IRB Exam Prep Questions Flashcards

No Timeline Related Questions or Code of Professional Conduct Questions

1
Q

The Immigration Division (ID) shall not order the release of a permanent resident or a foreign national unless satisfied of what 4 criteria?

A

a. they are a danger to the public (A58(1)(a);
b. they are unlikely to appear for examination, an admissibility hearing, removal from Canada, or at a proceeding that could lead to the making of a removal order by the Minister under subsection 44(2) (hereinafter “unlikely to appear”); (A58(1)(b)
c. the Minister is taking necessary steps to inquire into a reasonable suspicion that they are inadmissible on grounds of security, violating human or international rights, serious criminality, criminality or organized criminality (A58(1)(c))
d. Identity of foreign National not established (A58(1))(d)

Reference: https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir02.aspx#s2

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2
Q

Do Members need to actively consider and reassess alternatives to detention (ATDs) at each review?

A

Yes. This may include reassessing ATDs previously considered and refused at previous detention reviews if those ATDs are still available, recognizing that circumstances may change from one review to another.

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3
Q

Can the lack of established identity prevent an alternative to detention?

A

The lack of an established identity does not mean that a member may not consider ATDs.

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4
Q

Where conditions of release are imposed, what should they include?

A

Should include (1) provide an address and reside at that address; and (2) advise CBSA of a change of address prior to moving. Guideline 2: 3.2.1

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5
Q

A person who posts a guarantee must met what requirements?

A

(a) be a Canadian citizen or a permanent resident, physically present and residing in Canada;

(b) be able to ensure that the person or group of persons in respect of whom the guarantee is required will comply with the conditions imposed; and

(c) present to an officer evidence of their ability to fulfil the obligation arising from the guarantee.

R47(2): https://laws-lois.justice.gc.ca/eng/regulations/sor-2002-227/page-8.html#docCont

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6
Q

An officer, the Immigration Division or the Minister must consider what factors in assessing whether the person who posts a guarantee has the ability to ensure that the person, in respect of whom the guarantee is required, will comply with the conditions imposed?

A

(a) their relationship to the person or group of persons in respect of whom the guarantee is required;

(b) their financial situation;

(c) any previous history posting a guarantee;

(d) their criminal record; and

(e) any other relevant factor in determining their ability to ensure that the person or group of persons in respect of whom the guarantee is required will comply with the conditions imposed.

R47(4): https://laws-lois.justice.gc.ca/eng/regulations/sor-2002-227/page-8.html#docCont

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7
Q

What convention must members take into account the best interests of any child as an important consideration in any detention-related decision of the parent or guardian?

A

The Convention on the Rights of the Child

Guideline 2: 4

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8
Q

Does a person need to have been declared ‘vulnerable’ to be provided with accommodations?

A

There is no need for a person to have been declared “vulnerable” pursuant to the Vulnerable Persons Guideline in order to take account of a mental health condition or other vulnerability that is either established by the evidence or apparent in the hearing context.

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9
Q

Where the person concerned is under 18 years of age or the person is unable to appreciate the nature of the proceedings what must a member do?

A

Members must designate a representative.

Guide 2: section 6

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10
Q

When determining whether a person concerned is unable to appreciate the nature of the proceedings, the member should consider what factors?

A
  • whether the person concerned can understand the reason for the proceeding and can instruct counsel;
  • the person concerned’s statements and behaviour at the proceeding;
  • expert evidence, if any, on the person concerned’s intellectual or physical faculties, age or mental condition; and
  • whether the person concerned has had a representative designated for a proceeding in another division of the Board.
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11
Q

In determining whether to issue a stay of removal for a permanent resident, the Immigration Appeal Division (the “IAD“) can consider humanitarian & compassionate factors. What are the two (2) leading cases on this matter?

A

Ribic v. Canada (Minister of Employment and Immigration), [1985] I.A.D.D. No. 636

and
affirmed by the Supreme Court of Canada in Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84.

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12
Q

What are the Ribic factors?

A

a. the seriousness of the offences leading to the deportation order;

b. the possibility of rehabilitation;

c. the length of time spent in Canada and the degree to which the appellant is established here;

d. the family in Canada and the dislocation to the family that deportation would cause;

e. support available to the appellant, within the family and within the community; and

f. potential foreign hardship the appellant will face in the likely country of removal.

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13
Q

All documents used at a proceeding must be in which languages?

A

25 (1) All documents used at a proceeding must be in English or French or, if in another language, be provided with an English or French translation and a translator’s declaration.

https://laws-lois.justice.gc.ca/eng/regulations/SOR-2002-229/page-2.html#h-691480

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14
Q

A response to a written application must be in what form/method?

A

Written

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15
Q

In a written response what must the party include to the Division?

A

(a) state the decision the party wants the Division to make;

(b) give reasons why the Division should make that decision;

(c) include any evidence that the party wants the Division to consider when it decides the application; and

(d) include supporting evidence in the form of a statutory declaration or affidavit, if the response is to an application that is not provided for by these Rules.

