Chairperson’s Guideline 3: Proceedings Involving Minors at the Immigration and Refugee Board

​​​​​​​​​​​ Effective date: October 3​1, 2023

Guidelines issued by the Chairperson pursuant to paragraph 159(1)(h)
of the Immigration and Refugee Protection Act​​

Table of contents

1. Purpose

1.1 The objective of this Guideline is to foster consistency and fairness in the conduct of proceedings and in decision-making for minors appearing at the Immigration and Refugee Board (IRB).

1.2 The term “minor” in this Guideline applies to all persons under the age of 18. References to a “child” or to “children” in source material have been retained.

1.3 The Guideline provides direction on procedural and substantive elementsFootnote 1 to be considered when processing matters involving minors, including:

  • definition and application of the Best Interests of the Child (BIOC) principle;
  • designated representatives (DRs);
  • procedural considerations;
  • evidentiary issues; and
  • division-specific guidance.

1.4 This Guideline assists adjudicative support staff and members in carrying out their duties to conduct fair hearings and render well-reasoned decisions. It does not alter the legal requirements set out in legislation and case law. The standard of proof that applies to any proceeding and the legal tests remain the same.

1.5 This Guideline recognizes the principle that minors have the same human rights as adults as well as distinctive rights and procedural needs when they participate in proceedings at the IRB. The Guideline also illustrates how a minor's particular circumstances may impact decision-making.

2. Application

2.1 This Guideline replaces Guideline 3 – Child Refugee Claimants Procedural and Evidentiary Issues (September 30, 1996).

2.2 This Guideline applies to proceedings in all four Divisions of the IRB:

  • Refugee Protection Division (RPD)
  • Refugee Appeal Division (RAD)
  • Immigration Division (ID)
  • Immigration Appeal Division (IAD)

2.3 This Guideline is to be applied by members and other IRB personnel who are involved in the processing or adjudication of IRB cases involving minors.

2.4 Definitions of terms used in this Guideline are provided either in the main text where the term is introduced or in the footnotes to this Guideline.

3. Background

3.1 This Guideline updates the 1996 Guideline based on developments in the case law, legislative changes, and updated research regarding minors in judicial procedures.

3.2 The international community recognizes that minors have different requirements than adults in legal proceedings. The United Nations Convention on the Rights of the Child (CRC)Footnote 2 recognizes the importance of a government taking measures to ensure that administrative authorities or legislative bodies make the BIOC a primary consideration in all actions concerning minors.

3.3 There are three main categories of minors who appear before the IRBFootnote 3. Reference to these categories is made throughout this Guideline to highlight unique procedural and evidentiary issues.

  • Accompanied minor: minor who arrives in Canada at the same time as one or more parent or legal guardian, or who reunites with one or more parent or legal guardian in Canada.
  • Separated minor:Footnote 4 minor who is separated from both parents or from their legal guardian, but not necessarily from other adult family members in a caregiving role.Footnote 5
  • Unaccompanied minor: minor who is alone in Canada without their parents or anyone who purports to be a family member in a caregiving role or legal guardian.

3.4 For the purposes of the application of this Guideline, separated and unaccompanied minors benefit from the same recommended procedural considerations (see section 6.6).

3.5 Some minors may be in situations that are not captured by these categories, or, because of a change in circumstances, may move from one category to another. For this reason, these categories should be viewed with flexibility and applied with the best interests of the minor in mind.

Part 1 – Principles applicable to all proceedings

4. The Best Interests of the Child (BIOC)

4.1 Introduction

4.1.1 In determining the procedure to be followed for a case involving a minor, the IRB should give primary consideration to the BIOC in every interaction with that minor.

4.2 Definition

4.2.1 The BIOC is a term used to recognize that minors require special procedural safeguards and care, and that particular attention must be paid to their interests, needs, and rights. The BIOC is recognized by the international community as a fundamental right of minors.Footnote 6

4.2.2 Because the BIOC is a broad term, its interpretation depends on the circumstances of each case. A minor's right to have their best interests prioritized must therefore be applied in a manner responsive to their age, capacity, needs, and maturity.Footnote 7 This means determining what environment, in the circumstances, appears most likely to be conducive for each minor to receive the needed care and attention they require in their dealings with the IRB.Footnote 8

4.2.3 Members must examine each case involving a minor using an intersectional approachFootnote 9 that considers how multiple identity factors may interact and affect the minor's interests. Without limitation, such identity factors may include: age, race, religion, gender, education and literacy, cultural and family background, Indigenous identity, experiences of trauma, maturity, ethnicity, disability, sexual orientation, gender expression and identity and sex characteristics (SOGIESC)Footnote 10, and any other factor that could impact the application of the BIOC.

