-and-legal-contexts/. See Executive Summary and section 5.3 “Immigration and Refugee Law”.\nReturn to footnote\n28\nreferrer\nFootnote 29\nParagraph 166(a) of the\nIRPA\n. However, paragraph 166(c.1) of the\nIRPA\nprovides that Immigration Division proceedings involving refugee protection claimants are conducted in private.\nReturn to footnote\n29\nreferrer\nFootnote 30\nParagraphs 166(b), (c) and (c.1) of the\nIRPA\n.\nReturn to footnote\n30\nreferrer\nFootnote 31\nFor example, paragraph 166(b) of the\nIRPA\nrequires “having considered all available alternate measures” before conducting a proceeding in the absence of the public. For a similar common law framework outside of the\nIRPA\n, see\nDagenais v. Canadian Broadcasting Corp.\n, [1994] 3 SCR 835;\nR. v. Mentuck\n, 2001 SCC 76;\nSierra Club of Canada v. Canada (Minister of Finance),\n2002 SCC 41.\nReturn to footnote\n31\nreferrer\nFootnote 32", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 39 (Approval) (part 7 of 29)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-39-p8", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 39", + "marginal_note": "Approval", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": "Code of Conduct for Members of the Immigration and Refugee Board of Canada\n(modified April 1, 2022): “38. Members have a responsibility to consider the privacy interests of individuals in the conduct of proceedings and the writing of decisions, ensuring that decisions contain only the personal information that is necessary to explain the reasoning of the decision.\"\nReturn to footnote\n32\nreferrer\nFootnote 33\nFor the purposes of this Guideline, the term proceeding should be interpreted broadly. It includes all stages of a matter before the\nIRB\nfrom the start of the process until the final decision, and not just the hearing. See\nIRPA\n, s. 166, and\nCui v. Canada (Citizenship and Immigration),\n2007 FC 945 at para 6.\nReturn to footnote\n33\nreferrer\nFootnote 34\nAn accommodation must be reasonable in the circumstances and need not necessarily be the specific accommodation requested. When determining the appropriate accommodation, the impact of the accommodation on the Board's operations should be considered. Under the concept of reasonable accommodation, service providers have a duty to do whatever is reasonably possible to accommodate persons with disabilities. The discriminatory barrier must be removed unless there is a\nbona fide\njustification for its retention, which is proven by establishing that the accommodation imposes undue hardship on the service provider. See\nHaynes v Canada (Attorney General)\n, 2023 FCA 158 at para. 20 and\nCouncil of Canadians with Disabilities v. VIA Rail Canada Inc.,\n2007 SCC 15 at para. 121. See also\nCanadian Human Rights Act\n, R.S.C., 1985, c. H-6 (\nCHRA\n), at s. 15(2), which notes that the assessment of undue hardship includes consideration of health, safety, and costs. The concept of undue hardship applies to all enumerated grounds under the", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 39 (Approval) (part 8 of 29)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-39-p9", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 39", + "marginal_note": "Approval", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": "CHRA\n, not just disability.\nReturn to footnote\n34\nreferrer\nFootnote 35\nThe duty on the\nIRB\nnot to discriminate and to procedurally accommodate individuals with disabilities comes from a number of sources, including s. 15 of the\nCanadian Charter of Rights and Freedoms\n, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, chapter 11 (\nCharter)\n, the\nCHRA\n,\nand the\nUnited Nations Convention on the Rights of Persons with Disabilities,\nA/RES/61/106, adopted December 13, 2006. See also the\nAccessible Canada Act\n, S.C. 2019 c.10 (\nACA\n) at ss. 6(c) and (e). The purpose of the\nACA\nis to make Canada barrier-free by January 1, 2040. For guidance from the Federal Court of Appeal on the application of the duty to accommodate in the adjudicative context see\nHaynes v Canada (Attorney General\n), 2023 FCA 158 at paras. 18–19 and 23.\nReturn to footnote\n35\nreferrer\nFootnote 36\nThe\nCHRA\nsets out prohibited grounds of discrimination. Prohibited grounds include personal characteristics such as race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital or family status, as well as genetic characteristics and disability. The complete list of prohibited grounds listed in the\nCHRA\ncan be found in s.3.The\nCHRA\nsets out prohibited grounds of discrimination. Prohibited grounds include personal characteristics such as race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital or family status, as well as genetic characteristics and disability. The complete list of prohibited grounds listed in the\nCHRA\ncan be found in s.3.\nReturn to footnote\n36\nreferrer\nFootnote 37\nSee section 6 of this Guideline:\nIntersectionality\n.\nReturn to footnote\n37", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 39 (Approval) (part 9 of 29)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-39-p10", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 39", + "marginal_note": "Approval", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": "referrer\nFootnote 38\n“Negatively impact” is not as high a standard as undue hardship, noted in endnote 34, which applies to accommodations that are legally required under the\nCHRA\n.\nReturn to footnote\n38\nreferrer\nFootnote 39\nFor example, requests for additional breaks, where the denial of the additional breaks would not amount to a breach of natural justice; the member is not legally required to provide that accommodation.\nReturn to footnote\n39\nreferrer\nFootnote 40\nPurkey, Anna, Laws (2022), Vol. 11 No. 2,\nVulnerability and the Quest for Protection: A Review of Canadian Migration Case Law\n.\nReturn to footnote\n40\nreferrer\nFootnote 41\nSee also section 13.1 of this Guideline regarding the possible need for supporting documentation.\nReturn to footnote\n41\nreferrer\nFootnote 42\nAn example where this may be needed is to align with an individual's medication schedule.\nReturn to footnote\n42\nreferrer\nFootnote 43\nSuch an accommodation could include, for example dimmed lighting or adjustments to the seating arrangements.\nReturn to footnote\n43\nreferrer\nFootnote 44\nThis would apply to public hearings, and consideration should be given to the open court principle. See section 7 of this Guideline:\nProtection of confidential information\n.\nReturn to footnote\n44\nreferrer\nFootnote 45\nThe accommodation to deliver decisions and reasons as soon as possible should be left to the assigned member.\nReturn to footnote\n45\nreferrer\nFootnote 46\nFor example, by way of special sitting, or to counsel only.\nReturn to footnote\n46\nreferrer\nFootnote 47\nSee\nIRPA\n, s.167(2), as to when a Designated Representative (\nDR\n) is required. See also the\nIRB\n's\nDesignated Representative Guide,\nmodified December 6, 2022. Online:\nhttps://irb.gc.ca/en/designated-representant/Pages/designated-representative-guide.aspx\n.", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 39 (Approval) (part 10 of 29)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-39-p11", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 39", + "marginal_note": "Approval", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": "Return to footnote\n47\nreferrer\nFootnote 48\nIn\nHillary v. Canada (Citizenship and Immigration),\n2011 FCA 51 at paras. 42-43, the Federal Court of Appeal explained that the\nIAD\ndoes not bear primary responsibility for identifying individuals who are especially vulnerable. Counsel is best placed to bring this to the attention of the\nIRB\n. See also\nGilles v. Canada (Citizenship and Immigration)\n, 2011 FC 7 at para. 17, where the panel did not notice anything abnormal about the applicant's mental state, and the Federal Court held that the burden was on counsel to bring the issue of the applicant's mental health to the Board's attention;\nEhigiator v. Canada (Citizenship and Immigration)\n, 2023 FC 308 at para. 62;\nAhmed v. Canada (Citizenship and Immigration)\n, 2023 FC 830 at para. 36;\nSingh v. Canada (Citizenship and Immigration),\n2023 FC 872 at paras. 13-17. In\nHaynes v Canada (Attorney General)\n, 2023 FCA 158 at para. 30 the Court noted the obligation on the person to assist in securing appropriate accommodation.\nReturn to footnote\n48\nreferrer\nFootnote 49\nIn cases where there is more than one party, all parties should be notified of the\nIRB\n's request.\nReturn to footnote\n49\nreferrer\nFootnote 50\nIbid.\nReturn to footnote\n50\nreferrer\nFootnote 51\nSupra\nnote 45: The decision to grant an accommodation to deliver decisions and reasons as soon as possible should be left to the assigned member.\nReturn to footnote\n51\nreferrer\nFootnote 52\nIn cases where there is more than one party, all parties should be given notice and an opportunity to respond.\nReturn to footnote\n52\nreferrer\nFootnote 53\nRPD\nRule 50,\nRAD\nRule 37, Rule 38 of the\nImmigration Division Rules\n, SOR /2002-229 (\nID\nRules) and Rule 85\nImmigration Appeal Division Rules\n,\n2022\n, SOR/2022-277 (\nIAD\nRules).\nReturn to footnote", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 39 (Approval) (part 11 of 29)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-39-p12", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 39", + "marginal_note": "Approval", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": "53\nreferrer\nFootnote 54\nSee\nRPD\nRule 70,\nRAD\nRule 53,\nID\nRule 50 and\nIAD\nRule 4.\nReturn to footnote\n54\nreferrer\nFootnote 55\nThis would include any application form that the Board may make available for the purpose of supporting a request for procedural accommodation.\nReturn to footnote\n55\nreferrer\nFootnote 56\nThis is in accordance with current\nIRB\npractice to treat any written request as an application pursuant to the Rules. Generally, affidavits or statutory declarations will not be needed for applications for accommodations.\nReturn to footnote\n56\nreferrer\nFootnote 57\nFor example, the individual could request that the\nIRB\nrefer to an agent of persecution in a particular way so as to reduce the risk of re-traumatization; a general request to avoid re-traumatization does not provide the presiding member with sufficient information to accommodate the specific need.\nReturn to footnote\n57\nreferrer\nFootnote 58\nThe Minister is a party to all proceedings before the\nID\nand\nIAD\nand is a party before the\nRPD\nand\nRAD\nwhen they intervene, make an application for cessation or vacation, or bring an appeal. The rules of natural justice apply equally to all parties.\nReturn to footnote\n58\nreferrer\nFootnote 59\nExamples of documentation that may be received are noted in section 14.3 of this Guideline regarding documentation relevant to the assessment of the merits of a case.\nReturn to footnote\n59\nreferrer\nFootnote 60\nSee also section 14.5 of this Guideline:\nExpert Evidence\n.\nReturn to footnote\n60\nreferrer\nFootnote 61\nSubject to an assessment of the barriers in obtaining documentation noted in section 8.5.1. See\nEhigiator v. Canada (Citizenship and Immigration),\n2023 FC 308 at para. 112;\nGill v. Canada (Citizenship and Immigration),\n2023 FC 687 at para. 37.\nReturn to footnote\n61\nreferrer", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 39 (Approval) (part 12 of 29)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-39-p13", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 39", + "marginal_note": "Approval", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": "Footnote 62\nThis list is not to be treated as exhaustive, and supporting documentation may also include any form that the Board may make available.\nReturn to footnote\n62\nreferrer\nFootnote 63\nFor example, documents detailing an individual's past medical history such as copies of medical charts, prescriptions etc.\nReturn to footnote\n63\nreferrer\nFootnote 64\nFor example, from mental health professionals and other health care providers, counsellors, social workers, caregivers, community agency workers, friends, and family members.\nReturn to footnote\n64\nreferrer\nFootnote 65\nExpert evidence is opinion evidence provided by an expert. An expert is a person who possesses special skills and knowledge acquired through study or experience that entitles them to speak authoritatively concerning their area of expertise. For more details on expert evidence, see\nIRB\nLegal Services reference paper: Immigration and Refugee Board. Weighing Evidence – Chapter 8: Expert/opinion evidence, Legal Services, December 31, 2020:\nhttps://irb.gc.ca/en/legal-policy/legal-concepts/Pages/EvidPreu08.aspx\n. An expert's evidence is intended to provide decision-makers with information that is outside of their expertise or knowledge. See, for example,\nR. v. Béland\n, [1987] 2 SCR 398 at para. 16;\nTrembliuk v. Canada (Minister of Citizenship and Immigration)\n, 2003 FC 1264 at para. 12.