Immigration: Procedural fairness above all

Creating a shorter hearing process for the Immigration and Refugee Board is a good way to reduce the backlog of claims at the Refugee Protection Division, says the CBA’s Immigration Law Section, but care must be taken not to throw out procedural fairness along with the longer procedure.

The Section commends the IRB for creating a shorter “focused hearing” process to go to a file-review process instead of a hearing for cases with “one or two issues which appear to be determinative of the claim.” But it also says safeguards need to be in place just as in instances where the case is not as simple as it appeared.

Among other things, the Section says the criteria for selecting which cases will be dealt with using focused hearings are ambiguous. “Greater transparency is needed to ensure that the IRB is not inappropriately predisposed to selecting certain cases from particular countries for this process.”

The IRB also needs to let people know which issues the hearings will focus on in advance, since there will only be a limited time for claimants to make their case. Allowing claimants time to prepare their arguments will also contribute to the efficiency of the hearings, the Section says.

Finally, the Section recommends the system be flexible so that if at any time it turns out a longer hearing is necessary to deal with the claim, the short hearing can be converted.

“Counsel may be able to make this determination before the hearing in some cases,” the Section says. “In others, a determinative issue may arise at the hearing itself based, for example, on the claimant’s testimony. Conversion to a full hearing must be allowed in these cases if it is justified considering all circumstances.”

Adding these safeguards will ensure every refugee claimant’s constitutional right to a full hearing is protected, the Section says.