4.3 Procedural application of the BIOC to all matters involving minors

4.3.1 The BIOC applies to all procedural considerations whenever a minor is involved in a proceeding at the IRB, whether the minor is accompanied, separated, or unaccompanied.Footnote 11

4.3.2 In proceedings at the ID and IAD, the BIOC is also a substantive consideration in decision-making. For more information, see Part 2 – Guidance Specific to Each Division.

5. Designated Representative

5.1 Introduction

5.1.1 The Immigration and Refugee Protection Act (IRPA) requires persons under the age of 18, or who are unable to appreciate the nature of the proceedings, to have a DR.Footnote 12 A DR must be appointed as early as possible.Footnote 13 A DR can be a parent, family member, legal guardian, friend, or a person appointed by the IRB under contract (contracted DRs). If the minor is accompanied by their parent(s) or legal guardian(s), one of these individuals will be appointed as the DR, subject to the requirements under sections 5.2 and 5.3 of this Guideline and the respective rules of each Division. For separated or unaccompanied minors, the Division appoints an appropriate DR, taking into consideration the particular circumstances of the case.

5.1.2 This designation applies to all aspects of the proceedings. This includes gathering evidence, preparing for the hearing, appearing for the hearing and filing an appeal, if appropriate.

5.1.3 In addition to the DR, the minor has a right to be represented by legal or other counsel.Footnote 14 The role of the DR is not the same as that of counsel. The DR is responsible for deciding whether to retain counsel and, if counsel is retained, to instruct counsel or assist the minor in instructing counsel. Counsel provides advice on presenting the case and represents the minor at the hearing. In the best interest of the minor, it is expected that the DR and counsel work collaboratively.Footnote 15

5.2 Requirements

5.2.1 A minor's DR must:Footnote 16

  • be 18 years of age or older;
  • understand the nature of the proceedings;
  • be willing and able to act in the best interests of the minor;
  • not have interests that conflict with those of the minor;

Additionally, they must:​

  • comply with the Designated Representative Guide (DR Guide); and
  • comply with the Code of Conduct for Designated Representatives if they are a contracted DR.

5.2.2 Before designating a person as the DR of a minor, that person must confirm that they understand and are able to carry out the duties of a DR.

5.3 Role and responsibilities

5.3.1 The role of the DR is to ensure that the minor's interests are protected and advanced in proceedings at the IRB. The role and responsibilities of DRs can be found in the Designated Representative GuideFootnote 17 and some Divisional rules.Footnote 18

5.4 Minor reaching 18 years of age

5.4.1 When a subject of the proceedings turns 18 years of age, the member can only continue the designation of the representative if the member determines that they are unable to appreciate the nature of the proceedings. Otherwise, the designation ends.Footnote 19

5.4.2 Members should anticipate and plan for cases where the designation will end because the subject of the proceedings will no longer be a minor before the conclusion of the proceedings. Members should consult with the minor, their counsel, and the DR on ensuring that the minor will be able to adequately pursue their case when the DR's appointment ends. For example, the DR may explain future processes, endeavour to complete as much of the preparation as possible before the designation ends or be called to testify at a future hearing.

5.5 Ending the designation of the representative

5.5​.0​.1​ There may be situations where the DR ceases to be an appropriate representative for the minor. The most common situations are when there are competency issues associated with the DR or the DR is in a conflict of interest with the minor. In these situations, a new DR may be appointed.

5.5.1 Competency issues

5.5.1.1 Competency issues may arise when the DR fails to adequately advance the minor's interests. For example, when the DR is unwilling or unable to make themselves available to meet with the minor to prepare for a proceeding. Issues related to competency may also be raised by the minor or their counsel. In these situations, members may end the designation and designate another appropriate representative.Generally, the member should seek to clarify issues with the DR, counsel, and the minor (if they can provide their view), before ending the designation of the DR due to competency concerns.

5.5.2 Conflict of interest or unable to act in the best interests of the minor

5.5.2.1 Members must replace the DR if there is a conflict of interest between the DR and the minor or if the DR is unable to act in the best interests of the minor.Footnote 20 For example, if there is evidence that the minor experienced violence from a parent appointed as the DR, or if the parents' beliefsFootnote 21 are harmful to the minor, the DR must be replaced, as they would no longer meet the requirements of the role.

5.5.2.2 In cases where a conflict of interest arises between a minor and their DR who is also a co-party of the proceeding, members should consider separating the cases in addition to designating a new DR. Separating the cases may be appropriate where, for example, there is evidence that the minor suffered physical or emotional abuse from the DR; or where aspects of the minor's case should be kept confidential, such as their SOGIESC. See section 6.4.1 for further details.