\nReturn to footnote\n65\nreferrer\nFootnote 66\nThe\nIRB\nis not bound by any legal or technical rules of evidence, and expert witnesses may be permitted to give opinion evidence in\nIRB\nproceedings without undergoing the type of formal qualification process normally seen in court proceedings. See:\nIRPA\n, s. 170(g), 171(a.2), 173(c), and 175(1)(b). Additionally, the Federal Court has recognized that\nIRB", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 39 (Approval) (part 13 of 29)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-39-p14", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 39", + "marginal_note": "Approval", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": "decision makers are not medical professionals and “bring no specialized expertise to the question of the mental condition” of those appearing before them:\nLozano Pulido v. Canada (Citizenship and Immigration)\n, 2007 FC 209 at paras. 27-28. As such, individuals appearing before the\nIRB\nare encouraged to provide all relevant medical evidence to the Board to aid decision makers in understanding how a particular vulnerability may impact their ability to testify or otherwise present their case.\nReturn to footnote\n66\nreferrer\nFootnote 67\nSee, for example,\nEnam v. Canada (Immigration, Refugees and Citizenship)\n, 2017 FC 1117 at paras. 28–29, where the Federal Court found that although the report was written by a registered clinical social worker who was not qualified to make a diagnosis under Ontario law, she was permitted to treat certain serious disorders and therefore had expertise that the\nRAD\nshould have considered. See also\nKhan v. Canada (Immigration, Refugees, and Citizenship)\n, 2018 FC 309 at para. 14.\nReturn to footnote\n67\nreferrer\nFootnote 68\nRPD\nRule 44(1)(e);\nRAD\nRule 61(1)(e);\nID\nRule 32(1)(d);\nIAD\nRule 55(1)(f).\nReturn to footnote\n68\nreferrer\nFootnote 69\nSee\nJoseph v. Canada (Citizenship and Immigration)\n, 2015 FC 393 at paras. 45-48, and\nBelahmar v. Canada (Citizenship and Immigration)\n, 2015 FC 812 at paras. 8-9. See also\nEnam v. Canada (Immigration, Refugees and Citizenship)\n, 2017 FC 1117 at para. 29 and\nX (Re)\n, 2019 CanLII 127902 (\nRAD\n) at para. 27.\nReturn to footnote\n69\nreferrer\nFootnote 70\nYe v. Canada (Citizenship and Immigration)\n, 2014 FC 1184 at para. 20;\nPark v. Canada (Citizenship and Immigration),\n2010 FC 1269 at paras. 46-47;\nAmeir v. Canada (Citizenship and Immigration),\n2005 FC 876 at para. 27.\nReturn to footnote\n70\nreferrer\nFootnote 71", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 39 (Approval) (part 14 of 29)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-39-p15", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 39", + "marginal_note": "Approval", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": "Egbesola v. Canada (Citizenship and Immigration)\n, 2016 FC 204 at para.12 and\nIrivbogbe v. Canada (Citizenship and Immigration)\n, 2016 FC 710 at para. 36. See also\nBoyce v. Canada (Citizenship and Immigration)\n, 2016 FC 922 at paras. 52-62, where the Court held that the jurisprudence provides that a psychological report based on a discredited story cannot rehabilitate that story, where the report was not based on any independent or clinical testing.\nReturn to footnote\n71\nreferrer\nFootnote 72\nA.B. v. Canada (Citizenship and Immigration),\n2020 FC 727 at para. 53.\nReturn to footnote\n72\nreferrer\nFootnote 73\nQuinteros v. Canada (Public Safety and Emergency Preparedness)\n, 2017 FC 990 at para. 29;\nDiaz Serrato v. Canada (Citizenship and Immigration)\n, 2009 FC 176 at paras. 17-25;\nAsif v. Canada (Citizenship and Immigration),\n2016 FC 1323 at para. 33; and\nEnam v. Canada (Immigration, Refugees and Citizenship)\n, 2017 FC 1117 at paras. 28–29.\nReturn to footnote\n73\nreferrer\nFootnote 74\nThe Federal Court has held that ignoring or not properly addressing medical evidence that shows a causal relationship between a person's medical condition and their ability to testify or their credibility constitutes a reviewable error. See, for example,\nLahpai v. Canada (Minister of Citizenship and Immigration)\n, 2001 FCT 88, at para. 21 and\nHassan v. Canada (Minister of Citizenship and Immigration),\n1999 CanLII 8795 (FC) at paras. 20-22.\nReturn to footnote\n74\nreferrer\nFootnote 75\nSee, for example,\nAkintola v. Canada (Citizenship and Immigration)\n, 2020 FC 971 at para. 34, where the Court found that the memory loss mentioned in the psychological report did not explain the credibility issues, which were based on the plausibility of the events.\nReturn to footnote\n75\nreferrer\nFootnote 76", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 39 (Approval) (part 15 of 29)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-39-p16", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 39", + "marginal_note": "Approval", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": "In the context of a claim for refugee protection, sworn testimony and statements are presumed to be true unless there is a valid reason—for example, other negative credibility findings—to doubt their truthfulness, see Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.).The case law on assessment of credibility is set out in more detail in an\nIRB\nLegal Services reference paper: Immigration and Refugee Board. Assessment of Credibility in Claims for Refugee Protection, Legal Services,\nhttps://irb.gc.ca/en/legal-policy/legal-concepts/Pages/Credib.aspx\n.\nReturn to footnote\n76\nreferrer\nFootnote 77\nJones v. Canada (Minister of Citizenship and Immigration), 2006 FC 405 at para. 16: “Generally, memory gaps may be a reason to draw an adverse credibility inference, but when the claimant is a victim of severe domestic abuse, the Board must be alive to the possibility that these gaps are psychological in nature.” See also\nZamaseka v. Canada (Citizenship and Immigration)\n, 2014 FC 418 at para. 25 and\nNiyongira v. Canada (Citizenship and Immigration),\n2021 FC 911 at paras. 16-17.\nReturn to footnote\n77\nreferrer\nFootnote 78\nOzturk v. Canada (Minister of Citizenship and Immigration)\n, 2003 FC 1219 at para. 13. See also\nNwakanme v. Canada (Citizenship and Immigration)\n, 2020 FC 738 at paras. 35-38;\nWarsame v. Canada (Immigration, Refugees and Immigration)\n2019 FC 118, at para. 32; and\nYasun v. Canada (Citizenship and Immigration)\n, 2019 FC 342 at paras. 17-18.\nReturn to footnote\n78\nreferrer\nFootnote 79\nSee, for example, the\nIAD\n's decision in\nLaporte v Canada (Citizenship and Immigration)\n, 2019 CanLII 129181 (\nIAD", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 39 (Approval) (part 16 of 29)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-39-p17", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 39", + "marginal_note": "Approval", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": "), where as a result of previous strokes, the appellant had “serious physical and cognitive difficulties and has difficulty with his short- and long-term memory”, all of which were taken into consideration in weighing his testimony.\nReturn to footnote\n79\nreferrer\nFootnote 80\nSee\nChairperson's Guideline 3: Proceedings Involving Minors at the Immigration and Refugee Board\n; However, age on its own may not be an indication of vulnerability: see\nShmagin v. Canada (Citizenship and Immigration\n), 2010 FC 1030 at paras. 14 -16, where the Court stated with respect to an 80-year-old refugee claimant that “age is not in itself a sufficient ground for concluding that the applicant was vulnerable”. See also,\nDuversin v. Canada (Citizenship and Immigration)\n, 2018 FC 466 at para. 22, where the Court expressed that\na person who is 60 years old is “not ‘elderly and vulnerable' unless they are affected by some kind of limitation or illness.”\nReturn to footnote\n80\nreferrer\nFootnote 81\nFor example, in\nZararsiz v.Canada (Citizenship and Immigration)\n, 2020 FC 692 at paras. 82-89, the Court found that the\nRAD\nreasonably concluded that the appellant's mental health condition, did not explain the deficiencies in his evidence. The issue was not his inability to recall details, but rather significant inconsistencies between his statements at the port of entry and various iterations of his Basis of Claim f​orm narrative. See also the\nIAD\n's decision in\nJohal v. Canada (Citizenship and Immigration)\n, 2021 CanLII 132922 (\nIAD", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 39 (Approval) (part 17 of 29)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-39-p18", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 39", + "marginal_note": "Approval", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": ") at para. 21 where, as a result of the appellant's medical condition, the panel accorded a greater degree of latitude when considering discrepancies and knowledge gaps in the evidence but nevertheless found that the medical condition did not explain all of the discrepancies.\nReturn to footnote\n81\nreferrer\nFootnote 82\nSee, for example,\nUwejeyah v. Canada (Citizenship and Immigration)\n, 2020 FC 849 and\nEije v. Canada (Citizenship and Immigration)\n, 2021 FC 500.\nReturn to footnote\n82\nreferrer\nFootnote 83\nSee\nDaramie v. Canada (Citizenship and Immigration)\n, 2022 FC 1570 at paras. 23-25,\nOkpanachi v. Canada (Citizenship and Immigration)\n, 2022 FC 212 at paras. 23, 26-27, citing\nHarry v. Canada (Citizenship and Immigration)\n, 2019 FC 85 at para. 34.\nReturn to footnote\n83\nreferrer\nFootnote 84\nSee, for example,\nA.B. v. Canada (Citizenship and Immigration),\n2020 FC 727 at paras. 43-53;\nJoseph v. Canada (Citizenship and Immigration),\n2015 FC 393 at paras. 33-41;\nLozano Pulido v. Canada (Citizenship and Immigration)\n, 2007 FC 209 at paras. 31-35; and\nNwakanme v. Canada (Citizenship and Immigration),\n2020 FC 738 at paras. 35-38.\nReturn to footnote\n84\nreferrer\nFootnote 85\nSee, for example,\nOlesniewicz v. Canada (Citizenship and Immigration)\n, 2008 CanLII 64623 (\nIAD\n) at para. 12 where the\nIAD\nfound that while the appellant's sincerity was never in doubt, “her mental condition was such that she was unable to provide coherent testimony relevant to the issues before the panel… The complete dearth of documentary evidence on the appellant's side also did not allow the panel to assess whether the appellant's testimony could be relied upon in any respect.”\nReturn to footnote\n85\nreferrer\nFootnote 86\nSee “Chapter 12 – Trauma and Self-care, Manual on Human Rights Monitoring”, OHCHR, 2011,", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 39 (Approval) (part 18 of 29)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-39-p19", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 39", + "marginal_note": "Approval", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": "https://www.ohchr.org/sites/default/files/Documents/Publications/Chapter12-MHRM.pdf\n, at p. 4 and Haskell and Randall, “The Impact of Trauma on Adult Sexual Assault Victims”, Report submitted to the Department of Justice, 2019,\nhttps://www.justice.gc.ca/eng/rp-pr/jr/trauma/index.html\n, at p. 22. See also\nWardi v. Canada (Citizenship and Immigration)\n, 2012 FC 1509 at para. 15-19 and\nNiyongira v. Canada (Citizenship and Immigration)\n, 2021 FC 911 at 16-17. See also ss. 7.5 and 7.6 of Chairperson's Guideline 4:\nGender Considerations in Proceedings Before the Immigration and Refugee Board\n.\nReturn to footnote\n86\nreferrer\nFootnote 87\nValtchev v. Canada (Minister of Citizenship and Immigration)\n, 2001 FCT 776 at para. 7.\nReturn to footnote\n87\nreferrer\nFootnote 88\nPalmo v. Canada (Citizenship and Immigration)\n, 2016 FC 809 at paras. 22-23.\nReturn to footnote\n88\nreferrer\nFootnote 89\nSee section 4 of this Guideline:\nMyths, stereotypes and incorrect assumptions\n.\nReturn to footnote\n89\nreferrer\nFootnote 90\nMatharoo v. Canada (Citizenship and Immigration)\n, 2020 FC 664, paras. 41-43 and\nMin v. Canada (Minister of Citizenship and Immigration)\n, 2004 FC 1676 at para. 6. See also ss. 7.9 and 7.10 of Chairperson's Guideline 4:\nGender Considerations in Proceedings Before the Immigration and Refugee Board\n.\nReturn to footnote\n90\nreferrer\nFootnote 91\nValtchev v. Canada (Minister of Citizenship and Immigration)\n, 2001 FCT 776 at paras. 24-25 and\nRahal v. Canada (Citizenship and Immigration)\n, 2012 FC 319 at para. 45.\nReturn to footnote\n91\nreferrer\nFootnote 92\nAbdinur v. Canada (Citizenship and Immigration)\n, 2020 FC 880 at paras. 47–49.