Contents
- Her Excellency the Governor General in Council, on the rec…
- Definitions
- General Provisions
- Communicating with the Division
- Contact Information
- Counsel of Record
- Filing an Appeal
- Language of the Appeal
- Appeal Record
- Disclosure of Evidence
- Documents
- Designated Representatives
- Interpreters
- Witnesses
- Notice to Appear
- Appeal
- Applications
- Notice of Constitutional Question
- Decisions
- Transitional Provisions
- Repeal
- Coming into Force
- Information and Written Statements — Counsel not Representing or Advising for Consideration (Rule 9)
Her Excellency the Governor General in Council, on the recommendation of the Minister of Citizenship and Immigration, under subsection 161(1) of the Immigration and Refugee Protection Act, approves the annexed Immigration Appeal Division Rules, 2022, made on October 21, 2022 by the Chairperson of the Immigration and Refugee Board, in consultation with the Deputy Chairpersons.notenoteThe Chairperson of the Immigration and Refugee Board, subject to the approval of the Governor in Council, in consultation with the Deputy Chairpersons, makes the annexed Immigration Appeal Division Rules, 2022 under subsection 161(1) of the Immigration and Refugee Protection Act.Ottawa, October 21, 2022Le président de la Commission de l’immigration et du statut de réfugié,Richard WexChairperson of the Immigration and Refugee Board
Definitions
1Definitions#
The following definitions apply in these Rules.
Act means the Immigration and Refugee Protection Act. (Loi)
ADR means alternative dispute resolution. (MARL)
contact information means
(a)with respect to a person other than a Minister’s counsel, the person’s name, postal address and telephone number and, if any, their fax number and email address;
(b)with respect to the Minister’s counsel, their postal address, telephone number and email address and, if any, their fax number; and
(c)with respect to a person referred to in any of paragraphs 91(2)(a) to (c) of the Act who is representing or advising a party in an appeal, in addition to the information referred to in paragraph (a), the name of the body of which the person is a member and the membership identification number issued to them. (coordonnées)
Minister’s appeal means an appeal made under subsection 63(5) of the Act against a decision of the Immigration Division in an admissibility hearing. (appel du ministre)
party means the appellant or the respondent. (partie)
proceeding includes a hearing, conference, ADR conference, application or proceeding in writing. (procédure)
registry office means a business office designated as a registry office by the Division. (greffe)
removal order appeal means an appeal made under subsection 63(2) or (3) of the Act against a decision to make a removal order. (appel d’une mesure de renvoi)
residency obligation appeal means an appeal made under subsection 63(4) of the Act against a decision made outside Canada on the residency obligation under section 28 of the Act. (appel sur l’obligation de résidence)
respondent means the Minister or, if the Minister is appealing a decision of the Immigration Division, the person who was the subject of the Immigration Division admissibility hearing. (intimé)
sponsorship appeal means an appeal made under subsection 63(1) of the Act against a decision not to issue a permanent resident visa to a foreign national. (appel en matière de parrainage)
working day means a day other than a Saturday, Sunday or other day on which the Board offices are closed. (jour ouvrable)
General Provisions
2General principle#
These Rules are to be interpreted and applied so as to permit the resolution of every appeal as informally and quickly as the circumstances and the considerations of fairness and natural justice permit.
3No applicable rule#
In the absence of a provision in these Rules dealing with a matter raised during an appeal, the Division may do whatever is necessary to deal with the matter in order to resolve the appeal effectively, completely and fairly.
Communicating with the Division
6Communicating with Division#
All communication with the Division must be directed to the registry office.
Contact Information
7Contact information — party other than Minister#
(1)A party other than the Minister must provide their contact information and that of their counsel, if any, in writing to the Division and the Minister.
(2)The Minister must provide the contact information of their counsel in writing to the Division and the other party.
(3)The contact information must be received by the Division and the other party
(b)no later than 20 days after the day on which the party receives the notice of appeal, if the party is the respondent.
(4)If a party other than the Minister retains counsel after providing the notice of appeal or after the time limit set out in paragraph (3)(b), as the case may be, they must provide the counsel’s contact information to the Division and the Minister in writing without delay.
8Change to contact information#
(1)A party other than the Minister must notify the Division and the other party in writing without delay of any changes to the party’s contact information or their counsel’s contact information.
