Canadian Refugee Procedure/Principles for the interpretation of refugee procedure

Fundamental justice requires that a tribunal which adjudicates upon rights must act fairly, in good faith, without bias and in a judicial temper, and must give the opportunity for parties to adequately state their case. The standards of conduct for the Board are fundamentally based on and recognize two principles: (i) that public confidence and trust in the integrity, objectivity and impartiality of the IRB must be conserved and enhanced; and (ii) that independence in decision-making is required. This section of the book will explore the principles that have been used when interpreting these requirements in the refugee context.

Principles for the interpretation of refugee procedure as derived from caselaw
The following are some of the principal principles regarding the interpretation and application of procedural fairness as they have emerged in the refugee context caselaw:

Principles of statutory interpretation
As a starting point, a decision-maker interpreting a statutory provision shall do so by applying what is termed the “modern principle” of statutory interpretation, that is, that the words of a statute must be read “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”. A full discussion of statutory interpretation is beyond the scope of this text. Some brief comments may suffice:


 * Ordinary sense of the words: Where the words of a statutory provision are precise and unequivocal, the ordinary meaning of the words will play a dominant role in the interpretive process. Where, however, words in a statutory provision are capable of supporting more than one reasonable meaning, the ordinary meaning of the words plays a lesser role in the statutory interpretation analysis.
 * The presumption of consistent or uniform expression. The principle of "uniformity of expression" states that a word or phrase should have one and only one meaning across the statute and enabled regulation. The opposite is also true, the use of different wording implies a different meaning. One of the doctrines that may arise is that statutes in pari materia (i.e., statutes on the same subject or matter) should be construed harmoniously. See, e.g., Canadian Refugee Procedure/Privacy Act.
 * Expressio unius est exclusio alterius. This maxim of statutory interpretation means that the expression of one thing is the exclusion of another. For example, when the legislature expressly codifies only part of the law relating to a matter, the Court may rely on implied exclusion reasoning to conclude that the part of the law not expressly mentioned was meant to be excluded.
 * Presumption against tautology. There is a presumption that Parliament has not included words in a statute which are superfluous and redundant.
 * Interpretation Act. Other relevant principles of statutory interpretation are those arising from the Interpretation Act, such as the presumptive rule in section 11 of the Interpretation Act that “may” is permissive and section 14, which provides that marginal notes and headings do not form part of a statute, and are inserted only for ease of reference (that said, it is nevertheless permissible to consider them as part of the interpretative process, although they may be accorded lesser weight than other interpretive aids).

Principles about the expectations that one reasonably has of the Board

 * First, the Board should do no harm. The Board commits in the Instructions for Gathering and Disclosing Information for Refugee Appeal Division Proceedings that "the assigned member will request specific information about the person who is the subject of the appeal and use such information only when they have completed a risk assessment and are satisfied that there is no serious possibility that gathering the information would endanger the life, liberty or security of the person who is the subject of the appeal or any other person." This is a general principle that applies to many similar information-gathering functions. For example, in all circumstances and at all times, United Nations High Commissioner for Human Rights staff have an obligation not to jeopardize the life, safety, freedom and well-being of victims, witnesses and other cooperating persons. The same obligation may reasonably extend to staff of the Immigration and Refugee Board of Canada. That said, there are legal protections against criminal and civil claims provided that the Board acts in good faith: Canadian Refugee Procedure/156 - Immunity and no summons.
 * A high duty of procedural fairness is owed in the refugee context. The Federal Court of Appeal has stated that “The independence of the Board, its adjudicative procedure and functions, and the fact that its decisions affect the Charter rights of claimants, indicate that the content of the duty of fairness owed by the Board, including the duty of impartiality, falls at the high end of the continuum of procedural fairness.” For more detail, see: Canadian Refugee Procedure/Principles for the interpretation of refugee procedure.


 * The tribunal and its procedures should be as accessible as possible. The Federal Court has held that the IRPA provisions regarding refugee status determination evince a legislative intention to avoid the formalities which are attendant upon court hearings in civil or criminal proceedings. To this end, the Executive Committee of the UNHCR recommends that states provide refugee claimants with the necessary guidance as to the procedure to be followed.
 * It is not the Board's role to provide legal advice to claimants. In Sundaram v. Canada the Federal Court stated that it was "not prepared to read into the immigration scheme an obligation on officials to give advice on practice and procedures. The situation of giving advice is markedly different from those Court decisions which have held that officials must provide prospective applicants with the necessary forms. People are entitled to government forms; they are not entitled to receive free legal advice from RPD officials." The Federal Court held in Law v. Canada that an administrative tribunal has no obligation to act as the attorney for a claimant who refused counsel. Put another way, "it is not the obligation of the Board to 'teach' the Applicant the law on a particular matter involving his or her claim". As the Federal Court stated in Singh v. Canada, "It is not up to the RAD to make the case for the applicants". But see the following regarding self-represented claimants: Canadian Refugee Procedure/RPD Rules 14-16 - Counsel of Record#The Board has a heightened duty of procedural fairness when dealing with self-represented claimants. See also the following regarding the expectation that a panel will identify what legal issues are in play in a claim:Canadian Refugee Procedure/The right to be heard and the right to a fair hearing.
 * The tribunal's decisions should follow the law. Cases should be decided based on all of the law that binds the Board, not just the law that the parties happen to put in front of a panel. Panels are to follow all legal and procedural requirements, and when reviewing the conduct of another panel, there is a "presumption of regularity", a presumption which can only be rebutted with "convincing evidence". See: Canadian Refugee Procedure/The right to be heard and the right to a fair hearing. This tracks Canada's international obligations; the International Court of Justice has held that a panel is not limited to the arguments submitted by the parties and the panel is deemed to take judicial notice of the law and is therefore required to consider on its own initiative all rules which may be relevant. See also: Canadian Refugee Procedure/RPD Rule 22 - Specialized Knowledge.
 * The tribunal should develop its own jurisprudence. Within the limits of the law, the Federal Court has commented that it is important that the Board have the possibility of developing its own jurisprudence.
 * The Board’s procedures should be predictable. The Board states that Members should endeavour to be aware of how other panels have been dealing with issues and, where possible, try to do the same as a means of promoting consistency of procedures in the Refugee Division. The basic principles of equal protection and due process reflected in the American Declaration of the Rights and Duties of Man require predictable procedures. Canada’s position is that it implements the relevant parts of the American Declaration using the standards and procedures of the IRPA. Similarly, UNHCR states in its Procedural Standards for Refugee Status Determination that "RSD applications must be processed pursuant to transparent and fair procedures". That said, the Federal Court has stated that the tribunal has the freedom to apply the statutory provisions that it interprets "with more or less flexibility depending on the circumstances of the case". See: Canadian Refugee Procedure/The right to be heard and the right to a fair hearing.
 * The Board must not fault parties for its own deficiencies. For example, in Huseen v. Canada, the government pointed out that the IRB Office in Toronto only received a venue change request one day before the abandonment hearing. The court commented "this speaks to the internal communications between regional offices at the IRB, as the Calgary IRB office was handed the change of venue request, in person, about three weeks prior. It would be unfair to fault the Applicants for the Board’s delay in internal communications, over which the Applicants had no control or influence."
 * Decision-makers should prepare thoroughly. The Code of Conduct for Members of the Immigration and Refugee Board of Canada provides that "Members shall make each decision on the merits of the case, based on thorough preparation, the assessment of evidence properly before the member and the application of the relevant law." The Federal Court notes that each application for protection deserves the same degree of care. It also states that determinations should be made with "care and attention". For more detail, see: Canadian Refugee Procedure/The Board's inquisitorial mandate.
 * Decision-makers should consider all of the evidence before them. There exists a presumption in Canadian refugee law that decision-makers have considered all of the evidence before them. The more important the information, particularly where it contradicts a finding being made, the more the requirement that it explicitly be referred to and distinguished in the reasons provided. This requires time. Asylum cases are said to be ‘highly fact intensive and depend upon presentation and consideration of numerous details and documents which can take no small amount of time. Evidence from social psychology studies of judging suggests a relationship between time taken and accuracy: judges with higher caseloads have been found to be more likely to make inaccurate decisions, as they rely less on deliberative reasoning and careful processing of information and more on their gut feeling and intuition. But see: Canadian Refugee Procedure/The Board's inquisitorial mandate. There is also a presumption that members reach their decisions by relying solely on the evidence before them in the record and that they are able to ignore any other evidence from other files.
 * The Board should endeavour to ensure that parties feel heard through the reasons it offers. See: Canadian Refugee Procedure/The right to be heard and the right to a fair hearing.
 * Claims should be processed expeditiously. For details, see: Canadian Refugee Procedure/Principles for the interpretation of refugee procedure.
 * The Board should verify that representatives appearing before the Board are authorized pursuant to the Act and regulations: The Federal Court has noted that "there is a duty incumbent upon the Board to verify that those individuals representing clients with whom it has dealings are authorized representatives pursuant to the Regulations, or that they are not receiving a fee for their services." The IRB should not knowingly deal with counsel in contravention of section 91 of the IRPA or the requirements of the College of Citizenship and Immigration Consultants. See: Canadian Refugee Procedure/RPD Rules 3-13 - Information and Documents to be Provided and also Canadian Refugee Procedure/Principles for the interpretation of refugee procedure.

Principles about the manner in which the Board is to exercise its discretion
The Code of Conduct for Members of the Immigration and Refugee Board of Canada is based on the IRB 's dedication to the following values - honesty, good faith, fairness, accountability, dignity, respect, transparency, openness, discretion, cultural sensitivity and loyalty. These values should be evinced by all of the Board's conduct and decisions. In particular:


