Canada Gazette, Part I, Volume 156, Number 24: Immigration Appeal Division Rules, 2022

June 11, 2022

Statutory authority
Immigration and Refugee Protection Act

Sponsoring department
Department of Citizenship and Immigration

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Rules.)

Issues

The Immigration and Refugee Board (IRB) undertook a review of the current version of the Immigration Appeal Division Rules (IAD Rules), introduced in 2002, to ensure proceedings are conducted as informally and quickly as the circumstances and the considerations of fairness and natural justice permit. This review found that procedures and processes found in the current IAD Rules do not fully support the objectives of informal resolution and timely processing.

The current IAD Rules establish time limits that result in undue delays in considering an appeal. For example, the time limit for the Minister to provide an appeal record in sponsorship and residency obligation appeals is 120 days. The appeal record contains all the documents used to make the decision being appealed as well as the reasons for that decision. In most cases, this time limit prevents any processing of the appeal during that time.

The procedures for disclosure of documents in the current IAD Rules are oriented to support formal hearings and they do not facilitate informal resolution outcomes or hearing preparedness. The current Rules require disclosure 20 days before the hearing which limits the ability for the Immigration Appeal Division (IAD) and parties to identify possible areas of resolution or procedural issues that may need additional attention before setting a hearing date. In the current process, the IAD must ask the parties for information to support informal resolution activities, which often results in the parties having to provide disclosure (additional information) at multiple stages in their appeal, initially for informal resolution and then later for their hearing.

The current procedures make it difficult for the IAD to provide timely procedural support to self-represented appellants. Despite current efforts to prepare appellants before scheduling a hearing, many appellants still appear for their hearing inadequately prepared since the current Rules require documents and other information for the proceeding to be provided 20 days before the hearing. Identifying appellants requiring additional procedural guidance and providing that guidance just weeks before a scheduled hearing is impractical and often impossible. This creates a barrier to access to justice for these appellants as well as inefficiencies in scheduling appeals, which can delay deciding other appeals. The current Rules would also benefit from clearer language and organization to support appellants who are navigating the process without legal representation.

The current IAD Rules are dated and require standard updates to reflect current realities and previous recommendations. The Rules need to better reflect electronic practices that improve efficiency and client service, address recommendations made by the Standing Joint Committee for the Scrutiny of Regulations, and where appropriate, align common processes with the Rules of other Divisions at the IRB.

Background

The IRB is the independent administrative tribunal in Canada’s immigration and asylum system responsible for resolving immigration and refugee cases efficiently, fairly, and in accordance with the law. Finalizing proceedings in a fair and timely manner is at the core of its mandate, making it a key component for the efficient functioning of Canada’s immigration and refugee system.

The IAD is one of four Divisions of the IRB. The IAD hears appeals on immigration-related matters, including

• Appeals of family class sponsorship applications refused by officials of Immigration, Refugees and Citizenship Canada (IRCC).
• Appeals of removal orders made by the IRB’s Immigration Division (ID) or the Minister of Public Safety against permanent residents, protected persons, and holders of permanent resident visas.
• Appeals by permanent residents who have been found by an IRCC official outside of Canada not to have fulfilled their residency obligation.
• Appeals by the Minister of Public Safety of decisions at admissibility hearings by the ID where the ID made a decision that a person is not inadmissible.

The IAD’s procedures for appeals are established in the IAD Rules. For example, the Rules lay out the steps and requirements to be followed by each party; explain timeframes for filing an appeal and disclosing documents; and establish the early resolution mechanisms that may be used to resolve a case. As such, they are instrumental for ensuring that the IAD fulfills its mandate to resolve appeals efficiently, fairly, and in accordance with the law.

A review of the IAD Rules began in 2015, to address a large backlog, with appeals taking over 2 years to process. In 2017, the IAD put into effect a strategy to reduce its backlog resulting in a reduction of its average processing time to about 12 months in 2020. The 2019 mandate for the Minister of Immigration, Refugees and Citizenship included a commitment to work on reducing application processing times, improving IRCC’s service delivery and client services to make them timelier and less complicated, and enhancing system efficiency, including in the asylum system. In order to further improve processing times, the IAD Rules need to be revised to introduce procedural efficiencies and shorter time limits in the disclosure of key documents.

