Evidence before Administrative Tribunals The IRB Experience. Gordon Maynard Maynard Kischer Stojicevic 1. Introduction The three tribunals of the Immigration and Refugee Board are the Refugee Protection Division (RPD), Immigration Division (ID) and Immigration Appeal Division (IAD). They are collectively the largest tribunal in Canada and their decisions can be highly controversial. 1 For example; whether Mr. Lai, a PRC businessman, should be given protected status to prevent his return to the PRC where he may face torture or the death penalty for allegations of business corruption and tax evasion that he claims are politically motivated (RPD); whether Mr. Lai should be detained in custody pending determination of his protected status or pending removal from Canada (ID), or whether two immigrant street racers, Mr. Khosa and Mr. Balru, should lose their permanent resident status and be deported to India as a result of their criminal convictions (IAD). The decisions of these tribunals can be judicially reviewed by the Federal Court, but only with leave of the Court. Leave applications make up the largest component of the Federal Court docket, numbering in the thousands of applications annually. The reality is that leave is granted in only about 15% of the cases, so that decisions of the IRB are substantially final. This paper looks at the current processes for putting evidence before the decision-makers in each of these tribunals. The processes are not complicated. Although these are specialized tribunals with a self-imposed assertion of informal conduct, they in fact are historically structured along the lines of criminal or civil courts. There is an independent decision maker, two parties each in essentially adversarial position (the Government on one side and the person concerned on the other), representation by counsel (that need not be a lawyer), rules for prior disclosure of evidence, conduct of a hearing where the side bearing the onus of proof proceeds first, and a decision based on the record of evidence put before the decision-maker through oral testimony (with cross examination) and documentation. There are variations in process that have evolved over the past decade, particularly in the RPD dealing with refugee and protection determinations, and this leads to the second theme of this paper. The full scale use of tribunals for immigration enforcement process is expensive and too slow for political comfort. The IRB has, in the past two decades, become a lightning rod for all manner of criticisms arising from whatever embarrassment or failure of immigration policy is captured by the press or party seeking to exploit for political purposes. 1 The ID has 28 members (decision-makers). The ID held 2,320 admissibility hearings in 2005, and 10,943 detention reviews. The IAD has 31 members and heard 5,513 appeals in 2005. The RPD has 120 members and finalized 27,280 claims in 2005.
When boatloads of PRC citizens landed off the west coast of Vancouver Island and claimed refugee status, it was the RPD that had to process their claims for status amidst a storm of criticisms that it was Canada s lax and generous process that not only attracted the refugees, but which also prolonged the claimants time in Canada. When a Toronto housewife was shot to death in a bungled robbery by a Jamaican under a removal order but none the less still in Canada, it was the IRB that was wrongly made the whipping boy and then targeted for revisions of process that significantly changed the process for determining removal of permanent residents from Canada. The latter portion of this paper presents current and future changes to the IRB tribunal processes that are forced from pressures for simpler and faster justice. Expediency is being pursued, but at a cost of procedural fairness and the diminishment of evidence before the decision-maker. 2. The Three Divisions a Primer The jurisdiction of the IRB is established by the Immigration and Refugee Protection Act (IRPA) and before that by the predecessor legislation, the Immigration Act. The IRB is a tribunal buffer for adjudication of immigration enforcement against foreign nationals and immigrants in Canada. The parties before the tribunal are usually the Canadian Border Services Agency as delegates of the Minister, and the person concerned. The decision makers are independent of the CBSA or of Citizenship and Immigration; they are appointed members of the IRB. The IRB is divided into three Divisions. Each Division has its particular jurisdiction, set by IRPA. Each Division carries out its determinations through hearing processes that have all the significant attributes of procedural fairness. There is an oral hearing and a decision by the independent decision maker based on the evidence put before the tribunal, including oral and documentary evidence tendered by either party and subjected to examination and cross examination. Each Division is subject to its own Rules of procedure. Each Division has sole and exclusive jurisdiction to hear and determine all questions of fact and law, including questions of jurisdiction, with respect to the following proceedings brought under IRPA. Immigration Division (ID) When foreign nationals or immigrants are arrested and detained for immigration violations, the ID reviews and determines their detention and any terms of release. A person under detention may have multiple reviews conducted. The ID can issue removal orders against foreign nationals and permanent residents after determining an allegation of inadmissibility brought by the CBSA.