 * Justice must be seen to be done. The Board has an institutional responsibility to ensure that the tribunal's adjudication is both actually performed at an optimum level of competency, fairness and objectivity and is perceived to have been so performed. A tension exists between the imperative to be efficient and work rapidly through multiple cases on the one hand, and the imperative to be considered, deliberative, and just on the other (and to be seen to be so). The first set of considerations must not undermine respect for the second sort. For example, in one hearing where the Refugee Protection Division had double-booked a Member, who then tried to complete two hearings in the time ordinarily allotted to one, the court commented as follows: "while I find it commendable from an efficiency standpoint that the Member was prepared to deal with both matters, the aura of urgency that pervaded the hearing undermined the process. A reading of the transcript suggests some sense of impatience and concern on the part of the Member about being able to complete the hearing."
 * Parties can expect consistency and the Board should decide like cases in the same manner. The principle of judicial comity provides that judges of the same court should follow earlier decisions rendered by judges of that court, although those earlier decisions are not binding on the judge. The same principle applies to decisions made by members of the same Division of the IRB. For example, the Federal Court holds that a Division's rules apply equally to all parties and there is no basis to hold parties to differing standards in different administrative proceedings. For more details about consistency in decision-making, see: Canadian Refugee Procedure/The right to be heard and the right to a fair hearing.
 * The Board's procedures should not be restricted to the judicial paradigm. The courts have recognized that administrative agencies such as the IRB "are often required to be procedurally innovative in order to handle a heavy caseload effectively and to make the most efficient use of scarce resources." The Board’s procedure "should not be confined in a model of due process that draws exclusively on the judicial paradigm and discourages innovation. Nonetheless, procedures designed to increase quality and consistency cannot be adopted at the expense of the duty of each panel to afford to the claimant before it a high degree of impartiality and independence." For example, the court has held that "A hearing held by the Board should not be turned into a trial. The consequences that attach to these hearings are serious and the measure of procedural fairness must be commensurate. However, it does not reach the level of disclosure found in criminal law, for instance."
 * Administrative convenience should not override fundamental justice, which includes procedural fairness. Asylum adjudication is situated within administrative law structures, where tensions between values such as efficiency and economy are precariously balanced with fairness and justice. As noted by Lord Dyson in his 2015 decision condemning the so‐called Detained Fast Track (DFT) in the United Kingdom, "justice and fairness should not be sacrificed on the altar of speed and efficiency". Instead, as Canada's Federal Court holds, the Board “… is required to strike a balance between expeditious proceedings on the one hand and procedural fairness or natural justice on the other.”
 * The rules should not be interpreted in a way that is overly rigid. The courts have held that when interpreting the Refugee Protection Division rules, one must "avoid the mire of procedural dogma" as "procedure should be the servant of justice, not its mistress". The Federal Court has stated that "the door should not slam shut on all those who fail to meet ordinary procedural requirements. Such a restrictive reading would undermine Canada’s commitment to its refugee system and underlying international obligations". The court has gone on to note that "the opportunity to free a family from the scourge of persecution should not rest on an overly rigid application of procedural requirements." The tenor of the Rules is that flexibility is needed to guard against form trumping substance and the interests of justice and to guard against decisions not being made on their merits. Refugee applications may be allowed to proceed, despite procedural defects, to ensure that the requirements of natural justice are fulfilled. As the Federal Court held in Glowacki v. Canada, no slip or mistake of counsel should be permitted to bring about a miscarriage of justice. This applies with special force during the period of the Covid-19 pandemic: the principle set out in the Refugee Protection Division: Practice Notice on the resumption of in-person hearings is that the Board will apply the rules flexibly in light of Covid-19.
 * Claimants are entitled to representation and rules should be relaxed for unrepresented litigants. The representation of refugee claimants is described as “an expression of a fundamental constitutional and common law value: that individuals facing complicated legal proceedings with serious consequences should be allowed to be represented so as to ensure that there is a full and fair hearing.” The court has stated that an unrepresented party “is entitled to every possible and reasonable leeway to present a case in its entirety and that strict and technical rules should be relaxed for unrepresented litigants”. For more detail, see: Canadian Refugee Procedure/RPD Rules 14-16 - Counsel of Record.
 * Members should exercise their discretion with a spirit of justice and sensitivity. The Board states in its Guideline 8 that all persons appearing before the IRB need to be treated with sensitivity and respect. Caselaw from the Federal Court also states that the member must at all times be attentive and sensitive to claimants. The Federal Court also indicates that Members are expected to act with "civility and care". The following comment from the UNHCR Handbook about how the task of refugee status determination should be approached is instructive: "Since the examiner’s conclusion on the facts of the case and his personal impression of the applicant will lead to a decision that affects human lives, he must apply the criteria in a spirit of justice and understanding and his judgement should not, of course, be influenced by the personal consideration that the applicant may be an ‘undeserving case’." The German Ansbach Court has stated that "in order to comply with the spirit of the Geneva Convention, the provisions of the Convention should be interpreted liberally and with human compassion, and thus generously. [translated]" In the words of Rabbi Plaut's report that led to the founding of the Immigration and Refugee Board, "the refugee determination process must be seen and designed as an act of welcome. It must be forever responsive to our humanitarian impulses and obligations and wary of any encroachment that would seek to impose other considerations and concerns upon it." The Federal Court reflects this when it notes that in refugee claims, the claimant is not in an adversarial position to the state.
 * A panel of the Board must keep an open mind until all of the evidence has been heard. Members should always maintain a "judicial temperament". It is necessary to listen patiently and extend "professional courtesy" to all participants. As the Federal Court held in Ayele v. Canada, "the essence of adjudication is the ability to keep an open mind until all evidence has been heard. The reliability of evidence is to be determined in the light of all of the evidence in a particular case. This is the reason why an adjudicator must remain open to persuasion until all of the evidence and submissions are received. Evidence, that at first blush may seem implausible, may later appear plausible when set in the context of subsequent evidence." See: Canadian Refugee Procedure/The right to an impartial decision-maker.
 * The Board should interpret submissions and reasons in a spirit consistent with the principle of charity. The Federal Court has indicated that where there is a mistake in a decision that may be excused as a mere slip of the pen, the decision should not be faulted for that reason. The same principle should apply to how the Board interprets submissions and reasons that it is reviewing. Clerical mistakes do occur and they should not be the sole basis for rejecting a claim for asylum. The following observation offered with respect to Canadian courts would seem to apply with equal force to the refugee context: reasons offered “are not intended to be, and should not be read, as a verbalization of the entire process engaged in by the trial judge in reaching a verdict”. In the words of the Supreme Court of Canada, the Board's reasons "are not to be read microscopically".
 * The Board should have strong reasons before attributing dishonesty or malicious intent to a claimant. The Federal Court has held that "attributing dishonesty or malicious intent to an applicant is subject to a very high threshold". In the words of the Federal Court, "Credibility is the most important thing any of us has. It is earned and maintained through our life history, our actions and our words. Losing our credibility affects the very core of our reputation. For persons seeking refugee protection, credibility lies at the very heart of their claim."
 * Claimants should be given the benefit of the doubt in appropriate circumstances. The Federal Court holds that the Board has a broad discretion to alleviate the burden of proof upon a refugee claimant in appropriate circumstances. The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status provides that the benefit of the doubt should be granted to the claimant in certain circumstances: "After the applicant has made a genuine effort to substantiate his story there may still be a lack of evidence for some of his statements. As explained above (paragraph 196), it is hardly possible for a refugee to 'prove' every part of his case and, indeed, if this were a requirement the majority of refugees would not be recognized. It is therefore frequently necessary to give the applicant the benefit of the doubt. The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts." Canadian law accords with this view, providing that it is not appropriate to apply the benefit of the doubt where the claimant's allegations run contrary to generally known facts or the available evidence. Furthermore, the “benefit of the doubt” principle does not apply to speculation. The words of the Canadian Bar Association, Quebec Section from the mid-1980s are instructive, if not legally binding, on this point: "There are indeed unfounded claims and they will always exist. But one must also recognize that the risk of error on the subject is very great. One should recall how several years ago the statements of Salvadoran and Guatemalan citizens about 'death squads' were believed to exist only in the imagination of the applicants. It will always be like this. Refugee movements come in waves and we must be modest enough to recognize our ignorance about certain new situations and to mistrust ready judgments."
 * The Board will ensure the integrity of the administration of justice. The court observes that there is a fundamental need to ensure the integrity of the administration of justice in proceedings, including immigration proceedings. See further: Canadian Refugee Procedure/Principles for the interpretation of refugee procedure.

Principles about the expectations that one reasonably has of claimants

 * Claimants may be expected to submit asylum claims promptly. Article 31 of the Refugee Convention provides that states shall not impose penalties on asylum seekers, but only if they present themselves to authorities without delay: "The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence." Similarly, Canada's Federal Court has noted that claimants may be expected to submit asylum claims promptly: "refugees and asylum-seekers have duties and obligations to respect national laws and measures to maintain public order, including obligations to cooperate with the asylum process, which may include presenting themselves to authorities and submitting asylum claims promptly". There is an "onus on a refugee claimant to present their claim, including the evidence in support of it, in a timely and efficient manner."
 * Parties will cooperate with the asylum process and supply all pertinent information. The Federal Court holds that a person whose safety is threatened in his or her country of origin and who is seeking the protection of a country of refuge is necessarily keen to comply with the legal framework that has been established for that purpose. The legally non-binding refugees handbook issued by UNHCR stipulates that the applicant should assist the examiner to the full in establishing the facts of their case and supply all pertinent information concerning themself and their past experience. The Federal Court states that "refugees and asylum-seekers have duties and obligations to respect national laws and measures to maintain public order, including obligations to cooperate with the asylum process, which may include presenting themselves to authorities and submitting asylum claims promptly, or complying with procedures to regularize their stay." There is a duty upon an applicant in immigration proceedings to make sure that their documents are complete and accurate. See the Basis of Claim form instructions: Canadian Refugee Procedure/RPD Rules 3-13 - Information and Documents to be Provided. Indeed, where the Minister is not participating in a case, rules on ex parte proceedings may impose special obligations on counsel. For example, the Law Society of BC’s rule states that “In an ex parte proceeding, a lawyer must act with utmost good faith and inform a tribunal of all material facts, including adverse facts, known to the lawyer that will enable the tribunal to make an informed decision.” For details about how this principle takes shape in the RPD Rules, see: Canadian Refugee Procedure/RPD Rules 31-43 - Documents.
 * Concerns about defects of procedural fairness should be raised by parties at the earliest opportunity. The general rule is that a party should raise allegations about procedural fairness at the earliest possible opportunity. For more detail, see: Canadian Refugee Procedure/The right to be heard and the right to a fair hearing.
 * Claimants will comply with the law and be honest. The Federal Court has held that in immigration matters, "the jurisprudence is clear that applicants have to provide complete and accurate information.... There is a duty on an applicant to ensure that their submissions are complete and correct". The Federal Court has stated that "refugees and asylum-seekers have duties and obligations to respect national laws and measures to maintain public order". In Canada, such legal obligations require that a claimant answer truthfully all questions put to them in the refugee claim process and to disclose material facts pursuant to the duty of candour that foreign nationals seeking to enter Canada have. Applicants have a duty of candour to provide complete, honest and truthful information. This is specified in s. 16 of the IRPA which stipulates that "A person who makes an application must answer truthfully all questions put to them for the purpose of the examination". Similarly, the IRPA provides at s. 100(1.1) that "the burden of proving that a claim is eligible to be referred to the Refugee Protection Division rests on the claimant, who must answer truthfully all questions put to them". This obligation may be read in conjunction with Art. 2 of the Refugee Convention, which provides that, “Every refugee has duties to the country in which he finds himself, which require in particular that he conform to its laws and regulations as well as to measures taken for the maintenance of public order.” Similarly, the (legally non-binding) handbook issued by UNHCR stipulates that the applicant should tell the truth. See also: Canadian Refugee Procedure/Information and Documents to be Provided.
 * Claimants will put their best evidentiary foot forward at their first hearing. In Tahir v. Canada, the Federal Court commented about a claimant that "he was required to put his best evidentiary foot forward [at the RPD]. Not having done so, Mr. Tahir could not place better evidence before the RAD." Indeed, absent new evidence on an issue, the Refugee Appeal Division cannot consider a new argument, developed for the ﬁrst time on appeal. See also the commentary to RPD Rule 34: Canadian Refugee Procedure/Documents.
 * Parties are responsible for their own files. The Federal Court has noted that there exists "[abundant case law] to the effect that the applicants are responsible for their files and cannot use their own wrongdoing as a means to justify fatal omissions, procedural though they may be." While "a failure to comply with procedural obligations does not automatically disqualify a claimant from relief on fairness grounds, [] at some point a claimant will be considered the author of their own misfortune." For example, the Federal Court has held that judicial review should not be granted where an applicant “show[ed] little or no interest in what [was] happening to [her] own application”. The Federal Court holds that "counsel puts into doubt the well-foundedness of his/her case when counsel does not respect the rules of the [Division]." Furthermore, it is incumbent on applications in immigration applications to inform themselves and inquire into any concepts that they do not fully understand in completing their application. The court has held that the RPD should not bear responsibility for an Applicant’s failure to corroborate their own story.
 * Parties should be aware of the information on file. The Federal Court holds that applicants must take responsibility to ensure that they understand the written correspondence they receive regarding their refugee claim. The Board Policy on National Documentation Packages in Refugee Determination Proceedings states that "the RPD provides the parties with information as to where the [National Documentation Package] can be found on the Board's website, and it is the parties' responsibility to check the IRB website for the newest version of the relevant NDP (s) prior to their hearing." This is also stated in the Important Instructions claimants receive when they make their claim: “You should also check the IRB website for the newest version of the NDP prior to your hearing” and is stated in similar terms in the Claimants’ Guide.