\nReturn to footnote\n92\nreferrer\nFootnote 93\nSee also section 5 of this Guideline:\nTrauma-informed adjudication", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 39 (Approval) (part 19 of 29)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-39-p20", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 39", + "marginal_note": "Approval", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": ". The preconception that trauma survivors will necessarily be extremely emotional when discussing their experiences is particularly strong in cases of sexual violence, where survivors are often expected to express high levels of distress and shame. See “Chapter 12 – Trauma and Self-care, Manual on Human Rights Monitoring”,\nsupra\nnote 86. See also Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection under the 1951 Convention and the 1967 Protocol Relating to Status of Refugees, UNHCR, Geneva, reissued February 2019\nhttps://www.unhcr.org/publications/legal/5ddfcdc47/handbookprocedures- criteria-determining-refugee-status-under-1951-convention.html\n.\nReturn to footnote\n93\nreferrer\nFootnote 94\nThe case law on refugee status determination is set out in more detail in an\nIRB\nLegal Services reference paper:\nInterpretation of Convention Refugee and Person in Need of Protection in the Case Law\n- Immigration and Refugee Board of Canada (irb-cisr.gc.ca) (December 31, 2020).\nReturn to footnote\n94\nreferrer\nFootnote 95\nLiaqat v. Canada (Minister of Citizenship and Immigration),\n2005 FC 893 at para. 29;\nCanada (Citizenship and Immigration) v. Oh,\n2009 FC 506 at para. 10;\nRodriguez Diaz v. Canada (Minister of Citizenship and Immigration),\n2008 FC 1243 at paras. 32-34.\nReturn to footnote\n95\nreferrer\nFootnote 96\nPersecution based on vulnerability may be cumulative, based on a combination of grounds or\nmixed motives\n, as well as be an individual ground. See, for example,\nBayrak v. Canada (Citizenship and Immigration),", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 39 (Approval) (part 20 of 29)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-39-p21", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 39", + "marginal_note": "Approval", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": "2013 FC 1056 at paras. 17-18 where the Court found that the dangers and the risks for the claimants were even more serious given their age and their vulnerability as a result of the inherent weaknesses associated with being elderly. See also\nX (Re),\n2015 CanLII 111305 (\nRAD\n) at para. 18 where the\nRAD\nfound the claimant to be a Convention Refugee on the basis of her clan affiliation, her age, her health, her lack of economic means, her lack of familial support in Somalia, and a history of problems in Somalia, and\nX (Re)\n, 2020 CanLII 126924 (\nRAD\n), where although the Nigerian appellant had based his claim on his fear of persecution at the hands of an organization in the United States, the\nRAD\nallowed the appeal and accepted the claim based on evidence relating to the appellant's mental health condition which established a nexus to the Convention on the basis of his particular social group.\nReturn to footnote\n96\nreferrer\nFootnote 97\nSee section 6 of this Guideline:\nIntersectionality\n; Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection under the 1951 Convention and the 1967 Protocol Relating to Status of Refugees, UNHCR, Geneva, Reissued February 2019\nat para\n. 55;\nGorzsas v. Canada (Citizenship and Immigration),\n2009 FC 458at paras. 36-40;\nKrishan v. Canada (Citizenship and Immigration)\n, 2018 FC 1203 at paras.18 and 28-29;\nX (Re)\n, 2020 CanLII 24189 (\nRAD\n) at paras. 8-14.\nReturn to footnote\n97\nreferrer\nFootnote 98\nIRPA\n, s. 97(1)(b)(iv); See also\nLuse v. Canada (Citizenship and Immigration)\n, 2017 FC 464, at para. 6, where the Court held that s. 97(1)(b)(iv) of the\nIRPA", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 39 (Approval) (part 21 of 29)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-39-p22", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 39", + "marginal_note": "Approval", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": "“excludes protection only when the inability to provide adequate medical care is the direct cause” of harm feared, and found that the officer erred in failing to consider whether the lack of adequate care or the prohibitive cost of medications used to manage the symptoms of schizophrenia could expose the applicant to a risk to his life or to a risk of cruel and unusual treatment or punishment if he were forced to return to his country of nationality. The Court additionally found that the applicant would have had a nexus to s. 96 under membership in a social group of \"persons suffering from a mental disorder\" and, as such, the officer should have also analyzed the Pre-Removal Risk Assessment (PRRA) application under s. 96.\nReturn to footnote\n98\nreferrer\nFootnote 99\nSalako v. Canada (Citizenship and Immigration)\n, 2020 FC 630 at paras. 41-57. For examples in the mental health context see:\nAverin v. Canada (Citizenship and Immigration)\n, 2012 FC 1457 at paras. 9-11 and\nRichmond v. Canada (Citizenship and Immigration)\n, 2013 FC 228 at paras. 4 and 8.\nReturn to footnote\n99\nreferrer\nFootnote 100\nA.B. v. Canada (Citizenship and Immigration)\n, 2018 FC 373 at paras. 8-9;\nSelvarasu v. Canada (Citizenship and Immigration),\n2015 FC 849 at para. 42.\nReturn to footnote\n100\nreferrer\nFootnote 101\nSee\nMmono v. Canada (Citizenship and Immigration),\n2013 FC 219 at para. 15 where the Court found that despite having rejected the Applicant's claim based on gender-based violence due to credibility concerns the\nRPD\nshould have considered how she would be affected by her HIV positive status in Botswana. See also section 15 of this Guideline:\nCredibility\n.\nReturn to footnote\n101\nreferrer\nFootnote 102\nSee, for example:\nYusuf v. Canada (Minister of Employment and Immigration)", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 39 (Approval) (part 22 of 29)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-39-p23", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 39", + "marginal_note": "Approval", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": "(C.A.), 1991 CanLII 13547 (FCA), [1992] 1 FC 629, at 630, where in a case involving a minor, the Court found that a refugee claim cannot be denied based on a lack of subjective fear, “whether out of courage or because of mental incapacity”. See also\nCanada (Minister of Citizenship and Immigration) v. Patel,\n2008 FC 747 at para. 37.\nReturn to footnote\n102\nreferrer\nFootnote 103\nIn\nCanada (Attorney-General) v. Ward,\n[1993] 2 SCR 689, the Court found that the state's inability to protect is a crucial element in determining whether the claimant's fear is well-founded, and in assessing the objective reasonableness of a claimant's unwillingness to seek the protection of their country of nationality. See also\nCanada (Minister of Citizenship and Immigration) v. Olah,\n2002 FCT 595 at para. 6, where the Court noted that the relevant evidence to determine the issue of state protection was not the claimant's subjective reluctance but the documentary evidence and her personal circumstances.\nReturn to footnote\n103\nreferrer\nFootnote 104\nSee, for example,\nKandha v. Canada (Citizenship and Immigration),\n2016 FC 430, para. 21 where the Court found that in light of the youngest applicant being 16 years old at the time of the events, the\nRAD\nshould have considered the persecutor's position of authority in the household and the country at large. The Court agreed with the principle stated in\nZhu v. Canada (Citizenship and Immigration)\n, 2001 FCT 884, that the “claimant's reluctance to seek state protection must be assessed in light of his or her status as a minor, and the fact that children may be more reluctant to seek protection”. See also\nX (Re)\n, 2013 CanLII 94673 (\nRPD\n) at para. 23 where in assessing state protection, the\nRPD", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 39 (Approval) (part 23 of 29)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-39-p24", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 39", + "marginal_note": "Approval", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": "found that based on the NDP, the sexual minorities in Nigeria were reluctant or unable to report violence perpetrated against them to the police because they are mocked, abused, fear being detained or charged in accordance with the laws, and because the perpetrators are not punished. See also\nChairperson's Guideline 3: Proceedings Involving Minors at the Immigration and Refugee Board\n.\nReturn to footnote\n104\nreferrer\nFootnote 105\nSee section 6 of this Guideline:\nIntersectionality\n.\nReturn to footnote\n105\nreferrer\nFootnote 106\nGonzalez Torres v. Canada (Citizenship and Immigration)\n, 2010 FC 234 at paras.37 and 40. See also\nLakatos v. Canada (Citizenship and Immigration),\n2018 FC 367 at paras. 22-23 where the Court found that the analysis of state protection analysis is highly contextual and depends on the claimant's personal circumstances. In some cases, for instance, a claimant may have an objectively reasonably fear of testing state protection given factors such as their age, background, and experiences, including prior responses to incidents.\nReturn to footnote\n106\nreferrer\nFootnote 107\nFor example, minors, persons facing trauma or persons with mental health conditions may face greater difficulty seeking state protection. In\nHernandez v. Canada (Citizenship and Immigration),\n2010 FC 953 at para. 8, the Court acknowledged that the\nRPD\nreasonably considered the applicant's mental health in assessing his access to state protection. In\nRivas Montanez v. Canada (Citizenship and Immigration),\n2010 FC 460 at para. 4, the Court found that it was not objectively reasonable for the applicant who was experiencing spousal abuse to seek state protection, due to her young age at marriage and situation of dependency. In\nMelo v. Canada (Citizenship and Immigration),", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 39 (Approval) (part 24 of 29)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-39-p25", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 39", + "marginal_note": "Approval", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": "2008 FC 150 at para. 12, the Court found that evidence with respect to an applicant's mental state can be “very relevant” in the assessment of whether it was reasonable to have sought state protection. It also found that the\nRPD\nerred by failing to address the Applicants' explanations for not seeking out state protection, including evidence of their psychological condition.\nReturn to footnote\n107\nreferrer\nFootnote 108\nSee\nKauhonina v. Canada (Immigration, Refugees and Citizenship),\n2018 FC 1300 at paras. 17-18;\nGonzalez Torres v. Canada (Citizenship and Immigration),\n2010 FC 234 at para. 41.\nReturn to footnote\n108\nreferrer\nFootnote 109\nSee\nSalako v. Canada (Citizenship and Immigration),\n2020 FC 630 at paras. 45-57,\nCsoke v. Canada (Citizenship and Immigration)\n, 2015 FC 1169 at para. 18,\nX (Re),\n2018 CanLII 141797 (\nRAD\n) at para. 11, and\nX (Re),\n2019 CanLII 128547 (\nRAD\n) at paras. 50-53.\nReturn to footnote\n109\nreferrer\nFootnote 110\nA.B. v. Canada (Citizenship and Immigration)\n, 2019 FC 1339 at paras. 20-24;\nBurai v. Canada (Citizenship and Immigration)\n, 2020 FC 966 at para. 25.\nReturn to footnote\n110\nreferrer\nFootnote 111\nSee, for example:\nLevel v. Canada (Citizenship and Immigration),\n2010 FC 251 at para. 64.\nReturn to footnote\n111\nreferrer\nFootnote 112\nOkafor v. Canada (Citizenship and Immigration)\n, 2011 FC 1002 at para. 13, citing\nCartagena v. Canada (Citizenship and Immigration),\n2008 FC 289.\nReturn to footnote\n112\nreferrer\nFootnote 113\nThirunavukkarasu v. Canada (Minister of Employment and Immigration)\n, 1993 CanLII 3011 (FCA), [1994] 1 FC 589.\nReturn to footnote\n113\nreferrer\nFootnote 114\nCardenas v. Canada (Citizenship and Immigration)\n, 2017 FC 1194 at para. 21.\nReturn to footnote\n114\nreferrer\nFootnote 115\nEnweliku v. Canada (Citizenship and Immigration)", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 39 (Approval) (part 25 of 29)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-39-p26", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 39", + "marginal_note": "Approval", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": ", 2022 FC 228 at para. 37, citing\nAttama v. Canada (Citizenship and Immigration)\n, 2021 FC 903 at para. 20.\nReturn to footnote\n115\nreferrer\nFootnote 116\nSee also section 14.5 of this Guideline:\nExpert Evidence.\nReturn to footnote\n116\nreferrer\nFootnote 117\nAsif v. Canada (Citizenship and Immigration)\n, 2016 FC 1323, at para. 33.\nReturn to footnote\n117\nreferrer\nFootnote 118\nAttama v. Canada (Citizenship and Immigration)\n, 2021 FC 903 at paras. 18-20\n; Feboke v. Canada (Citizenship and Immigration)\n, 2020 FC 155 at paras. 57-59.\nReturn to footnote\n118\nreferrer\nFootnote 119\nEgbesola v. Canada (Citizenship and Immigration)\n, 2016 FC 204 at paras. 