(2)The Minister must notify the Division and the other party in writing without delay of any changes to the contact information of the Minister’s counsel.
9Written statement — unpaid counsel#
If a party other than the Minister retains counsel who is not a person referred to in any of paragraphs 91(2)(a) to (c) of the Act, both the party and their counsel must provide to the Division in writing without delay the information and written statements referred to in the schedule to these Rules.
Counsel of Record
11Request to be removed#
(1)To be removed as counsel of record, counsel for a party other than the Minister must first provide to the person represented and the Minister a written request to be removed. The counsel must then provide the written request to the Division no later than three working days before the date fixed for the next proceeding.
(2)If it is not possible for counsel to make the request in accordance with subrule (1), they must appear on the date and at the time fixed for the proceeding and make the request orally at the proceeding.
(3)Counsel remains counsel of record unless the Division grants the request to be removed.
Filing an Appeal
13Notice of appeal — person#
(1)To file an appeal of a decision, a person must provide to the Division a notice of appeal together with
(a)in the case of a sponsorship appeal, the officer’s decision and the written reasons, if any, for the refusal;
(b)in the case of a removal order appeal, the removal order; or
(c)in the case of a residency obligation appeal, the officer’s decision and the written reasons, if any, for the decision.
(2)The person may also provide any other information that may assist the Division in resolving the appeal as quickly as possible.
14Notice of appeal — admissibility hearing#
(1)Despite subrule 13(1), a person may file an appeal against a removal order made at an admissibility hearing by providing a notice of appeal at the end of the admissibility hearing to the Immigration Division member who made the removal order.
15Notice of appeal — Minister#
(1)To file a Minister’s appeal, the Minister must provide a notice of appeal to the respondent, the Immigration Division and the Division.
(2)The notice of appeal provided to the Division under subrule (1) must be accompanied by a written statement indicating how and when the Minister provided the notice of appeal to the respondent and the Immigration Division.
(3)In the notice of appeal, the Minister must indicate the grounds of the appeal.
16Time limit#
Unless a notice of appeal is provided to the Immigration Division member under subrule 14(1), the notice of appeal and accompanying documents must be received by the Division no later than
(a)in the case of a sponsorship appeal, 30 days after the day on which the appellant receives the officer’s decision and the written reasons, if any, for the refusal;
(b)in the case of a removal order appeal, 30 days after the day on which the appellant receives the removal order;
(c)in the case of a residency obligation appeal, 60 days after the day on which the appellant receives the officer’s decision and the written reasons, if any, for the decision; or
(d)in the case of a Minister’s appeal, 30 days after the day on which the Minister receives the Immigration Division’s decision.
17Documents provided to Minister#
The Division must provide the following documents to the Minister without delay:
(a)if the notice of appeal is provided to the Division under rule 13, the notice of appeal and the documents referred to in paragraph 13(1)(a), (b) or (c), as the case may be; or
(b)if the notice of appeal is provided to the Immigration Division member under subrule 14(1), the notice of appeal and the removal order.
Language of the Appeal
18Choice of language#
(1)A party other than the Minister must indicate in their notice of appeal their choice of either English or French as the language of the appeal.
(2)In the case of a Minister’s appeal, the language of the appeal is the language chosen by the party other than the Minister in the proceedings relating to the decision being appealed.
19Changing language#
A party other than the Minister may change the language of the appeal by notifying the Division and the Minister in writing no later than 45 days before the date fixed for the next proceeding.
Appeal Record
20Appeal record — sponsorship#
(1)In the case of a sponsorship appeal, the Minister must prepare an appeal record that contains
(a)a table of contents;
(b)the application for a permanent resident visa that was refused;
(c)the sponsorship application and the sponsor’s undertaking;
(d)any document that the Minister has that is relevant to the applications, the reasons for the refusal or any issue in the appeal; and
(e)the written reasons for the refusal, if any.
(2)In the case of an appeal of a removal order made at an admissibility hearing or a Minister’s appeal, the Immigration Division must prepare an appeal record that contains
(a)a table of contents;
(b)the removal order, if any;
(c)a transcript of the admissibility hearing;
(d)any document accepted as evidence at the admissibility hearing; and
(e)the written reasons, if any, for its decision.