Principles about the expectations that one reasonably has of counsel

 * The good faith of counsel and immigration officers can be presumed. There is a long line of jurisprudence from the Federal Court holding that most immigration officers have no vested interest in the outcome of a claim and their official records and actions can generally be relied upon. Similarly, counsel are under professional obligations to act with good faith. For example, the Law Society of Ontario's Rules of Professional Conduct provide that when acting as an advocate, “a lawyer shall represent the client resolutely and honourably within the limits of the law while treating the tribunal with candour, fairness, courtesy, and respect”.
 * Counsel should be presumed to have acted competently. There is a strong presumption that former counsel’s conduct fell within the wide range of reasonable professional assistance. While this presumption of competency can be applied, the court cautions that it is inappropriate to make findings on the basis of inferences from the experience and expertise of particular counsel, just as it would be inappropriate for the RPD to ask applicants (or their counsel) about such privileged matters directly. However, other Federal Court panels have concluded that it is appropriate to consider that an applicant was represented by experienced counsel. Furthermore, it is common in other areas of law to consider this factor, for example in class action law it is expected that the court should assess and consider the competence of the representative plaintiff’s counsel.
 * Counsel will have explained at least the basic tenets of a refugee claim to their client. The Federal Court has held that, "absent contrary evidence, it is reasonable to expect that a legal representative has explained at least the basic tenets of a refugee claim to their client. This includes the obligation to provide acceptable documentation regarding the refugee claim, including as to identity, the onus on the claimant to prove their claim, and the need to put their “best foot forward” to do so." See further: Canadian Refugee Procedure/RPD Rules 14-16 - Counsel of Record.
 * Deficiencies in counsel's conduct are properly attributed to their clients. The Federal Court has held that in immigration matters, "the jurisprudence is clear that applicants have to provide complete and accurate information and are bound by the submissions made by those who represent them in the process". The general rule is that you do not separate counsel's conduct from their client. Counsel is acting as agent for the client and, as harsh as it may be, the client must bear the consequences of having hired poor counsel. This principle is reflected in the instructions in the Basis of Claim form that every claimant receives as part of the claimant process, which note that "If you have counsel, you are responsible for making sure that your counsel meets the deadlines." In most instances, reliance on legal advice will not excuse a failure to submit significant information in support of a claim. That said, there are exceptions to this principle where counsel’s conduct falls sufficiently below the standard expected of competent counsel: Canadian Refugee Procedure/RPD Rules 14-16 - Counsel of Record. As the Federal Court held in Glowacki v. Canada, no slip or mistake of counsel should be permitted to bring about a miscarriage of justice.

IRPA ss. 3(2) and 3(3): Interpretation principles as derived from the Act
This section will set out the objectives and application provisions in the Act and then provide commentary on some specific ones. In the words of Sharryn Aiken, et. al., one of the enduring features of Canadian immigration law since the 1976 Immigration Act has been "a complex and contradictory set of objectives". Those objectives, in so far as they concern refugees, read as follows in the current IRPA: Objectives — refugees 3... (2) The objectives of this Act with respect to refugees are (a) to recognize that the refugee program is in the first instance about saving lives and offering protection to the displaced and persecuted; (b) to fulfil Canada’s international legal obligations with respect to refugees and affirm Canada’s commitment to international efforts to provide assistance to those in need of resettlement; (c) to grant, as a fundamental expression of Canada’s humanitarian ideals, fair consideration to those who come to Canada claiming persecution; (d) to offer safe haven to persons with a well-founded fear of persecution based on race, religion, nationality, political opinion or membership in a particular social group, as well as those at risk of torture or cruel and unusual treatment or punishment; (e) to establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system, while upholding Canada’s respect for the human rights and fundamental freedoms of all human beings; (f) to support the self-sufficiency and the social and economic well-being of refugees by facilitating reunification with their family members in Canada; (g) to protect the health and safety of Canadians and to maintain the security of Canadian society; and (h) to promote international justice and security by denying access to Canadian territory to persons, including refugee claimants, who are security risks or serious criminals.

Application (3) This Act is to be construed and applied in a manner that (a) furthers the domestic and international interests of Canada; (b) promotes accountability and transparency by enhancing public awareness of immigration and refugee programs; (c) facilitates cooperation between the Government of Canada, provincial governments, foreign states, international organizations and non-governmental organizations; (d) ensures that decisions taken under this Act are consistent with the Canadian Charter of Rights and Freedoms, including its principles of equality and freedom from discrimination and of the equality of English and French as the official languages of Canada; (e) supports the commitment of the Government of Canada to enhance the vitality of the English and French linguistic minority communities in Canada; and (f) complies with international human rights instruments to which Canada is signatory. The above objectives can be compared to the section of the IRPA that sets out objectives for the immigration (as opposed to humanitarian or refugee) streams: Objectives — immigration 3... 3 (1) The objectives of this Act with respect to immigration are (a) to permit Canada to pursue the maximum social, cultural and economic benefits of immigration; (b) to enrich and strengthen the social and cultural fabric of Canadian society, while respecting the federal, bilingual and multicultural character of Canada; (b.1) to support and assist the development of minority official languages communities in Canada; (c) to support the development of a strong and prosperous Canadian economy, in which the benefits of immigration are shared across all regions of Canada; (d) to see that families are reunited in Canada; (e) to promote the successful integration of permanent residents into Canada, while recognizing that integration involves mutual obligations for new immigrants and Canadian society; (f) to support, by means of consistent standards and prompt processing, the attainment of immigration goals established by the Government of Canada in consultation with the provinces; (f.1) to maintain, through the establishment of fair and efficient procedures, the integrity of the Canadian immigration system; (g) to facilitate the entry of visitors, students and temporary workers for purposes such as trade, commerce, tourism, international understanding and cultural, educational and scientific activities; (h) to protect public health and safety and to maintain the security of Canadian society; (i) to promote international justice and security by fostering respect for human rights and by denying access to Canadian territory to persons who are criminals or security risks; and (j) to work in cooperation with the provinces to secure better recognition of the foreign credentials of permanent residents and their more rapid integration into society. There is a statutory interpretation convention to the effect that statements of objectives in legislation serve to constrain executive discretion in implementing the law. In the words of Sharryn Aiken, et. al., however, the objectives of the IRPA "are so plentiful and far-ranging that they arguably serve to support any potential discretionary implementation choice." As such, in Catherine Dauvergne's view, the objectives "are so complex that they can neither guide nor constrain." Shauna Labman writes that the twenty-five separate paragraphs addressing the objectives and application of the act add to the IRPA's "contradictions and confusions". Dauvergne writes that these provisions "serve no purpose other than to announce that the government is aware of how thorny an issue immigration is in Canadian politics and to ensure that the law is able to mirror prevailing political views without amendment." Indeed, the Federal Court has concluded that even if an RPD Rule is non-compliant with one of these objectives, this would not render it ultra vires of its enabling provision in the Act.

IRPA Section 3(2)(a) - The refugee program is about saving lives and offering protection
Objectives — refugees (2) The objectives of this Act with respect to refugees are (a) to recognize that the refugee program is in the first instance about saving lives and offering protection to the displaced and persecuted;

This has been a long-standing provision in the Act
This reflects one of the objectives that was inserted into the 1976 Immigration Act, which was “to fulfill Canada’s international legal obligations with respect to refugees and to uphold its humanitarian tradition with respect to the displaced and persecuted.”

The refugee program aims to offer protection, including the legal rights specified in the Refugee Convention
Section 3(2)(a) of the IRPA provides that the objectives of this Act with respect to refugees are, inter alia, to recognize that the refugee program is in the first instance about saving lives and offering protection to the displaced and persecuted. The protection envisaged is not just protection from refoulement, but also the suite of positive rights enumerated in the Refugee Convention. In the words of Donald Galloway, Canada’s obligation under the Refugee Convention is not merely the negative duty of not returning a person to a place where they face a risk to their life or their freedom is threatened – the duty found explicitly within Article 33 of the Convention. Canada’s duty also embraces the wider positive duty to recognize the status (and a host of other rights) of individuals who are unable to or are justified in not availing themselves of protection in their country of origin. The Refugee Convention enumerates a number of core rights that all refugees benefit from, and then additional entitlements may accrue as a function of the nature and duration of the refugee's attachment to the asylum state. The most basic set of rights inhere as soon as a refugee comes under a state’s de jure or de facto jurisdiction; a second set applies when he or she enters a state party’s territory; other rights inhere only when the refugee is lawfully within the state’s territory; some when the refugee is lawfully staying there; and a few rights accrue only upon satisfaction of a durable residency requirement. In sum, the rights discussed in the Convention are those that follow: The big picture rationale behind the inclusion of these rights in the Convention was the objective of preventing refugees from becoming legal non-persons. In the words of the UK House of Lords, "the general purpose of the Convention is to enable the person who no longer has the benefit of protection against persecution for a Convention reason in his own country to turn for protection to the international community." After the First World War, the academic Alleweldt states, the typical problem of refugees was the lack of any legal status in the state of refuge, which deprived them automatically of many rights and opportunities. Accordingly, the parties to the Convention envisaged, for humanitarian reasons as well as for practical reasons of cooperation, providing refugees with a status which would comprise a key set of their human rights and freedoms. In short, the rights guaranteed to recognized refugees by the Convention are intended to provide them with the rights necessary to start life anew.

The fact that the refugee protection is in the first instance about saving lives and offering protection can be contrasted with the goals for the immigration programs provided in the IRPA
Section 3(2)(a) of the IRPA provides that the objectives of this Act with respect to refugees are, inter alia, to recognize that the refugee program is in the first instance about saving lives and offering protection to the displaced and persecuted. This can be contrasted with the broader set of objectives for Canada's immigration programs set out in s. 3(3)(1) of the Act, which include the successful integration of immigrants and maximizing immigration's economic benefits for Canada. This contrast should inform interpretations of the Act. While in immigration law, writ large, the desirability of an immigrant (e.g. their work experience, education, fluency in French or English, or youth) is recognized as a proper consideration for how the government may choose to accord status, refugee law, in contrast, provides the framework for individuals who are fleeing persecution to seek safety in which the primary consideration is to be, in the words of s. 3(2)(a) of the IRPA, saving lives and offering protection. In the words of Molly Joeck, "conflating the two is a dangerous exercise".

The fact that the refugee protection is in the first instance about saving lives and offering protection points to the importance of decisions being correct
Justice Gauthier, referring to the objectives of the IRPA, in particular "saving lives and offering protection to the displaced and persecuted," held that the RAD is a "safety net that would catch all mistakes made by the RPD, be it on the law or the facts." This required that the RAD's standard of review, applicable both to questions of law and questions of fact, be correctness.

IRPA Section 3(2)(b) - Fulfilling Canada’s international legal obligations with respect to refugees
Objectives — refugees (2) The objectives of this Act with respect to refugees are (b) to fulfil Canada’s international legal obligations with respect to refugees and affirm Canada’s commitment to international efforts to provide assistance to those in need of resettlement;

This has been a long-standing provision in the Act
This reflects one of the objectives that was inserted into the 1976 Immigration Act, which was “to fulfill Canada’s international legal obligations with respect to refugees and to uphold its humanitarian tradition with respect to the displaced and persecuted.”

The IRPA should be interpreted in a way that ensures Canada fulfills its international legal obligations with respect to refugees
Section 3(2)(b) of the Act specifies that the objectives of the IRPA with respect to refugees are, among other things, to fulfill Canada's international legal obligations with respect to refugees. There is a well-established presumption that, where possible, Canada’s domestic legislation should be interpreted to conform to international law. The Supreme Court of Canada holds that the provisions of the IRPA "cannot be considered in isolation from the international norms which they reflect". Section 3(2)(b) of the Act reinforces that, where possible, the provisions of the IRPA should be interpreted in a way that fulfills Canada's obligations pursuant to, inter alia, the Refugee Convention. This is a critical legal constraint on interpretation of the IRPA - one that Parliament has mandated that immigration adjudicators consider in interpreting the legislation, regardless of whether arguments about international treaties like the Refugee Convention are explicitly raised by the parties in submissions or not.

See also: Canadian Refugee Procedure/Principles for the interpretation of refugee procedure.

The Refugee Convention sets out a number of rights to which refugees are entitled
See: Canadian Refugee Procedure/Principles for the interpretation of refugee procedure. That said, te Convention is not fully incorporated into Canadian legislation. While the terms of the Convention are largely reflected in the IRPA, there are some differences between the operation of the Convention and the operation of the IRPA.