The removal order causes loss of any status and allows CBSA to take up removal procedure. The alleged inadmissibility can include criminality through conviction or offence overseas or in Canada, misrepresentation, security risk or human rights violation amongst others. Immigration Appeal Division (IAD) The Appeal Division hears appeals from removal orders against permanent residents and persons with protected status (persons who have properly been determined to be refugees or persons at risk of torture). Ordinary foreign nationals (visitors, students, workers) have minimal status in Canada and no right of appeal against any removal order. The Appeal Division has jurisdiction for law and equity. The Appeal Division can determine that the removal order was unlawful, or that the order should be set aside solely on consideration of all the circumstances of the case. Such an order is much like a criminal court judge deciding guilt, but suspending sentence on terms and conditions that must be met by the accused against threat of the sentence being imposed. The Appeal Division hears appeals by permanent residents or Canadian citizens whose family members abroad (spouse, child or parent/grandparent) have been refused visas for immigration. Again, the Appeal Division has jurisdiction for law and equity. The Appeal Division can determine whether the refusal of visa was lawful, and whether the inadmissibility should be overcome on equitable grounds (humanitarian and compassionate considerations that are sufficient to warrant special relief from the inadmissibility. Refuge Protection Division (RPD) Persons in Canada who are not permanent residents or citizens can claim refugee or protected person status. Within limits, this protected status allows them to avoid removal to the country of persecution and to obtain resident status in Canada. The RPD has no involvement in removal of persons whose claims fail, or to make determinations of inadmissibility, or to give immigrant status to successful claimants. Their jurisdiction is solely to determine whether the claim meets the Geneva Convention definition of refugee, or the IRPA definition of protected person.
3. Evidence before the IRB Divisions. In each of the Divisions evidence can be documentary and oral. There are requirements for prior disclosure of documentary evidence and there is cross examination of oral evidence and sources of documentary evidence. The rules of evidence are relaxed in the Division proceedings, but a party can be caught with exclusion of evidence where disclosure requirements are not met. Evidence can be hearsay and informal; the IRPA specifically gives the Divisions broad latitude to accept a wide range of evidence. The Divisions... i. are not bound by any legal or technical rules of evidence, and ii. may receive and base a decision on evidence that is adduced in the proceedings and considered credible and trustworthy in the circumstances. 2 Evidence in the Immigration Division It is the Minister (CBSA) that has the burden to establish that a person in Canada is inadmissible. The burden is low; a preponderance of evidence to show that the there are reasonable grounds to believe that the inadmissibility conditions are met. The consequence is that the person concerned needs to present compelling and reliable evidence to refute the prima facie case. The evidence disclosed and presented by the Minister will almost always be documentary evidence, and only occasionally oral evidence. The documentary evidence will have been gathered by CBSA investigative officers from sources including national and overseas agencies, from civilians questioned by the investigative officers, from overseas visa officers and files. The amount of evidence required will depend on the nature of the inadmissibility. A simple allegation of in-canada criminal inadmissibility will require only that the person concerned not be a Citizen, and that conviction for a suitable offence have occurred in a Canadian court. Unless there is an egregious mistake of identity, there is virtually no defence to the allegation properly brought. On the other hand, an allegation of inadmissibility for an overseas crime can be complex. It is not necessary that there be conviction, but the absence of a conviction means that there has to be reliable evidence that the offence was indeed committed, and that the offence is equivalent to an offence in Canada. This allegation raises questions of the sufficiency of the overseas evidence, often obtained from police or investigative sources that are not available for cross-examination, and involving crimes that do not necessarily equate to a criminal offence in Canada. 2 Immigration Division Rules, Immigration Appeal Division Rules, Refugee Protection Division Rules.