Objective 

The purpose of this proposal is to modernize the IAD Rules to ensure the efficient and fair administration of cases while contributing to the overall objectives of the Immigration and Refugee Protection Act (IRPA), such as family reunification, public safety and program integrity. Specifically, the new IAD Rules would aim to achieve the following policy goals and outcomes:

1. Increase efficiency and reduce the overall time to finalize immigration appeals 

The proposed Rules would reduce the time limit for the Minister or the Immigration Division of the IRB to provide the appeal record. In most cases, the appeal record is required before any additional processing of the appeal can begin. For sponsorship and overseas residency obligation appeals, which represent the majority of appeals before the IAD, the time limit would be reduced from 120 days to 60 days, saving approximately two months of processing time. For removal orders and Minister’s appeals, the time limit would be reduced from 45 days to 30 days, enabling earlier enforcement if the removal order is upheld.

Requiring disclosure and witness information to be provided earlier in the process would also increase efficiency and reduce processing time in some appeals. Early disclosure would enable the IAD and parties to better identify appeals for possible resolution without a hearing. This would eliminate the need to ask the parties to provide disclosure at multiple stages in the process and would result in quicker decisions. It would also allow the IAD to identify and resolve procedural issues before scheduling, resulting in more efficient hearings and fewer postponements.

By reducing timelines for appeals and increasing efficiency, the proposed Rules would facilitate the Government of Canada’s commitments to reduce immigration processing times and expedite family reunification. The proposed rules are also consistent with the IRB’s priority to improve productivity while enhancing the efficiency, quality, fairness, and consistency of the adjudicative process.

2. Enhance access to justice for those involved in immigration processes

It is crucial that those appearing before the IAD understand the process and its requirements, and that there are opportunities for the IAD to support appellants who require guidance in the appeal process. The proposed Rules would clarify and simplify the language and the order in which the rules are written, thereby making the appeal procedures more accessible and easier to understand. The new requirement to provide disclosure earlier in the process would also allow the IAD to identify appellants, particularly those who are self-represented, who require additional guidance before setting the hearing date rather than having them appear at a hearing to deal with those matters. It is also expected that earlier disclosure of documents would increase opportunities for early resolution, resulting in a less complex process and more timely decision for the appellant.

The new Rules would prescribe how hearings are to be conducted and outline possible active adjudication approaches available to IAD members (decision-makers) to ensure an efficient and fair hearing. The inclusion of active adjudication approaches to the Rules would provide greater transparency to the parties about how the hearing can be conducted, permit the hearing to remain focussed on the issues in dispute, and minimize the disadvantages faced by self-represented appellants or vulnerable appellants during the hearing.

3. Provide consistency in procedures and requirements in proceedings that are common to all IRB Divisions, where appropriate

Proceedings and requirements in the new IAD Rules would be consistent with those of other IRB Divisions, where appropriate, such as the provisions related to designated representatives. Consistency between Divisions will help clarify and streamline IRB processes while making the requirements clearer, particularly for parties or other participants to a proceeding who appear before multiple Divisions.

4. Address the recommendations of the Standing Joint Committee for the Scrutiny of Regulations 

The proposed new IRB Rules address various changes recommended by the Standing Joint Committee for the Scrutiny of Regulations in its communications between 2007 and 2009. The recommendations include providing the parties with certain guarantees such as ensuring a minimum time frame for a notice for a hearing or providing the parties an opportunity to object and provide submissions when the IAD acts on its own initiative. The recommendations also correct technical errors and/or inconsistencies between the English and French versions of the IAD Rules. The outcomes of these changes would support fairness of the appeal process and ensure the clarity and transparency of the requirements in the Rules.