The Vienna Convention on the Law of Treaties codifies public international law rules of treaty interpretation applicable to the interpretation of the Refugee Convention
The rules of treaty interpretation for discerning the content of Canada's international legal obligations with respect to refugees were codified in the Vienna Convention on the Law of Treaties. Arts. 31 and 32 of the Vienna Convention provide that: ARTICLE 31: General rule of interpretation 1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty; (b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. 3. There shall be taken into account, together with the context: (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) any relevant rules of international law applicable in the relations between the parties. 4. A special meaning shall be given to a term if it is established that the parties so intended. ARTICLE 32: Supplementary means of interpretation 1. Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable. ARTICLE 33: Interpretation of treaties authenticated in two or more languages 1.When a treaty has been authenticated in two or more languages, the text is equally authoritative in each language, unless the treaty provides or the parties agree that, in case of divergence, a particular text shall prevail. 2. A version of the treaty in a language other than one of those in which the text was authenticated shall be considered an authentic text only if the treaty so provides or the parties so agree. 3.The terms of the treaty are presumed to have the same meaning in each authentic text. 4.Except where a particular text prevails in accordance with paragraph 1, when a comparison of the authentic texts discloses a difference of meaning which the application of articles 31 and 32 does not remove, the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted. This said, the Vienna Convention does not in and of itself apply to the Refugee Convention, given that the Vienna Convention applies only to treaties which are concluded by states after the Vienna Convention entered into force on January 27, 1980 (per Article 4 of that Convention) and the Refugee Convention of 1951 and the 1967 Protocol to the Convention predate this. That said, as Hathaway notes, the approach to treaty interpretation codified in the Vienna Convention has been recognized by the International Court of Justice as embodying customary norms of treaty interpretation. Those rules are generally regarded as a codification of the public international law rules of treaty interpretation as a matter of general (or customary) international law. As such, Articles 31 to 33 of the Vienna Convention constitute a general expression of the principles of customary international law relating to treaty interpretation. In this way, the norms of treaty interpretation embodied in the Vienna Convention are properly considered when interpreting the Refugee Convention, even if its articles do not sensu stricto apply to the Refugee Convention. For this reason, in the context of the Refugee Convention, domestic courts in New Zealand, the UK, and Canada have seen fit to apply Arts. 31 and 32 of the VCLT when interpreting the Refugee Convention.

Canada must perform its international legal obligations with respect to refugees in good faith
Section 3(2)(b) of the Act specifies that the objectives of the IRPA with respect to refugees are, among other things, to fulfill Canada's international legal obligations with respect to refugees. These obligations must be interpreted in good faith. This is consistent with Art. 31 of the Vienna Convention, supra, which states that "a treaty shall be interpreted in good faith". It is also consistent with Article 26 of the Vienna Convention, which requires states to perform their international treaty obligations in good faith. In international law, the concept of good faith, or bona fides, is taken to include duties of honesty, loyalty, and reasonableness. That said, in Britain Lord Bingham has concluded that "there is no want of good faith if a state interprets a treaty as meaning what it says and declines to do anything significantly greater than or different from what it agreed to do." Relatedly, Canada's Federal Court has held that "an unduly textual and restrictive interpretation [of the IRPA]" that "would impose a result that is inconsistent with and contrary to the objectives of the IRPA" must be avoided.

The Refugee Convention should be interpreted in good faith in light of its object and purpose
Under Art. 31 of the Vienna Convention on the Law of the Treaties, “a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose”. This raises the question of what the object and purpose of the Refugee Convention are. The principal answer that emerges in the jurisprudence relates to the Convention's humanitarian purposes. The UK House of Lords has held that a ‘good faith’ interpretation of the Refugee Convention is one that works to bolster the effectiveness of its protection purpose, and thus seeks a construction consistent with humanitarian aims and not simply a literal linguistic approach. These humanitarian aims are underscored in the IRPA with the statement at s. 3(2)(d) that "the objectives of this Act with respect to refugees are to grant, as a fundamental expression of Canada’s humanitarian ideals, fair consideration to those who come to Canada claiming persecution". The academic Michelle Foster writes that "one perspective is that the aim of the Refugee Convention is fundamentally to pursue a social and human rights inspired purpose, namely to provide for the international protection of those individuals falling within the refugee definition." The Supreme Court of Canada has noted the human rights purpose of the Refugee Convention, for example remarking upon its "obvious human rights purpose" in Németh v. Canada. Similarly, in Ezokola v Canada the court refers to the "overarching and clear human rights object and purpose [of the Refugee Convention]". This is articulated as follows by the Supreme Court of Canada in Canada v. Ward: the underlying objective of the 1951 Convention is "the international community's commitment to the assurance of basic human rights without discrimination."

That said, the following words of caution from the Australian courts are apposite: "the demands of language and context should not be departed from by invoking the humanitarian objectives of the Convention, without an appreciation of the limits placed by the Convention upon achievement of such objectives." Indeed, Lord Bingham in the UK has emphasized that the 1951 Convention was "a compromise between competing interests, in this case between the need to ensure humane treatment of the victims of oppression on the one hand and the wish of sovereign states to maintain control over those seeking entry to their territory on the other." Foster suggests that it is possible to reconcile these two approaches by emphasizing that the 1951 Convention's focus is on "the need for co-operation in order adequately to deal with the humanitarian problem". Drawing on Klabbers' view that if a treaty's substantive provisions deal with a particular topic, then it may be surmised that that topic is the treaty's object and purpose, Foster argues that the 1951 Convention's overwhelming purpose is a human rights one. In essence the treaty provides for refugees' rights and entitlements under international law.

The Refugee Convention does not explicitly prescribe any particular Refugee Status Determination procedure
The objectives of this Act include fulfilling Canada's international legal obligations with respect to refugees. How does that relate to refugee procedure? Canada's refugee status determination process reflects Canada's international obligations, including those stemming from the Convention Relating to the Status of Refugees of 1951. The challenge of refugee status determination is determining who is a “refugee” and, conversely, who is not. As to the process by which this task should be accomplished, neither the treaty nor the statute is of much direct assistance: there are 46 articles in the Refugee Convention and 22 paragraphs in the Statute of the Office of the United Nations High Commissioner for Refugees, none of which address the issue of Refugee Status Determination (RSD). In the words of the UNHCR’s Handbook on Procedures and Criteria, “the Convention does not indicate what type of procedures are to be adopted for the determination of refugee status.”

The procedures used by Canada must ensure the effectiveness of the substantive provisions in the Refugee Convention
Section 3(2)(b) of the Act specifies that the objectives of the IRPA with respect to refugees include fulfilling Canada's international legal obligations with respect to refugees. In ratifying the Refugee Convention, Canada has made a number of commitments, the most important of which is arguably the principle of non-refoulement enshrined in Article 33 of the Refugee Convention. How do such commitments relate to the procedures Canada selects for refugee status determination? Hofmann and Löhr write that, with respect to the 1951 Convention, it might be stated that the Convention does not necessitate (or prohibit) any specific procedure as such, but obliges states not to introduce procedures which would result in applicants for asylum being denied the rights that Canada undertook to respect when signing the Convention. This flows from the foundational principle of international law pacta sunt servanda, the rule that agreements must be kept, in this case Canada's agreement to abide by the terms of the Convention. With respect to procedures, international courts have established the principle that a state's procedural rules must ensure the effectiveness of the substantive provisions of its international commitments. This has been held by, among others, the International Court of Justice in the LaGrand (Germany v. United States of America) case, where it ruled that the duty incumbent on states to ensure that their international obligations be fully respected implies that domestic procedural law must be construed in such a way as to give full effect to a purposive interpretation of the state's international legal commitments. For example, if a state uses deficient procedures, which lead to prohibited refoulement, the introduction of such procedures constitutes per se a violation of Article 33 of the Refugee Convention and its prohibition on non-refoulement. This has implications for the procedures that a state selects; for example, UNHCR states that a consequence of a state’s non-refoulement obligation is a ‘duty of independent inquiry’. Such a duty requires states to identify individuals in need of protection before returning or transferring them to a third country.

The Refugee Convention should be regarded as a living instrument that evolves to meet contemporary needs
States have expressly recognized the Refugee Convention as “the foundation of the international protection regime [with] enduring value and relevance in the twenty-first century”. The UK House of Lords has concluded that "It is clear that the signatory states intended that the Convention should afford continuing protection for refugees in the changing circumstances of the present and the future world. In our view the Convention has to be regarded as a living instrument." This is consistent with statements from the Supreme Court of Canada that "international conventions must be interpreted in light of current conditions". Indeed, the Vienna Convention on the Law of Treaties delierately does not constrain the meaning of terms in a treaty to their meaning at the time of the treaty's conclusion. A limitation to this effect was deleted from an earlier draft of Art. 31, para. 3(c), of that Convention on the basis that this could restrict the evolution of the law and that, in any event, the correct meaning of the provision would be derived from an "interpretation of the term 'in good faith'".

There can only be one true interpretation of the Refugee Convention
See below: Canadian Refugee Procedure/Principles for the interpretation of refugee procedure.

Canada does not have a binding legal obligation to accept refugees from abroad for resettlement
Section 3(2)(b) of the Act provides that the objectives of this Act with respect to refugees include 1) fulfilling Canada’s international legal obligations with respect to refugees, and 2) affirming Canada’s commitment to international efforts to provide assistance to those in need of resettlement. Resettlement falls into the second category, as opposed to the first, insofar as Canada does not have an international legal obligation to resettle refugees from abroad. When negotiating the Refugee Convention, the international community recognized the importance of burden sharing and prominently placed it in the preamble to the Convention, but burden sharing was not made into a binding legal obligation. Indeed, as Hathaway notes, when negotiating the Refugee Convention, governments were emphatic in their rejection of a duty to reach out to refugees located beyond their borders, accepting only the more constrained obligation not to force refugees back to countries in which they might be persecuted. Subsequent international efforts to articulate an individual right of asylum at international law have been unsuccessful - for example, the 1967 UN General Assembly Declaration on Territorial Asylum is non-binding and a proposed Convention on Territorial Asylum never materialized. For more details on burden sharing, see: Canadian Refugee Procedure/Principles for the interpretation of refugee procedure.

IRPA Section 3(2)(c) - Fair consideration is to be granted to those who come to Canada claiming persecution
Objectives — refugees (2) The objectives of this Act with respect to refugees are (c) to grant, as a fundamental expression of Canada’s humanitarian ideals, fair consideration to those who come to Canada claiming persecution;

This has been a long-standing provision in the Act
This reflects one of the objectives that was inserted into the 1976 Immigration Act, which was “to fulfill Canada’s international legal obligations with respect to refugees and to uphold its humanitarian tradition with respect to the displaced and persecuted.” This is also reflected in the IRB's mission statement, including its emphasis on the Board acting on behalf of Canadians: "Our mission, on behalf of Canadians, is to make well-reasoned decisions on immigration and refugee matters, efficiently, fairly, and in accordance with the law."

The importance of Board procedures being fair to the public perception of the refugee program
In addition to ensuring overall fairness and facilitating the giving of evidence, procedural fairness is also about maintaining the integrity of the refugee determination process in the eyes of the public. For example, stakeholders may come to question the integrity of the system if they observe unfair, biased, stereotyped, arbitrary, or otherwise inappropriate processes that do not provide fair consideration to those who come to Canada and file a claim. As the legal philosopher Patricia Mindus argues, arbitrariness undermines legitimacy and erodes trust in the law in a deep way that is not easy to remedy. Ensuring procedural fairness is in this way integral to maintaining the reliability of the hearing and refugee determination process and public support therefor.

Part of the Board's role in ensuring that fair consideration is provided to those who come to Canada claiming persecution relates to the nature of the reasons that are offered in their cases. As Thériault argues, "reasons encourage the acceptance of decisions and reinforce confidence in the judicial system. The act of writing reasons helps to ensure that decisions are arrived at rationally and imposes on judges a form of self-discipline. Reasons allow parties to understand why a case was decided a certain way. Reasons allow appeal judges to assess the merits of decisions under review. Reasons are also necessary for the proper development of the common law through the principle of stare decisis, and serve an educational purpose by informing both the legal community and those outside it of the content and evolution of legal rules."

