Oral hearings – Pre-removal risk assessments (PRRAs)

While the pre-removal risk assessment (PRRA) is primarily a document-based process, an oral hearing may be required in the following circumstances:

• Credibility-based hearings – The Immigration and Refugee Protection Act (IRPA) provides that a hearing may be held if the minister of Citizenship and Immigration, on the basis of prescribed factors set out in the Immigration and Refugee Protection Regulations (IRPR), is of the opinion that a hearing is required.
• Mandatory hearings – The IRPA also states that, despite the provisions for discretionary credibility-based hearings, a hearing is mandatory for any applicant whose claim for refugee protection has been determined to be ineligible solely on the basis that it has been confirmed through an information-sharing agreement that they have made a claim for refugee protection in another country.

Regardless of the reason for offering a hearing, the purpose is the same: to review the determinative issues by exploring issues of fact. The onus is on the applicant to provide general information related to their case through written submissions.

PRRA officers should conduct hearings in a manner that is fair and expeditious. Officers must, however, be sensitive to any particular circumstances (such as when the applicant is an unaccompanied minor or a vulnerable person).

On this page

• When to hold a hearing
• Providing notice
• Conducting a hearing: General guidelines
• Hearing procedures
• Failure to appear
• Role of counsel
• Particular circumstances: Minors, vulnerable persons, women, and sexual orientation and gender identity and expression (SOGIE) minorities

When to hold a hearing

In this section

• Credibility-based hearings
• Mandatory hearings

Credibility-based hearings

Paragraph A113(b) and section R167 provide for discretionary hearings when the officer is of the opinion that a hearing is required because the

• evidence raises a serious issue of credibility
• evidence is central to the decision to be rendered
• evidence, if accepted, would justify allowing the application

The officer will first evaluate the application, assess the submissions and the evidence provided by the applicant, and, where necessary, conduct thorough research on country conditions before determining whether a hearing is necessary. In most cases, an officer will be able to determine through documentary evidence what the relevant facts are, and then assess the potential for an applicant to be harmed, as defined in the protection grounds.

A hearing is not normally held in the following circumstances:

• The applicant appears to be credible, and the grounds for protection are established.
• The applicant made a claim for refugee protection that was assessed by the Immigration and Refugee Board (IRB) and the applicant is relying solely on evidence that was previously rejected by the IRB due to a lack of credibility. However, the officer must still consider the objective country documentation to assess whether the applicant will be at risk if removed.
• The objective elements of a fear of persecution are being assessed to determine how well founded the fear of persecution is.
• A determination is being made to see if there is objective evidence supporting a danger of torture or risk to life or of cruel and unusual treatment or punishment.

However, a hearing may be contemplated in the following circumstances:

• The IRB has either determined that the applicant was credible or has not made any conclusion on the credibility of the applicant, but there is evidence that leads the officer to believe the applicant is not credible.
• New evidence has appeared to contradict the IRB’s finding that the applicant is not credible.
• There is sufficient objective evidence to suggest that the applicant might be at risk, but the officer has insufficient information to make a finding on the applicant’s credibility.

The decision of whether or not to hold a hearing is not limited to the examples above. It is a decision that must be made on a case-by-case basis, taking into account the particular circumstances of each case. Nevertheless, a hearing is held only when all factors set out in section R167 are met.

Mandatory hearings

Section A113.01 provides for mandatory hearings for individuals applying for a PRRA whose refugee claims have been found ineligible to be referred to the IRB because (both)

• they have previously applied for asylum in another country with which Canada has an information-sharing agreement before claiming in Canada, and
• that fact has been confirmed through information-sharing, per paragraph A101(1)(c.1)

In these cases, officers must hold an oral hearing unless the application is approved without a hearing.

Providing notice

IRPR outlines the process to follow in the conduct of a hearing.

When convening a hearing, paragraph R168(a) provides that a notice shall be provided to the applicant of the date, time and place of the hearing. The notice shall also state all the determinative issues of fact that will be raised at the hearing.

If a determinative issue of fact has not been identified in the hearing notice, it is considered as either accepted or not central to the decision for the purpose of assessing the application.

