Pre-removal risk assessment (PRRA): Oral hearings

While the pre-removal risk assessment (PRRA) may be determined based only on documentary evidence, an oral hearing may be required in the following circumstances:

• Credibility-based hearings – Under paragraph 113(b) of the Immigration and Refugee Protection Act (IRPA), if the delegated PRRA decision maker is of the opinion that a hearing is required, one may be held on the basis of prescribed factors set out in section 167 of the Immigration and Refugee Protection Regulations (IRPR)
• Mandatory hearings – The IRPA also states in section A113.01 that 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 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 decision makers shall conduct hearings in a manner that is fair and efficient. They must be sensitive to any particular circumstances, such as when the applicant is an unaccompanied minor or when a person’s disability, vulnerability and/or personal characteristics may require procedural accommodations and/or substantive considerations.

On this page

• When to hold a hearing
  • Credibility-based hearings
  • Mandatory hearings
• Providing notice
  • Including all issues of fact
  • Scope of the examination
  • Difference between issues of fact, issues of law, and issues of mixed fact and law
• Conducting a hearing: General guidelines
• Hearing procedures
• Recording the hearing
• Failure to appear
• Role of Counsel or representative
• Particular circumstances
  • Minors
  • Situations where a person’s disability, vulnerability and/or personal characteristics may require procedural accommodations and/or substantive considerations
  • Gender considerations
  • Cases involving sexual orientation, gender identity and expression, and sex characteristics (SOGIESC)

When to hold a hearing

Credibility-based hearings

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

• evidence raises a serious issue of credibility and is related to the factors set out in section A96 and section A97
• evidence is central to the decision to be rendered
• evidence, if accepted, would justify allowing the application

The PRRA decision maker will evaluate the application, assess the submissions, the evidence, and conduct thorough research on country conditions before determining whether a hearing is necessary.

For example, a PRRA decision maker may determine that it is unnecessary to hold an oral hearing in the following circumstances:

• the applicant appears to be credible, and the grounds for protection are established
• the decision maker has no concerns regarding the applicant’s credibility and is assessing the sufficiency of the evidence provided
• the Immigration and Refuge Board of Canada (IRB) found the applicant not credible and the applicant is relying solely on evidence that was previously rejected by the IRB due to lack of credibility (in other words, there is no new/admissible evidence raising a serious issue regarding the applicant’s credibility)

A PRRA decision maker may determine that it is necessary to hold an oral hearing in the following circumstances:

• the IRB determined that the applicant was credible, but new evidence that arose after the IRB decision or was not reasonably available, or that the applicant could not reasonably have been expected in the circumstances to have presented at the time of the decision, leads the decision maker to believe the applicant is not credible
• the IRB did not make a finding as to the applicant’s credibility, but the available evidence leads the decision maker to believe the applicant is not credible
• the IRB found the applicant not credible, and the new evidence leads the decision maker to believe that the applicant is not credible
• sufficient objective evidence suggests that the applicant might be at risk, but the decision maker has insufficient information to make a finding on the applicant’s credibility

The PRRA decision maker must decide whether to hold a hearing on a case by case basis. If the factors in section R167 are not met, the PRRA decision maker does not need to convoke a hearing.

Mandatory hearings

Section A113.01 requires mandatory hearings for PRRA applicants whose refugee claims were ineligible to be referred to the IRB solely on the basis of paragraph A101(1)(c.1):

• they had applied for asylum in a country other than Canada with which Canada has an information-sharing agreement before doing so in Canada and
• that fact has been confirmed through information sharing

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

Providing notice

The IRPR outline the hearing process.

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. For example: confirming an applicant’s identity.

If the hearing notice does not identify a particular issue of fact, it will be considered not central to the decision or determinative of the application, or not something that raises a serious issue of the applicant’s credibility.