This provision relates to the Canadian Bill of Rights provision on principles of fundamental justice
Section 3(2)(c) of the IRPA provides that the objectives of this Act with respect to refugees are to grant fair consideration to those who come to Canada claiming persecution. This tracks Section 2(e) of the Canadian Bill of Rights, which states that no law of Canada shall be construed or applied so as to "abrogate, abridge or infringe or to authorize the abrogation, abridgement or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to ... (e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations."

This provision relates to Canada's international obligations
Section 3(2)(c) of the IRPA provides that the objectives of this Act with respect to refugees are to grant fair consideration to those who come to Canada claiming persecution. As to the scope of this concept of this "fair consideration", see Canadian Refugee Procedure/Principles for the interpretation of refugee procedure.

The focus of this provision is on those who are claimants within Canada
Section 3(2)(c) of the IRPA provides that the objectives of this Act with respect to refugees are to grant fair consideration to those who come to Canada claiming persecution. This provision can be interpreted as being focused on those who come to Canada claiming protection (asylum seekers) as opposed to those who are abroad (awaiting resettlement) given that resettled refugees do not come to Canada "claiming" protection as their claim has generally been accepted prior to that point. See also: Canadian Refugee Procedure/Principles for the interpretation of refugee procedure. An alternative interpretation of this phrase could be that "those who come to Canada claiming persecution" uses Canada as an eponym in place of the Government of Canada, as opposed to the territory of the country, though this is arguably a doubtful interpretation of the phrase.

IRPA Section 3(2)(d) - Offering safe haven
Objectives — refugees (2) The objectives of this Act with respect to refugees are (d) to offer safe haven to persons with a well-founded fear of persecution based on race, religion, nationality, political opinion or membership in a particular social group, as well as those at risk of torture or cruel and unusual treatment or punishment;

The idea that the objectives of the refugee provisions in the Act involve offering safe haven implicitly means that the grant of refugee status involves a judgment of the source country
Section 3(2)(d) of the objectives of the Act provides that its objectives with respect to refugees include offering safe haven to specified persons. The idea of offering a safe haven in Canada implicitly involves a judgment that the source country is not providing that safe haven. As Plaut writes, in this way, according refugee status inherently involves passing judgment on the source country: "what is the Geneva Convention but a moral judgement of offending countries' policies? Any time a nation accepts a person as a legitimate refugee it is judging the refugee's country of origin." He goes on to write that, "accpeting an individual refugee under the Convention appears to imply that his/her country of origin, by creating refugees on its territory, does not live up to proper international standards."

The objective of this Act is to offer safe haven to specified persons and this is an enduring commitment unless an asylee's status ceases
The objectives of this Act with respect to refugees include offering safe haven to persons with a well-founded fear of persecution for a Convention reason, as well as those at risk of torture or cruel and unusual treatment of punishment. This obligation, which partly tracks the criteria of the Refugee Convention, reflects the fact that the 1951 Convention can be viewed as a third party agreement: a treaty whereby the contracting states take on obligations towards each other for the benefit of a third party, namely the refugees who are, per the terms of the treaty, provided with refugee rights. As Haddad writes, the refugee is someone who has exited their state of origin by crossing an international border and hence has become an issue of concern on the international agenda and a ward of international society.

The "safe haven" that is to be offered to refugees is independent of other types of tenuous immigration status that Canada offers such as permanent residence. An applicant’s asylum status is not affected because their permanent residence status was lost or because their application for permanent residence was refused. Even where a refugee moves onward from a state which has granted international protection, that state bears ongoing obligations towards the individual, unless their status has ceased. Indeed, even those who are granted status as protected persons by the IRB may not meet the criteria to become permanent residents or citizens in Canada: Canadian Refugee Procedure/RPD Rules 26-28 - Exclusion, Integrity Issues, Inadmissibility and Ineligibility. That said, it is clear that refugee status ends with the application of the cessation clauses in the Convention. For example, Article 1(C)(3) of the Refugee Convention provides that refugee status is terminated upon naturalization, i.e. a situation where a refugee “acquire(s) a new nationality, and enjoys the protection of the country of his new nationality.” Once the criteria in one of the cessation clauses in the Refugee Convention are met, then 'refugeehood' can rightfully be regarded as having ceased. Until then, it may be observed that refugeehood is inherently characterized by a temporal uncertainty; indeed, as Agier notes, that the word ‘refuge’ itself ‘denotes a temporary shelter, while waiting for something better.’ See also the following discussion of the interaction between the cessation clause in the Refugee Convention and the acquisition of Canadian citizenship: Canadian Refugee Procedure/RPD Rule 64 - Applications to Vacate or to Cease Refugee Protection.

IRPA Section 3(2)(e) - Fair and efficient procedures that maintain integrity and uphold human rights
Objectives — refugees (2) The objectives of this Act with respect to refugees are (e) to establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system, while upholding Canada’s respect for the human rights and fundamental freedoms of all human beings;

The objectives of this Act with respect to refugees include the establishment of efficient procedures
Section 3(2)(e) of the IRPA provides that the objectives of the Act with respect to refugees include the establishment of fair and efficient procedures. Section 162(2) of the IRPA provides that each Division shall deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit; for further discussion of this, see: Canadian Refugee Procedure/162 - Board Jurisdiction and Procedure.

The starting point regarding the position of an alien, at common law, was summa­rized by Lord Denning as follows:"At common law no alien has any right to enter this country except by leave of the Crown; and the Crown can refuse leave without giving any reason. If he comes by leave, the Crown can impose such conditions as it thinks fit, as to his length of stay, or otherwise. He has no right whatever to remain here. He is liable to be sent home to his own country at any time if, in the opinion of the Crown, his presence here is not conducive to the public good; and for this purpose, the executive may arrest him and put him on board a ship or aircraft bound for his own country. The position of aliens at common law has since been covered by various regulations; but the principles remain the same. [internal citations omitted]"The reality of having largely unstoppable flows of desperate people who do not have a legal right to enter or remain in Canada has been one that the refugee determination system has had to repeatedly contend with. In this way, Hathaway writes when describing the situation that spawned one of the Refugee Convention’s historical antecedents, the credibility of border controls and of the restriction of socioeconomic benefits to nationals is at stake with refugee programs: by legitimating and defining a needs-based exception to the norm of communal closure, refugee law can sustain the protectionist norm. In this way, “so long as the admission of refugees [is] understood to be formally sanctioned by states, their arrival [ceases] to be legally destabilizing.” This motivation has a number of implications. The Federal Court of Appeal has stated that “there is compelling public interest, in Canada, in having refugee status determined as soon as is practically possible after a claim is made.” As the Canadian Bar Association has submitted, a lack of expeditiousness "leads to legitimate claims languishing in the system and encourages the proliferation of unmeritorious claims." The Supreme Court of Canada emphasizes the importance of proportionality when selecting a procedure, as "the best forum for resolving a dispute is not always that with the most painstaking procedure". These goals are reflected in the structures and procedures enshrined in the Act, including:


 * The control over proceedings that has been granted to decision makers: To increase the efficiency of hearings, procedures were amended following passage of the Balanced Refugee Reform Act (2010) and the Protecting Canada's Immigration System Act (2012) to give decision makers greater control over refugee protection proceedings.
 * Ways that duplicative processes have been excised from the Act: The Refugee Appeal Division, when considering issues of efficiency, has observed that an interpretation of the Act which would reduce duplication of work and having an additional, unnecessary, hearing is to be preferred. This principle can be seen in the legislative history of section 97 of the Act. Section 97 was introduced with the transition from the Immigration Act to the IRPA, and in this way expanded the scope of asylum protection to include persons who are at risk of torture and to persons who are at risk of cruel and inhumane treatment upon deportation to their country of nationality or former habitual residence. Rebecca Hamlin writes that there is no evidence to suggest that Parliament considered the introduction of section 97 to be monumental when it discussed IRPA before voting on it in 2002. When the bill was being debated, Minister of Citizenship and Immigration Elinor Caplan assured members of Parliament the IRPA "gives us the ability to streamline our procedures, so that those who are in genuine need of our protection will be welcomed in Canada more quickly and those who are not in need of protection will be able to be removed more quickly. That streamlining is extremely important." Immediately after IRPA went into force, the IRB Legal Services division produced a guide for decision-makers on how to make section 97 decisions; the guide states that these decisions were subsumed under the IRB mandate to avoid the "delays and inconsistencies" of the previous "fragmented" and "multilayered approach".
 * Fairness requirements to hold a claim in abeyance pending additional evidence: The court has held that fundamental justice requires a tribunal to delay its decision if it knows that, given a reasonable time, an applicant can obtain a crucial document. See: Canadian Refugee Procedure/The right to be heard and the right to a fair hearing.

The objectives of this Act with respect to refugees include the establishment of procedures that will maintain the integrity of the Canadian refugee protection system
Section 3(2)(e) of the IRPA provides that the objectives of the Act with respect to refugees include the establishment of fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system. The UN High Commissioner for Human Rights states that "Because of their vulnerable situation, refugees may face pressures to exaggerate or conceal information about human rights violations they have suffered or witnessed. For example, they may exaggerate problems they have experienced if they believe that they will have a better chance of receiving humanitarian assistance or refugee status." As Harold Troper notes, a concern that the refugee program must seek to address is the worry that "many of the refugee claimants, including some who successfully made it through the determination process, were not really legitimate refugees but individuals looking for a way around tough Canadian immigration regulations." Indeed, fraudulent applications are said to have "plagued" a number of Canada's immigration programs, and are not simply a concern with the in-Canada asylum system. For example, under the former source country class in the IRPA for resettlement, the ICRC indicated that individuals used fraudulent referrals allegedly from the ICRC at the Canadian embassy. In 2004, a scheme was discovered by Colombian authorities in which substantial bribes were being paid to civil servants employed by the Colombian National Senate for documents identifying individuals as victims of death or abduction threats from either the guerrillas or the paramilitaries. The documents were reportedly used at the Canadian embassy in Bogota to achieve source country class resettlement for at least fifty people.

The Immigration and Refugee Board has stated that one of the challenges that it faces is to ensure that individuals and groups cannot use refugee claims as a means to circumvent our national immigration policies. When the IRB came into existence, the government programme delivery strategy stated that the removal of non-credible refugee claimants was the law’s "cornerstone". This necessarily involves a balancing, one which Jennifer Bond and David Wiseman discuss when they write that the procedural framework governing Canada's asylum system contains a number of mechanisms aimed at enabling both flexibility and rigour. These considerations also relate to what the Supreme Court of Canada refers to as the importance of maintaining "the dignity of refugee status". The UNHCR refers to similar considerations when it writes that "to preserve the civilian character of asylum, States...need to assess the situation of arrivals carefully so as to identify armed elements and separate them from the civilian refugee population." The Federal Court of Appeal writes that "maintenance of the integrity of the Canadian refugee protection system is a valid purpose to consider, and one which the system requires as a duty to be taken seriously by all concerned."