13-15, citing\nMolefe v Canada (Minister of Citizenship and Immigration)\n, 2015 FC 317.\nReturn to footnote\n119\nreferrer\nFootnote 120\nImmigration and Refugee Protection Regulations\n, SOR/2002-227.\nReturn to footnote\n120\nreferrer\nFootnote 121\nSee\nLee v. Canada (Public Safety and Emergency Preparedness)\n, 2022 FC 383 at paras. 62-64.\nReturn to footnote\n121\nreferrer\nFootnote 122\nFor example, see\nChairperson's Guideline 2: Detention\n, at s. 3.1.15 which provides a non-exhaustive list of detainees who may be considered vulnerable.\nReturn to footnote\n122\nreferrer\nFootnote 123\nSee\nLee v. Canada (Citizenship and Immigration)\n, 2022 FC 344 at para. 65.\nReturn to footnote\n123\nreferrer\nFootnote 124\nAtem v. Canada (Public Safety and Emergency Preparedness),\n2023 FC 165 at para. 66.\nReturn to footnote\n124\nreferrer\nFootnote 125\nCanada (Public Safety and Emergency Preparedness) v. Gaytan\n, 2021 FCA 163.\nReturn to footnote\n125\nreferrer\nFootnote 126\nIbid.\nat para. 119.\nReturn to footnote\n126\nreferrer\nFootnote 127\nSee, for example,\nSidhu v. Canada (Citizenship and Immigration)\n, 2019 FCA 169 at para. 79.\nReturn to footnote\n127\nreferrer\nFootnote 128", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 39 (Approval) (part 26 of 29)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-39-p27", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 39", + "marginal_note": "Approval", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": "See also section 17.2 of this Guideline regarding admissibility hearings at the Immigration Division, where applicable.\nReturn to footnote\n128\nreferrer\nFootnote 129\nGrewal v. Canada (Citizenship and Immigration)\n, 2020 FC 1186 at paras. 42-43;\nSejdiu v. Canada (Citizenship and Immigration)\n, 2023 FC 466 at para. 17.\nReturn to footnote\n129\nreferrer\nFootnote 130\nIRPA\n, ss. 63(3) and (4).\nReturn to footnote\n130\nreferrer\nFootnote 131\nSee, for example,\nBougherara v. Canada (Citizenship and Immigration)\n, 2021 CanLII 81145 (\nIAD\n) at paras. 9 to 14.\nReturn to footnote\n131\nreferrer\nFootnote 132\nSee for example,\nPhagura v. Canada (Public Safety and Emergency Preparedness)\n, 2019 CanLII 42301 (\nIAD\n) at paras. 40-46.\nReturn to footnote\n132\nreferrer\nFootnote 133\nMouaj v. Canada (Public Safety and Emergency Preparedness)\n, 2008 CanLII 74755 (\nIAD\n) at para. 21.\nReturn to footnote\n133\nreferrer\nFootnote 134\nKanthasamy v. Canada (Citizenship and Immigration),\n2015 SCC 61 at para. 56;\nYlanan v. Canada (Public Safety and Emergency Preparedness)\n, 2019 FC 1063 at paras. 38-41;\nKhir v. Canada (Citizenship and Immigration)\n, 2021 FC 160 at para. 62; See also the\nIAD\n's decision in\nBains v. Canada (Public Safety and Emergency Preparedness)\n, 2022 CanLII 65232 (\nIAD\n) at paras. 347-355.\nReturn to footnote\n134\nreferrer\nFootnote 135\nDwyer v. Canada (Public Safety and Emergency Preparedness)\n, 2020 FC 919 at para. 75;\nKanthasamy\n,\nsupra\nnote 134 at para. 48.\nReturn to footnote\n135\nreferrer\nFootnote 136\nKanthasamy\n,\nsupra\nnote 134 at para. 48.\nReturn to footnote\n136\nreferrer\nFootnote 137\nPalmer v. Canada (Public Safety and Emergency Preparedness)\n, 2012 FC 1277 at para. 25;\nLawrence v. Canada (Public Safety and Emergency Preparedness),\n2022 CanLII 94492 (\nIAD\n) at para. 69;", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 39 (Approval) (part 27 of 29)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-39-p28", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 39", + "marginal_note": "Approval", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": "Maxwell v. Canada (Citizenship and Immigration\n), 2000 CanLII 22876 (\nIAD\n);\nJones v. Canada (Citizenship and Immigration),\n2005 CanLII 56946 (\nIAD\n) at para. 11.\nReturn to footnote\n137\nreferrer\nFootnote 138\nAddressing the issue of appropriate bail conditions in the criminal law context, the Supreme Court of Canada explained in\nR. v.\nZora\n, 2020 SCC 14 at para. 79, that “…onerous conditions disproportionately impact vulnerable and marginalized populations. Those living in poverty or with addictions or mental illnesses often struggle to meet conditions by which they cannot reasonably abide...” [references omitted].\nReturn to footnote\n138\nreferrer\nFootnote 139\nDoe v. Canada (Public Safety and Emergency Preparedness)\n, 2021 CanLII 51041 (\nIAD\n) at paras. 36-37; See also the following\nIAD\ndecisions, where the panel recognized that lapses in addiction recovery should not be unexpected and are not necessarily an indication of poor rehabilitation prospects:\nDhinsa v. Canada (Citizenship and Immigration)\n, 2018 CanLII 112423 (\nIAD\n) at paras. 23-24;\nBehuncik v. Canada (Public Safety and Emergency Preparedness)\n, 2012 CanLII 101753 (\nIAD\n) at para. 9,\nFlood v. Canada (Public Safety and Emergency Preparedness)\n, 2009 CanLII 84871 (\nIAD\n) at para. 27.\nReturn to footnote\n139\nreferrer\nFootnote 140\nConsent may be withdrawn by way of application pursuant to\nIAD\nRule 84, or at a hearing. See, for example,\nDocherty v. Canada (Public Safety and Emergency Preparedness)\n, 2015 CanLII 90708 (\nIAD\n) at para. 10.\nReturn to footnote\n140\nreferrer\nFootnote 141\nSee the\nIAD\n's decision in\nPassawe v. Canada (Public Safety and Emergency Preparedness)\n, 2019 CanLII 124057 (\nIAD", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 39 (Approval) (part 28 of 29)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-39-p29", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 39", + "marginal_note": "Approval", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": ") at paras. 6 and 44-47​, where the appellant was functioning at a pre-kindergarten level and was unable to read and write, but had strong support in the community; See also\nCanada (Citizenship and Immigration) v. Antonin\n, 2009 FC 1140 at paras. 44-48.\nReturn to footnote\n141\nreferrer", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 39 (Approval) (part 29 of 29)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-40-p1", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 40", + "marginal_note": "Footnotes", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": "Footnote 1\nFor the purposes of this Guideline, the term\nvulnerability\nshould be interpreted broadly, as the concept of vulnerability remains difficult to define. The focus should be on whether an individual has any vulnerabilities that negatively impact their ability to fully participate at the\nIRB\nand to have a fair hearing. For sources discussing the difficulties in defining vulnerability, see Melissa Mary Anderson and Dagmar Soennecken,\nLocating the Concept of Vulnerability in Canada's Refugee Policies at Home and Abroad\n, 2022 11-2 Laws | An Open Access Journal from MDPI, 2022 CanLIIDocs 853; Purkey, Anna, Laws (2022), Vol. 11 No. 2,\nVulnerability and the Quest for Protection: A Review of Canadian Migration Case Law\n, and; Kaga, M., Nakache, D., et al.,\nVulnerability in the Canadian Protection Regime: Research Report on the Policy Framework\n. 2021. VULNER Research Report 1.\nReturn to footnote\n1\nreferrer\nFootnote 2\nSee, for example, the language used in the Global Compact for Safe, Orderly and Regular Migration, adopted by Canada in 2018:\nMicrosoft Word - 180711_Final Draft.docx (un.org)\nand\nCanada adopts historic agreement to address migration - Canada.ca\nReturn to footnote\n2\nreferrer\nFootnote 3\nMembers should take this Guideline into account when exercising discretion under the\nRefugee Protection Division Rules\n, SOR/2012-256 (\nRPD\nRules), and the\nRefugee Appeal Division Rules\n, SOR/2012-257 (\nRAD\nRules). This guidance applies in particular to\nRPD\nRules 10(5), 53(4) and 54(4) and to\nRAD\nRules 66(4)(f) and 67(5)(j).\nReturn to footnote\n3\nreferrer\nFootnote 4\nUnder the prior Guideline 8, the\nIRB", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 40 (Footnotes) (part 1 of 29)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-40-p2", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 40", + "marginal_note": "Footnotes", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": "was frequently providing accommodations without designating a person as vulnerable because individuals often did not meet the “severely impaired” threshold. This change now brings that practice and those accommodations in line with the Guideline.\nReturn to footnote\n4\nreferrer\nFootnote 5\nRanjbar, Noshene et al.\nTrauma-Informed Care and Cultural Humility in the Mental Health Care of People from Minoritized Communities.\nFocus: The Journal of Lifelong Learning in Psychiatry, Vol. 18, No. 1., published online January 24, 2020.\nReturn to footnote\n5\nreferrer\nFootnote 6\nPerson-first language is the most widely accepted language for referring to persons with disabilities. Far fewer use identity-first language (for example in the deaf community). Person-first language focuses on the individual while de-emphasizing the illness, disability, or condition. Identity-first language is rooted in the relationship between a personal-cultural identity and a disability and focuses on an individual's unique abilities rather than the disability. See HRSDC,\nA Way with Words and Images: Suggestions for the portrayal of people with disabilities\n, 2022:\nway_with_words.pdf (canada.ca)\n; Mental Health Commission of Canada, Language Matters:\nlanguage_matters_cheat_sheet_eng.pdf (mentalhealthcommission.ca)\n; United Nations,\nDisability Inclusive Language Guidelines:\nDisability Inclusive Language Guidelines | UN GENEVA\nReturn to footnote\n6\nreferrer\nFootnote 7\nSee, for example, Snipstad, Øyvind Ibrahim Marøy, “Concerns regarding the use of the vulnerability concept in research on people with intellectual disability”, British Journal of Learning Disabilities Volume 50, Issue 1, 2022, pp. 107-114.\nReturn to footnote\n7\nreferrer\nFootnote 8", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 40 (Footnotes) (part 2 of 29)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-40-p3", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 40", + "marginal_note": "Footnotes", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": "See Government of Canada, Employment and Social Development Canada, “A Way with Words and Images: Suggestions for the portrayal of people with disabilities”,\nsupra\nnote 6.\nReturn to footnote\n8\nreferrer\nFootnote 9\nGovernment of Canada, Department of Justice Canada, “Serious Problems Experienced by Diverse People with Disabilities: Western Canada: A Qualitative Study p.39.\nReturn to footnote\n9\nreferrer\nFootnote 10\nUnited Nations Geneva, “Disability-Inclusive Language Guidelines” (\nhttps://www.ungeneva.org/sites/default/files/2021-01/Disability-Inclusive-Language-Guidelines.pdf\n)\nReturn to footnote\n10\nreferrer\nFootnote 11\nOntario Human Rights Commission, Policy on preventing discrimination based on mental health disabilities and addictions, 2014, Chapter 5 (\nPolicy on preventing discrimination based on Mental health disabilities and addictions (ohrc.on.ca)\n).\nReturn to footnote\n11\nreferrer\nFootnote 12\nIbid\n.\nReturn to footnote\n12\nreferrer\nFootnote 13\nR. v. Brazier\n, 2022 ONSC 3807 at para. 58, citing the Supreme Court of Canada in\nR. v. O'Connor\n, [1995] 4 S.C.R. 411 at para. 143.\nReturn to footnote\n13\nreferrer\nFootnote 14\nThe preconception that trauma survivors will necessarily be extremely emotional when discussing their experiences is particularly strong in cases of sexual violence, where survivors are often expected to express high levels of distress and shame. See UNHCHR, Manual on Human Rights Monitoring, 2011, Chapter 12 “Trauma and Self-care”\nhttps://www.ohchr.org/sites/default/files/Documents/Publications/Chapter12-MHRM.pdf\n.\nReturn to footnote\n14\nreferrer\nFootnote 15\nPublic Health Agency of Canada.\nTrauma and violence-informed approaches to policy and practice\nupdated February 2, 2020. Online:", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 40 (Footnotes) (part 3 of 29)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-40-p4", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 40", + "marginal_note": "Footnotes", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": "https://www.canada.ca/en/public-health/services/publications/health-risks-safety/trauma-violence-informed-approaches-policy-practice.html\n. This Guideline does not incorporate all principles in the PHAC document as it is written in the public health context and not all the principles are applicable to the adjudicative context at the\nIRB\n.\nReturn to footnote\n15\nreferrer\nFootnote 16\nCenter for Substance Abuse Treatment (US).\nTrauma-Informed Care in Behavioral Health Services\n, Rockville (MD): Substance Abuse and Mental Health Services Administration (US); 2014. (Treatment Improvement Protocol (TIP) Series, No. 57.)