Including all issues of fact

Per paragraph R168(b), the hearing is restricted to the issues raised in the notice, unless the PRRA decision maker finds that the applicant’s statements during the hearing raise other critical issues of fact. Therefore, it is important that the issues of fact stated in the notice cover all the central topics that the decision maker wishes to explore.

For all cases where a hearing is held, the PRRA decision maker shall not refuse an application on a determinative issue of fact which has not been discussed with the applicant. Decision makers must follow procedural fairness in all their communications with the applicant or representative. For cases where an issue arises following a hearing, decision makers must address these issues through a procedural fairness letter or subsequent hearing. For information on identifying issues central to the application, on weighing evidence and on factors that may lead to refusal of an application, see Processing procedures and guidelines.

Scope of the examination

Paragraphs R168(a) and (b) specify that only the determinative issues of fact are to be discussed at the hearing. The hearing is not a forum to make legal representations, although the applicant may make such representations through written submissions. The hearing is an administrative process restricted to discussing determinative issues of fact. This gives the applicant the opportunity to answer the decision maker’s questions with, if needed, the assistance of a barrister, or solicitor, or other counsel [paragraph R168(c)]. The decision maker does not make a decision on an application at the oral hearing.

It is important that the hearing 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. 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, as an example.

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

Issues of fact

A decision maker can address issues of fact related to state protection at an oral hearing by focusing on “efforts made by the applicant to seek help from the authorities” to help inform their decision.

Issues of law

An issue of law in relation to state protection determines what the requisite level of protection is on the part of the state. For example, the protection must be adequate at the operational level.

Issues of mixed fact and law

State protection is an issue of mixed fact and law. The evidence must demonstrate through facts that certain structures exist to provide protection but also that this is sufficient to reach the correct legal threshold to demonstrate the availability of state protection

Conducting a hearing: General guidelines

The hearing is non-adversarial in nature. The PRRA decision maker leads the hearing and ensures it is conducted in a fair and efficient manner.

The decision maker shall 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. When this happens, the decision maker should consider if any accommodation is necessary in line with the principles of procedural fairness. The accommodation could be a recess, an adjournment or an opportunity to provide further submissions post-hearing.

It is not appropriate for the applicant or representative 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.

Paragraph R168(d) stipulates that evidence from anyone other than the applicant should be provided in writing. The applicant cannot bring other witnesses to the hearing, unless a decision maker 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 decision maker finds that questioning a witness is necessary for the purpose of resolving a determinative issue of fact.

In many cases, the decision maker will be required to arrange for an interpreter. At the outset of the hearing, the decision maker 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 accredited interpreter.

When conducting a hearing, it is important for decision makers to be alert and sensitive to the nature of the information being discussed. Applicants may be requested to give evidence on traumatic experiences, which may be difficult to recall and relive during an interview. Decision makers are to exercise sound judgment when conducting hearings and to only question as necessary to establish the facts. In preparing their interview strategy and questions, decision makers should consider the possibility of retraumatization and proceed accordingly. Depending on the applicant and the risks raised, decision makers should refer to the IRB guidelines for assistance. For more information on the relevant guidelines, see Particular circumstances below.

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

Hearing procedures

Hearings are held remotely, via MS Teams, by default.

Remote PRRA hearings do not require applicants to travel to IRCC offices.

IRCC recognizes that some applicants may have concerns about participating in a virtual hearing remotely due to the potential risk of a security breach through an external participant’s use of their personal device. If the applicant has such concerns, including if they do not have the necessary equipment or private location to participate in the hearing remotely, they can request a virtual on-site hearing and it will be facilitated. With an on-site virtual hearing, the applicant and, if applicable, their representative, the interpreter, and/or any observer/support person or witness, will use a secure computer on IRCC premises to participate.

IRCC also recognizes that there are certain circumstances that may make holding a virtual hearing inappropriate, whether it is held remotely or on-site. If the applicant cannot participate in a virtual hearing, they can make a request for accommodation and an in-person hearing 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.

