Canadian Refugee Procedure/164 - Presence of parties and use of telecommunications for hearings

The IRB has successfully used videoconferencing and teleconferencing at hearings since the early 1990s. This section discusses the provision of the Act that relates most directly to this practice.

IRPA Section 164

The relevant provision of the Immigration and Refugee Protection Act reads:

Presence of parties
164 Where a hearing is held by a Division, it may, in the Division’s discretion, be conducted in the presence of, or by a means of live telecommunication with, the person who is the subject of the proceedings.

A hearing may be conducted either in the presence of the person, or by live telecommunication, but not normally in their absence

Section 164 of the IRPA provides that a hearing may be conducted in the presence of, or by live telecommunication with, the person who is the subject of the proceedings. While the Division may choose which, it should not normally choose to proceed without the person who is the subject of the proceedings being present. On this point, the Board has stated:

The hearing should not normally proceed, however, in the absence of any claimant who is a competent adult. For example, where claims of family members are being heard jointly, there may be a request to have one parent, who is a claimant, leave the hearing to attend to children, while the other parent, who is also a claimant, remains at the hearing. Such request should ordinarily be denied. If one parent has to leave, the proceedings should be recessed or adjourned until both parents (claimants) are able to attend.

That said, the above statement was made referring to the former Immigration Act, which required that a hearing into a claim "shall be held in the presence of the claimant, wherever practicable". The text has now changed to the phrasing above. Furthermore, even at that time, the right to be present at the hearing could be waived if there is an express waiver by the claimant. But see in Philip v. Canada, the female claimant was excluded from the hearing room while her children, aged 5 and 8, were questioned. When she returned to the hearing room, counsel asked the presiding member to summarize the children’s evidence. It was only at that point that the mother was appointed designated representative. In allowing the application for judicial review, the Court held that the presence of the claimant under the then-subsection 69(2) of the Immigration Act was mandatory: "The words ‘whenever practicable’, while recognizing that in some circumstances, it may not be possible for an applicant to be present, also require that when it is feasible, applicants must be present." Though it was noted that even if the exclusion was permissible, the summary provided to the female claimant was inadequate.

The right to proceed without a minor claimant is uncontroversial. In Baig v. Canada, the court upheld a decision that he RPD did not breach procedural fairness when it questioned an adult applicant in the absence of the minor applicant, since there was an explicit exchange about, and consent from, the principal applicant regarding the absence of the minor claimant while very sensitive issues were being discussed. In that case, the RAD was held to be reasonable in finding that the RPD was alert and sensitive to ensuring the proceedings were conducted in accordance with the best interests of the child and with Chairperson Guideline 3: Child Refugee Claimants: Procedural and Evidentiary Issues.

Meaning of "telecommunication"

When interpreting the meaning of "live telecommunication", one can have recourse to the definition in the federal Interpretation Act: "telecommunications means the emission, transmission or reception of signs, signals, writing, images, sounds or intelligence of any nature by any wire, cable, radio, optical or other electromagnetic system, or by any similar technical system; (télécommunication)".

History of the provision and its content

The repealed Immigration Act, which preceded the IRPA, contained no direct analogue to section 164. Section 164 was introduced, along with the rest of the IRPA, in 2001. The section came into force on June 28, 2002 and has not been amended.

An earlier version of the IRPA, which had been introduced as a bill in the previous session of Parliament, but died on the order paper, did not contain a direct analogue to s. 164. Instead, Bill C-31 had stated that, "subject to the other provisions of this section, proceedings must be held in public and, as far as possible, in the presence of the interested parties [emphasis added]". Furthermore, that bill had also stated that in all proceedings the RPD "must conduct a hearing in the presence of the foreign national concerned".

This section of the Act is frequently considered in applications to change the location of a proceeding

One of the ways that this section of the Act is frequently considered and relied upon is with applications to change the location of a proceeding where the Board elects to allow a claimant to appear by video from the place that they have moved to, rather than transferring the file to a different office in its entirety. See the commentary to RPD Rule 53(4)(g): Canadian Refugee Procedure/Changing the Location of a Proceeding.

Procedural fairness issues and best practices regarding videoconferencing

The use of videoconferencing is not per se unfair

Videoconferencing is widely used in refugee status determination procedures around the world, including Australia and the United States. Section 164 of the Act provides that the Board may conduct a hearing via live telecommunication here in Canada. The Board has a policy entitled Use of Videoconferencing in Proceedings before the Immigration and Refugee Board of Canada which sets out that it is the IRB's position that provided that it is carried out in accordance with appropriate technological and procedural standards, videoconferencing does not affect the quality of the hearing or decision-making and respects the principles of natural justice and procedural fairness.

Board policy specifies that videoconferencing is inappropriate for certain types of claims and claimants

It may be noted that many counsel do not like videoconferencing and academic commentators have called on the Board to "limit this practice as much as possible". The 2004 RPD Policy on the Transfer of Files for Hearings by Videoconference states at Section 5.5 that counsel may bring matters to the attention of the RPD that are inappropriate for videoconferencing, by making an application.

In what circumstances may issues with videoconferencing arise?

• Disability issues: In Al-Gumer v. Canada the appellant was hearing impaired and required the assistance of sign language interpreter at his hearing and, further, his counsel required a captionist or an ASL interpreter. In the circumstances, it was determined that it was not practical to conduct that hearing remotely given the technology available. This decision of the Immigration Appeal Division should be persuasive for the Refugee Protection Division.
• Parties should have 'feedback screens': The Board commissioned an external review of the use of videoconferencing at the IRB which recommended the the Board "install feedback screens in all of the claimant's rooms in the system." The report went on to state that "Fairness and effectiveness both require that both the claimants and their counsel be aware at all times of the picture of their room transmitted to the screen in the member's room." IRB management accepted this recommendation, stating that it is their policy that "All offices with videoconferencing equipment currently have feedback screens: either picture-in-picture or a separate television screen. The Board, through the designated employee, will ensure that participants are using this technology correctly."
• Awareness of effects of video on the assessment of demeanour: Subtle lags inherent in the technology can affect perceptions of credibility according to psychological research. Board Members should be aware of this and consider this when thinking about their subjective assessment of witness credibility.
• Confidentiality: As per s. 166(c) of the IRPA, the Division, in all of its proceedings, must respect the confidential nature of refugee proceedings. If this would be compromised by proceeding virtually, then the Division should not require it.

The Board has jurisdiction to request that a party show their surroundings during a remote videoconferencing hearing

In Slimani v. Canada, the court affirmed the RPD’s authority to ask for a 360-degree camera view when it suspects that a claimant is using notes or other documents. The court accepted that pursuant to section 162 of the IRPA, the RPD has sole and exclusive jurisdiction over its proceedings, and that pursuant to this authority, the RPD may request that a witness show his or her surroundings when the hearing is held by videoconference. See: Canadian Refugee Procedure/162 - Board Jurisdiction and Procedure.