\nhttps://www.ncbi.nlm.nih.gov/books/NBK207201/\n.\nReturn to footnote\n16\nreferrer\nFootnote 17\nRandall, Melanie and Haskell, Lori, “Trauma-Informed Approaches to Law: Why Restorative Justice Must Understand Trauma and Psychological Coping”,\nDalhousie Law Journal\n, Fall (2013), p. 507 Trauma-Informed Approaches to Law: Why Restorative Justice Must Understand Trauma and Psychological Coping (dal.ca) referring to the work of Kammerer, Nina & Mazelis, Ruta “After the Crisis Initiative: Healing from Trauma after Disasters” (Paper presented at the “After the Crisis: Healing from Trauma after Disasters”, Expert Panel Meeting, Bethesda, MD, April 24-25, 2006).\nReturn to footnote\n17\nreferrer\nFootnote 18\nEvidence of trauma can include descriptions of experiences, behaviour, or medical reports.\nSee Niyongira v. Canada (Citizenship and Immigration)\n, 2021 FC 911 at paras. 16-17, where the Court acknowledged the importance of considering the impact of torture on a claimant's ability to participate in the proceeding, including on their capacity to give evidence. See also\nHillary v. Canada (Citizenship and Immigration)", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 40 (Footnotes) (part 4 of 29)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-40-p5", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 40", + "marginal_note": "Footnotes", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": ", 2010 FC 638 at para. 75. For an example of a trauma-informed approach to decision making at the Refugee Appeal Division, see\nX (Re)\n, 2021 CanLII 68622 (\nRAD\n).\nReturn to footnote\n18\nreferrer\nFootnote 19\nJones v. Canada (Minister of Citizenship and Immigration)\n, 2006 FC 405 at para. 15.\nReturn to footnote\n19\nreferrer\nFootnote 20\nThe trauma-informed principles set out by the Public Health Agency of Canada,\nsupra\nnote 15, include principles that foster choice and collaboration by giving someone dealing with trauma the choice to accept or reject medical treatment. However, offering the choice of whether or how to participate within adjudicative processes will not be possible where doing so infringes on adjudicative independence or the rights of other individuals in the proceedings. See also\nTrauma-Informed Practice Guide\navailable on the website of the Public Health Agency of Canada, May 2013. Online:\nhttps://cewh.ca/wp-content/uploads/2012/05/2013_TIP-Guide.pdf\n.\nReturn to footnote\n20\nreferrer\nFootnote 21\nSee Haskell and Randall, “The Impact of Trauma on Adult Sexual Assault Victims”, Report submitted to the Department of Justice, 2019,\nhttps://www.justice.gc.ca/eng/rp-pr/jr/trauma/index.html\n, p. 23: “This knowledge [of the science of memory and trauma] is of critical importance to sexual assault investigations: if a victim is interviewed in a stressful way – for example, if they are not treated with compassion, if their narrative is interrupted, if they receive only expressions of doubt about what they are reporting – they will not be able to recall potentially crucial information that is stored in the brain”.\nReturn to footnote\n21\nreferrer\nFootnote 22\nSee also\nCode of ​\nConduct for Members of the Immigration and Refugee Board of Canada", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 40 (Footnotes) (part 5 of 29)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-40-p6", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 40", + "marginal_note": "Footnotes", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": "(modified April 1, 2022): “9. Members shall conduct hearings in a courteous and respectful manner.”\nReturn to footnote\n22\nreferrer\nFootnote 23\nFor example, questions regarding the cause of gender-based violence are unnecessary and risk engaging in victim-blaming. In\nChavez v. Canada (Citizenship and Immigration)\n, 2015 FC 442 at para. 7, the Court held that the\nRPD\nerred by making a credibility finding based on the source of the abuse, which came “too close to blaming the victim instead of the perpetrator for the assaults on the Applicant's person”.\nReturn to footnote\n23\nreferrer\nFootnote 24\nOlah v. Canada (Citizenship and Immigration)\n, 2019 FC 401 at para. 38;\nX (Re)\n, 2019 CanLII 132811 (\nRAD\n) at para. 8.\nReturn to footnote\n24\nreferrer\nFootnote 25\nX (Re)\n, 2018 CanLII 147831 (\nRAD\n) at para. 17;\nX (Re)\n, 2019 CanLII 134984 (\nRAD\n) at paras. 20-21.\nReturn to footnote\n25\nreferrer\nFootnote 26\nThe concept of intersectionality was first introduced by Kimberlé Crenshaw, see “Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics”. University of Chicago Legal Forum, Volume 1989, Issue 1, Article 8. For how the approach can be applied in practice to understand the factors impacting a person's lived experience see:\nUnderstanding the Intersectional Forms of Discrimination Impacting Persons with Disabilities\n. Canadian Centre on Disability Studies (CCDS). March 2018,\nccds-int-dis--151110-final-report-en-full.pdf (disabilitystudies.ca)\nIn the legislative and judicial contexts, see section 3.1 of the\nCanadian Human Rights Act\nand\nTurner v. Canada (Attorney General)\n, 2012 FCA 159 at para. 49. See also\nMabuya v. Canada (Citizenship and Immigration)\n, 2013 FC 372 at para. 10.", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 40 (Footnotes) (part 6 of 29)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-40-p7", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 40", + "marginal_note": "Footnotes", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": "Return to footnote\n26\nreferrer\nFootnote 27\nIn\nRodriguez Ramos v. Canada (Citizenship and Immigration),\n2022 FC 41 at paras. 9-21, the Federal Court found that a PRRA officer failed to conduct a cumulative and intersectional risk assessment regarding an applicant who alleged a risk of persecution or harm in El Salvador due to his profile as a returnee with severe mental illness being deported due to serious criminality. In\nGorzsas v. Canada (Citizenship and Immigration)\n, 2009 FC 458 at para. 36 the Federal Court emphasized the importance of an intersectional analysis when assessing the claim involving a gay male HIV-positive Roma.\nReturn to footnote\n27\nreferrer\nFootnote 28\nAjele, Grace and McGill, Jenna, Women's Legal Education and Action Fund (LEAF), “Intersectionality in Law and Legal Contexts” https://www.leaf.ca/publication/intersectionality-in-law-and-legal-contexts/. See Executive Summary and section 5.3 “Immigration and Refugee Law”.\nReturn to footnote\n28\nreferrer\nFootnote 29\nParagraph 166(a) of the\nIRPA\n. However, paragraph 166(c.1) of the\nIRPA\nprovides that Immigration Division proceedings involving refugee protection claimants are conducted in private.\nReturn to footnote\n29\nreferrer\nFootnote 30\nParagraphs 166(b), (c) and (c.1) of the\nIRPA\n.\nReturn to footnote\n30\nreferrer\nFootnote 31\nFor example, paragraph 166(b) of the\nIRPA\nrequires “having considered all available alternate measures” before conducting a proceeding in the absence of the public. For a similar common law framework outside of the\nIRPA\n, see\nDagenais v. Canadian Broadcasting Corp.\n, [1994] 3 SCR 835;\nR. v. Mentuck\n, 2001 SCC 76;\nSierra Club of Canada v. Canada (Minister of Finance),\n2002 SCC 41.\nReturn to footnote\n31\nreferrer\nFootnote 32", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 40 (Footnotes) (part 7 of 29)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-40-p8", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 40", + "marginal_note": "Footnotes", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": "Code of Conduct for Members of the Immigration and Refugee Board of Canada\n(modified April 1, 2022): “38. Members have a responsibility to consider the privacy interests of individuals in the conduct of proceedings and the writing of decisions, ensuring that decisions contain only the personal information that is necessary to explain the reasoning of the decision.\"\nReturn to footnote\n32\nreferrer\nFootnote 33\nFor the purposes of this Guideline, the term proceeding should be interpreted broadly. It includes all stages of a matter before the\nIRB\nfrom the start of the process until the final decision, and not just the hearing. See\nIRPA\n, s. 166, and\nCui v. Canada (Citizenship and Immigration),\n2007 FC 945 at para 6.\nReturn to footnote\n33\nreferrer\nFootnote 34\nAn accommodation must be reasonable in the circumstances and need not necessarily be the specific accommodation requested. When determining the appropriate accommodation, the impact of the accommodation on the Board's operations should be considered. Under the concept of reasonable accommodation, service providers have a duty to do whatever is reasonably possible to accommodate persons with disabilities. The discriminatory barrier must be removed unless there is a\nbona fide\njustification for its retention, which is proven by establishing that the accommodation imposes undue hardship on the service provider. See\nHaynes v Canada (Attorney General)\n, 2023 FCA 158 at para. 20 and\nCouncil of Canadians with Disabilities v. VIA Rail Canada Inc.,\n2007 SCC 15 at para. 121. See also\nCanadian Human Rights Act\n, R.S.C., 1985, c. H-6 (\nCHRA\n), at s. 15(2), which notes that the assessment of undue hardship includes consideration of health, safety, and costs. The concept of undue hardship applies to all enumerated grounds under the", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 40 (Footnotes) (part 8 of 29)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-40-p9", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 40", + "marginal_note": "Footnotes", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": "CHRA\n, not just disability.\nReturn to footnote\n34\nreferrer\nFootnote 35\nThe duty on the\nIRB\nnot to discriminate and to procedurally accommodate individuals with disabilities comes from a number of sources, including s. 15 of the\nCanadian Charter of Rights and Freedoms\n, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, chapter 11 (\nCharter)\n, the\nCHRA\n,\nand the\nUnited Nations Convention on the Rights of Persons with Disabilities,\nA/RES/61/106, adopted December 13, 2006. See also the\nAccessible Canada Act\n, S.C. 2019 c.10 (\nACA\n) at ss. 6(c) and (e). The purpose of the\nACA\nis to make Canada barrier-free by January 1, 2040. For guidance from the Federal Court of Appeal on the application of the duty to accommodate in the adjudicative context see\nHaynes v Canada (Attorney General\n), 2023 FCA 158 at paras. 18–19 and 23.\nReturn to footnote\n35\nreferrer\nFootnote 36\nThe\nCHRA\nsets out prohibited grounds of discrimination. Prohibited grounds include personal characteristics such as race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital or family status, as well as genetic characteristics and disability. The complete list of prohibited grounds listed in the\nCHRA\ncan be found in s.3.The\nCHRA\nsets out prohibited grounds of discrimination. Prohibited grounds include personal characteristics such as race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital or family status, as well as genetic characteristics and disability. The complete list of prohibited grounds listed in the\nCHRA\ncan be found in s.3.\nReturn to footnote\n36\nreferrer\nFootnote 37\nSee section 6 of this Guideline:\nIntersectionality\n.\nReturn to footnote\n37", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 40 (Footnotes) (part 9 of 29)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-40-p10", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 40", + "marginal_note": "Footnotes", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": "referrer\nFootnote 38\n“Negatively impact” is not as high a standard as undue hardship, noted in endnote 34, which applies to accommodations that are legally required under the\nCHRA\n.\nReturn to footnote\n38\nreferrer\nFootnote 39\nFor example, requests for additional breaks, where the denial of the additional breaks would not amount to a breach of natural justice; the member is not legally required to provide that accommodation.\nReturn to footnote\n39\nreferrer\nFootnote 40\nPurkey, Anna, Laws (2022), Vol. 11 No. 2,\nVulnerability and the Quest for Protection: A Review of Canadian Migration Case Law\n.\nReturn to footnote\n40\nreferrer\nFootnote 41\nSee also section 13.1 of this Guideline regarding the possible need for supporting documentation.\nReturn to footnote\n41\nreferrer\nFootnote 42\nAn example where this may be needed is to align with an individual's medication schedule.\nReturn to footnote\n42\nreferrer\nFootnote 43\nSuch an accommodation could include, for example dimmed lighting or adjustments to the seating arrangements.\nReturn to footnote\n43\nreferrer\nFootnote 44\nThis would apply to public hearings, and consideration should be given to the open court principle. See section 7 of this Guideline:\nProtection of confidential information\n.