The objectives of this Act with respect to refugees include the establishment of procedures that will uphold Canada's respect for the human rights and fundamental freedoms of all human beings
Section 3(2)(e) of the IRPA provides that the objectives of the Act with respect to refugees are to establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system, while upholding Canada's respect for the human rights and fundamental freedoms of all human beings. This can be considered in conjunction with section 3(2)(c) of the IRPA, which provides that the objectives of this Act with respect to refugees are to grant fair consideration to those who come to Canada claiming persecution. As to the scope of this concept of "fair consideration", it should be considered in conjunction with s. 3(3)(f) of the IRPA, which provides that the Act is to be construed and applied in a manner that complies with international human rights instruments to which Canada is signatory. When considering such human rights instruments, regard may properly be had of the provision of the International Covenant on Civil and Political Rights that provides individuals with extensive rights relating to a fair trial in the determination of a person's "rights and obligations in a suit at law", which, as Macharia-Mokobi argues, may fairly be held to cover refugee status determination procedures. This also reflects the preamble to the Refugee Convention, which reads:"The High Contracting parties, ... considering that the Charter of the United Nations and the Universal Declaration of Human Rights approved on 10 December 1948 by the General Assembly have affirmed the principle that human beings shall enjoy fundamental rights and freedoms without discrimination ... have agreed as follows: ..."This has implications for the procedures that are used and the evidence that is accepted in them. For example, any statement or evidence obtained as a result of torture is not to be relied on as evidence in any proceeding. In the words of Lord Hoffmann from the UK House of Lords, "The use of torture is dishonourable. It corrupts and degrades the state which uses it and the legal system which accepts it." As Justice Blanchard writes, "the admission of such evidence is antithetical to and damages the integrity of the judicial proceedings."

For more information on fair procedures for refugee status determination, see: Canadian Refugee Procedure/The right to be heard and the right to a fair hearing.

IRPA Section 3(2)(g) - Protecting the health and safety of Canadians and maintaining the security of Canadian society
Objectives - refugees (2) The objectives of this Act with respect to refugees are ... (g) to protect the health and safety of Canadians and to maintain the security of Canadian society; and

This is worded identically to s. 3(1)(h) of the Act
Section 3(1)(h) of the IRPA is worded identically, stating that "the objectives of this Act with respect to immigration are (h) to protect the health and safety of Canadians and to maintain the security of Canadian society". That provision was considered in Medovarski v Canada, in which the Supreme Court of Canada noted that "the objectives as expressed in the IRPA indicate an intent to prioritize security":"The objectives as expressed in the IRPA indicate an intent to prioritize security. This objective is given effect by preventing the entry of applicants with criminal records, by removing applicants with such records from Canada, and by emphasizing the obligation of permanent residents to behave lawfully while in Canada. This marks a change from the focus in the predecessor statute, which emphasized the successful integration of applicants more than security: e.g., see s. 3(1)(i) of the IRPA versus s. 3(j) of the former Act; s. 3(1)(e) of the IRPA versus s. 3(d) of the former Act; s. 3(1)(h) of the IRPA versus s. 3(i) of the former Act. Viewed collectively, the objectives of the IRPA and its provisions concerning permanent residents, communicate a strong desire to treat criminals and security threats less leniently than under the former Act."This objective is implemented through the grounds of inadmissibility found in ss. 34-42 of the IRPA. Which see: Canadian Refugee Procedure/33-43 - Inadmissibility.

IRPA Section 3(2)(h) - To promote international justice and security by denying access to Canadian territory to persons, including refugee claimants, who are security risks or serious criminals
Objectives - refugees (2) The objectives of this Act with respect to refugees are ... (h) to promote international justice and security by denying access to Canadian territory to persons, including refugee claimants, who are security risks or serious criminals.

While the IRPA may use terms similar to that of Canada's Criminal Code, they need not be interpreted identically
In Rana v. Canada, the Federal Court commented that:"[47] More generally, although broadly speaking both the Criminal Code and the IRPA share a concern with public safety and security, they do not “operate in tandem” or function together as parts of a single regulatory scheme, not even with respect to the specific matter of terrorism (cf. Bell ExpressVu Limited Partnership v Rex, 2002 SCC 42 (CanLII) at para 46 [Bell ExpressVu]). They do not deal with the same subject matter in the way that is necessary to engage the principle that statutes in pari materia should be construed together and can be explanatory of one another (cf. Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed (Markham: LexisNexis, 2014) at 416-21). As a result, in my view this principle does not justify applying the meaning of “terrorist activity” in the Criminal Code to the term “terrorism” in section 34(1) of the IRPA. I must, therefore, respectfully disagree with my colleague Justice Brown, who relied on this principle in Ali v Canada (Citizenship and Immigration), 2017 FC 182 (CanLII) [Ali], to import the meaning given to “terrorist activity” in the Criminal Code into the IRPA for the purposes of a finding under section 34(1)(f) of the latter (see Ali at paras 42-44; see also Alam at paras 26-28)."

IRPA Section 3(3)(b) - This Act is to be applied in a manner that promotes accountability and transparency by enhancing public awareness of immigration and refugee programs
Application (3) This Act is to be construed and applied in a manner that (b) promotes accountability and transparency by enhancing public awareness of immigration and refugee programs;

It is important that the public perceive the determinations made under the Act as being legitimate
Section 3(3)(b) of the Act provides that that it is to be construed and applied in a manner that enhances public awareness of immigration and refugee programs. As the Court held in Rezaei, the Board's stakeholders "include not only the claimants who appear before the Board and its Divisions, but also the Canadian public at large, which is served by effective mechanisms for the application of immigration policy.” The Board must seek to maintain the support of both groups of stakeholders. The Supreme Court of Canada has linked preserving "the integrity and legitimacy of the refugee protection system" to "the necessary public support for [the system's] viability". Refugee lawyer David Matas speaks to a policy concern related to this when he states that if the public lacks confidence in the refugee determination system “people will eventually give up all hope in the system. ... [T]hose concerned with protecting refugees will adopt extra-legal rather than legal strategies - a Canadian sanctuary movement is possible”. Refugees pose a problem for the Canadian government quite different from that of other foreigners and it is necessary that decisions on asylum clearly communicate either why an individual should be entitled to stay in Canada or else why they can be returned to their state. This said, it does not appear to be an objective of the refugee system to denounce foreign states.

=== IRPA Section 3(3)(c) - This Act is to be applied in a manner that facilitates cooperation between the Government of Canada, provincial governments, foreign states, international organizations, and non-governmental organizations === Application (3) This Act is to be construed and applied in a manner that (c) facilitates cooperation between the Government of Canada, provincial governments, foreign states, international organizations and non-governmental organizations;

Canada has an obligation to cooperate with the UNHCR and the IRPA should be construed and applied in a manner that facilitates and respects this obligation
Section 3(3)(c) of the Act provides that it is to be construed and applied in a manner that facilitates cooperation between the Government of Canada and international organizations. This provision of the Act relates to Canada's international obligations. Opinions and interpretations by the UNHCR are of particular interest because of Article 35 of the Refugee Convention, which provides that member states have an obligation to facilitate the duty of UNHCR in supervising the application of the provisions of the Convention. Article 35 of the Refugee Convention and Article 2(1) of the 1967 Protocol stipulate that “[t]he States Parties to the present Protocol undertake to co-operate with the Office of the United Nations High Commissioner for Refugees [...] in the exercise of its functions, and shall in particular facilitate its duty of supervising the application of the provisions of the present Protocol”. Furthermore, the preamble to the Refugee Convention reads:"The High Contracting parties, ... noting that the United Nations High Commissioner for Refugees is charged with the task of supervising international conventions providing for the protection of refugees, and recognizing that the effective co-ordination of measures taken to deal with this problem will depend upon the co-operation of States with the High Commissioner, ... have agreed as follows: ..."Furthermore, UNHCR is entrusted by the United Nations General Assembly with supervision of the interpretation and application of the Refugee Convention.

As such, statements emanating from the UNHCR, such as those in its handbook, are considered highly influential in how refugee adjudication should be approached, even if its clauses are not, in and of themselves, law in Canada. The Federal Court of Appeal noted as much in Rahaman v. Canada, holding:"in Article 35 of the Geneva Convention the signatory states undertake to co-operate with the Office of the United Nations High Commissioner for Refugees (UNHCR) in the performance of its functions and, in particular, to facilitate the discharge of its duty of supervising the application of the Convention. Accordingly, considerable weight should be given to recommendations of the Executive Committee of the High Commissioner's Programme on issues relating to refugee determination and protection that are designed to go some way to fill the procedural void in the Convention itself."This holding is consistent with caselaw in Britain that UNHCR’s guidance concerning the interpretation and application of the Refugee Convention “should be accorded considerable weight”. The UK Supreme Court has held that “the accumulated and unrivalled expertise of this organisation, its experience in working with governments throughout the world, the development, promotion and enforcement of procedures of high standard and consistent decision-making in the field of refugee status determinations must invest its decisions with considerable authority”.

That said, there is no requirement that panels of the Board expressly mention UNHCR guidelines in their reasons. Furthermore, the UNHCR's supervisory role does not include a mandate to provide an authoritative interpretation of the Refugee Convention. Accordingly, the UNHCR can only issue guidance on the Convention's interpretation. In the words of the Federal Court of Appeal from Jayasekara v Canada, UNHCR’s statements "cannot override the functions of the Court in determining the words of the Convention."

Furthermore, there are also a multitude of pronouncements emanating from the UNHCR, with different levels of persuasiveness. Specifically, English jurisprudence persuasive holds that pronouncements of the UNHCR Executive Committee have been held to warrant greater weight than publications merely penned by UNHCR staff, such as the “Guidelines on International Protection” issued by the UNHCR’s Department of International Protection. That said, even the UNHCR Executive Committee Conclusions are not binding on States, even if they may be instructive in interpreting and applying the 1951 Convention.

Responsibility sharing and burden sharing between states are fundamental principles of the Refugee Convention
Section 3(3)(c) of the Act provides that this statute is to be construed and applied in a manner that facilitates cooperation between the Government of Canada and foreign states. This provision reflects the importance of "burden sharing" and "responsibility sharing" in the refugee regime. It is said that the Refugee Convention is based on two principles: non-refoulement, the rule that asylum seekers cannot be turned away or forced to return to their countries of origin; and responsibility sharing, the idea that member nations should share the costs, labour, and risks of refugee aid. While the first principle is explicitly outlined in the operative clauses of the Convention, the second is implicit in the preamble to the Refugee Convention, which reads: "The High Contracting parties, ... considering that the grant of asylum may place unduly heavy burdens on certain countries, and that a satisfactory solution of a problem of which the United Nations has recognized the international scope and nature cannot therefore be achieved without international co-operation, ... have agreed as follows: ..."James Hathaway writes in The Law of Refugee Status that burden sharing was historically one of the core motivations for the Refugee Convention: "... the majority of the states that drafted the Convention sought to create a rights regime conducive to the redistribution of the post-war refugee burden from European shoulders. The Europeans complained that they had been forced to cope with the bulk of the human displacement caused by the Second World War, and that the time had come for all members of the United Nations to contribute to the resettlement of both the remaining war refugees and the influx of refugees from the Soviet bloc. Refugees would be more inclined to move beyond Europe if there were guarantees that their traditional expectations in terms of rights and benefits would be respected abroad. The Convention, then, was designed to create secure conditions such as would facilitate the sharing of the European refugee burden."Today, most refugees reside not in Europe, but in low-income states; the world’s six richest countries host under 10% of the world’s refugee population, while 80% of the world’s refugee population live in countries neighbouring their own. The majority of these countries are low-income ones, with significant resource and governance challenges of their own. As an example, Canada has welcomed 1,088,015 refugees since 1980 through both the resettlement and in-Canada asylum processes. Between 1979 and 2018, a total of 707,421 refugees were resettled to Canada, including 313,401 refugees who came through the private sponsorship program, 385,014 through the Government-Assisted Refugee program, and 9,006 through the Blended Visa Office Referred (BVOR) program. The remainder came through the in-Canada asylum system. All together, these refugee numbers represent about 3% of the current Canadian population. In comparison, Jordan today hosts refugees equivalent to 9% of its current population and Lebanon hosts refugees equivalent to more than 20% of its current population, all with substantially fewer financial resources than Canada has.

Responsibility sharing, as a concept, has been said to refer to the 'sharing' of people, while burden sharing refers to the sharing of financial resources and other costs related to refugees. These principles have a number of implications. First, it is to this end that the UNHCR Executive Committee has encouraged states to continue to promote, where relevant, regional initiatives for refugee protection and durable solutions. The Federal Court has noted that "in principle, international refugee law does not confer upon refugees the right to choose their country of asylum". The Federal Court also notes that international refugee law "does not authorize their irregular movement between successive countries solely in order to benefit from more favourable conditions." The Federal Court has also cited with approval the UNHCR document Guidance on Responding to Irregular Onward Movement of Refugees and Asylum-seekers (2019) which includes a related discussion. One manifestation of this principle in the IRPA is through the responsibility sharing arrangement between the "Five Eyes" countries established by s. 101(c.1) of the Act: Canadian Refugee Procedure/100-102 - Examination of Eligibility to Refer Claim.

