# Canadian Refugee Procedure/165 - Powers of a Member
## IRPA Section 165

The legislative provision reads:

### History of this provision

Under the previous Immigration Act, the equivalent provision read as follows:
With the advent of the Immigration and Refugee Protection Act, the above provision was amended to read as follows:

### See also the Interpretation Act

Section 31(2) of the Interpretation Act provides that "where power is given to a person, officer or functionary to do or enforce the doing of any act or thing, all such powers as are necessary to enable the person, officer or functionary to do or enforce the doing of the act or thing are deemed to be also given."

### Section 165: The scope of the power to "do any other thing they consider necessary to provide a full and proper hearing"

In addition to the power to summon witnesses, Members have the power to "do any other thing necessary to provide a full and proper hearing". The Board states that this power could include, among other things, allowing clerks, interpreters, and security guards to provide assistance with respect to a hearing. It also would include the power to adjourn and to change the venue of proceedings when necessary.
For the power of the RAD to pose questions and introduce new evidence, see: Canadian Refugee Procedure/110-111 - Appeal to Refugee Appeal Division#The RAD must proceed without a hearing on the basis of the record of the proceedings of the RPD, subject to listed exceptions, but this provision does not restrict the RAD from posing questions or introducing new evidence.

### This legislative provision allows the Board to unilaterally adjust timelines in appropriate cases

An example of this provision being relied upon is that during the Covid-19 epidemic, the Board lengthened the time period that claimants had to provide a Basis of Claim form after making a claim at the Port of Entry. The practice notice doing so cited this provision of the Act ("[The Division]...may do any other thing they consider necessary to provide a full and proper hearing") as authority for that decision, as discussed in this commentary on RPD Rule 8: Canadian Refugee Procedure/RPD Rules 3-13 - Information and Documents to be Provided#This Rule applies to applications for an extension of time, but does not constrain the Board's ability to extend deadlines on its own motion.

### A Division cannot rely upon the above provisions prior to or outside of a formal hearing

The court concluded in Canada v. Kahlon that the RPD has no power to compel evidence prior to or outside a formal hearing. That said, the Board may be obliged to assist an applicant in obtaining information, for example by requiring the Minister to make inquiries of relevant Canadian law enforcement agencies. For more details, see: Canadian Refugee Procedure/The Board's inquisitorial mandate#Where a claimant has no possibility of obtaining documentation relating to their allegation.
Furthermore, the idea that these powers cannot be used outside of a formal hearing is difficult to reconcile with longstanding Board statements about its practices and how it has interpreted this power:
   In the courts, it is inappropriate for a judge to engage in any sort of investigation, no matter how unsatisfactory the evidence appears to the judge. However, because of the non-adversarial nature of the Refugee Division and because its members have the powers and authority of commissioners appointed under Part I of the Inquiries Act, it is acceptable in certain circumstances for members of the Refugee Division to do their own research into the facts of a case.
As well, it does not appear that Kahlon considers the legislative history of this provision, which specifically removed the limitation on the power that specified that it was to be used only for a hearing. With the advent of the IRPA, the legislation was changed so that RPD members were granted the power to look further into any issue they believe important to validate the credibility of a claim. Sanders Carcamo v. Canada appears to affirm that s. 165 of the Act applies, even in that case where no hearing was held.
See also: section 170 of the IRPA provides that the Refugee Protection Division, in any proceeding before it, may inquire into any matter that it considers relevant to establishing whether a claim is well-founded, a provision that was introduced with the IRPA. See: Canadian Refugee Procedure/170 - Proceedings#IRPA Section 170(a) - May inquire into any matter that it considers relevant to establishing whether a claim is well-founded.

### The jurisdiction of a Member is not limited territorially within Canada

The Board has stated that:
   The jurisdiction of a Refugee Division member is not limited territorially. A Refugee Division member who ordinarily hears cases in Montreal, for example, may also hear cases in Vancouver, and vice versa.

### This provision may be cited in favour of an argument that the Board can order the Minister to facilitate the return to Canada of a claimant outside of Canada

Section 165 of the IRPA invests members of the Division with the authority of a commissioner under Part 1 of the Inquiries Act and the authority to “do any other thing they consider necessary to provide a full and proper hearing”. If a matter comes before the Division, the claimant is outside of Canada, and the matter cannot be adjudicated over telecommunications, this provision could arguably be relied upon as authority for the proposition that the Division can order the Minister to facilitate the return of the person concerned to Canada, for example by issuing that individual a travel document.
But see IRPA s. 175(2), which provides that the IAD may require an officer to issue a travel document to an individual, a provision for which there is no equivalent applicable to the RPD and RAD, which could imply that those Divisions lack such authority. Furthermore, under the previous Immigration Act, the Board stated that its Refugee Division lacked jurisdiction to order the Minister or Citizenship and Immigration Canada (CIC) to remove or not to remove someone from Canada or to allow someone to come to Canada for the purpose of a hearing. As well, section 23 of the Act provides that an officer may authorize a person to enter Canada for the purpose of further examination or an admissibility hearing under the first part of the Act: Canadian Refugee Procedure/21-23 - Status and Authorization to Enter#23: Entry to complete examination or hearing. The first part of the Act does not include the provisions regarding refugee hearings. This omission may be considered indicative of legislative intent.
See also jurisprudence where the Federal Court has ordered the government to make best efforts to return an individual to Canada, were it necessary for the refugee claim or should the individual have been found to be a Convention refugee while abroad. Though the Federal Court has stated that "in the context of judicial review, the Court’s jurisdiction to transfer the Applicant back to Canada is unclear".
See also: Canadian Refugee Procedure/RPD Rule 53 - Changing the Location of a Proceeding#The Division has the jurisdiction to conduct a hearing even if a claimant departs from Canada.