\nReturn to footnote\n44\nreferrer\nFootnote 45\nThe accommodation to deliver decisions and reasons as soon as possible should be left to the assigned member.\nReturn to footnote\n45\nreferrer\nFootnote 46\nFor example, by way of special sitting, or to counsel only.\nReturn to footnote\n46\nreferrer\nFootnote 47\nSee\nIRPA\n, s.167(2), as to when a Designated Representative (\nDR\n) is required. See also the\nIRB\n's\nDesignated Representative Guide,\nmodified December 6, 2022. Online:\nhttps://irb.gc.ca/en/designated-representant/Pages/designated-representative-guide.aspx\n.", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 40 (Footnotes) (part 10 of 29)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-40-p11", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 40", + "marginal_note": "Footnotes", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": "Return to footnote\n47\nreferrer\nFootnote 48\nIn\nHillary v. Canada (Citizenship and Immigration),\n2011 FCA 51 at paras. 42-43, the Federal Court of Appeal explained that the\nIAD\ndoes not bear primary responsibility for identifying individuals who are especially vulnerable. Counsel is best placed to bring this to the attention of the\nIRB\n. See also\nGilles v. Canada (Citizenship and Immigration)\n, 2011 FC 7 at para. 17, where the panel did not notice anything abnormal about the applicant's mental state, and the Federal Court held that the burden was on counsel to bring the issue of the applicant's mental health to the Board's attention;\nEhigiator v. Canada (Citizenship and Immigration)\n, 2023 FC 308 at para. 62;\nAhmed v. Canada (Citizenship and Immigration)\n, 2023 FC 830 at para. 36;\nSingh v. Canada (Citizenship and Immigration),\n2023 FC 872 at paras. 13-17. In\nHaynes v Canada (Attorney General)\n, 2023 FCA 158 at para. 30 the Court noted the obligation on the person to assist in securing appropriate accommodation.\nReturn to footnote\n48\nreferrer\nFootnote 49\nIn cases where there is more than one party, all parties should be notified of the\nIRB\n's request.\nReturn to footnote\n49\nreferrer\nFootnote 50\nIbid.\nReturn to footnote\n50\nreferrer\nFootnote 51\nSupra\nnote 45: The decision to grant an accommodation to deliver decisions and reasons as soon as possible should be left to the assigned member.\nReturn to footnote\n51\nreferrer\nFootnote 52\nIn cases where there is more than one party, all parties should be given notice and an opportunity to respond.\nReturn to footnote\n52\nreferrer\nFootnote 53\nRPD\nRule 50,\nRAD\nRule 37, Rule 38 of the\nImmigration Division Rules\n, SOR /2002-229 (\nID\nRules) and Rule 85\nImmigration Appeal Division Rules\n,\n2022\n, SOR/2022-277 (\nIAD\nRules).\nReturn to footnote", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 40 (Footnotes) (part 11 of 29)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-40-p12", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 40", + "marginal_note": "Footnotes", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": "53\nreferrer\nFootnote 54\nSee\nRPD\nRule 70,\nRAD\nRule 53,\nID\nRule 50 and\nIAD\nRule 4.\nReturn to footnote\n54\nreferrer\nFootnote 55\nThis would include any application form that the Board may make available for the purpose of supporting a request for procedural accommodation.\nReturn to footnote\n55\nreferrer\nFootnote 56\nThis is in accordance with current\nIRB\npractice to treat any written request as an application pursuant to the Rules. Generally, affidavits or statutory declarations will not be needed for applications for accommodations.\nReturn to footnote\n56\nreferrer\nFootnote 57\nFor example, the individual could request that the\nIRB\nrefer to an agent of persecution in a particular way so as to reduce the risk of re-traumatization; a general request to avoid re-traumatization does not provide the presiding member with sufficient information to accommodate the specific need.\nReturn to footnote\n57\nreferrer\nFootnote 58\nThe Minister is a party to all proceedings before the\nID\nand\nIAD\nand is a party before the\nRPD\nand\nRAD\nwhen they intervene, make an application for cessation or vacation, or bring an appeal. The rules of natural justice apply equally to all parties.\nReturn to footnote\n58\nreferrer\nFootnote 59\nExamples of documentation that may be received are noted in section 14.3 of this Guideline regarding documentation relevant to the assessment of the merits of a case.\nReturn to footnote\n59\nreferrer\nFootnote 60\nSee also section 14.5 of this Guideline:\nExpert Evidence\n.\nReturn to footnote\n60\nreferrer\nFootnote 61\nSubject to an assessment of the barriers in obtaining documentation noted in section 8.5.1. See\nEhigiator v. Canada (Citizenship and Immigration),\n2023 FC 308 at para. 112;\nGill v. Canada (Citizenship and Immigration),\n2023 FC 687 at para. 37.\nReturn to footnote\n61\nreferrer", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 40 (Footnotes) (part 12 of 29)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-40-p13", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 40", + "marginal_note": "Footnotes", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": "Footnote 62\nThis list is not to be treated as exhaustive, and supporting documentation may also include any form that the Board may make available.\nReturn to footnote\n62\nreferrer\nFootnote 63\nFor example, documents detailing an individual's past medical history such as copies of medical charts, prescriptions etc.\nReturn to footnote\n63\nreferrer\nFootnote 64\nFor example, from mental health professionals and other health care providers, counsellors, social workers, caregivers, community agency workers, friends, and family members.\nReturn to footnote\n64\nreferrer\nFootnote 65\nExpert evidence is opinion evidence provided by an expert. An expert is a person who possesses special skills and knowledge acquired through study or experience that entitles them to speak authoritatively concerning their area of expertise. For more details on expert evidence, see\nIRB\nLegal Services reference paper: Immigration and Refugee Board. Weighing Evidence – Chapter 8: Expert/opinion evidence, Legal Services, December 31, 2020:\nhttps://irb.gc.ca/en/legal-policy/legal-concepts/Pages/EvidPreu08.aspx\n. An expert's evidence is intended to provide decision-makers with information that is outside of their expertise or knowledge. See, for example,\nR. v. Béland\n, [1987] 2 SCR 398 at para. 16;\nTrembliuk v. Canada (Minister of Citizenship and Immigration)\n, 2003 FC 1264 at para. 12.\nReturn to footnote\n65\nreferrer\nFootnote 66\nThe\nIRB\nis not bound by any legal or technical rules of evidence, and expert witnesses may be permitted to give opinion evidence in\nIRB\nproceedings without undergoing the type of formal qualification process normally seen in court proceedings. See:\nIRPA\n, s. 170(g), 171(a.2), 173(c), and 175(1)(b). Additionally, the Federal Court has recognized that\nIRB", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 40 (Footnotes) (part 13 of 29)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-40-p14", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 40", + "marginal_note": "Footnotes", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": "decision makers are not medical professionals and “bring no specialized expertise to the question of the mental condition” of those appearing before them:\nLozano Pulido v. Canada (Citizenship and Immigration)\n, 2007 FC 209 at paras. 27-28. As such, individuals appearing before the\nIRB\nare encouraged to provide all relevant medical evidence to the Board to aid decision makers in understanding how a particular vulnerability may impact their ability to testify or otherwise present their case.\nReturn to footnote\n66\nreferrer\nFootnote 67\nSee, for example,\nEnam v. Canada (Immigration, Refugees and Citizenship)\n, 2017 FC 1117 at paras. 28–29, where the Federal Court found that although the report was written by a registered clinical social worker who was not qualified to make a diagnosis under Ontario law, she was permitted to treat certain serious disorders and therefore had expertise that the\nRAD\nshould have considered. See also\nKhan v. Canada (Immigration, Refugees, and Citizenship)\n, 2018 FC 309 at para. 14.\nReturn to footnote\n67\nreferrer\nFootnote 68\nRPD\nRule 44(1)(e);\nRAD\nRule 61(1)(e);\nID\nRule 32(1)(d);\nIAD\nRule 55(1)(f).\nReturn to footnote\n68\nreferrer\nFootnote 69\nSee\nJoseph v. Canada (Citizenship and Immigration)\n, 2015 FC 393 at paras. 45-48, and\nBelahmar v. Canada (Citizenship and Immigration)\n, 2015 FC 812 at paras. 8-9. See also\nEnam v. Canada (Immigration, Refugees and Citizenship)\n, 2017 FC 1117 at para. 29 and\nX (Re)\n, 2019 CanLII 127902 (\nRAD\n) at para. 27.\nReturn to footnote\n69\nreferrer\nFootnote 70\nYe v. Canada (Citizenship and Immigration)\n, 2014 FC 1184 at para. 20;\nPark v. Canada (Citizenship and Immigration),\n2010 FC 1269 at paras. 46-47;\nAmeir v. Canada (Citizenship and Immigration),\n2005 FC 876 at para. 27.\nReturn to footnote\n70\nreferrer\nFootnote 71", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 40 (Footnotes) (part 14 of 29)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-40-p15", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 40", + "marginal_note": "Footnotes", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": "Egbesola v. Canada (Citizenship and Immigration)\n, 2016 FC 204 at para.12 and\nIrivbogbe v. Canada (Citizenship and Immigration)\n, 2016 FC 710 at para. 36. See also\nBoyce v. Canada (Citizenship and Immigration)\n, 2016 FC 922 at paras. 52-62, where the Court held that the jurisprudence provides that a psychological report based on a discredited story cannot rehabilitate that story, where the report was not based on any independent or clinical testing.\nReturn to footnote\n71\nreferrer\nFootnote 72\nA.B. v. Canada (Citizenship and Immigration),\n2020 FC 727 at para. 53.\nReturn to footnote\n72\nreferrer\nFootnote 73\nQuinteros v. Canada (Public Safety and Emergency Preparedness)\n, 2017 FC 990 at para. 29;\nDiaz Serrato v. Canada (Citizenship and Immigration)\n, 2009 FC 176 at paras. 17-25;\nAsif v. Canada (Citizenship and Immigration),\n2016 FC 1323 at para. 33; and\nEnam v. Canada (Immigration, Refugees and Citizenship)\n, 2017 FC 1117 at paras. 28–29.\nReturn to footnote\n73\nreferrer\nFootnote 74\nThe Federal Court has held that ignoring or not properly addressing medical evidence that shows a causal relationship between a person's medical condition and their ability to testify or their credibility constitutes a reviewable error. See, for example,\nLahpai v. Canada (Minister of Citizenship and Immigration)\n, 2001 FCT 88, at para. 21 and\nHassan v. Canada (Minister of Citizenship and Immigration),\n1999 CanLII 8795 (FC) at paras. 20-22.\nReturn to footnote\n74\nreferrer\nFootnote 75\nSee, for example,\nAkintola v. Canada (Citizenship and Immigration)\n, 2020 FC 971 at para. 34, where the Court found that the memory loss mentioned in the psychological report did not explain the credibility issues, which were based on the plausibility of the events.\nReturn to footnote\n75\nreferrer\nFootnote 76", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 40 (Footnotes) (part 15 of 29)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-40-p16", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 40", + "marginal_note": "Footnotes", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": "In the context of a claim for refugee protection, sworn testimony and statements are presumed to be true unless there is a valid reason—for example, other negative credibility findings—to doubt their truthfulness, see Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.).The case law on assessment of credibility is set out in more detail in an\nIRB\nLegal Services reference paper: Immigration and Refugee Board. Assessment of Credibility in Claims for Refugee Protection, Legal Services,\nhttps://irb.gc.ca/en/legal-policy/legal-concepts/Pages/Credib.aspx\n.\nReturn to footnote\n76\nreferrer\nFootnote 77\nJones v. Canada (Minister of Citizenship and Immigration), 2006 FC 405 at para. 16: “Generally, memory gaps may be a reason to draw an adverse credibility inference, but when the claimant is a victim of severe domestic abuse, the Board must be alive to the possibility that these gaps are psychological in nature.” See also\nZamaseka v. Canada (Citizenship and Immigration)\n, 2014 FC 418 at para. 25 and\nNiyongira v. Canada (Citizenship and Immigration),\n2021 FC 911 at paras. 16-17.\nReturn to footnote\n77\nreferrer\nFootnote 78\nOzturk v. Canada (Minister of Citizenship and Immigration)\n, 2003 FC 1219 at para. 13. See also\nNwakanme v. Canada (Citizenship and Immigration)\n, 2020 FC 738 at paras. 35-38;\nWarsame v. Canada (Immigration, Refugees and Immigration)\n2019 FC 118, at para. 32; and\nYasun v. Canada (Citizenship and Immigration)\n, 2019 FC 342 at paras. 