All this said, under international law refugees are under no obligation to apply for asylum in any particular state at any specific stage of their flight from danger. Indeed, the 1951 Convention at the time of its adoption was seen as an instrument of responsibility sharing and, to this end, binding obligations upon states were considered a requirement for effective international cooperation, as well as more equal commitments and sharing of responsibility with regard to refugee problems. In this way, in-country asylum systems have come to be seen as durable methods of responsibility sharing. Shauna Labman writes about the comparative "fragility and vulnerability" of state resettlement programs in contrast to asylum when she notes the fact that politicians have more control over resettlement levels than they do asylum numbers, and in fact resettlement programs can simply disappear. See also: Canadian Refugee Procedure/Principles for the interpretation of refugee procedure. In contrast, the “non-refoulement” rule has been called "the only binding principle for allocating refugee responsibilities in international law".

States should do everything in their power to prevent the problem of refugees from becoming a cause of tension between states
Section 3(3)(c) of the Act provides that it is to be construed and applied in a manner that facilitates cooperation between the Government of Canada and foreign states. This provision can be seen to reflect the preamble to the Refugee Convention, which reads:"The High Contracting parties, ... expressing the wish that all States, recognizing the social and humanitarian nature of the problem of refugees, will do everything within their power to prevent this problem from becoming a cause of tension between States, ... have agreed as follows: ..."Relatedly, in 1967, the UN General Assembly adopted a Declaration on Territorial Asylum directed toward States. The Declaration states that granting asylum is a peaceful and humanitarian act that cannot be regarded as unfriendly by any other State. Indeed, the modern refugee regime can be seen as one institution that supports the stability of states and their borders in that it provides a mechanism for individuals to be recognized after they cross a border and arguably may thereby reduce calls for borders to be reconfigured to reflect shifting ethnic or political differences.

The Act should be interpreted in a way that prevents the possibility of “refugees in orbit”
Section 3(3)(c) of the Act provides that this statute is to be construed and applied in a manner that facilitates cooperation between the Government of Canada and foreign states. Canada’s Senate, in amending relevant bills, has been said to have tried to ensure that the safe third country provisions in the IRPA do not result in “refugees in orbit”, refugees forced to travel from country to country in search of protection. There are different definitions of what this term means.

The classic "refugees in orbit" were the Jews of antiquity, being admitted to many states on a temporary basis, but securing permanent residence in none. In Rabbi W. Gunther Plaut's words, Christian Europe dubbed them "the wandering Jew" and treated them in accordance with what such otherness implied: Wanderers seemed to be a natural part of the human landscape; they arrived, stayed and often departed. As long as they were "other" and not allowed to integrate, they presented no political danger. They were simply there to be utilized, and could be discarded when they were of no further use. They had no right to permanent settlement and in a sense remained "refugees in orbit". In this way, refugees in orbit may be those who have been displaced and moving - some constantly, some intermittently - for years, even decades or generations. Audrey Macklin provides a more contemporary example of the "refugees in orbit" concept, stating that a “refugee in orbit” situation is constituted when:"Country A designates country B as a safe third country, thereby entitling country A to refuse to adjudicate the claim of an asylum seeker who arrived in country A via country B. However, in the absence of a readmission agreement, country B may refuse to re-admit the asylum seeker, and send the person to country C, who may in turn bounce the person concerned to country D, and so on."The phrase and concept of refugees "in orbit" was a common one when the Safe Third Country Agreement provisions were being enacted in Canada's immigration legislation in the 1980s. Specifically, the Standing Senate Committee on Legal and Constitutional Affairs, which examined Bill C-55 in 1988, indicated that they had concerns about the safety involved in the 'safe country' provision of that bill. As Alan Nash describes, it was felt that the bill provided no formal mechanism to examine the fate of people to be returned to the safe third country. Individuals might easily be sent elsewhere by the country, perhaps leading to refoulement and jeopardizing their lives. The Senate Committee therefore proposed an amendment that would have provided for return to a safe third country only if a Refugee Division member and an adjudicator at an inquiry were convinced that the safe country would be willing to receive the claimant or to determine the individual's claim on its merits. In their view, this would have minimized the danger that asylum-seekers would be put "into orbit" or sent to another country. While this recommendation was not accepted, measures were ultimately instituted to prevent this problem. For more details, see Canadian Refugee Procedure/IRPR s. 159 - Safe Third Countries, and in particular Article 3 of the Safe Third Country Agreement, which exists to prevent this.

Also of note, Article 33(1) of the Refugee Convention has long been interpreted as prohibiting not only the direct return of refugees to the country where they fear persecution, but also their indirect return via a third country. See: Canadian Refugee Procedure/115-116 - Principle of Non-refoulement.

The Act should be interpreted in a way that is coherent with interpretations by other states party to the Convention
Section 3(3)(c) of the Act provides that this statute is to be construed and applied in a manner that facilitates cooperation between the Government of Canada and foreign states. In this way, the IRPA should be interpreted in a way that avoids fragmentary jurisprudence which undermines the coherence of the international protection system. Courts in the UK have phrase this obligation thusly: "in principle there can only be one true interpretation of a treaty". As such, decisions from the UK frequently stress that each State "must search, untrammelled by notions of its national legal culture, for the true autonomous and international meaning of the treaty". For the same reason, decisions in Canada frequently canvass jurisprudence from other countries when interpreting the meaning of the Refugee Convention and the IRPA. This is appropriate given that, in the words of the Plaut report that preceded the establishment of the IRB, "whether or not a person is a refugee is a question which is not so much one of Canada law; rather, it belongs to the realm of international definition and justice." See also: Canadian Refugee Procedure/The right to be heard and the right to a fair hearing.

==== The Act should be construed and applied in a manner that facilitates cooperation between the Government of Canada and non-governmental organizations like the College of Immigration and Citizenship Consultants ==== Section 3(3)(c) of the Act provides that this statute is to be construed and applied in a manner that facilitates cooperation between the Government of Canada and non-governmental organizations. Some of the central non-governmental organizations in the Canadian immigration sphere are the College of Immigration and Citizenship Consultants and Canada's provincial law societies. As such, the Board should strive to construe and apply the IRPA in a way that facilitates cooperation with those bodies. Issues of this sort can arise where an individual is providing legal advice for consideration without being a member in good standing of such a body and where a member of such a body is acting beyond their allowed scope of practice. See: Canadian Refugee Procedure/91-91.1 - Representation or Advice.

IRPA Section 3(3)(d) - The Act is to be applied in a manner that complies with the Charter of Rights and Freedoms
Application (3) This Act is to be construed and applied in a manner that (d) ensures that decisions taken under this Act are consistent with the Canadian Charter of Rights and Freedoms, including its principles of equality and freedom from discrimination and of the equality of English and French as the official languages of Canada;

The fact that Charter rights are at play in Board proceedings means that the extent of procedural fairness owed to claimants is high
The Federal Court of Appeal has stated that “The independence of the Board, its adjudicative procedure and functions, and the fact that its decisions affect the Charter rights of claimants, indicate that the content of the duty of fairness owed by the Board, including the duty of impartiality, falls at the high end of the continuum of procedural fairness.” This obligation arises not only from Canada’s domestic administrative law, but also from Canada’s international commitments and obligations. The Refugee Convention provides that the expulsion of a refugee ‘shall be only in pursuance of a decision reached in accordance with due process of law’. In Agiza v. Sweden, the UN Committee against Torture found that article 3 of the CAT carries with it an implicit right to an ‘effective, independent and impartial review of a decision to expel’. The Board's duty of fairness is also said to be heightened when it is dealing with self-represented claimants: Canadian Refugee Procedure/RPD Rules 14-16 - Counsel of Record.

That said, while this is the common law rule, the extent of procedural fairness in the refugee process has been set out by provisions of the IRPA in many situations and the court notes that "these statutory requirements govern notwithstanding any common law rule." See: Canadian Refugee Procedure/170 - Proceedings.

Charter issues should generally be raised before the Division
Under most circumstances in the immigration context an applicant is required to raise Charter issues before the relevant administrative tribunal within the respective proceeding. In the present context, for example, the IRB is competent to address Charter issues. If unsuccessful, the claimant would then be able seek leave for judicial review of that decision before the Federal Court. For further discussion on this, see: Canadian Refugee Procedure/RPD Rule 66 - Notice of Constitutional Question.

Decisions taken under this Act are to be consistent with the principles of equality and freedom from discrimination
Section 3(3)(d) of the IRPA provides that the Act is to be construed and applied in a manner that ensures that decisions taken under the Act are consistent with the Canadian Charter of Rights and Freedoms, including its principles of equality and freedom from discrimination. This provision tracks the obligation in Article 3 of the Refugee Convention, which provides that the "Contracting States shall apply the provisions of this Convention to refugees without discrimination as to race, religion or country of origin".

One can observe a transformation over the past century in the nature of international migration, including that it has an increasingly multiethnic and global character. When the 1951 Refugee Convention was being negotiated, it had a primarily European orientation, and the prospect of refugees coming in significant numbers from further afield was thought to be nil. For example, the UK delegate to the conference of plenipotentiaries that negotiated the 1951 Convention, asserted there that "[the risk of European states facing] a vast influx of Arab refugees was too small to be worth taking into account." This thinking about the makeup and source of refugees seeking asylum has shifted dramatically to the point where today it is recognized that most refugees are in low income countries and that individuals claim asylum in Canada against countries throughout the world. Indeed, it can be observed that while “asylum seeker” is not on its face or de jure a racial category, in the contemporary Canadian migration regime, it is a de facto racialized category, comprised largely of non-White persons.

Board Members are to exercise their discretion without discrimination or reliance on stereotype, as doing so, in the words of the Federal Court, “reveals a level of ignorance and prejudice which is not only unusual in general, but is particularly astonishing on the part of a decision maker who is in a position to adjudicate sensitive claims.” See also: Canadian Refugee Procedure/The right to an unbiased decision-maker.

Decisions taken under this Act are to be consistent with the equality of English and French as the official languages of Canada
Section 3(3)(d) of the Act states that it is to be construed and applied in a manner that ensures that decisions taken under this Act are consistent with the Canadian Chart of Rights and Freedoms, including its principle of the equality of English ad French as the official languages of Canada. For a discussion of this, see: Canadian Refugee Procedure/The right to be heard and the right to a fair hearing.

IRPA Section 3(3)(f) - The Act is to be applied in a manner that complies with international human rights instruments to which Canada is signatory
Application (3) This Act is to be construed and applied in a manner that (f) complies with international human rights instruments to which Canada is signatory.

In general, in Canada legislation should be presumed to conform to international law
Canada is what is referred to as a "dualist state" in that international law and municipal law are treated as separate spheres of law. As such, in order for international obligations undertaken by the state by way of treaty to form part of the national law, these international law rules have to be transformed into national law rules through the use of enabling legislation. That said, it is a well-established principle of statutory interpretation that legislation will be presumed to conform to international law. The presumption of conformity is based on the rule of judicial policy that, as a matter of law, courts will strive to avoid constructions of domestic law pursuant to which the state would be in violation of its international obligations, unless the wording of the statute clearly compels that result. The Supreme Court of Canada articulated this rule in Baker v. Canada when it adopted the following statement from Driedger on the Construction of Statutes:"[T]he legislature is presumed to respect the values and principles enshrined in international law, both customary and conventional. These constitute a part of the legal context in which legislation is enacted and read. In so far as possible, therefore, interpretations that reflect these values and principles are preferred."