(3)In the case of an appeal of a removal order made at an examination, the Minister must prepare an appeal record that contains
(a)a table of contents;
(b)the removal order;
(c)any document that the Minister has that is relevant to the removal order or to any issue in the appeal; and
(d)any written reasons for the Minister’s decision to make the removal order.
(4)In the case of a residency obligation appeal, the Minister must prepare an appeal record that contains
(a)a table of contents;
(b)any document that the Minister has that is relevant to the decision on the residency obligation or any issue in the appeal; and
(c)the officer’s decision and written reasons, if any, for the decision.
22Time limit#
An appeal record provided under rule 21 must be received no later than
(a)60 days after the day on which the Minister receives a request referred to in subrule 21(1), in the case of a sponsorship appeal or a residency obligation appeal;
(b)30 days after the day on which the Immigration Division receives the notice of appeal, in the case of an appeal of a removal order made at an admissibility hearing or a Minister’s appeal; or
(c)30 days after the day on which the Minister receives a request referred to in subrule 21(1), in the case of an appeal of a removal order made at an examination.
23Late appeal record#
If the Division does not receive the appeal record within the time limit set out in rule 22, the Division may
(a)require the Minister or the Immigration Division, as the case may be, to explain why the appeal record is late and give reasons why the appeal record should be accepted late; or
(b)schedule and start the hearing and decide the appeal without the appeal record or with only part of the appeal record.
Disclosure of Evidence
24Disclosure of evidence#
(1)If a party wants to use a document in a proceeding, the party must provide the document to the other party and the Division.
(2)If a party does not intend to use any documents in a proceeding, the party must provide a written statement to the Division indicating that intention.
25Proof document was provided#
Documents provided to the Division for use in a proceeding must be accompanied by a written statement indicating how and when they were provided to the other party.
26Time limit — 60 days#
Documents provided under subrule 24(1) and the statement provided under subrule 24(2) must be received no later than 60 days after the day on which the party receives the appeal record.
27Time limit — response to evidence#
A document that is provided in response to evidence presented by the other party must be received no later than 30 days before the date fixed for the proceeding.
28Time limit for reconsideration – stay#
In the case of a hearing that is held for the reconsideration of the appeal of a removal order that has been stayed, documents provided under subrule 24(1) for use in the hearing must be received no later than 30 days before the date fixed for the hearing.
29Time limit not met#
(2)In deciding whether to allow the party to use the document, the Division must consider any relevant factors, including
(a)the relevance and probative value of the document;
(b)whether the party, with reasonable effort, could have met the time limits set out in rules 26 to 28 in respect of the document;
(c)any prejudice to the other party; and
(d)whether the request to be allowed to use the document was made in a timely manner and the justification for any delay.
30Consequence — failure to disclose#
If a party does not provide either a document or a written statement within the time limit set out in rule 26, the Division may
(b)fix a date and time for the proceeding and start the proceeding on the basis of the materials provided;
(c)suspend the fixing of a date and time for the proceeding until it determines that the appeal is ready to proceed; or
(d)take any other action that it deems appropriate.
Documents
Form and Language of Documents
31Documents prepared by party#
A document prepared by a party for use in a proceeding must be legible, in 12-point Times New Roman, Arial or Tahoma font and on one or both sides of consecutively numbered 21.5 cm by 28 cm (8½ in. by 11 in.) pages.
32More than one document#
If a party provides more than one document for use in a proceeding, the documents must
(a)have consecutively numbered pages as if they were one document; and
(b)be accompanied by a list identifying each of the documents.
33Language of documents#
(1)All documents used by a party other than the Minister in a proceeding must be in English or French or, if in another language, be provided together with an English or French translation and a written statement signed by the translator.
(2)All documents used by the Minister in a proceeding must be in the language of the appeal or be provided together with a translation in the language of the appeal and a written statement signed by the translator.
Providing a Document
35General provision#
Rules 36 to 41 apply to any document, including a notice, request, application or statement in writing.
36Providing documents to Division#
(1)A document that is to be provided to the Division must be provided to the registry office that the Division specifies.
(2)All documents provided to the Division in a proceeding conducted in public are placed on the Division’s public record unless the person providing a document makes an application under subrule 93(1).
(3)A document that is to be provided to the Minister must be provided to the Minister’s counsel.