Including all issues of fact

Per paragraph R168(b), the hearing is restricted to the issues raised in the notice, unless the officer considers that other issues of fact have been raised by the applicant’s statements at the hearing. Therefore, it is important that the issues of fact stated in the notice cover all the central issues that the officer wishes to explore.

For all cases where a hearing is held, refusal of an application shall not be based on a determinative issue of fact that has not been discussed with the applicant. For cases where an issue arises following a hearing, PRRA officers should address these issues through a procedural fairness letter or subsequent hearing. See Procedures and guidelines applicable to all cases for further guidance on identifying issues central to the application, on weighing evidence and on factors that may lead to refusal of an application.

Scope of the examination

Whether a credibility-based hearing or a mandatory hearing is taking place, the purpose of the hearing is the same: to address determinative issues by exploring issues of fact. However, the nature of the determinative issues that are discussed are different:

• In a credibility hearing, the officer has already assessed the objective determinative issues and found them to be not central to the decision before proceeding to a hearing. Therefore, the remaining issues are mostly related to credibility.
• In a mandatory hearing, since the officer is not limited by the prescribed factors identified in section R167, the nature of the issues discussed is broader and includes objective as well as credibility-based issues.

As outlined in paragraphs R168(a) and (b), only determinative issues of fact are to be discussed at the hearing. Therefore, the hearing is not intended to be a forum to make legal representations; it is through written submissions that the applicant is to make legal representations. The hearing is an informal process restricted to raising determinative issues of fact with the applicant, affording the applicant an opportunity to answer questions raised by the officer with, if needed, the assistance of counsel [R168(c)]. The PRRA officer does not make a decision on an application at the hearing.

It is important that the notice be limited to issues of fact and that it not include issues of mixed fact and law or issues of law.

Generally, issues of law address the relevant legal tests. Issues of fact relate to the specific facts in a case. Finally, issues of mixed fact and law are how the facts in a given case intersect with the relevant legal tests.

The table below demonstrates how these issues apply in the case of state protection.

Difference between issues of law, issues of fact, and issues of mixed fact and law

Conducting a hearing: General guidelines

The hearing is non-adversarial in nature. The officer leads the hearing and ensures it is conducted in a fair and expedient manner.

The officer should restrict the hearing to the issues raised in the notice but may, per paragraph R168(b), consider other determinative issues of fact if they are raised by the applicant’s statements at the hearing. Where a new determinative issue comes to light based on statements made by the applicant in the hearing, the officer should consider if any accommodation (such as a recess, an adjournment or an opportunity to provide further submissions post-hearing) is necessary, in line with the principles of procedural fairness.

It is not appropriate for the applicant or counsel to raise at the hearing issues that do not relate to the issues signalled in the notice, unless these issues arise from statements made by the applicant during the hearing. It is also not appropriate to use the hearing to make legal representations or present arguments. It is not a forum for adjudication of the application; rather, the purpose of the hearing is to raise determinative issues of fact with the applicant, affording the applicant an opportunity to answer questions raised by the officer with, if needed, the assistance of counsel [R168(c)]. It is through written submissions that the applicant presents evidence and makes legal representations.

Per paragraph R168(d), evidence from anyone other than the applicant should be provided in writing. The applicant cannot bring other witnesses to the hearing, unless an officer decides to hear from anyone other than the applicant for the purpose of verifying the evidence provided. This is necessary only in instances where the PRRA officer finds that questioning a witness is necessary for the purpose of resolving a determinative issue of fact.

In many cases, the officer will be required to arrange for an interpreter. At the outset of the hearing, the officer should verify that the interpreter and the applicant understand each other. Prior to and during the oral hearing, the interpreter is under contract to IRCC. Find out how to use the services of an interpreter.

When conducting a hearing, it is important for officers to be alert and sensitive to the nature of the information being discussed. Often times, applicants may be requested to give evidence on experiences that may have been traumatic and that they might find difficult to relive. Officers are to exercise sound judgment when conducting hearings and to only question as necessary to establish the facts.

Before concluding a hearing, applicants and their counsel should be given an opportunity to provide any further information related to the issues of fact discussed in the hearing that they wish to share.