6. Processing cases involving minors appearing before the IRB

6.1 Introduction

6.1.1 The BIOC should be applied at every step of the process where a minor is involved in a proceeding at the IRB. When determining the appropriate process for the case involving a minor, adjudicative support staff and members should ask themselves: What procedure is in the best interests of this minor?

6.1.2 Applying the BIOC to the process also involves adopting child-sensitive behaviours. For example, communicating with a minor should be done in a sensitive manner that provides opportunity for the minor to engage and ask questions. See section 7 for more information.

6.1.3 Adjudicative support staff and members should also recognize that the interests of a minor may change or evolve throughout the proceedings, which may require adapting the process to meet these new needs. Counsel and the DR should be engaged to ensure that a minor's needs are known and to establish the best way to meet these needs.

6.2 Concerns related to a minor's safety

6.2.1 Adjudicative support staff and members should be attentive to signs that a minor is at risk in Canada, such as being a victim of abduction, trafficking, abuse or harm. Evidence that a minor may be at risk may be found in statements in the Basis of Claim form, submitted evidence, unsolicited information, information from counsel or the DR, or statements made during a hearing.

6.2.2 If adjudicative support staff or members suspect that a child may be at risk in Canada, they should follow internal policies established for this situation. When there is a possibility that a minor is at risk, for example, when there are reasons to believe the minor is abducted or trafficked, members should also consider taking increased procedural and security precautions such as:

  • ordering that the hearing be conducted in-person to ensure that nobody is pressuring the minor to testify in a certain way and that no unauthorized persons are present at the hearing;
  • making a confidentiality order to ensure the matter is or remains private;
  • appointing a third-party DR, not related to the minor; and
  • holding conferences with counsel for the parties to discuss the concerns.

6.3 Presence during the hearing

6.3.1 A minor can be excused from the hearing in appropriate circumstances. A minor's interests must be protected when they are excused from the hearing, namely by ensuring that a DR is fulfilling their role and responsibilities.

6.3.2 In all circumstances, the member retains the discretion to require that a minor be present at the hearing. The following considerations, among others, should be examined when determining whether a minor should be required to attend the hearing:

  • the minor's ability to provide evidence;
  • the minor's expressed desire to attend the hearing;
  • issues regarding the minor's identity which might require their attendance;
  • whether the minor's case is factually distinct from their parents;
  • if there are questions regarding a parent's relationship with the minor;
  • concerns that the minor may be a victim of abduction or human trafficking;
  • whether the minor's testimony is necessary to resolve the issues in the case; and
  • any other issues members identify as relevant which require the minor's attendance at the hearing.

6.3.3 When the presence of a minor is necessary, members must be attentive to the minor's needs and consider implementing procedural accommodations. See section 6.6 for guidance on procedural accommodations.

6.4 Matters involving accompanied minors

6.4.0.1 Accompanied minors have a distinct right to have their interests heard. These must be considered throughout the process.

6.4.1 Separating proceedings

6.4.1.1 In some instances, family members may want to testify in the absence of other parties. For example, a minor may not be comfortable testifying in the presence of other family members about their SOGIESC. Similarly, parents or legal guardians may want to protect the minor from hearing about traumatic events. If a party to a joint proceeding wishes to testify in the absence of a co-party, the party should make a request to the IRB at the earliest opportunity. Approval of such request should be determined on a case-by-case basis.

6.4.1.2 Some situations may require that a minor's case be separated from other family members. For example, a member should consider separating a case where the presence of another party would inhibit the minor's ability to present their case, or where there may be a potential conflict of interest between the minor and another co-party.

6.4.1.3 In cases where an application to separate a proceeding is based on a minor's reluctance to disclose sensitive personal information to another family member, members should consider using their discretion to excuse the minor from providing a copy of that application to the co-party.Footnote 22

6.5 Matters involving unaccompanied or separated minors

6.5.1 Being separated from parents or legal guardians can be difficult for a minor. Unaccompanied or separated minors may face significant challenges in presenting their case because of the potential negative effects of this separation on their mental health. Similarly, being separated from parents or legal guardians may create significant challenges in collecting corroborating evidence.