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16
Q

What are National Document Packages?

A

National Documentation Packages (NDPs​) are lists of public documents that provide information on country conditions. Updates occur on a regular basis.

17
Q

What is a Nexus

A

The definition of a Convention refugee states that a claimant’s fear of persecution must be “by reason of” one of the five enumerated grounds - that is race, religion, nationality, membership in a particular social group and political opinion. There must be a link between the fear of persecution and one of the five grounds.

https://irb.gc.ca/en/legal-policy/legal-concepts/Pages/RefDef04.aspx

18
Q

The necessary nexus can be found when one (or more) of the Convention grounds is a contributing factor for persecution. True or False

A

True

https://irb.gc.ca/en/legal-policy/legal-concepts/Pages/RefDef04.aspx

19
Q

Can claimants be asked to renounce their deeply held beliefs or refrain from exercising their fundamental rights to avoid persecution?

A

No. Claimants cannot be asked to renounce their deeply held beliefs or refrain from exercising their fundamental rights to avoid persecution and as a price to live in security.

https://irb.gc.ca/en/legal-policy/legal-concepts/Pages/RefDef04.aspx

20
Q

What is the probative value of evidence?

A

The degree to which the information is useful in answering a question that must be addressed

https://irb.gc.ca/en/legal-policy/legal-concepts/Pages/EvidPreu02.aspx?=undefined&wbdisable=true#:~:text=The%20probative%20value%20of%20evidence%20is%20its%20capacity,answering%20a%20question%20that%20must%20be%20addressed%29.%2011

21
Q

In Magonza, Justice Grammond of the Federal Court wrote that evidentiary weight can be expressed using the following equation:

weight = (credibility) x (probative value)

True or False

A

True

Paragraph 29: https://www.canlii.org/en/ca/fct/doc/2019/2019fc14/2019fc14.html

22
Q

What evidence may be presented before the RAD?

A

On appeal, the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection.

A110(4):https://laws-lois.justice.gc.ca/eng/acts/i-2.5/page-14.html#h-275750

23
Q

Can evidence be summitted to or received by the IRB if it is not credible or trustworthy?

A

The wording of the relevant provisions of the IRPA tends to support the position that the IRB should not receive, or admit, evidence unless it is determined to be credible or trustworthy.

Reference: https://irb.gc.ca/en/legal-policy/legal-concepts/Pages/EvidPreu02.aspx?=undefined&wbdisable=true#:~:text=The%20probative%20value%20of%20evidence%20is%20its%20capacity,answering%20a%20question%20that%20must%20be%20addressed%29.%2011

24
Q

Can the documentary evidence produced before the RPD include newspaper and magazine articles?

A

Yes.

The documentary evidence produced before the RPD often includes newspaper and magazine articles. The RPD errs in law if it declines to admit these documents into evidence or take them into consideration for the sole reason that they are press extracts, and consequently, have no evidentiary value. In this regard, the Federal Court of Appeal held as follows in Saddo:Footnote140

… It is incorrect to state that extracts from newspapers have no evidentiary value; it is also incorrect to assert that a claimant must establish, otherwise than by the production of newspaper articles, that he has a well-founded fear of persecution.

Reference https://irb.gc.ca/en/legal-policy/legal-concepts/Pages/EvidPreu06.aspx

25
Q

What is required to be disclosed to the IRB when a expert witness will provide evidence?

A

Disclosure of an expert witness’s qualifications and a signed summary of the evidence the expert witness will provide.

Reference: 8.1: https://irb.gc.ca/en/legal-policy/legal-concepts/Pages/EvidPreu08.aspx

26
Q

What is the standard of proof for the RPD?

A

A refugee claimant always has the burden of establishing their case on a balance of probabilities.

In other words, while claimants must establish their case on a balance of probabilities, they do not have to establish that persecution would be more likely than not.

https://irb.gc.ca/en/legal-policy/legal-concepts/Pages/EvidPreu04.aspx

27
Q

None of the four Divisions of the IRB is bound by any legal or technical rules of evidence. True or False

A

True.

Reference: 8.1: https://irb.gc.ca/en/legal-policy/legal-concepts/Pages/EvidPreu08.aspx

28
Q

What is the standard of proof for the RAD?

A

balance of probabilities.

The burden is on the appellant to establish that the RPD erred in a way that justifies the intervention of the RAD.Footnote43 The Refugee Appeal Division Rules (RAD Rules)Footnote44 place the onus on the appellant to identify in their submissions to the RAD the errors that form the grounds of the appeal, in addition to the location of the errors in the RPD’s decision.

The same standards of proof applicable before the RPD apply to proceedings before the RAD.Footnote45

https://irb.gc.ca/en/legal-policy/legal-concepts/Pages/EvidPreu04.aspx