Grounds of inadmissibility such as alleged human rights violations or security risk will involve overseas evidence from sources that may not be credible, and raise complex legal issues on the definition of membership in these inadmissibility classes. Misrepresentation inadmissibility may involve an allegation of marriage of convenience that the person concerned obtained their status through a marriage to a Canadian or immigrant and the marriage was primarily untaken for immigration rather than an intent to live together in relationship. In a society where marriages have a high rate of failure in the best of times, and given that immigrant marriages may follow the cultural tradition of family arrangement, the Minister is often challenged to uphold an allegation of marriage of convenience. Defense of an inadmissibility allegation in the ID will almost always involve sworn oral evidence and cross-examination of the person concerned. Indeed, in an ID proceeding the person concerned is a compellable witness. Sworn evidence from the person concerned is rarely sufficient on its own to maintain a defence. Evidence in the Appeal Division The Appeal Division proceeding is a hearing de novo on a finding of inadmissibility or issuance of removal order. The Appellant is free to bring any and all new evidence to retry that finding. The Appeal Division also has jurisdiction in certain cases to apply equitable consideration to relieve the Appellant from the consequences of inadmissibility or removal order. This jurisdiction allows consideration of all the circumstances of the case, and humanitarian and compassionate circumstances. The Appellant carries the burden overcoming the inadmissibility or accessing the equitable jurisdiction and the scope of evidence to be brought forward will address the following issues: The circumstances of inadmissibility. If it is criminal inadmissibility, then the circumstances of the offence and the surrounding reasons for offence, if it is residence breach, then the reasons for absence and circumstances of return, if it is failure to meet terms and conditions, then degree of breach is relevant. The seriousness of the offence or breach. The likelihood of rehabilitation in criminal cases. The establishment of the Appellant in Canada. The level of support from family, friends and community. Hardship upon family in Canada or upon the Appellant abroad if deportation is effected. The best interests of any child directly affected by the removal.
The weight to be given to any of these factors will vary in the circumstances of the case, and so dictate the evidence to be brought. The availability of the equitable jurisdiction means that witnesses and evidence can be brought that were not available at first instance, including witnesses and evidence from family, employers, friends and professionals, including expert evidence (for instance to cultural norms, emotional state, health and the like). Evidence before the Refugee Protection Division The specialized jurisdiction of the RPD and the particular nature of claimants uniquely characterize evidence and proceedings before the RPD and the determination of refugee or protected person status. In particular, Claimants will not usually speak English or French, and will require translation of evidence. Claimants will only have recently entered Canada and will have little understanding or trust of processes in which they are engaged. Claimants will often be vulnerable to advice from relatives, community or pseudo consultants who will undermine your good advice. Claimants will have come to Canada with minimal or no supporting evidence of their claim, and little may be available from abroad. There is an inherent systematic suspicion of claims for protection, evident in Port of Entry records of discussions with the claimant by CBSA officers, and the record of discussions with CIC officers who must first determine eligibility to make a protection claim. These records, as well as the claimant s required narrative of the claim may be used to contest credibility. In the past 20 years the process for determination of claims has evolved from an adversarial process to a directed inquiry. The process in the RPD is quite different from the other tribunals and this will be examined in the latter part of this paper, regarding changes to the processes affecting consideration of evidence. Practice Tips respecting evidence before the IRB Divisions I digress here to offer practice tips on evidence before the IRB Divisions. Not all are applicable in each Division, or for every client. These are gleaned from near twenty years experience in tribunal proceeding and they have served me well, though not necessarily making me efficient: i. Know your relevant facts. If you don t know your facts then you don t know what evidence you should or can bring to the table, or foresee a witness or document is going to turn around and bite you.