## Part I of the Inquiries Act

The complete text of Part I of the Inquiries Act reads:

### These provisions allow a panel to compel testimony and the production of evidence

As stated in the text The Conduct of Public Inquiries, the central procedural feature of the Inquiries Act is to "authorize commissioners to compel testimony and the production of evidence". The RPD will exercise its power to summon individuals through the framework of RPD Rules 44-48: Canadian Refugee Procedure/RPD Rules 44-48 - Witnesses.
For a discussion of the Board's power to summon documents, see Canada v. Kahlon. Requests for access to records are properly dealt with by the government institution that holds the records, not the responsible Minister.

### These powers must be employed fairly, which will generally require providing notice to the Minister

Division Members have the powers of a commissioner appointed pursuant to the Inquiries Act. This gives them the power to summon witnesses and of requiring them to give the evidence set out above in section 4 of the Act. Where a panel exercises these powers, it must do so in a manner that is fair to the Minister, whether or not it is a party to the proceeding as defined in the rules of the relevant Division. For example, in Canada v. Miller, the Minister had not intervened in proceedings and when the RAD sought further submissions from the Appellants, the Minister was not notified of this. The Federal Court held that this was procedurally unfair and set aside the decision on this basis. See also: Canadian Refugee Procedure/RPD Rule 1 - Definitions#Procedural fairness may be owed to the Minister despite them not being a party to a proceeding.

## Part III of the Inquiries Act

Part III of the Inquiries Act is a general provision that applies to commissioners with powers under Part I, as well as to commissioners appointed under Part II of the Act (which is not relevant to IRB Board Members):

## References

* ↑ Canada (Minister of Public Safety and Emergency Preparedness) v. Kahlon, 2005 FC 1000 (CanLII), [2006] 3 FCR 493, at para 21, <https://canlii.ca/t/1ldlc#par21>, retrieved on 2022-08-04.
* ↑ Interpretation Act, RSC 1985, c I-21, s 31, <https://canlii.ca/t/7vhg#sec31>, retrieved on 2022-08-23.
* ↑ Immigration and Refugee Board of Canada. Powers of the Refugee Division, Last updated: 2006 09 06, online <https://web.archive.org/web/20071115153348/http://www.irb-cisr.gc.ca/en/references/legal/rpd/handbook/hb02_e.htm> (Accessed November 9, 2023).
* ↑ Canada (Minister of Public Safety and Emergency Preparedness) v. Kahlon, 2005 FC 1000 (CanLII), [2006] 3 FCR 493, at para 42, <https://canlii.ca/t/1ldlc#par42>, retrieved on 2022-08-04.
* ↑ Immigration and Refugee Board of Canada. CRDD Handbook, Dated March 31, 1999, online <https://web.archive.org/web/20080331073416/https://www.irb-cisr.gc.ca/en/references/legal/rpd/handbook/hb01_e.htm> (Accessed November 9, 2023).
* ↑ Sanders Carcamo c. Canada (Citoyenneté et Immigration), 2024 CF 1181 (CanLII), au para 7, <https://canlii.ca/t/k61wd#par7>, consulté le 2024-08-12.
* 1 2 Immigration and Refugee Board of Canada. CRDD Handbook: Jurisdiction, Dated March 31, 1999, online: <https://web.archive.org/web/20071115152433/http://www.irb-cisr.gc.ca/en/references/legal/rpd/handbook/hb03_e.htm> (Accessed November 13, 2023).
* ↑ Rocha Badillo v. Canada (Citizenship and Immigration), 2024 FC 1092 (CanLII), at para 37, <https://canlii.ca/t/k5rd8#par37>, retrieved on 2024-09-13.
* ↑ Almsrawi v. Canada (Citizenship and Immigration), 2024 FC 1543 (CanLII), at para 38, <https://canlii.ca/t/k744w#par38>, retrieved on 2024-12-12.
* ↑ Ratushny, Ed, The Conduct of Public Inquiries: Law, Policy and Practice, Released 2009/09/28, Irwin Law: Toronto, online eBook: https://www.deslibris.ca/ID/432671, page 301.
* ↑ Canada (Minister of Public Safety & Emergency Preparedness) v. Kahlon, [2005] F.C.J. No. 1335, [2006] 3 F.C.R. 493 (F.C.).
* ↑ Canada (Public Safety and Emergency Preparedness) v. Dos Santos Freitas, 2024 FC 608 (CanLII), at para 18, <https://canlii.ca/t/k45zc#par18>, retrieved on 2024-05-16,
* ↑ Canada (Citizenship and Immigration) v. Miller, 2022 FC 1131 (CanLII), at para 60, <https://canlii.ca/t/jr5nh#par60>, retrieved on 2022-08-03.