Hearing procedures

Hearings may be held either

• remotely, via MS Teams
• on-site at an IRCC office

PRRA hearings are held remotely without requiring applicants to travel to IRCC offices. This allows the senior immigration officer to fully assess the issues of fact related to the application and allows the applicant to provide additional information related to the application.

IRCC recognizes that there are certain circumstances that may make holding a remote virtual hearing inappropriate and as such, exceptions are available. If the applicant cannot participate in a remote virtual hearing, they can make a request for accommodation.

On-site virtual hearings can accommodate applicants who do not have access to the necessary equipment or a private location or who have other concerns about participating in a remote virtual hearing. With this option, the person will use a computer at an IRCC office to participate in the hearing virtual.

In-person hearings can be accommodated if it is necessary for fairness and natural justice, to protect the health, safety or security of a participant, or for other reasons, such as vulnerabilities not otherwise addressed.

Requests for accommodation must be reviewed on a case-by-case basis and all concerns raised taken into consideration.

Step 1: Initial file review

• Review the file and identify any determinative issues.
• Provide the applicant with a notice informing them of the date and time of the remote virtual hearing.
• The notice must identify all the issues of fact to be discussed at the hearing and should also inform the applicant of the need to bring or have digital copies of identification documents (for example, certified copies of the identification documents seized upon making a claim or a refugee protection claimant document [RPCD]).
• Disclose any extrinsic evidence.
• Inform the applicant and counsel that any additional documents that address the issues of fact in the notice that they want addressed in the hearing should be disclosed at least 5 days before the hearing.
• Provide the applicant with a letter informing them that the hearing will be conducted remotely, providing instructions on how to connect remotely and informing them of the risks. Included is a consent form and waiver of liability that the applicant must sign and return. If the applicant cannot participate in a remote virtual hearing, they must submit a request for accommodation and an on-site hearing can be scheduled.
• Book the interpreter, if required, and inform the applicant that an interpreter will be present.

Step 2: Pre-hearing – Preparation (completed by the case processing agent or program assistant)

Remote

• Confirm that all participants have connected to the videoconference meeting by greeting them.
• Confirm that there are no technological or connectivity issues and that the quality of the audio and video is satisfactory.
• Organize any documents that need to be referred to during the hearing as required.

On site

• Confirm that the room is available and in order.
• Confirm the video conference is prepared, if applicable.
• Organize any documents that need to be referred to during the hearing as required.
• Greet the interpreter.

Step 3: Beginning the hearing

• Greet the applicant and put them at ease (for example, ask them if they have special needs). Vulnerable persons may require additional accommodation.
• If an interpreter’s services are being used, greet the interpreter and ensure that the applicant and interpreter understand each other.
• Explain the officer’s role and authority.
• Explain that the applicant can speak to their counsel or representative privately, upon request, at any time during the hearing.
• Examine identification documents to confirm the applicant’s identity.
• Confirm that a signed Use of Representative form [IMM 5476] identifying the present counsel is on file.
• Ensure the applicant understands the officer and how the hearing will be conducted, including
  • that it is a fact-finding hearing, and a decision will not be rendered at the end
  • that questioning is limited to the issues of fact in the notice, unless the applicant’s statements give rise to a new issue of fact
  • that the officer will question the applicant, and counsel will be given an opportunity to clarify any facts at the end
  • the role of counsel
  • the time set aside for a hearing (for example, 2 hours, 4 hours, a full day)
• Review the list of determinative factors to be discussed at the hearing, as identified in the hearing notice.
• Accept any documents received in the hearing and record them in the hearing notes. Assess if these documents can be discussed during the hearing or if it is necessary to explain to the applicant that any documents received in the hearing cannot be discussed during the hearing, as time is needed to give proper and full consideration to the evidence gathered.

Step 4: Eliciting information

• Keep the vocabulary simple and sentence structure uncluttered.
• Ask both open and closed questions to elicit information.
• Avoid jargon, rephrase a question if it appears that the applicant has not understood it.
• Limit questions to the issues of fact in the notice unless the applicant’s statements give rise to a new issue.
• If a new determinative issue arises during the hearing, consider if any adjustments to the proceedings, such as a recess or adjournment, are necessary.
• Maintain the dignity of the applicant.
• Ask only what cannot be determined from the file.
• Use the application form as a guide.
• Be alert for inconsistencies, gaps and evasiveness. Personal questions are acceptable, as long as the officer is respectful.