The PRRA decision maker reviews on a case-by-case basis requests for accommodation and takes all concerns raised into consideration before deciding to accommodate, or not, an in-person hearing.

Step 1: Initial file review and preparation of the Hearing letter and package

The PRRA decision maker will do the following:

• review the file and identify any determinative issues
• review the evidence and decide if there is extrinsic evidence that needs to be disclosed
• prepare the Notification of Hearing letter and package to ensure they identify all the issues of fact to discuss and any extrinsic evidence to disclose

The Hearing letter and package should contain the following information:

• the date and time of the hearing and the issues of fact to be addressed
• information about remote virtual hearings and how to connect
• the requirement for the applicant to bring paper or digital copies of identification documents, such as certified copies of the identification documents seized upon making a claim or a refugee protection identity document (RPID) or a refugee protection claimant document (RPCD)
• any extrinsic evidence to be disclosed
• that an interpreter will be present (if required) and instructions on how to request one
• that any additional documents that address the issues of fact in the notice that the applicant wants addressed in the hearing should be submitted to the PRRA decision maker at least 5 business days before the hearing

Step 2: Pre-hearing preparation

If the applicant submits a request for an on-site virtual hearing, it will be facilitated.

If the applicant submits a request for accommodation, the PRRA decision maker will review the reasons submitted and determine if an in-person hearing will be accommodated.

If the applicant or their representative are not available at the set date and time, they should inform the PRRA decision maker as soon as possible, provide reasons and submit reasonable alternative dates. The decision maker should consider requests for rescheduling while considering the department’s overall objective to schedule hearings efficiently and fairly.

A request to reschedule the hearing for medical reasons should be supported by a medical certificate. Medical certificates should contain enough information to allow the decision maker to consider the request, such as the reason the applicant cannot participate in the hearing on the set date and time and when they expect to be able to participate.

If an on-site virtual hearing is requested or an accommodation request is granted for an in-person hearing, the PRRA decision maker or program support will book the hearing room. They will coordinate with the office(s) hosting the participants to make arrangements, such as coordinating with the clerk who will set up the on-site virtual or in-person hearing, informing security as required, and any other local measures, which vary from office to office.

The applicant can request an interpreter in the interpreter and observer request form. The PRRA decision maker or program support will arrange for an interpreter if required.

The program support will do the following tasks.

For remote virtual hearings:

• send the MS Teams link to the applicant, their representative, and interpreter as applicable
• confirm that all participants have connected to the videoconference 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 virtual hearings:

• send the MS Teams link to the applicant, their representative, and interpreter as applicable
• confirm with the local office that the room is available and in order
• confirm with the local office that the technology is working and ready
• confirm that the local office is prepared to welcome and accompany participants
• organize any documents that need to be referred to during the hearing as required
• greet all participants

In-person hearings:

• confirm that the room is available and in order
• confirm the technology is working and ready, if any is required
• organize any documents that need to be referred to during the hearing as required
• greet all participants and accompany them to the room

Step 3: Beginning the hearing

The PRRA decision maker will:

• greet the applicant and representative, and try to put them at ease
• greet the interpreter (if one is present), confirm their identity, and ensure that the applicant and interpreter understand each other
  • To do this, the decision maker should allow them to have a brief unstructured conversation to verify that they understand each other and are ready to proceed
• verify the applicant’s address, phone numbers, etc. to ensure their information is up to date
• ask if they have any special concerns before starting, and address these questions, noting persons with vulnerabilities may require additional accommodation
• obtain explicit verbal consent from the applicant to proceed with the remote virtual hearing
• explain the decision maker’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 (PDF, 2 MB)] identifying the present counsel or representative is on file, and confirm their identity
• 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 they will be reviewed afterwards as time is needed to give proper and full consideration to that evidence
• ensure the applicant understands the decision maker 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 decision maker will question the applicant, and counsel or representative will be given an opportunity to clarify any facts at the end
  • the role of counsel or representative
  • the time set aside for a hearing (for example, 2 hours, 4 hours, a full day)

