Better Know a Court: The Immigration and Refugee Board of Canada

Norm Yallen (1L)

General Mandate

The Immigration and Refugee Board of Canada (IRB) is the tribunal responsible for making decisions on matters relating to immigration and refugees. The IRB is governed by the Immigration and Refugee Protection Act (IRPA), and its authority is split between immigration and refugee protection divisions, each with their own internal appeal body.

The Immigration Division is responsible for conducting admissibility hearings and detention reviews. An admissibility hearing determines if someone accused of violating the IRPA—for instance, by overstaying a visa or being associated with a terrorist group—can remain in Canada or if they will be deported. Detention reviews determine whether someone detained by the Canadian Border Services Agency (CBSA) can be released. Detention practices of immigration authorities are currently under review, in part because some see them as unjust or lacking in due process. The Immigration Appeals Division (IAD) hears appeals on cases such as failed sponsorship applications and removal orders. If someone’s initial immigration application fails or they are on the brink of removal from the country, the IAD is their avenue of recourse.

The Refugee Protection Division is responsible for hearing claims for refugee protection and deciding whether a person can obtain refugee status. When a person arrives in Canada and claims refugee status, they are given a hearing at the IRB. Canada has an obligation to protect refugees stemming from multiple United Nations conventions that exhort signatory states to grant such protection. The Refugee Appeal Division (RAD) hears and decides appeals of refugee applications that are rejected by the Refugee Division.

Refugee Protection Division is responsible for hearing claims for refugee protection and deciding whether a person can obtain refugee status. When a person arrives in Canada and claims refugee status, they are given a hearing at the IRB. Canada has an obligation to protect refugees stemming from multiple United Nations conventions that exhort signatory states to grant such protection. The Refugee Appeal Division (RAD) hears and decides appeals of refugee applications that are rejected by the Refugee Division.

Refugee Claimant Process

A person claiming refugee status must complete and submit a Basis of Claim form, upon which the IRB will schedule a hearing. The claimant must bring evidence to prove to the Board Member presiding at the hearing that they are a refugee under the 1951 Refugee Convention or a protected person under the Convention Against Torture. The Member weighs a variety of factors, including the conditions in the person’s home country, whether they are a member of a particular social group, and if there is somewhere they can return to in their home country that would be safer. On a more general level, the Member seeks to determine whether the claimant is credible and whether their fear of persecution is objectively well founded.

If a refugee claimant’s application is approved, they are entitled to apply for permanent residency status. If the application is refused, the claimant has several options. The first is to apply for a pre-removal risk assessment, under which an officer reviews documents from the case and other evidence to determine if the person would face danger in returning to their home country. The second is an appeal to the RAD.

Though officially established with the introduction of IRPA in 2001, the RAD has only been operational since 2012. The role of the RAD is still being worked out amidst a farrago of regulations, guidelines, and court decisions. For example, the recent decision in Y.Z. allows claimants from ‘Designated Countries of Origin’ (deemed non-refugee producing) access to the RAD; the twin cases of Huruglica and Singh have established evidentiary standards and the mandate of the RAD.

Problems with the Refugee Division Approach

The Refugee Division has faced substantial criticism over the lack of fairness and consistency in its decisions. Board Members are political appointees, and they often lack a background or expertise in either the law or immigration. There is an extremely high level of variance in the acceptance rate among Members: some accept over eighty percent of refugee applications, while others accept less than ten percent of applications.

The Board Member assigned to the case has a significant impact on it, as well as on the applicant. It is impossible to claim there is a uniform standard when some Members accept almost all claims while others refuse almost all claims. Someone who faces persecution and danger in their home country may be faced with the prospect of returning simply because they had the misfortune of being assigned one of the latter Members.