Step 5: Verifying the applicant’s information and giving the applicant the opportunity to address concerns

• Probe by asking closed questions about details the applicant should be able to provide.
• Remember the principles of procedural fairness; give the applicant reasonable opportunity to clarify facts and concerns.
• Observe the applicant’s demeanour as they answer. Applicants will be asked to ensure that their face and upper body are visible during the hearing.
• Remain neutral and objective while maintaining a rapport.

Step 6: Giving the applicant the opportunity to respond

• Ask the applicant if there is any further information related to the issues of fact discussed in the hearing that they wish to share.
• Provide counsel with an opportunity to clarify any issues of fact discussed. Counsel can question the applicant to do this. The officer may want to indicate the issues of fact that remain of central importance to the decision to be made.
• Provide counsel with an opportunity to make any final comments related to the issues of fact discussed.

Step 7: Conclusion – Explaining what happens next and answering any questions

• If something is required of the applicant, write it down for them.
• Ask only for additional information or documentation if it is necessary to make a decision.
• If counsel or the applicant requests to make post-hearing submissions, allow them to do so.
• Provide a specific due date for any post-hearing submissions and explain that if the submissions are not received in time, a decision may be rendered based on the information on file.
• Inform the applicant of the next steps, including that
  • the officer conducting the hearing will be the officer making the decision
  • the applicant will be contacted by the Canada Border Services Agency (CBSA) to deliver the decision
  • written reasons will be provided
  • the applicant will have the right to apply to the Federal Court for leave to have the decision judicially reviewed
• Give the applicant an opportunity to clarify what has been said and make sure they understand.
• Answer any questions the applicant has.
• Avoid giving information of which you are not certain.

Step 8: Post hearing

• If applicable, wait the required time given for any post-hearing submissions, plus 5 business days for shipping, before proceeding with a decision.
• Assess any post-hearing submissions received.
• Review hearing notes.
• Render a decision based on the totality of the evidence adduced both in writing and at the oral hearing.
• Decisions shall not be based on issues of fact that were not discussed at the hearing, unless they arise subsequent to the hearing and are presented to the applicant via a procedural fairness letter or subsequent hearing.

Recording the hearing

The PRRA officer takes notes during the hearing, either by hand or on a computer. These notes then form the only record of the hearing and should fairly and accurately reflect the oral evidence provided by the applicant. Caution is advised, as these notes may be called into question if an application for judicial review of the decision is initiated. The notes should be limited to the facts in question with no speculation or inappropriate comments. If one of the facts addressed becomes contentious, the notes should reflect the concerns raised, including a notation that concerns of the applicant or counsel have been noted and will be considered.

If the notes are handwritten, legibility is a consideration. Handwritten notes should be signed and dated by the officer. Furthermore, officers will type up their notes and upload them into the system of record as part of the application.

Failure to appear

Where the applicant fails to appear for a hearing, paragraph R169(a) provides that the applicant should be afforded a second opportunity to attend a hearing with notice before the application is declared abandoned. A notice convoking a new oral hearing should be sent as soon as reasonably possible. If the applicant fails to appear at the subsequent hearing, the application is declared abandoned. See Abandonment, withdrawal and vacation for more information.

Role of counsel

The PRRA process provides for a robust role for counsel participation that is both compliant with the Canadian Charter of Rights and Freedoms and with the principles of natural justice. Counsel’s role is essentially to protect their client’s interests and ensure that they have access to a fair process.

Counsel plays a supportive role in PRRA hearings. Counsel are allowed to assist the applicant during the hearing for the purposes of clarifying questions, assisting with responses, eliciting further information, and intervening if prejudicial statements are made to clarify or correct information. In line with natural justice, it is understood that, in cases where the issues are more complex (such as those where exclusion is raised or cases dealing with vulnerable persons), counsel may play a more significant role as there may be an increased need for counsel’s assistance.

Please refer to the section on Conducting a hearing: General guidelines for further information.