(4)A document that is to be provided to a person other than the Minister must be provided
(a)to the person’s counsel or, if they do not have counsel, to the person; and
(b)to the person’s designated representative, if any.
(5)A document may be provided
(a)by email or other electronic means, if the Division allows;
(b)by regular or registered mail;
(c)by courier or priority post;
(d)by fax, if the document is no more than 20 pages long or the recipient consents to receiving more than 20 pages; or
(e)by hand.
37Providing electronic document#
(1)Any electronic document, including an affidavit or statutory declaration, that meets the requirements specified by the Division is deemed to have been provided in accordance with subrules 36(1), (3) and (4).
(2)The Division must publish or post notice of the requirements referred to in subrule (1) in a manner that will allow public access to them.
(3)An electronic document provided by the Division is considered to be the original version of the document.
38Electronic signature#
(1)Any requirement under these Rules that a document be signed is satisfied, in the case of an electronic document, by an electronic signature.
(2)For the purposes of subrule (1), electronic signature means a signature that consists of one or more letters, characters or other symbols in digital form that are incorporated in, attached to or associated with the document.
40Receipt of document by Division#
(1)A document provided to the Division is considered to be received
(a)in the case of a paper document, on the date indicated by the date stamp that the registry office places on the document; and
(b)in the case of an electronic document, on the date and at the time indicated by the electronic means used to provide it.
(2)A document that is provided to a party by regular mail is considered to be received seven days after the day it was mailed, or 20 days after the day it was mailed if the document was sent to or from a place outside Canada.
(3)A document that is provided electronically to a party is considered to be received at the date and time indicated by the electronic means used to provide it.
41Extension of time limit — next working day#
When the time limit for providing a document falls on a day that is not a working day, the time limit is extended to the next working day.
Designated Representatives
43Duty of counsel to notify — minor#
If counsel for a party believes that the Division should designate a representative for a person because the person is under 18 years of age, the counsel must notify the Division in writing without delay, unless
(a)the appeal is being heard together with the appeal of the person’s parent, guardian or tutor and the parent, guardian or tutor is 18 years of age or older; or
(b)the appeal is against a removal order made at an admissibility hearing and the Immigration Division has designated a representative for the person.
46Content of notice#
A notice provided under rule 43 or 44 must
(a)indicate whether counsel is aware of a person in Canada who meets the requirements to be designated as a representative and, if they are aware, provide the person’s contact information;
(b)indicate the reasons why counsel believes that a representative should be designated; and
(c)be accompanied by any available documents supporting the designation.
47Factors to consider#
When determining whether a person is unable to appreciate the nature of the proceedings, the Division must consider any relevant factors, including
(a)whether the person can understand the reason for the proceeding and can instruct counsel;
(b)the person’s statements and behaviour at the proceeding;
(c)expert evidence, if any, on the person’s intellectual or physical faculties, age or mental condition; and
(d)whether the person has had a representative designated for them for a proceeding in a division other than the Immigration Division.
48Criteria for designated representative#
Before designating a person as a representative, the Division must be satisfied that the person
(a)is 18 years of age or older;
(b)understands the nature of the proceedings;
(c)is willing and able to act in the best interests of the person they are to represent;
(d)does not have interests that conflict with those of the person they are to represent; and
(e)has been informed of the responsibilities of a designated representative and is willing and able to fulfill them.
49Responsibilities of designated representative#
The responsibilities of a designated representative include
(a)deciding whether to retain counsel and, if counsel is retained, instructing counsel or assisting the represented person in instructing counsel;
(b)making decisions regarding the appeal or assisting the represented person in making those decisions;
(c)informing the represented person about the various stages of the appeal
(d)assisting the represented person in gathering evidence to support their case and in providing evidence and, if necessary, being a witness at the hearing
(e)protecting the interests of the represented person and putting forward the best possible case to the Division; and
(f)informing and consulting the represented person to the extent possible when making decisions about their case.
Interpreters
53Need for interpreter#
(1)If a party needs an interpreter for a proceeding, the party must notify the Division in writing and specify the language and, if any, dialect to be interpreted.
(2)The notice provided under subrule (1) must be received by the Division no later than 20 days before the date fixed for the next proceeding.