International human rights instruments are determinative of the meaning of IRPA, in the absence of a clear legislative intent to the contrary
Section 3(3)(f) of the IRPA goes beyond the general principle of statutory interpretation described above. When interpreting any provision of IRPA, account must be had of Canada’s international human rights obligations and provisions should be interpreted in a manner consistent with Canada’s international obligations, where possible. In de Guzman v. Canada the court commented that the words “shall be construed and applied in a manner that complies with …” are mandatory and appear to direct courts to give the international human rights instruments in question more than persuasive or contextual significance in the interpretation of IRPA. By providing that IRPA “is to be” interpreted and applied in a manner that complies with the prescribed instruments, paragraph 3(3)(f), if interpreted literally, makes them determinative of the meaning of IRPA, in the absence of a clear legislative intent to the contrary. As Bastarache J. held in Pushpanathan, the "overarching and clear human rights object and purpose is the background against which interpretation of individual provisions must take place". That said, unambiguous provisions of the IRPA must be given effect even if they are contrary to Canada’s international obligations or international law.

Sharryn Aiken, et. al., write in Immigration and Refugee Law: Cases, Materials, and Commentary that there was considerable excitement in migrant advocacy circles regarding para 3(3)(f) of the IRPA stating that the Act is to be construed in a manner that "complies with international human rights instruments to which Canada is signatory." They note that this provision seemed to provide a potential shortcut for direct access to international human rights principles. However, on the basis of the Federal Court of Appeal's decision de Guzman v. Canada those authors conclude that "The de Guzman decision ensured that para 3(3)(f) is understood to reflect existing Canadian law with respect to international obligations and therefore to be essentially meaningless window dressing that adds nothing new to the interpretive framework for Canadian immigration law."

That said, the courts have held that one of the effects of this provision is to mandate immigration adjudicators to consider relevant international law, including the principle of non-refoulement, regardless of whether or not this has been raised as an argument by the parties.

Regard should be had to international human rights instruments that Canada is signatory to, whether or not Canada has ratified them
In de Guzman v. Canada the court commented that the sources of international law described in paragraph 3(3)(f) comprise some that are binding on Canada in international law, and some that are not. The paragraph applies to instruments to which Canada is signatory. At international law, an instrument is not legally binding on a signatory State until it has also ratified it, unless the instrument provides that it is binding when signed. Signature normally evinces an intention to be bound in the future, although it may also impose an immediate obligation on the signatory not to take measures to undermine the agreement.

Being a signatory to a treaty has a particular meaning in international law, in that it is usually a step prior to a party becoming a party to the treaty. Article 18(a) of the Vienna Convention on the Law of Treaties provides that "A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when: (a) It has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; ...". That said, it is apparent that the instruments appropriately covered by this provision are not limited to instruments which Canada has signed, but not ratified. The Supreme Court of Canada has noted, for example, that the Refugee Convention itself is among the instruments appropriately referred to by this provision. See: Canadian Refugee Procedure/Principles for the interpretation of refugee procedure.

What are the international human rights instruments to which Canada is a signatory?
As the Federal Court of Appeal has noted, the IRPA "does not list, let alone set out the text of, the measures to which paragraph 3(3)(f) applies." It went on to note that the phrase "international human rights instruments to which Canada is signatory" is "far from self-defining". The Supreme Court of Canada has noted that the Refugee Convention itself is among the instruments appropriately referred to by this provision, see: Canadian Refugee Procedure/Principles for the interpretation of refugee procedure.

The Department of Justice provides the following list, International Human Rights Treaties to which Canada is a Party, which may also serve to inform an interpretation of this provision:

A number of additional treaties could by added to this list, including:
 * Convention on the Prevention and Punishment of the Crime of Genocide (1952)
 * International Convention on the Elimination of All Forms of Racial Discrimination (1970)
 * International Covenant on Economic, Social and Cultural Rights (1976)
 * International Covenant on Civil and Political Rights (ICCPR) (1976)
 * Optional Protocol to the ICCPR (complaint mechanism) (1976)
 * Second Optional Protocol to the ICCPR, aiming at the abolition of the death penalty (2005)
 * Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) (1981)
 * Optional Protocol to CEDAW (complaint mechanism) (2002)
 * Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1987)
 * Convention on the Rights of the Child (CRC) (1991)
 * Optional Protocol to the CRC on the Involvement of Children in armed conflict (2000)
 * Optional Protocol to the CRC on the Sale of Children, Child Prostitution and Child Pornography (2005)
 * Convention on the Rights of Persons with Disabilities (2010)
 * Optional Protocol to the Convention on the Rights of Persons with Disabilities (2018)

Regard may also be had to Canada's United Nations Declaration on the Rights of Indigenous Peoples Act, which affirms "the Declaration as a universal international human rights instrument with application in Canadian law".
 * The International Labour Organization Worst Forms of Child Labour Convention (ILO Convention No. 182)
 * The International Labour Organization Minimum Age Convention (ILO Convention No. 138)
 * The Rome Statute of the International Criminal Court
 * The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime
 * The phrase "international human rights instruments" could be taken to include regional instruments in the Inter-American system that Canada has signed. Canada is not a party to the American Convention on Human Rights. Nevertheless, as a member of the Organization of American States, it is bound by the terms of the American Declaration of the Rights and Duties of Man (“American Declaration”). This instrument specifies the fundamental rights to which each person is entitled, and which each member state of the Organization of American States (OAS), like Canada, is bound to uphold. The OAS Charter and the American Declaration are a source of legal obligations applicable to Canada. Canada has also ratified several other inter-American human rights treaties, including the Inter-American Convention on the Granting of Political Rights to Women and the Inter-American Convention on the Granting of Civil Rights to Women.
 * The Geneva Conventions I, II, III, and IV and Protocols I, II, and III may be added to this list, but see the following commentary on international humanitarian law.

One of the rationales for applying the IRPA in a manner that complies with international human rights instruments to which Canada is signatory is that the Minister can examine ‘interim measures requests’ to refrain from removing foreign nationals. Such requests can be issued by the bodies of four international human rights treaties to which Canada is signatory: the Convention on the Elimination of All Forms of Discrimination Against Women; the Convention Against Torture; the International Covenant on Civil and Political Rights; and the American Declaration of the Rights and Duties of Man.

When attempting to interpret this term, regard may be had of the interpretation that the African Court on Human and Peoples' Rights has given to its constituting protocol, which gives it jurisdiction over the African Charter on Human and Peoples' Rights as well as "any other relevant Human Rights instrument ratified by the states concerned." That court has provided significant interpretation of this similar phrase, including how instruments can have certain provisions that are human rights ones and other provisions that are not human rights ones.

For some of the above Conventions, it is unambiguous that the IRPA is to be interpreted in conformity with provisions of them; the statute includes an excerpt from the Convention against Torture, for instance: Canadian Refugee Procedure/2-3 - Definitions, objectives, and application of the IRPA.

See also the provision of the IRPA regarding non-refoulement and how that concept relates to some of the above instruments: Canadian Refugee Procedure/115-116 - Principle of Non-refoulement.

This provision may not apply to international humanitarian law instruments and texts which are not signed
Section 3(3)(f) of the IRPA provides that it is to be construed and applied in a manner that complies with international human rights instruments to which Canada is signatory. This arguably excludes a number of types of instruments, including:


 * Instruments that are not human rights instruments, but are instead humanitarian law instruments: Canada has signed the Geneva Conventions I, II, III, and IV and Protocols I, II, and III. These may be relevant to refugee determinations. For example, the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1949), which at Art. 45, para. 4 prohibits transferring a protected person "to a country where he or she may have reason to fear persecution for his or her political opinions or religious beliefs." However, this instrument forms part of international humanitarian law, not international human rights law, and thus may be argued not to fall within the ambit of IRPA s. 3(3)(f). For example, the International Law Commission has generally distinguished between the two areas of law.
 * Instruments that are not signed: For example, the 1948 Universal Declaration of Human Rights is not a treaty, but instead an unenforceable, non-binding (yet aspirational) resolution of the United Nations General Assembly. By its terms the Universal Declaration of Human Rights was not designed to describe binding obligations by only a 'common standard of achievement', as stated in the preamble to the declaration. As such, given that this document was not signed, and as such countries cannot be said to be signatories to this declaration, it should not be regarded as one of the instruments contemplated by s. 3(3)(f) of the IRPA.
 * Customary international law: While there are other cannons of interpretation that read Canadian legislation in conformity with customary international law, such an interpretation would appear not to be required by this provision on its own terms. As such, while the UK Supreme Court has observed that "it may be that the principle of non-refoulement forms part of customary international law", that fact, if true, is not in itself germane to this provision of the IRPA. But see: Canadian Refugee Procedure/Principles for the interpretation of refugee procedure.

The refugee system is inextricably linked with the concept of human rights
Section 3(3)(f) of the Act provides that it is to be construed and applied in a manner that complies with international human rights instruments to which Canada is signatory. The Supreme Court of Canada has held that the Refugee Convention itself should be considered a “human rights instrument”, within the meaning of s. 3(3)(f) of the Act:"s. 3(3)(f) instructs courts to construe and apply the IRPA in a manner that “complies with international human rights instruments to which Canada is signatory”. There can be no doubt that the Refugee Convention is such an instrument, building as it does on the right of persons to seek and to enjoy asylum from persecution in other countries as set out in art. 14 of the Universal Declaration of Human Rights. [internal citations omitted]"In addition, the Protocol Relating to the Status of Refugees is also considered to be an international human rights instrument.

This is consistent with the practice of other courts. The preamble to the Convention itself notes that "The High Contracting parties, considering that the United Nations has, on various occasions, manifested its profound concern for refugees and endeavoured to assure refugees the widest possible exercise of these fundamental rights and freedoms, ... have agreed as follows:". Brennan CJ of the High Court of Australia relied on this preamble when making the following comment about the Refugee Convention: "the preamble places the Convention among the international instruments that have as their object and purpose the protection of the equal enjoyment by every person of fundamental rights and freedoms." In 2018 the Inter-American Court of Human Rights issued an Advisory Opinion entitled “The Institution Of Asylum And Its Recognition As a Human Right In The Inter-American System Of Protection” which concluded that asylum is a human right.

This is also consistent with the practice of the UN High Commissioner for Refugees. UNHCR is said to have adopted this approach that sees the Refugee Convention as a part of human rights law and has pronounced that “the human rights base of the Convention roots it quite directly in the broader framework of human rights instruments of which it is an integral part.” The Commissioner himself has stated: "The issue of human rights and the problems of refugees are so inextricably linked that it is hardly possible to discuss one without referring to the other. Human rights violations are a major cause of refugee flows and also a major obstacle to the solution of refugee problems through voluntary repatriation. More positively, safeguarding human rights is the best way to prevent conditions that force people to become refugees; respect for human rights is a key element in the protection of refugees in the country of asylum; and improved observance of human rights standards is often critical for the solution of refugee problems by enabling refugees to return safely home ..."Furthermore, the weight of academic commentary places the Refugee Convention within the corpus of human rights instruments. McAdam argues that refugee law is a specialized area within human rights law. Similarly, Hathaway argues that refugee rights should be understood as a mechanism by which to answer situation-specific vulnerabilities that would otherwise deny refugees meaningful benefit of the more general system of human rights protection. In this way, he states, "refugee rights do not exist as an alternative to, or in competition with, general human rights."

This provision in the IRPA should be read in conjunction with section 3(2)(e) of the IRPA, which provides that the objectives of this Act with respect to refugees including upholding Canada’s respect for the human rights and fundamental freedoms of all human beings. These legislative provisions speak to the way that the plight of refugees is inextricably linked with human rights violations. In the words of refugee lawyer David Matas, “the plight of refugees and human rights violations are not two problems, but different facets of the same problem. Human rights violations are at the root cause of mass exoduses.” See: Canadian Refugee Procedure/Principles for the interpretation of refugee procedure.

Finally, the fact that asylum is related to human rights does not preclude it from being a branch of other areas of law; in the words of the UK Supreme Court, asylum can perfectly naturally be regarded as an aspect of immigration law.