Don t rely simply on whatever record or disclosure underlies your proceeding, and don t trust your client s first narrative of the story. Seek out primary and secondary sources of the facts. The Access to Information Act and Privacy Act permits you to seek out overseas or inland government files concerning your client. Get them and review them with your client. Know exactly the information held by the government side and whether it is incomplete or erroneous. Seek out corroborative evidence specific to your client business records, travel records, telephone bills, credit card records, court transcripts, personal letters, bank records for example and as relevant to your case. Interview and challenge your client relentlessly. Your client will have to testify and you need to know what he can and will say. Most importantly, you have to believe it. Seek out witnesses to testify in support of your client. It relieves the burden on your client and adds support to credibility. Supporting witnesses can often have an observation or viewpoint that is missed by your client. If there are no supporting witnesses then perhaps you need to reassess the credibility of your client. Gathering the facts is an onerous and time-consuming process. Make sure you are being paid well and get on with it. ii. Focus your Case There is no point flogging a dead horse or using a shotgun where a target rifle is needed. It only confuses the case. If there is a good legal issue then ride with it, and make sure that your evidence sets the foundation necessary for the argument. If there is no good legal issue then admit it and get on with a different focus where you can help your client. Energy might be better spent on focusing evidence and argument on equitable jurisdiction relief, or upon minimizing the damage by seeking the least onerous acceptance of facts and consequences. iii. Organize your documentary evidence and make sure both you and your client know it. Whether it is dictated by the Rules or not, my documentary evidence is bound, indexed, tabbed and page numbered. It is a good idea. Nothing stops the flow of a good examination or argument than fumbling to find a document. I always make extra copies of the Document brief, one for the client and one for me at least. My copy has my annotations to remind me why a particular document is necessary
and cross referencing it to other related documents. A clean copy is kept for presenting to witnesses in examination. The documents should be organized intelligently, grouping together documents relevant to a particular issue. Before I finalize my document brief I go through it page by page and remind myself why a document is wanted or needed, and reminding myself why I don t have a document I wish I did. iv. Prepare the witnesses for oral evidence. In IRB proceedings credibility is always in issue, and it is going to be determined both by what your client (and their documents) say and how they say it. Persons do not generally have experience as tribunal witnesses, and natural nervousness can destroy the presentation of evidence and contribute to a finding of lack of credibility. This can be prevented by making your client familiar with their evidence and the process and even visiting the tribunal room to view the lay of the land and to observe an ongoing proceeding before their own hearing. Here is the advice I give my clients and witnesses regarding oral evidence: Listen to the question and do not answer unless the question is understood. If there is any doubt about the question ask for the question to be repeated or restated. Look at the person asking the question, but when answering look at the decisionmaker and answer to them. The decision-maker wants to see your face and eyes. Then look back for the next question. If you are not sure of an answer then say so. Do not give an answer that you are not sure of as though you are. This includes dates. People do not remember dates well, but they do remember a sequence of events. If you are not sure of a date then don t give one, rather say it was before this event or after that one. Answer the question and then shut up. Do not interpret silence as an invitation to ramble on. If the questioner wants more information then they will ask a further question. Trust me to pick up loose ends in re-examination. Do not answer a question with another question, and do not use the question to wander to another area. This appears evasive. Never lose your temper or become excited, regardless of how the questioner may bait you. Take a deep breath and keep calm, and speaking slowly. v. Interpreters It is the nature of immigration law that many witnesses do not speak good English or French, and require interpretation of evidence. In the IRB tribunals interpreters are provided.
Whenever possible, encourage your client to give evidence in English or French rather than relying on the interpreter. Keep the interpreter on standby if you need to. It is a fine balance between using an interpreter if you need to and your client giving evidence that can be understood as it is given. Giving evidence through an interpreter is somewhat like watching bad Hong Kong movie where the voice track is out of synch with the action. When the content is separated from the delivery there is a considerable loss of texture and emotion. It deflates the credibility of the evidence. vi. Telephone evidence. It is often necessary to obtain evidence from an out of country witness, particularly in marriage of convenience cases. This is done by use of a speaker phone in the middle of the hearing room. Oral evidence through an interpreter and over the telephone is cumbersome and prone to being unclear. Many counsel will not tender overseas evidence simply to avoid the potential confusion of testimony. 4. Developments affecting Evidence in IRB Tribunal Proceedings. From the perspective of the person concerned, appellant or claimant in IRB tribunal proceedings, there is nothing wrong with the Divisions processes for determining enforcement issues. The hearing processes are fair and the person concerned has their day in court a meaningful opportunity to be heard. The only complaint might well be that the processes are slow and backlogged. It is also a complaint from some corners of the public and from the government. They are also expensive. There are considerable pressures for the determination processes to be faster. The challenge is to retain the procedural protections that institutionalize independence and fairness while finding the means to expedite decision making. Refugee Protection Division Fifteen years ago the acceptance rate in the Refugee Division was in excess of 70%. Today it is in the order of 45%. The following practices have contributed to the ability of the Division to distinguish between deserving and undeserving claims through standardized consideration of evidence. Specialized Geographical Teams Decision-makers, Refugee Claims Officers, support staff and managers are grouped together in geographic teams. The teams are assigned specific countries for which they can develop specialised knowledge of country conditions. At the team level, members discuss inconsistencies in documentation and share assessments of legal and factual