(3)If a witness needs an interpreter for a proceeding, the party must notify the Division in writing and specify the language and dialect, if any, of the interpreter at the same time as the witness information is provided under rule 55.
Witnesses
Witness Information
55Providing witness information#
(1)A party who wants to call a witness must provide the following information in writing to the other party and the Division:
(a)the witness’s contact information;
(b)a brief statement of the purpose and substance of the witness’s testimony;
(c)the time needed for the witness’s testimony;
(d)the party’s relationship to the witness;
(e)an indication of whether the party wants the witness to testify remotely and, if so, the means of live telecommunication by which they will testify; and
(f)in the case of an expert witness,
(i)a description of the expert witness’s qualifications, and
(ii)a brief summary of the testimony to be given, signed by the expert witness.
(3)Documents provided under this rule must be received no later than 30 days before the date fixed for the hearing.
56Failure to provide witness information#
If a party does not provide the witness information in accordance with rule 55, the Division may decide to allow the witness to testify after considering any relevant factors, including
(a)the reason why the information was not provided;
(b)whether the proposed testimony is relevant and has probative value; and
Summons
57Requesting summons#
(1)A party who wants the Division to order a person to testify at a hearing must make a request to the Division for a summons, either orally during a proceeding or in writing.
(2)The Division must consider any relevant factors before deciding to issue a summons, including whether
(a)the testimony of the person is necessary to a full and proper hearing;
(b)the person is able to give the testimony; and
(c)the person has agreed to be summoned as a witness.
(3)To use a summons, the party must
(a)provide the summons to the summoned person by hand;
(b)provide a copy of the summons to the Division, together with a written statement indicating the name of the person who provided the summons and the date, time and place that it was provided by hand; and
(c)pay or offer to pay the summoned person the applicable witness fees and travel expenses as determined in accordance with Tariff A of the Federal Courts Rules.
58Cancelling summons#
To cancel a summons, the person who is summoned to appear as a witness must make an application in writing to the Division in accordance with rule 85, but is not required to provide an accompanying affidavit or statutory declaration under subrule 85(3).
59Arrest warrant#
(2)A party who makes a written request must provide supporting evidence in an accompanying affidavit or statutory declaration.
(3)The Division may issue an arrest warrant only if
(a)the person summoned was provided the summons by hand or the person is avoiding being provided the summons;
(b)the person was paid or offered the applicable witness fees and travel expenses as determined in accordance with Tariff A of the Federal Courts Rules;
(c)the person did not appear at the hearing as required by the summons; and
(d)the person’s testimony is still needed for a full and proper hearing.
(4)When the Division issues an arrest warrant, the warrant must include directions concerning detention and release.
Notice to Appear
60Content of notice#
(1)The Division must notify the parties in writing of the date, time and location fixed for any proceeding.
(2)If any changes are made to the date, time or location, the Division must notify the parties in writing without delay.
61Date fixed for hearing#
The hearing must take place at least 30 days after the day on which the parties receive the notice to appear, unless
(a)the hearing has been adjourned or postponed; or
(b)the parties consent to an earlier date.
62Party in custody#
The Division may order a person who holds a party other than the Minister in custody to bring that party to a proceeding at the location specified by the Division.
63Failure to appear#
If a party fails to appear at a proceeding, the Division may
(a)determine that the appeal has been abandoned in accordance with subsection 168(1) of the Act;
(b)hold the proceeding in the absence of the party;
(d)decide the issues in the proceeding on the basis of the evidence provided; or
(e)take any other action that it considers appropriate.
Appeal
Informal Resolution Process
64Participation in informal resolution process#
The Division may require the parties to participate in an informal resolution process in order to encourage them to resolve an appeal without a hearing.
65Obligations of parties and counsel#
(1)In any informal resolution process, the parties must be prepared to resolve the appeal and their counsel must have authority to do so. The parties and their counsel must also
(a)participate in good faith;
(b)follow the directions given by the Division with respect to the process, including the manner of participation; and
66Confidentiality of discussions — informal resolution process#
Any information about a matter discussed in an informal resolution process, including at an ADR conference, is confidential and must not be used later in the appeal or otherwise disclosed to a non-party unless
(a)the information could be obtained in a way that is not part of the informal resolution process;
(b)the matter relates to an offence under the Act or a breach of these Rules; or
(c)the person who gave the information agrees to its disclosure.