6.5.2 Members must therefore pay particular attention to the best interests of separated or unaccompanied minors and implement accommodations, where possible, to create the best environment to present their case. Although the precise application of the BIOC for these categories of minors will depend on the circumstances of each case, the following procedures should be followed, when appropriate:

  • Registry staff should identify matters involving unaccompanied and separated minors as soon as possible.
  • A member should be immediately assigned to the case, and if possible, should remain assigned until completion.
  • The case should be given scheduling and processing priority. There may be circumstances, however, where in the best interests of the minor the case should be delayed. For example, if the minor is experiencing physical or mental health issues more time may be needed before scheduling a proceeding. These determinations should be made on a case-by-case basis.
  • A DR must be appointed as soon as possible. Where possible, the same DR should represent the minor in all proceedings before the IRB.
  • A pre-hearing conference should be scheduled as soon as possible after a member is assigned to discuss procedural and evidentiary matters with the DR and counsel. For more information on case conferences, see section 6.7. 

6.6 Procedural accommodations 

6.6.1 A minor may benefit from procedural accommodations to facilitate their participation in the proceeding. Members should be attentive to the needs and unique circumstances of a minor when deciding whether to implement these accommodations.

6.6.2 A minor's DR or counsel is best placed to identify these needs and should communicate requests for accommodations as soon as possible. Members are encouraged to be attentive to evidence on file that suggests the minor may find it difficult to participate in the proceeding. For example, trauma may impact the minor's ability to present evidence during a hearing. In this case, members should engage with the DR and counsel to explore appropriate accommodations for the minor to minimize the impact of the hearing process. Examples of these accommodations include: 

  • creating a more informal setting, such as holding the hearing in a meeting room or holding a virtual hearing;
  • assigning a member or an interpreter of a particular gender;
  • exploring alternative ways of eliciting testimony (see section 7.2);
  • allowing a support person to be present at the hearing;
  • allowing the minor's counsel to be the first to question the minor despite the rules of the Division requiring a different order to the questioning; and
  • allowing for breaks throughout the proceeding.

6.6.3 The needs of a minor may evolve throughout the proceeding and members are encouraged to remain attentive to these needs and adjust accommodations as required. When appropriate, members should use case conferencing to regularly engage with the DR and counsel on how best to accommodate a minor.

6.6.4 When a minor turns 18 years of age during the proceeding, members should consider keeping, where appropriate, the accommodations that were in place when the person was a minor.

6.7 Case conferences

6.7.1 The use of pre-hearing case conferences is recommended for cases that involve separated or unaccompanied minors to:

  • identify procedural accommodations including whether and how the minor will provide testimony;
  • identify and communicate any concerns apparent upon review of the case, including anticipating the transition of the minor into adulthood during the proceeding;
  • identify what evidence can be produced;
  • identify potential issues that may affect whether the case should be separated or joined; and
  • identify whether measures should be taken to ensure the confidentiality of sensitive information.

6.7.2 Members should use case conferences throughout the proceedings to address additional issues as they arise.

6.8 Protection of confidential information

6.8.1 While proceedings before the RPD and the RAD are private, those at the ID and the IAD are usually public and sensitive information may be discussed.Footnote 23 Additionally, if a case is before the Federal Court for judicial review, the information in the file pertaining to the case becomes publicly accessible, even from the RPD and the RAD, unless the Court makes a confidentiality order.

6.8.2 As a result, upon request by the parties or at the initiative of members, additional safeguards for the protection of sensitive information related to minors may be considered. Members may, pursuant to section 166 of the IRPA, order that particularly sensitive information be treated as confidential where the factors under section 166 have been met.Footnote 24

6.8.3 Additionally, members should, wherever possible, only include in their reasons the personal information that is necessary to explain the reasoning of the decision.Footnote 25

7. Evidentiary issues

7.1 Eliciting evidence

7.1.1 All parties to a proceeding, including a minor, have a right to be heard.Footnote 26

7.1.2 There are circumstances where it may not be appropriate or necessary to call upon a minor to testify orally. For example, evidence on file may indicate that the hearing environment could be triggering for a minor who has experienced trauma. Similarly, a minor may not have witnessed events that are central to the case or have been privy to certain information involving adults. In some cases, the minor may be too young or may not have the sufficient level of maturity to provide testimony.

7.1.3 For these reasons, an assessment should be made as to what evidence, if any, a minor is able to provide and the best way to elicit that evidence. When deciding whether to question a minor, members should consider the minor's:

  • age and maturity level;
  • cultural norms;
  • experiences of trauma;
  • expressed desire to testify; and
  • the parties' views on the need to hear the minor's testimony.

7.1.4 To minimize any potential impact of calling upon a minor to testify at a hearing, where appropriate, members should consider alternative sources of obtaining evidence (see section 7.2).

7.2 Alternative sources of evidence

7.2.1 Members can consider the following alternatives to a minor's testimony:

From the minor themselves:

  • affidavit evidence or pre-recorded testimony

From others who have a relationship with the minor:

  • evidence presented by the DR
  • evidence from family members
  • evidence from members of the minor's community
  • evidence from teachers, social workers, community workers and others who have interacted with the minor
  • evidence from health care personnel

Documentary evidence:

  • documentary evidence of persons similarly situated to the minor
  • country conditions documentation

7.3 Minors testifying during a hearing

7.3.1 Capacity to testify and solemn declaration

7.3.1.1 The IRB is not bound by technical rules of evidence and may base its determination on any evidence it considers credible or trustworthy in the circumstances of the proceeding.Footnote 27 Members should therefore approach the giving of testimony by minors with flexibility, taking into account the unique vulnerabilities and challenges they may face.

7.3.1.2 However, Canadian legislation sets out principles that members should follow regarding the capacity of minors to testify and whether they should take an oath or solemn declaration.Footnote 28

7.3.1.3 When a minor 14 years of age or older testifies, they should be required to do so under oath or solemn affirmation.

7.3.1.4 When a minor under the age of 14 testifies, Canadian legislationFootnote 29 sets out the following requirements:

  • They are presumed to have the capacity to testify.
  • They shall not take an oath or make a solemn affirmation before testifying.
  • They shall be required by the member to promise to tell the truth while testifying.
  • They shall have their testimony received if they are able to understand and respond to questions. A party who challenges this ability has the burden of demonstrating that there is an issue as to the capacity of understanding and responding to questions.
  • They shall not be asked if they understand what promising to tell the truth means.
  • Their testimony shall have the same effect as if it were taken under oath.

7.3.2 Child-sensitive approach to questioning

7.3.2.1 A child-sensitive approach to questioning should be used whenever a minor is testifying. Questioning minors should be done with the highest degree of sensitivity, care, and consideration to minimize any negative impacts that the hearing process may have, and to elicit the most reliable testimony. All participants in IRB proceedings should apply a child-sensitive approach to questioning a minor.

7.3.2.2 A child-sensitive approach to questioning involves taking steps that allow meaningful participation in the process. This entails considering the particular circumstances of the minor and their views to create an environment that is the most favourable for the minor to respond to questions and present their case. Questions should be adapted to consider barriers that may inhibit testimony. For instance, questioning a minor should involve:

  • using plain language to explain the member's role and the hearing process throughout the proceedings;
  • adopting an informal approach to questioning, like a conversation, rather than a question-and-answer format;
  • discussing any concerns that the minor may have throughout the hearing;
  • being attentive to limitations that could impact the minor's understanding of the questions;
  • formulating questions that take into consideration the age of the minor, their maturity, state of physical and mental health, level of education, cultural background, gender, and other factors that could impact their understanding. These factors can also impact the level of information a minor may have about an issue;
  • avoiding asking a minor to speculate about matters of which they have no knowledge. For example, in the refugee determination context, minors may not be aware of the motives of an agent of harm;
  • recognizing that minors may be susceptible to influence, and that questions should be asked in an open-ended manner to the extent possible; and
  • taking particular care to avoid re-traumatizing a minor where there is evidence of past trauma.

8. Assessing the evidence

8.1 Credibility

8.1.1 Nothing in this section should be construed to imply that there is a different standard of proof or different legal tests for proceedings involving minors.

8.1.2 Minors have different reasoning and communication skills than adults that can impact how they testify.Footnote 30 However, there is nothing inherently unreliable about a minor‘s testimony.

8.1.3 When assessing the weight to be given to the testimony of a minor, members should consider the age and level of maturity of the minor, as well as any barriers that could inhibit testimony.

8.1.4 Credibility determinations must be made on a case-by-case basis and take into consideration the following factors:

  • Minors may not be able to present evidence with the same degree of precision as adults with respect to context, timing, and details.Footnote 31 For example, a minor may indicate that men in uniform came to the house but not know what type of uniform they were wearing. Similarly, a minor may not know the political views of their adult family members.
  • A lack of precision does not necessarily mean that the minor is not credible or is unreliable. For example, an unaccompanied minor whose travel was arranged by someone else may not know the details of their journey. If a minor's testimony lacks detail about certain events, members should consider whether they are able to infer details from the evidence presented or rely on corroborating evidence.
  • Inconsistencies in a minor's testimony may not be an indication that they are being dishonest. For example, if an event occurred in the distant past, their testimony may be impacted by their current age and the age at which the events occurred, as well as other factors specific to the minor (e.g., experiences of trauma).
  • Notes taken by a Border Services Officer at the point of entry should be weighed against a careful assessment of the conditions in which the interview was conducted. This can include:
    • the circumstances of travel and arrival prior to the interview;
    • whether the minor was accompanied or assisted at the point of entry;
    • the types of questions asked to the minor; and
    • any other factor that may have impacted the minor's ability to answer questions.
  • Members should be alert to the difficulties faced by minors, especially separated or unaccompanied minors, when considering whether it would be reasonable to expect corroborating evidence to be available. Minors may face significant challenges in obtaining documents to corroborate aspects of their case, including, for example, obtaining identity documents.