Description 

The regulatory proposal would repeal and replace the current IAD Rules with the Immigration Appeal Division Rules, 2022. The proposal would modify provisions in the current Rules by:

• simplifying the Rules, organizing them by stage of appeal rather than by type of appeal (e.g. sponsorship, removal order, or residency obligation appeal) to make the Rules easier to navigate and understand;
• clarifying and expanding the definitions section;
• reducing the time limits for providing the appeal record from 120 days to 60 days in the case of sponsorship and overseas residency obligation appeals;
• reducing the time limits for providing the appeal record from 45 days to 30 days in the case of removal order and Minister’s appeals;
• requiring procedural requests (e.g. notice of change of language of the appeal or the need for an interpreter) to be made earlier in the process;
• amending the requirements for witness information to also include a brief statement of the purpose and substance of the witness’s testimony;
• requiring documents that a party wants to use in the proceeding be disclosed earlier in the process or, if a party does not intend to use any documents, require them to submit a statement advising they are prepared to proceed with scheduling their hearing without providing any documents in support of their appeal;
• requiring the Minister’s counsel to provide and update their contact details in case of a change without delay to allow for direct contact between the parties without the intervention of the IAD;
• clarifying the rules around the roles and responsibilities as well as the process for appointment and termination of designated representatives in those cases where an appellant is younger than 18 years of age, or is unable to understand the nature of the proceedings;
• modifying the rules on confidentiality of the Informal Resolution Process such that documents are not confidential and can be used later in the proceeding. However, matters discussed in an informal resolution process (e.g. oral evidence, settlement discussions) would continue to be confidential and would not be used later in the appeal or disclosed to a non-party except for the reasons listed in the rules;
• providing more direction on providing documents electronically and modernizing requirements for the format of documents submitted as part of the appeal process, such as reducing the need for original paper documents and ink signatures; and
• implementing the Standing Joint Committee for the Scrutiny of Regulations recommendations, including amendments to correct technical errors and/or to correct inconsistencies between the English and French versions of the IAD rules.

The regulatory proposal would also add new provisions that do not exist in the current IAD Rules:

• Rules on the “Conduct of a Hearing” codifying the standard hearing procedure as well as active adjudication practices that could be employed by an IAD member to facilitate a focused and fair hearing.
• Rules explaining the process for applying to reopen an appeal. The reopening rules would also integrate the IRB’s current practice notice on the procedures to follow when the application to reopen involves allegations of inadequate representation by a former counsel.
• A new rule to clarify that documents provided are public by default unless they are accompanied by an application to make them confidential.
• A new rule to codify the existing practice that the IAD can make a decision in a proceeding in writing without receiving the appeal record where it would not be unfair to any party to do so.

Regulatory development

Consultation

Beginning in 2016, the IRB has conducted consultations with the Canada Border Services Agency (CBSA), Immigration, Refugees and Citizenship Canada (IRCC), and other stakeholders (this includes members of the IRB’s national and regional consultation committees which are composed of various legal and immigration associations and some private counsel). These consultations occurred in three phases: pre-drafting consultations, substantive consultations on a proposed draft of the IAD Rules and an impact and costing analysis with portfolio partners.

The pre-drafting consultations were held in 2016 and focussed on gathering initial impressions and ideas on key themes the IRB wanted to address. The IRB met with key national stakeholders and received written comments from a wider stakeholder audience, including regional groups. Comments were reviewed and used as a basis in drafting the initial proposal.

The substantive consultations were held in 2019 to gather comments on a proposed draft of the IAD Rules. Written comments were received from a wide stakeholder audience and a consultation meeting was held with key national stakeholders and portfolio partners.

Those consulted welcomed the IAD’s objectives of increased efficiency, more transparency, and greater simplicity. However, some expressed concerns that there were elements that might not be feasible, might adversely impact vulnerable clients, or had the potential to be contrary to the principles of natural justice or procedural fairness, particularly where the proposed new Rules codify the conduct of hearings. Other comments focused on the need to ensure that the objective of resolving appeals as informally and quickly as possible is balanced appropriately with access to justice and fairness, particularly for vulnerable appellants. Feedback from both the internal and external consultation processes was addressed and, where appropriate, incorporated into the proposed Rules.

Targeted consultations were also completed with IRCC and CBSA to assess the impact of reducing the time limit to provide an appeal record from overseas. Working and management-level discussions were held to find more efficient ways to produce appeal records, to explore options that can support the improvement of the service standards for IAD proceedings, and to inform the cost analysis for these changes.

Modern treaty obligations and Indigenous engagement and consultation

No modern treaty obligations are anticipated because Indigenous persons would not be directly impacted by the proposal. The IAD Rules establish the procedures for immigration appeals concerning immigration or admissibility decisions for foreign nationals, protected persons or permanent residents. As such, the proposal would not affect Modern Treaties, nor any Indigenous Peoples’ rights as established in the Constitution or the Royal Proclamation.