issues pertaining to claims from their countries. In this manner, members work as a group of experts on specific countries to exchange ideas and information in areas where the law or general conditions in a country are unclear. Issues requiring further research are identified, as are the training or educational needs of the team. There is also a national exchange of information between teams with the same geographic areas of expertise. These geographic networks operate to keep members across the country informed of developments and to share documentation and information. Where significant discrepancies in acceptance rates arise between regions, the Board employs a more focused strategy to ensure consistency. The developed expertise of the decision-makers, RCO s and support staff challenges claimants to present credible evidence that withstands examination and which meets the elements of need for protection, including the inability of the state to provide protection and the availability of internal flight alternatives. Standardized National Documentation Packages The Research Directorate of the IRB is mandated with gathering information on the social, political, economic and human rights conditions in countries of origins of claimants. The information is gathered from national and international government and NGO organizations, human rights monitors, academics, publications and new services. The Research Directorate also gathers specific information in Response to Information Requests that may be initiated by counsel, staff or RPOs. The information is updated regularly and is consolidated in National Documentation Packages that are country specific and disclosed by the RPO in each hearing involving the particular country of origin. Counsel or claimant is free to contest the contents or to disclose further information that they may acquire. The National Documentation Packages are available over the internet, from links on the IRB site, and their use seeks to ensure an accurate, standard, consistent and updated information base against which to place the context of the individual claim. Reverse order Questioning The Chairperson of the IRB has statutory authority to issue written guidelines and to identify decisions as jurisprudential guides and persuasive decisions to assist members to carry out their duties. In October 2003 the Chairman issued Guideline 7, changing the order of questioning by having the RPD leading the inquiry in the hearing room, instead of counsel for the claimant leading the examination of the claimant. The purpose of the change of order was to allow the RPD to use its expertise to direct focus on issues and evidence that it identified as determinative of the claim.
The guidelines must be followed by the decision-makers or they must provide a reasoned justification for not doing so. This particular guideline was challenged in the Federal Court (Thamotharem 2006 FC 16) and was found to be a technical fettering of the discretion of the decision-makers. Notwithstanding, the guideline continues to govern the conduct of RPD adjudications albeit with the right of counsel to present argument as to why it should not apply in a given case. Immigration Appeal Division In March 2006 the Chairperson undertook the IAD Innovation initiative to re-examine how the IAD functions, and to develop strategies to address the increasing volume of cases in the Division. The Innovation is ongoing and has not yet resulted in formal recommendations for implementation. The Innovation is examining all aspects of the IAD adjudication processes, including avenues for alternative resolution streams and use of Specialized Teams with focus upon particular appeals. One of the more dramatic innovations being considered is early receipt of information (evidence) for facilitating streaming for early determination. Under the current system the Appellant files a Notice of Appeal from a decision of inadmissibility or removal order, but then the both the Appellant and tribunal await production of the underlying Record from the decision under review. Production of the Record can take several months and there is no scheduling of Appeal or appellant obligation disclose evidence until the Record is produced and the Appeal scheduled. Under the Innovation Plan it is proposed that the appellant be required to disclose evidence with the Notice of Appeal, well before the full Record is ever produced. Appellants will be asked to provide details relating to their appeal, in particular to outline the evidence and facts to be relied on to make their case. For appeals that proceed to hearing, the parties will be given a further opportunity to submit evidence that did not exist or could not reasonably have been obtained at the time of hearing. Counsel are understandably concerned with the requirement for early disclosure, before they ever see the Record and before they have had reasonable opportunity to learn their client s case, against the penalty that they may be prevented from presenting evidence later, when they know both their client and the Record. It is my experience that clients who have submitted their own overseas sponsorship applications are in no position to provide meaningful evidence for Appeal at time of filing of Notice of Appeal. Clients will not have a copy of their application package, will not understand why an application has been refused, and the officer s notes of decision are not enough to work from. It is unrealistic to expect counsel to formulate a meaningful appeal at this stage of proceeding. If the ultimate objective of the Appeal Division is to make the right decision and not