Particular circumstances: Minors, vulnerable persons, women, and sexual orientation and gender identity and expression (SOGIE) minorities

In conducting hearings on applications for protection, officers will encounter a variety of cases requiring sensitivity and thoughtful consideration. This is particularly true in certain cases. Officers should exercise sound judgment and remain alert and sensitive to the needs and limitations of applicants, including the need for procedural accommodations, in the following circumstances:

• Minors
• Vulnerable persons
• Women fearing gender-related persecution
• Sexual orientation and gender identity and expression (SOGIE) minorities

Minors

On occasion, officers may find it necessary to question children, defined by the Convention on the Rights of the Child as persons under 18 years of age. These can present themselves as both accompanied and unaccompanied minors.

In general, children are not able to present evidence with the same degree of precision as adults with respect to context, timing, importance and details. They may be unable, for example, to provide evidence about the circumstances surrounding their past experiences or their fear of future persecution. In addition, children may manifest their fears differently from adults.

Special consideration and an awareness of the best interest of the child must be applied when dealing with eliciting testimony from children. This is particularly true in the case of unaccompanied minors. In the case of accompanied minors, officers may want to consider whether they may be excused from attending the hearing or from attending sensitive portions of the questioning.

For further information, PRRA officers may consult Chairperson Guideline 3: Child Refugee Claimants: Procedural and Evidentiary Issues.

Vulnerable persons

Officers occasionally receive applications for protection from persons for whom a hearing or other case process is a particularly difficult experience because their ability to present their cases is severely impaired given a physical or psychological frailty or for other reasons. Such persons may include, but would not be limited to, the mentally ill, minors, the elderly, victims of torture, and survivors of genocide and crimes against humanity.

Officers may find that such vulnerable persons may have issues affecting their memory, behaviour, or ability to recount relevant events including symptoms that have an impact on the consistency and coherence of their testimony. The vulnerability of such persons requires special consideration to ensure they are identified and that appropriate procedural accommodations are made for them.

For further information, PRRA officers may consult Chairperson Guideline 8: Procedures With Respect to Vulnerable Persons Appearing Before the IRB.

Women fearing gender-related persecution

Though gender is not specifically identified as an independent enumerated ground for establishing Convention refugee status, there is growing support for recognizing the particular risks experienced by women due solely to their gender (and assessed as part of a particular social group) or in combination with any of the other enumerated grounds. These risks include, but are not limited to rape, infanticide, genital mutilation, bride-burning, forced marriage, domestic violence, forced abortion, or compulsory sterilization.

Female applicants may face special difficulty in establishing their credibility. Depending on their cultural background, such applicants may be reluctant to disclose their experiences of sexual violence in order to not “shame” their families or communities. Similarly, women who have been subjected to domestic violence may exhibit a pattern of symptoms referred to as Battered Woman Syndrome and may also be reluctant to testify. Applicants in such cases may require extremely sensitive handling and understanding.

For further information, PRRA officers may consult Chairperson Guidelines 4: Women Refugee Claimants Fearing Gender-Related Persecution.

Sexual orientation and gender identity and expression (SOGIE) minorities

Some applicants may identify as part of a minority based on their sexual orientation or gender identity or expression (SOGIE). Such individuals include, but are not limited to, lesbians, gay men, and bisexual, trans, intersex and queer individuals.

Depending on factors such as race, ethnicity, religion, faith or belief system, age, disability, health status, social class and education, individuals with diverse sexual orientations and identities may recognize and express their identity differently. There is no standard set of criteria that can be relied upon to establish an individual’s identification as an individual with diverse SOGIE and, at times, an individual’s testimony may be the only evidence of their SOGIE where, in a given case, corroborative or additional evidence is not reasonably available.

Individuals with diverse SOGIE may conceal their SOGIE in their country of reference out of mistrust or fear of repercussion by state and non-state actors, or due to previous experiences of stigmatization and violence. These circumstances may manifest themselves as an individual being reluctant to discuss, or having difficulty discussing, their SOGIE with a decision-maker based on a fear or general mistrust of authority figures, particularly where intolerance or punishment of individuals with diverse SOGIE are sanctioned by state officials in an individual’s country of reference.

For further information, PRRA officers may consult Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression.