The Immigration and Refugee Board of Canada (IRB) is made up of four divisions, and two of them – the Refugee Protection Division (RPD) and the Immigration Division (ID) – hold hearings that can determine whether a person gets to stay in Canada.
Because both are part of the same tribunal, people often assume the hearings look and feel the same.
They don’t.
The two divisions decide very different questions, follow very different procedures, and place very different expectations on the person appearing before them.
If you have a hearing coming up at either division, understanding these differences is the first step in preparing properly.
What each division decides
The RPD hears refugee protection claims. Its job is to decide whether you are a Convention refugee or a person in need of protection under sections 96 and 97 of the Immigration and Refugee Protection Act (IRPA).
In other words, the RPD is deciding whether you would face persecution, torture, or a risk to your life or of cruel and unusual treatment if you were returned to your home country.
The ID conducts admissibility hearings – as well as detention reviews.
At an admissibility hearing, the question is whether you are inadmissible to Canada on a ground set out in the IRPA – for example, criminality, misrepresentation, security concerns, or non-compliance with IRPA.
If the ID finds you inadmissible, it issues a removal order against you.
Put simply: the RPD decides whether Canada will protect you, while the ID decides whether Canada can remove you.
Who is on the other side of the table
An RPD hearing is generally non-adversarial.
In most refugee hearings, there is no opposing party in the room – just you, your counsel, the RPD member deciding your claim, and an interpreter if needed.
The member asks questions to test your claim, but the member is not your opponent (the Minister can intervene in some refugee cases, most often on credibility or exclusion issues, but this is the exception rather than the rule).
An ID admissibility hearing is adversarial by design.
Minister’s counsel – usually a hearings officer from the Canada Border Services Agency (CBSA) – appears at the hearing and argues that you should not be allowed to enter or remain in Canada.
Your side responds.
The ID member acts as a neutral decision-maker between the two parties, much like a judge.
Do you have to testify?
This is one of the most important practical differences between the two hearings.
At the RPD, your testimony is the heart of your case.
You will be asked to affirm to tell the truth and answer detailed questions about your experiences, and the member will assess your credibility based on how your testimony compares with your Basis of Claim form and your supporting documents.
A refugee claim is very difficult to win without the claimant’s own evidence.
At the ID, the burden is on the Minister to prove that you are inadmissible.
Because it is the Minister’s case to make, you can choose not to testify at your admissibility hearing at all.
Your counsel can instead challenge the sufficiency of the Minister’s evidence and make legal arguments on your behalf.
Whether testifying helps or hurts you is a strategic decision that should be made with a lawyer, because anything you say at the hearing becomes evidence in the proceeding.
Privacy of the hearing
RPD hearings are held in private. Refugee claimants often fear the very authorities they fled, so the law protects the confidentiality of refugee proceedings.
ID admissibility hearings, by contrast, are generally open to the public, unless the hearing involves a refugee claimant or the member orders otherwise.
What happens after the decision
If the RPD refuses your refugee claim, most claimants can appeal to the Refugee Appeal Division (RAD) or, where no appeal is available, seek judicial review at the Federal Court.
If the ID issues a removal order, some people – depending on their status and the ground of inadmissibility – can appeal to the Immigration Appeal Division (IAD), while others must go directly to the Federal Court for judicial review.
We explain the distinction between these routes in our post on the difference between an appeal and a judicial review.
Facing a hearing? Don’t go alone.
Whether your hearing is before the RPD or the ID, the stakes are your future in Canada – and preparation makes the difference.
We regularly represent clients in refugee claims and immigration litigation, and we can help you understand exactly what to expect in your hearing room.
Book a consultation with us today.