simply a fast decision, the door should always be open for timely disclosure of evidence for the full hearing. Administrative Decision Making Avoiding the Tribunals altogether At one time the legislation contemplated that, with few exceptions, all enforcement determinations against foreign nationals and permanent residents, and all sponsorship appeals by Canadians or PRs would be adjudicated by the independent tribunals. The tribunals in hearings would determine for instance whether the foreign national or PR had committed an enforceable breach of the Immigration legislation, and would issue the appropriate removal order causing loss of status and forced banishment from Canada. It was presumed that the rights put in issue and the consequences justified a formal process with all the trappings of procedural fairness. Incrementally, the jurisdiction of the tribunals has been whittled down. More and more, determinations of inadmissibility and issuance of removal order are being taken from the tribunal and given to officers of CBSA acting administratively. The first targets for administrative enforcement are the persons with the weakest rights and minimal entitlement to substantive procedural fairness foreign nationals. These are the visitors, workers or students in Canada who may have overstayed their status or breached the terms of their status by working or studying illegally or by committing a criminal offence. Or at least those are the breaches alleged. Under the current legislation, an officer who is of the opinion that a foreign national is inadmissible may write a report setting out the facts and forwarding it to a senior officer who is the Minister s delegate. If the Minister s delegate is of the opinion that the report is well founded, the delegate may issue the removal order against the foreign national. 3 That s it. There are exceptions for more complicated cases, but otherwise there is no process dictated in law other than that two officers decide that their opinion of inadmissibility is well founded. The legislation requires no notice to the foreign national, no opportunity to present their case, no opportunity to argue why the officers should exercise their intended discretion not to enforce against the foreign national, and no independent decision-maker. The law reduces the process to the level of a parking ticket. A parking ticket has better appeal rights. The administrative authority was challenged in the Federal Court by Mr. Cha. Mr. Cha was a foreign student in Canada for five years and was attending a post-secondary college. He was a semester away from graduating from an auto mechanics program. Mr. Cha was stopped by police and given a breathalyzer test. He failed and was convicted for impaired driving. 3 S.44(1),(2) of IRPA
CBSA officers learned of his conviction and he was invited down for a talk. He wasn t told why he was being called down, and he was not told that he should bring a lawyer. The interviewing officer asked him about his conviction, which he admitted, and his history of studies. The officer then wrote his report and presented it to a senior officer. The senior officer issued a removal order against Mr. Cha then and there. Mr. Cha was never advised that there was any discretion on the part of the officers, was never told of the reason why he was being called down, never told that he could consult counsel, and never invited to explain the circumstances of his offence or the circumstances of his past and present studies in Canada. This isn t to say that it would have made a difference, but the law did contemplate a discretion and the principles of administrative justice dictated that there should be some procedural fairness in the process. At the Federal Court Mr. Cha was given relief. The Court held that the minimum requirements of fairness dictated that: Mr. Cha should have an interview with the Minister s delegate (which was granted). He should have notice of right to counsel. (which was denied) He should have a reasonable opportunity to present evidence, to advance mitigating factors that might affect the officer s discretion. (which he was denied). The Court confirmed that the officer had a discretion on whether to issue the removal order, and concluded that if the officer was aware that Mr. Cha was only a couple of months from graduation, that it was his intention to then return to Korea, and that his one conviction was for a minor offence that the officer may well have exercised her discretion to not issue the removal order. The Minister took the case to the Court of Appeal 4, and the FC decision was overturned. The FCA held that, despite the words may in s.44(1) and s.44(2) of IRPA, the officers in fact had no discretion to consider mitigating factors and could only consider whether Mr. Cha had indeed been convicted so that he was inadmissible under the legislation. If he was so convicted, then there was no choice but to issue the removal order. Given the administrative nature of the decision, there was no breach of procedural fairness to Mr. Cha. In rationalizing its decision, the Court noted that they were at the very heart of typically routine administrative decisions. and that the fact that the responsibility for the decision was assigned to a delegate reflected Parliament s intention that it be a straightforward and fact-driven determination. 5 The consequences of this decision are considerable. When Parliament moves decisionmaking out of tribunals and into the realm of pure administrative determinations, there will be minimal procedural process, minimal participatory rights and a presumption that the determination is intended to be straight-forward and simple. Do not take for granted 4 Cha v Canada 2006 FCA 126 5 at paragraph 44.
that classic administrative law principles will restore procedural content, or presumptions of discretion will be maintained. It is noteworthy that in the FCA Mr. Cha was not represented. It is also noteworthy that the s.44(1) and s.44(2) also has application to permanent residents whose rights in issue are far more substantial than foreign nationals. It has yet to be seen whether the Court will extend their interpretation to that class.