67Document not confidential#
A document provided for the purposes of an informal resolution process, including an ADR conference, is not confidential and may be used for the rest of the appeal.
68Disclosure to responsible authorities#
Disclosure under paragraph 66(b) may be made only to the authorities responsible for enforcement of the Act or these Rules.
Conferences
72Requirement to participate in conference#
(1)The Division may, on its own initiative or on receipt of a request made by a party, require the parties to participate in a conference, other than an ADR conference, to
(a)try to resolve some or all of the issues;
(b)narrow the issues in order to simplify the hearing;
(c)discuss issues, relevant facts and any other matter that would make the appeal as fair and efficient as possible; and
(d)give information to help the Division fix a date for the proceeding.
(2)The Division may require the parties to provide any information or document at or before the conference.
Conduct of a Hearing
74General#
(1)The Division must, in any hearing before it, give the parties the opportunity to present evidence, question witnesses and make submissions.
(2)Taking into account the nature and complexity of the issues and the relevance of the evidence, the Division may
(a)narrow the issues to be addressed at the hearing, including by identifying facts that are not in dispute;
(b)establish the order in which the issues are to be addressed;
(c)direct and limit the evidence to be presented; and
(d)limit the number and the length of questioning of witnesses.
(3)The Division may question any witness at any point during the hearing.
75Excluded witness#
Unless allowed to do so by the Division, a person must not communicate to a witness excluded from a hearing any evidence given while the witness was excluded until the witness has finished testifying.
76Oral submissions#
(1)Submissions must be made orally at the end of a hearing unless the Division orders otherwise.
(2)After all the evidence has been heard, the Division may
(a)set time limits for submissions, taking into account the complexity of the issues and the amount of relevant evidence heard; and
(b)indicate what issues need to be addressed in the submissions.
Proceeding in Writing
77Proceeding in writing#
(2)The Division may make a decision in a proceeding in writing without being provided with the appeal record under rule 21.
(3)Subrule (1) does not apply to a residency obligation appeal unless the parties agree to resolve the appeal without a hearing.
Stay of Removal Order
78Application to reconsider appeal#
(1)If the Division has stayed a removal order, a party who makes an application to reconsider the appeal
(a)must make the application in accordance with rule 85, but is not required to provide an accompanying affidavit or statutory declaration under subrule 85(3); and
(b)must provide with their application a written statement indicating whether the conditions of the stay have been complied with.
(2)The other party must respond to the application in accordance with rule 86 and provide with their response a written statement of whether the conditions of the stay have been complied with.
80Notice of cancellation of stay#
If a stay of removal is cancelled under subsection 68(4) of the Act, the Minister must provide the Division and the other party with written notice of the cancellation stating
(a)the name of the person convicted;
(b)the date and place of conviction;
(c)the offence and the relevant provision of an Act of Parliament; and
(d)if the offence is not punishable by a maximum term of imprisonment of at least 10 years, the term of imprisonment that was imposed.
81Proof document was provided#
The Minister must, together with the notice under rule 80, provide a written statement indicating how and when the notice was provided to the other party.
Applications
General
84General provision#
Unless these Rules provide otherwise
(a)a party who wants the Division to make a decision on any matter in a proceeding, including the procedure to be followed, must make an application to the Division in accordance with rule 85;
(b)a party who wants to respond to the application must respond in accordance with rule 86; and
(c)a party who wants to reply to a response must reply in accordance with rule 87.
Making an Application
85Form of application and time limit#
(1)Unless these Rules provide otherwise, an application must be made in writing without delay.
(2)In the application, the party must
(b)give reasons why the Division should make that decision; and
(4)A party who makes a written application must provide
(a)to the other party, the application and any accompanying affidavit or statutory declaration; and
(5)The Division may allow a party to make an application orally at a proceeding if the party demonstrates that, with reasonable effort, they could not have made a written application before the beginning of the proceeding.
Written Response and Reply
86Responding to written application#
(3)If the party who made the application was not required to give evidence in an affidavit or statutory declaration together with the application, then evidence is not required to be given in an affidavit or statutory declaration that accompanies the written response unless the Division orders otherwise.