Step 4: Eliciting information

Throughout the hearing, the decision maker will:

• use the application form as a guide
• keep the vocabulary and sentence structure simple
• use short sentences as much as possible, and give the interpreter time to translate
• ask both open and closed questions to elicit information
• avoid asking negative Yes/No questions, for example: “Do you not agree that…”; “Did you not…”
  • Negative Yes/No questions can be confusing to applicants and interpreters, resulting in time lost explaining and rephrasing questions
• 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 concern
• speak respectfully at all times to all participants so as to maintain the dignity of the proceeding
• ask only what cannot be determined from the file
• be alert for inconsistencies, gaps and evasiveness, personal questions are acceptable, as long as the decision maker is respectful

If a new determinative issue arises during the hearing, the decision maker should consider making adjustments to the proceedings, such as a recess or adjournment if necessary.

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

Throughout the hearing, the decision maker will:

• probe by asking closed questions about details the applicant should be able to provide
• remember the principles of procedural fairness and give the applicant reasonable opportunity to clarify facts and concerns
• observe the applicants’ demeanor as they answer
  • applicants are asked to ensure that their face and upper body are visible during the hearing
• remain neutral and objective while maintaining a rapport
• be mindful of the time and allow for a short break if necessary

Step 6: Giving the applicant the opportunity to respond

During the hearing, the decision maker will:

• ask the applicant if they wish to share any further information related to the issues of fact discussed in the hearing
• provide counsel or representative with an opportunity to clarify any issues of fact discussed. Counsel or representative can question the applicant to do this. The decision maker may want to indicate the issues of fact that remain of central importance to the decision
• provide counsel or representative 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

As the hearing comes to a close, the decision maker will:

• give the applicant an opportunity to clarify what has been said and make sure they understand
• answer any questions the applicant has, adding these and the decision maker’s responses to the hearing notes
• avoid giving information of which they are not certain
• ask only for additional information or documentation if it is necessary to make a decision
• write down any further requirements for the applicant so they remember what is needed
• allow counsel or representative or the applicant to make post-hearing submissions if they wish
• provide a specific due date for any post-hearing submissions and explain that if the submissions are not received in time, the decision may be rendered based on the information on file.
• inform the applicant of the next steps:
  • the decision maker conducting the hearing will be the decision maker 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, if applicable

Step 8: Post hearing

The decision maker will:

• review the hearing notes as soon as possible after the hearing while it is all fresh
• 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
• 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. If new issues of fact arise subsequent to the hearing, the decision maker will present these to the applicant and counsel or representative via a procedural fairness letter or subsequent hearing.

Recording the hearing

The PRRA decision maker takes notes during the hearing and these notes form the only record of the hearing. They should fairly and accurately reflect the oral evidence provided by the applicant, as well as the interactions between the applicant, counsel or representative, the interpreter, and the decision maker during the hearing.

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 or representative have been noted and will be considered. Decision makers should be conscientious with their notes as an application for judicial review of the decision may call them into question.

Hearing notes must be uploaded by the decision maker in a timely manner 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 they should have 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. For more information, see Abandonment, withdrawal and vacation.

Role of counsel or representative

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 or the representative plays a supportive role in PRRA hearings. They 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, in cases where the issues are more complex (such as those where exclusion is raised or cases dealing with persons with vulnerabilities), they may play a more significant role.

For more information, see the section on Conducting a hearing: General guidelines.

Particular circumstances

In conducting hearings on applications for protection, PRRA decision makers will encounter a variety of cases requiring sensitivity and thoughtful consideration. Decision makers should particularly exercise sound judgment and remain alert and sensitive to the needs and limitations of applicants, including the need for procedural accommodations and substantive considerations.

Minors

On occasion, decision makers 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 interests of the child must be applied when dealing with eliciting testimony from children. This is particularly true in the case of unaccompanied minors. In such cases, decision makers should consider whether the children may be excused from attending the hearing or from attending sensitive portions of the questioning.

