Practice notice: Presence of children at Refugee Protection Division hearings

​​Introduction

In September 2017, the Refugee Protection Division (RPD) launched a pilot project regarding the presence of accompanied minor refugee claimants in the hearing room. Due to the success of that pilot project, the RPD has decided to continue those procedures through the issuance of this Notice, which replaces the Notice announcing the pilot project.^{Footnote 1}

Specifically, this Notice implements procedures whereby children who are under the age of 12 (“the child” or “children”) on the date of the hearing, are not required to appear before the RPD unless the presiding member requires their attendance. Children 12 years of age or older are still required to attend the hearing.
As outlined in Chairperson Guideline 3: Child Refugee Claimants: Procedural and Evidentiary Issues, accompanied children include:

• Children who arrive in Canada at the same time as their parents or some time thereafter. In most cases, the parents also seek refugee status, and
• Children who arrive in Canada with, or are being looked after in Canada by, persons who the RPD is satisfied are related to the child, then the child should be considered an accompanied child.

All children 12 years of age or older on the date of the hearing and all unaccompanied minors (i.e. not making a claim with an adult), regardless of age, are required to attend their hearing without further notice from the RPD.

Background

Under the Immigration and Refugee Protection Act, the RPD must hold a hearing and must appoint a designated representative to act in the best interests of any claimant who is under the age of 18. In practice, young children who are claiming refugee status with their families are often excused by the member from the hearing with the consent of the minor claimant’s designated representative.

The RPD recognizes that having children attend a hearing, only to be excused at the outset, may create difficulties with respect to travel and child care, as well as cause school aged children to unnecessarily miss school. However, sometimes, in order to ensure a full hearing in which all relevant issues are examined, the presence of young children is required.

These procedures are being implemented to ease the burden on families with young children while ensuring that the RPD may carry out its mandate of rendering well-reasoned decisions in accordance with the law.

Implementation

The following procedures apply to refugee claimants who are under the age of 12 at the date of the refugee hearing.

• Unless notified by the RPD in advance of the hearing, a child is not required to attend the hearing (but may attend if they wish, in consultation with their designated representative).
• In all circumstances, the presiding member retains the discretion to require that a child be present at the hearing.
• When a member determines that it is necessary for a child to attend the hearing, the claimant(s) will be informed at the earliest possible opportunity so they can make necessary arrangements.
• If the hearing is underway and the member determines it necessary to have the child appear in the hearing room, the member may choose to resume the hearing at another time to allow for the child’s attendance.
• The following considerations, among others, will be examined when determining whether a child should be required to attend the hearing:
• Are there identity issues which might require the child’s attendance?
• Does the child have a claim that is factually distinct from that of the parents?
• Are there questions regarding a parent’s relationship with the child?
• Are there human smuggling or human trafficking concerns?
• Is the child’s testimony necessary?
• Do any other issues the member identifies as relevant necessitate the child’s attendance at the hearing?

Authority

The Chairperson of the Immigration and Refugee Board of Canada has the authority to fix the place, date, and time of proceedings^{Footnote 2} and to take any action that may be necessary to ensure that members of the Board are able to carry out their duties efficiently and without undue delay.^{Footnote 3} This authority has been delegated to Deputy Chairpersons. In addition, in the absence of a provision in the RPD Rules, the Division may do whatever is necessary to deal with a matter.^{Footnote 4}

Effective date

This Practice Notice comes into force when it is signed.

Signed on March 11, 2019

Shereen Benzvy Miller
Deputy Chairperson, RPD