(4)A party who responds to a written application must provide
(a)to the other party, the response and any accompanying affidavit or statutory declaration; and
(5)Documents provided under subrule (4) must be received no later than seven days after the party receives the application.
Changing Location
88Application#
(1)A party who makes an application to the Division to change the location of a proceeding must make the application in accordance with rule 85, but is not required to provide an accompanying affidavit or statutory declaration under subrule 85(3).
(2)Documents provided under this rule must be received no later than 30 days before the date fixed for the proceeding.
(3)Unless a party receives a decision from the Division allowing the application, the party must appear for the proceeding at the location fixed and be ready to start or continue the proceeding.
89Factors#
In deciding the application for a change of location, the Division must consider any relevant factors, including
(a)whether the party resides in the location where they request that the proceeding be held;
(b)whether a change of location would allow the appeal to be full and proper;
(c)whether a change of location would likely delay the proceeding;
(d)how a change of location would affect the parties;
(e)whether a change of location is necessary to accommodate the vulnerabilities of a person;
(f)whether a hearing may be conducted by a means of live telecommunication with the parties; and
(g)the operational requirements of the Division.
Changing Date or Time
90Application#
(1)A party who makes an application to the Division to change the date or time of a proceeding must make the application in accordance with rule 85, but is not required to provide an accompanying affidavit or statutory declaration under subrule 85(3).
(2)The application must
(a)be received by the Division at least three working days before the date fixed for the proceeding, unless the application is made for medical reasons or other emergencies, in which case it must be made without delay; and
(b)indicate at least six dates and times that are within the period specified by the Division and at which the party is available to start or continue the proceeding.
(3)The Division must publish or post notice of the period referred to in paragraph (2)(b) in a manner that will allow public access to it.
(4)If the party is unable to make the application in accordance with paragraph (2)(a), the party must appear on the date and at the time fixed for the proceeding and make the application orally at the proceeding.
(5)Unless a party receives a decision from the Division allowing the application, the party must appear for the proceeding on the date and at the time fixed and be ready to start or continue the proceeding.
91Exceptional circumstances#
The Division may allow the application only if it determines that there are exceptional circumstances and must take into consideration any relevant factors including
(a)whether the application was made in a timely manner and, if it was not, the justification for the delay;
(b)any previous change in the date or time of the proceeding;
(c)the rights and interests of the parties;
(d)the need to change the date or time of the proceeding to accommodate the vulnerabilities of a person;
(e)the nature and complexity of the matter to be heard; and
(f)the operational requirements of the Division.
92Subsequent application#
If the party made a previous application to change the date or time of a proceeding and that application was denied, the Division must consider the reasons for the denial and may allow the subsequent application only if the subsequent application is based on exceptional circumstances supported by new evidence.
Proceeding Conducted in Absence of the Public
93Form of application#
(1)A person may make an application to the Division in accordance with rule 85 to have a proceeding conducted in the absence of the public, or to request that the Division take any other measure to ensure the confidentiality of the proceedings.
(2)Any person may make a written request to the Division to be allowed to respond to an application to have a proceeding held in the absence of the public.
(3)A person who is allowed by the Division to respond to the application must respond in accordance with rule 86.
(4)The Division may take any measures it considers necessary to ensure the confidentiality of the application.
(5)An application made under this rule must be received no later than 20 days before the date fixed for the proceeding.
Withdrawing an Appeal
94Abuse of process#
(2)If no substantive evidence has been accepted in the appeal, withdrawal of the appeal is not an abuse of process.
(3)If no substantive evidence has been accepted in the appeal, a party may withdraw their appeal by notifying the Division either orally at a proceeding or in writing.
Reinstating an Appeal After Withdrawal
95Application to reinstate withdrawn appeal#
(2)The appellant must make the application in accordance with rule 85 and include in the application their contact information and, if represented by counsel, their counsel’s contact information.
96Factors#
The Division may allow the application if it is established that there was a failure to observe a principle of natural justice or if it is otherwise in the interests of justice to allow the application.
Application to Reopen Appeal
98Form and content of application#
(1)An application to reopen an appeal must be made in accordance with rule 85 and must include
(a)in the case of an application made by a party other than the Minister, the contact information of the party and, if they are represented by counsel, of their counsel; and
(b)in the case of an application made by the Minister, the contact information of the Minister’s counsel.