8.2 Seeking an explanation

8.2.1 Questioning a minor on perceived credibility issues must be done in a sensitive manner. Adopting a confrontational approach to questioning can impact a minor's ability to answer questions, possibly resulting in the minor becoming unable to answer questions for the remainder of the hearing. Additionally, such an approach could re-traumatize minors who have experienced trauma.

8.2.2 When credibility issues are noticed, members should illustrate, using plain language and a non-confrontational tone, where they believe there is an issue and allow the minor to respond. It is recommended to frame the issue using phrases like “can you help me understand the difference between what you said earlier and how you are explaining this event now?”.

8.3 Intersectional approach to credibility assessment

8.3.1 An intersectional approach should be used when evaluating factors that may influence a minor's capacity to observe and express information, including consideration of their age and maturity, gender, education and literacy, cultural and ethnic background, life experience, health, and disabilities. Other factors such as fear, memory difficulties, experiences of trauma or post-traumatic stress disorder, and their perception of the process in the hearing should also be considered.Footnote 32

8.3.2 Adopting an intersectional approach does not prevent a member from making an adverse credibility finding from material inconsistencies, omissions, or implausibilities in the evidence that have no reasonable explanations.Footnote 33

8.3.3 Members should demonstrate in their reasons that they considered the principles in this Guideline when assessing credibility and not separately after the credibility assessment.Footnote 34

8.3.4 When a minor has given oral testimony, the member must assess the weight to be given to the testimony.Footnote 35 In determining the weight to be given, members should consider the opportunity the minor had for observation of relevant events, their capacity to observe accurately and to express what they observed, and their ability to remember the facts as observed.Footnote 36

8.4 The impact of trauma on testimony

8.4.1 Trauma can have a significant negative impact on the cognitive development of a minor.Footnote 37 Minors may be seeking protection in Canada because they have been exposed to a single traumatic event or to repeated trauma over time.

8.4.2 Exposure to trauma can have severe consequences on brain and language development and on memory, making a person more prone to dissociation, which may manifest itself as an emotionally numb state. In the hearing room, this can manifest itself as showing no emotion while testifying.Footnote 38

8.4.3 Members should consider the potential impacts of trauma on minors and refer to Chairperson's Guideline 8 for more information about adopting a trauma-informed approach to adjudication for matters where there is evidence of a past trauma.

8.5 Demeanour

8.5.1 Members should not expect a minor to behave in a certain way when recounting traumatic experiences, and credibility findings should not be based on the absence or presence of such behaviours.Footnote 39

8.5.2 Members may consider a person's outward behaviour or demeanour when assessing the credibility of testimony. This should however be approached with caution.Footnote 40 For example, the demeanour of persons from different cultural backgrounds or those who have suffered harm may be particularly difficult to assess.Footnote 41 Clear and cogent reasons must be given for findings of credibility based on demeanour.Footnote 42 Only in exceptional cases would demeanour alone be sufficient to undermine the credibility of the testimony.

Part 2 – Guidance specific to each Division

9. Proceedings before the Refugee Protection Division and Refugee Appeal Division

9.1 Persecution

9.1.1 Persecution is defined as a sustained or systematic violation of basic human rights, which demonstrates a failure of state protection.Footnote 43 Members must be mindful that minors have distinctive rights that recognize their vulnerabilities when assessing whether particular acts amount to persecution​.Footnote 44

9.1.2 There is no distinct test for minors to determine whether they qualify for protection under section 96 of the IRPA. With respect to the merits of the minor's claim, all the elements of the Convention definition must be satisfied. Minors also have the same evidentiary burden as adults. However, because of their vulnerability, minors may be persecuted in ways that would not amount to persecution for adults. When determining whether the harm feared by a minor reaches the required threshold, members must consider its impact on the minor's physical and mental development.Footnote 45

9.1.3 For example, where there is a serious possibility that a minor would be deprived of the necessities of life, such as a caregiver, emotional support, access to education or adequate health care, this may amount to persecution.Footnote 46

9.1.4 Members must conduct an independent analysis of the risks faced by minors for claims or appeals that are joined with other family members.Footnote 47

9.1.5 Minor claimants and appellants cannot be expected to eliminate risks by reducing or severing their ties to their family members.Footnote 48

9.2 Nexus to the particular social group of the family

9.2.1 In order to establish a nexus to the particular social group of the family, claimants or appellants must establish that their family member faces persecution because of a Convention ground, and that they themselves will be targeted by agents of persecution because of their family connection.Footnote 49 In other words, a person, including a minor, cannot be considered a refugee merely because a family member is persecuted. They must also demonstrate a serious possibility of persecution because of this family connection.

