The Refugee Protection Division’s decision to return to in-person hearings as the default option raises a number of health and safety concerns, says the CBA’s Immigration Law Section.
In a letter to the Immigration and Refugee Board, the Section says that while it doesn’t support a permanent transition to virtual hearings, they should be the default option for the time being, as they are the best way to balance public health and safety with access to justice.
The Section details its concerns with in-person hearings:
- RPD members may not be in the same room as claimants and counsel and interpreters may also be off-site, raising the question of whether there’s any practical benefit
- The default in-person policy puts people who are vulnerable to the virus in the uncomfortable position of having to request alternate arrangements; as well, some lawyers may be unable to attend, which may require claimants to find another lawyer, potentially hindering the advancement of their claim.
- Having in-person hearings as the default could add to delays, as time and resources are expended to render determinations on each request for a virtual hearing. “Since virtual hearings are not widely available at this time, we fear an adverse incentive for claimants to risk their health and safety to have their claim adjudicated more efficiently.”
- Face masks are now mandatory indoors and while the IRB has indicated it will suspend its requirement for people to remove masks while testifying, testifying with a mask on could jeopardize the clarity of the hearing recording, and could also add to claimants’ anxiety about their hearing.
“Refugee claimants have a right to a proceeding in accordance with principles of procedural fairness and natural justice,” the Section writes.
“The way the RPD has been holding in-person hearings could compromise claimants’ procedural fairness rights or encourage them to take health risks to advance their claims.”