(2)If a party other than the Minister alleges in their application that their former counsel provided inadequate representation, the party must provide the application
(a)to their former counsel before providing it to the Division; and
(b)to the Division, accompanied by a written statement indicating how and when it was provided to their former counsel.
99Factors#
(1)In deciding the application to reopen an appeal, the Division must consider any relevant factors, including
(a)whether the application was made in a timely manner and, if not, the justification for the delay; and
(b)if the applicant did not make an application for leave to apply for judicial review or an application for judicial review, the reasons why an application was not made.
Notice of Constitutional Question
101Notice of constitutional question#
(1)A party who wants to challenge the constitutional validity, applicability or operability of a legislative provision must complete a notice of constitutional question.
(2)The notice must be completed using Form 69 of the Federal Courts Rules or any other form that sets out
(a)the party’s name;
(b)the Division file number;
(c)the date, time and location of the hearing;
(d)the specific legislative provision that is being challenged;
(e)the material facts relied on to support the constitutional challenge; and
(f)a summary of the legal argument to be made in support of the constitutional challenge.
(3)The party must provide the notice to
(a)the Attorney General of Canada and the attorney general of every province, in accordance with section 57 of the Federal Courts Act;
(b)the other party; and
(c)the Division.
(4)The notice that is provided to the Division must be accompanied by a written statement indicating how and when the notices were provided to the recipients referred to in paragraphs (3)(a) and (b) and proof that they were provided.
(5)Documents provided under this rule must be received no later than 10 days before the day on which the constitutional question is to be argued.
Decisions
102Notice of decision#
When the Division makes a decision, other than an interlocutory decision, it must provide a written notice of decision to the parties.
103Written reasons#
(1)When the Division makes a decision on a sponsorship appeal or stays a removal order, it must provide the notice of decision together with the written reasons for the decision to the parties.
(2)A request referred to in paragraph 169(e) of the Act for reasons for a decision, other than a decision referred to in subrule (1) or an interlocutory decision, must be in writing.
104When decision takes effect#
A decision, other than an interlocutory decision, takes effect
(a)if it is made in writing
(i)by a single member, when the member signs and dates the reasons for the decision; or
(ii)by a panel of three members, when all of the members of the panel sign and date their reasons for the decision; and
(b)if it is given orally at a hearing
(i)by a single member, when the member states the decision and gives the reasons; or
(ii)by a panel of three members, when all of the members of the panel state their decision and give their reasons.
Transitional Provisions
105Application#
(1)Subject to subrules (2) to (4), these Rules apply to all proceedings filed before the day on which these Rules come into force, including any proceeding that a court refers back to the Division for redetermination.
(2)If the Minister or the Immigration Division receives a notice of appeal before the day on which these Rules come into force, the appeal record must be provided in accordance with the time limits set out in the Immigration Appeal Division Rules as they read immediately before that day.
(3)Subrule 20(4) of the Immigration Appeal Division Rules, as they read immediately before the day on which these Rules come into force, continues to apply to any confidential information, statement or document given in an ADR conference for which the date of the notice to appear is before that day.
(4)If an appeal is filed before the day on which these Rules come into force,
(a)the statement referred to in subrule 24(2) of these Rules is not required in respect of the appeal; and
(b)the time limits for providing or receiving documents set out in subrules 30(3) and (4) and 37(3) of the Immigration Appeal Division Rules, as they read immediately before that day, continue to apply.
Repeal
106#
The Immigration Appeal Division Rules are repealed.
Coming into Force
Information and Written Statements — Counsel not Representing or Advising for Consideration (Rule 9)
1 Board division and file number.2 Name of counsel who is representing or advising the party other than the Minister and who is not receiving consideration for those services.3 Name of counsel’s firm or organization, if applicable, and counsel’s email address, telephone number and postal address.4 If applicable, a written statement signed by the interpreter that the interpretation is accurate and that indicates the interpreter’s name and the language and, if any, dialect interpreted.5 Written statement signed by the party other than the Minister that the counsel who is representing or advising the party is not receiving consideration.6 Written statement signed by counsel that they are not receiving consideration for representing or advising the party other than the Minister.
Federal laws of Canada reproduced under the Reproduction of Federal Law Order (SI/97-5); not the official version. Source: Justice Laws Website.