9.3 Internal Flight Alternative

9.3.1 Both prongs of the IFA test should take into consideration a claimant or appellant's age. When assessing the first prong of the test, members should consider whether there are child-specific forms of persecution that would render an IFA unsafe. Regarding the second prong of the test, members must remain attentive to a minor's vulnerabilities when assessing the reasonableness of an IFA.

9.3.2 Assessing the reasonableness of an IFA must take into consideration the particular circumstances of the minor, such as age, maturity, and gender, and whether these circumstances render the IFA location unreasonable.Footnote 50 Members must also assess whether these circumstances make it unreasonable to travel to the proposed IFA area.Footnote 51

9.3.3 Members must remain mindful that what might be a mere inconvenience for an adult could constitute undue hardship for a minor.Footnote 52 In particular, members should consider the following factors when assessing whether an IFA is reasonable for a minor:

  • Whether conditions in the IFA allow for the minor's development and future livelihood;Footnote 53
  • Any medical conditions or disabilities, including both physical and psychological needs, and the availability of support and/or treatment for such in the proposed IFA;Footnote 54
  • Access to education, health care, and other social services;Footnote 55
  • Cultural and familial factors including language spoken in the IFAFootnote 56​, religious and moral upbringing;
  • Availability and adequacy of individuals able to initially receive the minor in the IFA and assist in their settlement;Footnote 57
  • Availability of adequate ongoing care and support for the minor, in consideration of their age at the time of relocation;Footnote 58
  • The presence of other family members must be assessed in cases where a minor will be relocating without parents or legal guardians;Footnote 59 and
  • When applicable, whether relocating with the child's parent(s) or legal guardian(s) would cause undue hardship to the parent(s) or legal guardian(s).Footnote 60

9.3.4 When there are numerous minors claiming together, the analysis requires an independent evaluation of the reasonableness of the IFA based on the context and needs of each minor since their interests may differ.

9.3.5 Members should consider whether child custody arrangements affect the viability of an IFA.Footnote 61 For example, depending on the country conditions, in cases where a minor is accompanied by one parent that has fled family or intimate partner violence, their names and addresses may have to be shared with an agent of harm in the context of family law or child custody proceedings. Similarly, where an agent of harm shares custody of a child with the claimant or appellant, they may be able to use their rights of parental access to obtain contact information and continue the abuse.

9.4 State protection

9.4.1 Members should analyze state protection through the lens of the minor's personal circumstances.Footnote 62 In some cases, it may not be feasible for a minor to seek out state protection. When assessing whether it was reasonable for a minor to approach the state for protection, members should consider whether the agent of harm is the state. To that end, they should also consider the form of persecution feared by the minor and by any adult to whom the minor is connected.

9.4.2 Minors may be more reluctant to seek protection or may be inhibited from seeking state protection if it requires them to act against their parents' directions.Footnote 63

9.4.3 Fear of negative repercussions may be a reasonable explanation for a minor who has failed to seek state protection.Footnote 64

9.4.4 In cases where the agent of harm is not a parent, members may consider whether it was reasonable for the parents to seek out state protection for the minor.Footnote 65

9.5 Subjective fear

9.5.1 A minor may not be able to articulate their fear in the same way as an adult. In such cases, members should consider whether the subjective fear of a minor can be inferred from the evidence presented, including the testimony of other witnesses who may speak on the minor’s behalf.Footnote 66

9.5.2 Members should consider the minor's perspective, as well as their age and maturity, gender, instructions from their parents, and experienced trauma before drawing a negative inference about their subjective fear.Footnote 67 Cultural background, and any stigma attached to their experience of harm should also be considered.Footnote 68

9.5.3 When a minor failed to claim refugee status in a third country or in a country in transit to Canada, members should first consider the minor's personal circumstances before finding that their behaviour undermines their subjective fear of persecution.Footnote 69

9.6 Potential abduction of a minorFootnote 70

9.6.1 In some cases, adjudicative support staff or members may suspect that a minor has been abducted. This will typically manifest itself when one parent is claiming refugee protection with children in the absence of the other parent. In some cases, the obligation to notify the Minister may arise pursuant to RPD Rule 26 due to a possible exclusion under Article 1F(b) of the Convention for potential child abduction.Footnote 71

9.6.2 The Division will generally seek evidence that the claiming parent has full custody of the minor claimant or permission from the other parent to travel to Canada with them.