17-18.\nReturn to footnote\n78\nreferrer\nFootnote 79\nSee, for example, the\nIAD\n's decision in\nLaporte v Canada (Citizenship and Immigration)\n, 2019 CanLII 129181 (\nIAD", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 40 (Footnotes) (part 16 of 29)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-40-p17", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 40", + "marginal_note": "Footnotes", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": "), where as a result of previous strokes, the appellant had “serious physical and cognitive difficulties and has difficulty with his short- and long-term memory”, all of which were taken into consideration in weighing his testimony.\nReturn to footnote\n79\nreferrer\nFootnote 80\nSee\nChairperson's Guideline 3: Proceedings Involving Minors at the Immigration and Refugee Board\n; However, age on its own may not be an indication of vulnerability: see\nShmagin v. Canada (Citizenship and Immigration\n), 2010 FC 1030 at paras. 14 -16, where the Court stated with respect to an 80-year-old refugee claimant that “age is not in itself a sufficient ground for concluding that the applicant was vulnerable”. See also,\nDuversin v. Canada (Citizenship and Immigration)\n, 2018 FC 466 at para. 22, where the Court expressed that\na person who is 60 years old is “not ‘elderly and vulnerable' unless they are affected by some kind of limitation or illness.”\nReturn to footnote\n80\nreferrer\nFootnote 81\nFor example, in\nZararsiz v.Canada (Citizenship and Immigration)\n, 2020 FC 692 at paras. 82-89, the Court found that the\nRAD\nreasonably concluded that the appellant's mental health condition, did not explain the deficiencies in his evidence. The issue was not his inability to recall details, but rather significant inconsistencies between his statements at the port of entry and various iterations of his Basis of Claim f​orm narrative. See also the\nIAD\n's decision in\nJohal v. Canada (Citizenship and Immigration)\n, 2021 CanLII 132922 (\nIAD", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 40 (Footnotes) (part 17 of 29)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-40-p18", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 40", + "marginal_note": "Footnotes", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": ") at para. 21 where, as a result of the appellant's medical condition, the panel accorded a greater degree of latitude when considering discrepancies and knowledge gaps in the evidence but nevertheless found that the medical condition did not explain all of the discrepancies.\nReturn to footnote\n81\nreferrer\nFootnote 82\nSee, for example,\nUwejeyah v. Canada (Citizenship and Immigration)\n, 2020 FC 849 and\nEije v. Canada (Citizenship and Immigration)\n, 2021 FC 500.\nReturn to footnote\n82\nreferrer\nFootnote 83\nSee\nDaramie v. Canada (Citizenship and Immigration)\n, 2022 FC 1570 at paras. 23-25,\nOkpanachi v. Canada (Citizenship and Immigration)\n, 2022 FC 212 at paras. 23, 26-27, citing\nHarry v. Canada (Citizenship and Immigration)\n, 2019 FC 85 at para. 34.\nReturn to footnote\n83\nreferrer\nFootnote 84\nSee, for example,\nA.B. v. Canada (Citizenship and Immigration),\n2020 FC 727 at paras. 43-53;\nJoseph v. Canada (Citizenship and Immigration),\n2015 FC 393 at paras. 33-41;\nLozano Pulido v. Canada (Citizenship and Immigration)\n, 2007 FC 209 at paras. 31-35; and\nNwakanme v. Canada (Citizenship and Immigration),\n2020 FC 738 at paras. 35-38.\nReturn to footnote\n84\nreferrer\nFootnote 85\nSee, for example,\nOlesniewicz v. Canada (Citizenship and Immigration)\n, 2008 CanLII 64623 (\nIAD\n) at para. 12 where the\nIAD\nfound that while the appellant's sincerity was never in doubt, “her mental condition was such that she was unable to provide coherent testimony relevant to the issues before the panel… The complete dearth of documentary evidence on the appellant's side also did not allow the panel to assess whether the appellant's testimony could be relied upon in any respect.”\nReturn to footnote\n85\nreferrer\nFootnote 86\nSee “Chapter 12 – Trauma and Self-care, Manual on Human Rights Monitoring”, OHCHR, 2011,", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 40 (Footnotes) (part 18 of 29)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-40-p19", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 40", + "marginal_note": "Footnotes", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": "https://www.ohchr.org/sites/default/files/Documents/Publications/Chapter12-MHRM.pdf\n, at p. 4 and Haskell and Randall, “The Impact of Trauma on Adult Sexual Assault Victims”, Report submitted to the Department of Justice, 2019,\nhttps://www.justice.gc.ca/eng/rp-pr/jr/trauma/index.html\n, at p. 22. See also\nWardi v. Canada (Citizenship and Immigration)\n, 2012 FC 1509 at para. 15-19 and\nNiyongira v. Canada (Citizenship and Immigration)\n, 2021 FC 911 at 16-17. See also ss. 7.5 and 7.6 of Chairperson's Guideline 4:\nGender Considerations in Proceedings Before the Immigration and Refugee Board\n.\nReturn to footnote\n86\nreferrer\nFootnote 87\nValtchev v. Canada (Minister of Citizenship and Immigration)\n, 2001 FCT 776 at para. 7.\nReturn to footnote\n87\nreferrer\nFootnote 88\nPalmo v. Canada (Citizenship and Immigration)\n, 2016 FC 809 at paras. 22-23.\nReturn to footnote\n88\nreferrer\nFootnote 89\nSee section 4 of this Guideline:\nMyths, stereotypes and incorrect assumptions\n.\nReturn to footnote\n89\nreferrer\nFootnote 90\nMatharoo v. Canada (Citizenship and Immigration)\n, 2020 FC 664, paras. 41-43 and\nMin v. Canada (Minister of Citizenship and Immigration)\n, 2004 FC 1676 at para. 6. See also ss. 7.9 and 7.10 of Chairperson's Guideline 4:\nGender Considerations in Proceedings Before the Immigration and Refugee Board\n.\nReturn to footnote\n90\nreferrer\nFootnote 91\nValtchev v. Canada (Minister of Citizenship and Immigration)\n, 2001 FCT 776 at paras. 24-25 and\nRahal v. Canada (Citizenship and Immigration)\n, 2012 FC 319 at para. 45.\nReturn to footnote\n91\nreferrer\nFootnote 92\nAbdinur v. Canada (Citizenship and Immigration)\n, 2020 FC 880 at paras. 47–49.\nReturn to footnote\n92\nreferrer\nFootnote 93\nSee also section 5 of this Guideline:\nTrauma-informed adjudication", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 40 (Footnotes) (part 19 of 29)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-40-p20", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 40", + "marginal_note": "Footnotes", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": ". The preconception that trauma survivors will necessarily be extremely emotional when discussing their experiences is particularly strong in cases of sexual violence, where survivors are often expected to express high levels of distress and shame. See “Chapter 12 – Trauma and Self-care, Manual on Human Rights Monitoring”,\nsupra\nnote 86. See also Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection under the 1951 Convention and the 1967 Protocol Relating to Status of Refugees, UNHCR, Geneva, reissued February 2019\nhttps://www.unhcr.org/publications/legal/5ddfcdc47/handbookprocedures- criteria-determining-refugee-status-under-1951-convention.html\n.\nReturn to footnote\n93\nreferrer\nFootnote 94\nThe case law on refugee status determination is set out in more detail in an\nIRB\nLegal Services reference paper:\nInterpretation of Convention Refugee and Person in Need of Protection in the Case Law\n- Immigration and Refugee Board of Canada (irb-cisr.gc.ca) (December 31, 2020).\nReturn to footnote\n94\nreferrer\nFootnote 95\nLiaqat v. Canada (Minister of Citizenship and Immigration),\n2005 FC 893 at para. 29;\nCanada (Citizenship and Immigration) v. Oh,\n2009 FC 506 at para. 10;\nRodriguez Diaz v. Canada (Minister of Citizenship and Immigration),\n2008 FC 1243 at paras. 32-34.\nReturn to footnote\n95\nreferrer\nFootnote 96\nPersecution based on vulnerability may be cumulative, based on a combination of grounds or\nmixed motives\n, as well as be an individual ground. See, for example,\nBayrak v. Canada (Citizenship and Immigration),", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 40 (Footnotes) (part 20 of 29)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-40-p21", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 40", + "marginal_note": "Footnotes", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": "2013 FC 1056 at paras. 17-18 where the Court found that the dangers and the risks for the claimants were even more serious given their age and their vulnerability as a result of the inherent weaknesses associated with being elderly. See also\nX (Re),\n2015 CanLII 111305 (\nRAD\n) at para. 18 where the\nRAD\nfound the claimant to be a Convention Refugee on the basis of her clan affiliation, her age, her health, her lack of economic means, her lack of familial support in Somalia, and a history of problems in Somalia, and\nX (Re)\n, 2020 CanLII 126924 (\nRAD\n), where although the Nigerian appellant had based his claim on his fear of persecution at the hands of an organization in the United States, the\nRAD\nallowed the appeal and accepted the claim based on evidence relating to the appellant's mental health condition which established a nexus to the Convention on the basis of his particular social group.\nReturn to footnote\n96\nreferrer\nFootnote 97\nSee section 6 of this Guideline:\nIntersectionality\n; Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection under the 1951 Convention and the 1967 Protocol Relating to Status of Refugees, UNHCR, Geneva, Reissued February 2019\nat para\n. 55;\nGorzsas v. Canada (Citizenship and Immigration),\n2009 FC 458at paras. 36-40;\nKrishan v. Canada (Citizenship and Immigration)\n, 2018 FC 1203 at paras.18 and 28-29;\nX (Re)\n, 2020 CanLII 24189 (\nRAD\n) at paras. 8-14.\nReturn to footnote\n97\nreferrer\nFootnote 98\nIRPA\n, s. 97(1)(b)(iv); See also\nLuse v. Canada (Citizenship and Immigration)\n, 2017 FC 464, at para. 6, where the Court held that s. 97(1)(b)(iv) of the\nIRPA", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 40 (Footnotes) (part 21 of 29)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-40-p22", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 40", + "marginal_note": "Footnotes", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": "“excludes protection only when the inability to provide adequate medical care is the direct cause” of harm feared, and found that the officer erred in failing to consider whether the lack of adequate care or the prohibitive cost of medications used to manage the symptoms of schizophrenia could expose the applicant to a risk to his life or to a risk of cruel and unusual treatment or punishment if he were forced to return to his country of nationality. The Court additionally found that the applicant would have had a nexus to s. 96 under membership in a social group of \"persons suffering from a mental disorder\" and, as such, the officer should have also analyzed the Pre-Removal Risk Assessment (PRRA) application under s. 96.\nReturn to footnote\n98\nreferrer\nFootnote 99\nSalako v. Canada (Citizenship and Immigration)\n, 2020 FC 630 at paras. 41-57. For examples in the mental health context see:\nAverin v. Canada (Citizenship and Immigration)\n, 2012 FC 1457 at paras. 9-11 and\nRichmond v. Canada (Citizenship and Immigration)\n, 2013 FC 228 at paras. 4 and 8.\nReturn to footnote\n99\nreferrer\nFootnote 100\nA.B. v. Canada (Citizenship and Immigration)\n, 2018 FC 373 at paras. 8-9;\nSelvarasu v. Canada (Citizenship and Immigration),\n2015 FC 849 at para. 42.\nReturn to footnote\n100\nreferrer\nFootnote 101\nSee\nMmono v. Canada (Citizenship and Immigration),\n2013 FC 219 at para. 15 where the Court found that despite having rejected the Applicant's claim based on gender-based violence due to credibility concerns the\nRPD\nshould have considered how she would be affected by her HIV positive status in Botswana. See also section 15 of this Guideline:\nCredibility\n.\nReturn to footnote\n101\nreferrer\nFootnote 102\nSee, for example:\nYusuf v. Canada (Minister of Employment and Immigration)", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 40 (Footnotes) (part 22 of 29)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-40-p23", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 40", + "marginal_note": "Footnotes", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": "(C.A.), 1991 CanLII 13547 (FCA), [1992] 1 FC 629, at 630, where in a case involving a minor, the Court found that a refugee claim cannot be denied based on a lack of subjective fear, “whether out of courage or because of mental incapacity”. See also\nCanada (Minister of Citizenship and Immigration) v. Patel,\n2008 FC 747 at para. 37.