Decision makers should consult the updated Chairperson’s Guideline 3: Proceedings Involving Minors at the Immigration and Refugee Board. Decision makers should discuss any concerns of this type with their manager, who may afterwards seek functional guidance if necessary by sending a request to the Asylum Branch (AB).

Situations where a person’s disability, vulnerability and/or personal characteristics may require procedural accommodations and/or substantive considerations

Decision makers occasionally receive applications for protection from persons for whom a hearing or other case process is particularly challenging because their ability to present their case is severely impaired due to a physical or psychological condition or for other reasons. Such persons may include, but would not be limited to, people experiencing mental illness, minors, the elderly, and survivors of torture, genocide and crimes against humanity.

Decision makers may find that persons in such situations have issues affecting their memory, behaviour, or ability to recount relevant events. These issues could result in symptoms which have an impact on the consistency and coherence of their testimony. Such vulnerabilities require special consideration to ensure they are identified and that appropriate procedural accommodations are made for the applicants.

For further information, decision makers should consult the Chairperson’s Guideline 8: Accessibility to IRB Proceedings – Procedural Accommodations and Substantive Considerations. Decision makers should discuss any concerns of this type with their manager, who may afterwards seek functional guidance if necessary by sending a request to the Asylum Branch (AB).

Gender considerations

Gender is not specifically identified as an independent enumerated ground for establishing Convention refugee status. However, support has grown for recognizing the particular risks experienced by women, girls and individuals with diverse sexual orientations, gender identities, and gender expressions due solely to their gender, gender expression, gender identity, or perceived gender (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, honour based or domestic violence, forced abortion or compulsory sterilization and trafficking or sexual slavery and exploitation.

These applicants may face special difficulty in establishing their credibility to an outsider. Depending on their background, such applicants may experience an internal turmoil that is not visible to others. They also may be reluctant to disclose their experiences of abuse and sexual violence in order to not “shame” their families or communities.

Applicants who have been subjected to domestic violence may exhibit a pattern of behaviour and emotions related to Intimate Partner Violence or IPV (formerly known as Battered Woman Syndrome). They may also be reluctant to testify. Applicants in such cases may require extremely sensitive handling and understanding.

For further information, decision makers should consult the Chairperson’s Guideline 4: Gender Considerations in Proceedings Before the Immigration and Refugee Board. Decision makers should discuss any concerns of this type with their manager, who may afterwards seek functional guidance if necessary by sending a request to the Asylum Branch (AB).

Cases involving sexual orientation, gender identity and expression, and sex characteristics (SOGIESC)

Some applicants may identify as part of a minority based on their sexual orientation, gender identity and expression, and sex characteristics (SOGIESC). This includes, but is not limited to, lesbians, gay men, 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, persons with diverse sexual orientations, gender identities and expressions, and sex characteristics may recognize and express their identity differently. There is no standard set of criteria that can be relied upon to establish a person’s identification as an individual with diverse SOGIESC. A person’s testimony may be the only evidence of their SOGIESC where, in a given case, corroborative or additional evidence is not reasonably available.

Persons with diverse SOGIESC may conceal their SOGIESC 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 SOGIESC with a decision maker. This could be based on a fear or general mistrust of authority figures, particularly where intolerance or punishment of persons with diverse SOGIESC are sanctioned by state officials in a person’s country of reference.

Cases involving SOGIESC individuals are similar to others in that negative inferences may be drawn from inconsistencies or omissions, but personal, cultural, social, economic, legal factors, as well as mental well-being, language barriers, and trauma, should be considered when evaluating credibility.

For further information, decision makers should consult Guideline 9: Proceedings Before the IRB Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics. Decision makers should discuss any concerns of this type with their manager, who may afterwards seek functional guidance if necessary by sending a request to the Asylum Branch (AB).