9.6.3 In certain situations, especially where the other parent is the alleged agent of harm, it may be difficult to obtain the consent of that parent. When there is no evidence of full custody for the claiming parent or consent from the non-accompanying parent, members should consider the circumstances of the claim before providing notice to the Minister under RPD Rule 26, including:

  • the context of the allegations and whether it is reasonable to expect the adult claimant to obtain permission from the non-accompanying parent;
  • any identity issues with respect to either the adult or minor claimant(s) and whether there is evidence of a parent-child relationship between the adult and minor claimant(s);
  • whether the legal system in the country of origin allows the adult claimant to exercise parental authority over the child;
  • whether proceedings have been commenced under the Hague ConventionFootnote 72 by the non-accompanying parent; and
  • any other evidence in the file or that arises during the hearing that raises suspicions that the minor claimants may have been unlawfully removed from their country of nationality.

9.6.4 Members should consider whether the defence of imminent harm under section 285 of the Criminal Code applies in cases where exclusion is based on serious reasons for considering that claimant or appellant committed child abduction.Footnote 73

9.6.5 Where the Minister has been notified of a potential exclusion under Article 1F(b) of the Refugee Convention related to child abduction, the accompanying parent is no longer an appropriate DR, and a new representative should be appointed.

10. Proceedings before the Immigration Division

10.1 Detention Reviews

10.1.1 See IRB's Guideline 2 on the application of the BIOC principle during detention reviews involving minors.Footnote 74

10.2 Admissibility hearings

10.2.1 Members must consider whether the minor had the requisite knowledge or mental capacity to understand the nature and effect of their actions.Footnote 75 This is specifically relevant, although not limited to, the assessment of whether the minor was a member of an organization for the purposes of section 34 or 37 of the IRPA, whether they were complicit under section 35 of the IRPA, or whether they had the required mens rea, or intent, for the purposes of section 36 of the IRPA if this was not already considered in the foreign jurisdictionFootnote 76

10.2.2 The assessment of whether the minor had the knowledge or mental capacity required for a finding of inadmissibility is focused on the age of the minor during the entire period in which the alleged conduct or membership occurred.Footnote 77

10.2.3 The requisite knowledge or mental capacity should be viewed on a continuum. For cases at the ID, it is presumed that a young minor (i.e., age of 12 and under) does not have the requisite knowledge or mental capacity.Footnote 78 In such cases, the age of the minor itself would be prima facie evidence of an absence of the requisite knowledge or mental capacity, and the ID is obligated to carefully consider the level of understanding of such a minor.Footnote 79 There is also a presumption that the closer the minor is to 18 years of age, the greater will be the likelihood that the minor possessed the requisite knowledge or mental capacity.Footnote 80

10.2.4 Where relevant and appropriate,Footnote 81 members should consider the environment and context in which the minor's actions occurred as well as the possibility of duress or coercion.

10.2.5 These considerations also apply to inadmissibility appeals at the IAD.

11. Proceedings before the Immigration Appeal Division

11.1 Best Interests of the Child

11.1.1 The BIOC must receive singularly significant focus in every IAD appeal engaging humanitarian and compassionate (H and C) considerations where a child is directly affected. The BIOC must be applied in an intersectional, non-formulaic, contextual manner that considers the particular circumstances of all minors directly affected by the decision, identifying each minor's interests and focusing on the effects of the decision on the minor and not the degree of hardship the minor would undergo.

11.1.2 The following non-exhaustive list of factors may guide members in engaging with minors impacted by proceedings at the IAD:

  • the minor's age;
  • the level of dependency between the minor and their caregiver or person impacted by the appeal;
  • the degree of the minor's establishment in Canada;
  • the minor's links to the country in relation to which the assessment is being considered;
  • the conditions of that country and the potential impact on the minor;
  • medical issues or special needs the minor may have;
  • the impact to the minor's education; and
  • specific vulnerabilities that may arise from the minor's gender, SOGIESC, past trauma, or mental health concerns.

12. Inquiries

For more information, please contact: IRB.Policy-Politiques.CISR@irb-cisr.gc.ca

OR

Senior Director, Policy, Engagement and Parliamentary Affairs Directorate
Strategic Directions and Corporate Affairs Branch
Minto Place - Canada Building
344 Slater Street, 14th Floor
Ottawa, Ontario K1A 0K1

Coming into force

This Guideline comes into force on Octo​ber 31, 2023.

Approval

Richard Wex
Chairperson
Date: July 19​, 2023

​

​