\nReturn to footnote\n102\nreferrer\nFootnote 103\nIn\nCanada (Attorney-General) v. Ward,\n[1993] 2 SCR 689, the Court found that the state's inability to protect is a crucial element in determining whether the claimant's fear is well-founded, and in assessing the objective reasonableness of a claimant's unwillingness to seek the protection of their country of nationality. See also\nCanada (Minister of Citizenship and Immigration) v. Olah,\n2002 FCT 595 at para. 6, where the Court noted that the relevant evidence to determine the issue of state protection was not the claimant's subjective reluctance but the documentary evidence and her personal circumstances.\nReturn to footnote\n103\nreferrer\nFootnote 104\nSee, for example,\nKandha v. Canada (Citizenship and Immigration),\n2016 FC 430, para. 21 where the Court found that in light of the youngest applicant being 16 years old at the time of the events, the\nRAD\nshould have considered the persecutor's position of authority in the household and the country at large. The Court agreed with the principle stated in\nZhu v. Canada (Citizenship and Immigration)\n, 2001 FCT 884, that the “claimant's reluctance to seek state protection must be assessed in light of his or her status as a minor, and the fact that children may be more reluctant to seek protection”. See also\nX (Re)\n, 2013 CanLII 94673 (\nRPD\n) at para. 23 where in assessing state protection, the\nRPD", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 40 (Footnotes) (part 23 of 29)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-40-p24", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 40", + "marginal_note": "Footnotes", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": "found that based on the NDP, the sexual minorities in Nigeria were reluctant or unable to report violence perpetrated against them to the police because they are mocked, abused, fear being detained or charged in accordance with the laws, and because the perpetrators are not punished. See also\nChairperson's Guideline 3: Proceedings Involving Minors at the Immigration and Refugee Board\n.\nReturn to footnote\n104\nreferrer\nFootnote 105\nSee section 6 of this Guideline:\nIntersectionality\n.\nReturn to footnote\n105\nreferrer\nFootnote 106\nGonzalez Torres v. Canada (Citizenship and Immigration)\n, 2010 FC 234 at paras.37 and 40. See also\nLakatos v. Canada (Citizenship and Immigration),\n2018 FC 367 at paras. 22-23 where the Court found that the analysis of state protection analysis is highly contextual and depends on the claimant's personal circumstances. In some cases, for instance, a claimant may have an objectively reasonably fear of testing state protection given factors such as their age, background, and experiences, including prior responses to incidents.\nReturn to footnote\n106\nreferrer\nFootnote 107\nFor example, minors, persons facing trauma or persons with mental health conditions may face greater difficulty seeking state protection. In\nHernandez v. Canada (Citizenship and Immigration),\n2010 FC 953 at para. 8, the Court acknowledged that the\nRPD\nreasonably considered the applicant's mental health in assessing his access to state protection. In\nRivas Montanez v. Canada (Citizenship and Immigration),\n2010 FC 460 at para. 4, the Court found that it was not objectively reasonable for the applicant who was experiencing spousal abuse to seek state protection, due to her young age at marriage and situation of dependency. In\nMelo v. Canada (Citizenship and Immigration),", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 40 (Footnotes) (part 24 of 29)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-40-p25", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 40", + "marginal_note": "Footnotes", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": "2008 FC 150 at para. 12, the Court found that evidence with respect to an applicant's mental state can be “very relevant” in the assessment of whether it was reasonable to have sought state protection. It also found that the\nRPD\nerred by failing to address the Applicants' explanations for not seeking out state protection, including evidence of their psychological condition.\nReturn to footnote\n107\nreferrer\nFootnote 108\nSee\nKauhonina v. Canada (Immigration, Refugees and Citizenship),\n2018 FC 1300 at paras. 17-18;\nGonzalez Torres v. Canada (Citizenship and Immigration),\n2010 FC 234 at para. 41.\nReturn to footnote\n108\nreferrer\nFootnote 109\nSee\nSalako v. Canada (Citizenship and Immigration),\n2020 FC 630 at paras. 45-57,\nCsoke v. Canada (Citizenship and Immigration)\n, 2015 FC 1169 at para. 18,\nX (Re),\n2018 CanLII 141797 (\nRAD\n) at para. 11, and\nX (Re),\n2019 CanLII 128547 (\nRAD\n) at paras. 50-53.\nReturn to footnote\n109\nreferrer\nFootnote 110\nA.B. v. Canada (Citizenship and Immigration)\n, 2019 FC 1339 at paras. 20-24;\nBurai v. Canada (Citizenship and Immigration)\n, 2020 FC 966 at para. 25.\nReturn to footnote\n110\nreferrer\nFootnote 111\nSee, for example:\nLevel v. Canada (Citizenship and Immigration),\n2010 FC 251 at para. 64.\nReturn to footnote\n111\nreferrer\nFootnote 112\nOkafor v. Canada (Citizenship and Immigration)\n, 2011 FC 1002 at para. 13, citing\nCartagena v. Canada (Citizenship and Immigration),\n2008 FC 289.\nReturn to footnote\n112\nreferrer\nFootnote 113\nThirunavukkarasu v. Canada (Minister of Employment and Immigration)\n, 1993 CanLII 3011 (FCA), [1994] 1 FC 589.\nReturn to footnote\n113\nreferrer\nFootnote 114\nCardenas v. Canada (Citizenship and Immigration)\n, 2017 FC 1194 at para. 21.\nReturn to footnote\n114\nreferrer\nFootnote 115\nEnweliku v. Canada (Citizenship and Immigration)", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 40 (Footnotes) (part 25 of 29)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-40-p26", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 40", + "marginal_note": "Footnotes", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": ", 2022 FC 228 at para. 37, citing\nAttama v. Canada (Citizenship and Immigration)\n, 2021 FC 903 at para. 20.\nReturn to footnote\n115\nreferrer\nFootnote 116\nSee also section 14.5 of this Guideline:\nExpert Evidence.\nReturn to footnote\n116\nreferrer\nFootnote 117\nAsif v. Canada (Citizenship and Immigration)\n, 2016 FC 1323, at para. 33.\nReturn to footnote\n117\nreferrer\nFootnote 118\nAttama v. Canada (Citizenship and Immigration)\n, 2021 FC 903 at paras. 18-20\n; Feboke v. Canada (Citizenship and Immigration)\n, 2020 FC 155 at paras. 57-59.\nReturn to footnote\n118\nreferrer\nFootnote 119\nEgbesola v. Canada (Citizenship and Immigration)\n, 2016 FC 204 at paras. 13-15, citing\nMolefe v Canada (Minister of Citizenship and Immigration)\n, 2015 FC 317.\nReturn to footnote\n119\nreferrer\nFootnote 120\nImmigration and Refugee Protection Regulations\n, SOR/2002-227.\nReturn to footnote\n120\nreferrer\nFootnote 121\nSee\nLee v. Canada (Public Safety and Emergency Preparedness)\n, 2022 FC 383 at paras. 62-64.\nReturn to footnote\n121\nreferrer\nFootnote 122\nFor example, see\nChairperson's Guideline 2: Detention\n, at s. 3.1.15 which provides a non-exhaustive list of detainees who may be considered vulnerable.\nReturn to footnote\n122\nreferrer\nFootnote 123\nSee\nLee v. Canada (Citizenship and Immigration)\n, 2022 FC 344 at para. 65.\nReturn to footnote\n123\nreferrer\nFootnote 124\nAtem v. Canada (Public Safety and Emergency Preparedness),\n2023 FC 165 at para. 66.\nReturn to footnote\n124\nreferrer\nFootnote 125\nCanada (Public Safety and Emergency Preparedness) v. Gaytan\n, 2021 FCA 163.\nReturn to footnote\n125\nreferrer\nFootnote 126\nIbid.\nat para. 119.\nReturn to footnote\n126\nreferrer\nFootnote 127\nSee, for example,\nSidhu v. Canada (Citizenship and Immigration)\n, 2019 FCA 169 at para. 79.\nReturn to footnote\n127\nreferrer\nFootnote 128", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 40 (Footnotes) (part 26 of 29)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-40-p27", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 40", + "marginal_note": "Footnotes", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": "See also section 17.2 of this Guideline regarding admissibility hearings at the Immigration Division, where applicable.\nReturn to footnote\n128\nreferrer\nFootnote 129\nGrewal v. Canada (Citizenship and Immigration)\n, 2020 FC 1186 at paras. 42-43;\nSejdiu v. Canada (Citizenship and Immigration)\n, 2023 FC 466 at para. 17.\nReturn to footnote\n129\nreferrer\nFootnote 130\nIRPA\n, ss. 63(3) and (4).\nReturn to footnote\n130\nreferrer\nFootnote 131\nSee, for example,\nBougherara v. Canada (Citizenship and Immigration)\n, 2021 CanLII 81145 (\nIAD\n) at paras. 9 to 14.\nReturn to footnote\n131\nreferrer\nFootnote 132\nSee for example,\nPhagura v. Canada (Public Safety and Emergency Preparedness)\n, 2019 CanLII 42301 (\nIAD\n) at paras. 40-46.\nReturn to footnote\n132\nreferrer\nFootnote 133\nMouaj v. Canada (Public Safety and Emergency Preparedness)\n, 2008 CanLII 74755 (\nIAD\n) at para. 21.\nReturn to footnote\n133\nreferrer\nFootnote 134\nKanthasamy v. Canada (Citizenship and Immigration),\n2015 SCC 61 at para. 56;\nYlanan v. Canada (Public Safety and Emergency Preparedness)\n, 2019 FC 1063 at paras. 38-41;\nKhir v. Canada (Citizenship and Immigration)\n, 2021 FC 160 at para. 62; See also the\nIAD\n's decision in\nBains v. Canada (Public Safety and Emergency Preparedness)\n, 2022 CanLII 65232 (\nIAD\n) at paras. 347-355.\nReturn to footnote\n134\nreferrer\nFootnote 135\nDwyer v. Canada (Public Safety and Emergency Preparedness)\n, 2020 FC 919 at para. 75;\nKanthasamy\n,\nsupra\nnote 134 at para. 48.\nReturn to footnote\n135\nreferrer\nFootnote 136\nKanthasamy\n,\nsupra\nnote 134 at para. 48.\nReturn to footnote\n136\nreferrer\nFootnote 137\nPalmer v. Canada (Public Safety and Emergency Preparedness)\n, 2012 FC 1277 at para. 25;\nLawrence v. Canada (Public Safety and Emergency Preparedness),\n2022 CanLII 94492 (\nIAD\n) at para. 69;", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 40 (Footnotes) (part 27 of 29)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-40-p28", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 40", + "marginal_note": "Footnotes", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": "Maxwell v. Canada (Citizenship and Immigration\n), 2000 CanLII 22876 (\nIAD\n);\nJones v. Canada (Citizenship and Immigration),\n2005 CanLII 56946 (\nIAD\n) at para. 11.\nReturn to footnote\n137\nreferrer\nFootnote 138\nAddressing the issue of appropriate bail conditions in the criminal law context, the Supreme Court of Canada explained in\nR. v.\nZora\n, 2020 SCC 14 at para. 79, that “…onerous conditions disproportionately impact vulnerable and marginalized populations. Those living in poverty or with addictions or mental illnesses often struggle to meet conditions by which they cannot reasonably abide...” [references omitted].\nReturn to footnote\n138\nreferrer\nFootnote 139\nDoe v. Canada (Public Safety and Emergency Preparedness)\n, 2021 CanLII 51041 (\nIAD\n) at paras. 36-37; See also the following\nIAD\ndecisions, where the panel recognized that lapses in addiction recovery should not be unexpected and are not necessarily an indication of poor rehabilitation prospects:\nDhinsa v. Canada (Citizenship and Immigration)\n, 2018 CanLII 112423 (\nIAD\n) at paras. 23-24;\nBehuncik v. Canada (Public Safety and Emergency Preparedness)\n, 2012 CanLII 101753 (\nIAD\n) at para. 9,\nFlood v. Canada (Public Safety and Emergency Preparedness)\n, 2009 CanLII 84871 (\nIAD\n) at para. 27.\nReturn to footnote\n139\nreferrer\nFootnote 140\nConsent may be withdrawn by way of application pursuant to\nIAD\nRule 84, or at a hearing. See, for example,\nDocherty v. Canada (Public Safety and Emergency Preparedness)\n, 2015 CanLII 90708 (\nIAD\n) at para. 10.\nReturn to footnote\n140\nreferrer\nFootnote 141\nSee the\nIAD\n's decision in\nPassawe v. Canada (Public Safety and Emergency Preparedness)\n, 2019 CanLII 124057 (\nIAD", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 40 (Footnotes) (part 28 of 29)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + }, + { + "id": "irbg-8-40-p29", + "doc_type": "memorandum", + "act_code": "IRB-G8", + "act_short": "IRB Guideline 8", + "act_name": "IRB Chairperson's Guideline 8 — Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "section": "G8 s. 40", + "marginal_note": "Footnotes", + "part": "Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations", + "division": "", + "heading": "", + "text": ") at paras. 6 and 44-47​, where the appellant was functioning at a pre-kindergarten level and was unable to read and write, but had strong support in the community; See also\nCanada (Citizenship and Immigration) v. Antonin\n, 2009 FC 1140 at paras. 44-48.\nReturn to footnote\n141\nreferrer", + "history": "", + "last_amended": "2023-10-31", + "current_to": "2023-10-31", + "citation": "Chairperson's Guideline 8, s. 40 (Footnotes) (part 29 of 29)", + "source_url": "https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx" + } +] \ No newline at end of file