Individual Indigenous persons could, however, be indirectly impacted if they are involved in an immigration matter, such as if they applied to sponsor a foreign spouse or family member for permanent residency. The overall effect of the more efficient timeframes for sponsorship appeals is expected to benefit those involved in immigration proceedings, including Indigenous persons. Given the IRB does not collect information on the indigenous status of any appellants, there is no data available to estimate how many persons this group might represent. However, the number is expected to be small.

Instrument choice

Under subsection 161(1) of the Immigration and Refugee Protection Act, the IRB Chairperson, subject to the approval of the Governor in Council, may make rules respecting the activities, practices and procedures of each Division of the IRB.

Consideration was given to establishing practices and procedures of the IAD by using other IRB policy instruments such as Chairperson’s guidelines, policies, policy notes, or Chairperson’s instructions. However, due to the extent of procedural changes sought, it was determined that establishing these practices and procedures in enforceable rules would provide for more robust and transparent identification of the practices and procedures of the IAD. In addition, one comprehensive instrument would be more readily accessible and easier to use than a series of instruments for persons appearing before the IAD.

Regulatory analysis

Benefits and costs

Incremental costs

It is expected that this proposal would have minimal cost impacts. For the purposes of the cost analysis, the existing appeals process established by the current IAD Rules is used as a baseline to determine any incremental costs that would occur if the proposed Rules were implemented.

The IRB is expected to incur upfront implementation costs such as training and updating forms, procedures, and guides. New ongoing costs are not expected because the proposal does not impose any new program requirement within the appeal process and it does not alter the jurisdiction of the IAD or influence the volume of appeals that could be received. Therefore, the IAD would continue to be funded based on appeal volumes and it is not expected additional funding would be required.

It is expected, however, that there will be small, annual incremental costs for portfolio partners (IRCC and CBSA), primarily to address the resources required to be able to produce appeal records within a shorter time limit. These costs are expected to be under $500,000 annually and, over time, could be offset by digital transformation opportunities. No other costs were identified for impacted partners.

Finally, there may be additional minor costs for the appellant or other persons appearing before the IAD. For example, the new requirement to provide a brief statement on the purpose of a witness’s testimony and to provide a written statement if a party does not intend to provide any documentary disclosure are considered new activities. These potential costs are minor, and they are expected to be offset by other efficiencies provided by the proposed Rules.

Benefits

The proposed IAD Rules would contribute to the integrity and efficiency of IRB proceedings while maintaining fairness and enhancing access to justice.

Shortened time limits to provide the appeal record would reduce the time to receive a decision by up to two months for sponsorship and residency obligation appeals. This is a direct benefit to those impacted, especially to those whose families are separated pending the appeal decision or who are awaiting a decision on their permanent resident status in the case of permanent residents abroad.

Requiring parties to disclose documentary evidence earlier in the process would allow the IRB and parties to better identify appeals for possible informal resolution without having to make ad hoc requests for documents or information. Resolving an appeal without a hearing provides more timely completion of the matter and reduces the cost of finalizing an appeal for the IRB and both parties. Earlier disclosure would also allow the IRB to be more efficient in the scheduling of hearings because it would be able to identify appeals requiring a pre-hearing conference to settle procedural or substantive issues and to determine if self-represented appellants require additional procedural guidance before setting a hearing date. These steps would decrease the number of hearings postponed or adjourned.

Requiring the parties to provide witness information earlier in the process would similarly allow the IAD to be more efficient in scheduling hearings since the IAD would be better able to determine the hearing duration required and to identify appeals that could benefit from a pre-hearing conference to ensure evidence is relevant to the issues in the appeal.

Codifying the conduct of a hearing and outlining possible active adjudication measures in the IAD Rules will offer parties more transparency while enabling a more focused and fair hearing.

Small business lens

Analysis under the small business lens concluded that the proposed regulation will not impact Canadian small businesses. The IAD Rules apply to individuals going through the immigration appeal process. Any requirements that would be carried out by lawyers or consultants are considered to be on behalf of appellants, and as such are not considered to be direct impacts on business.

One-for-one rule

The proposal results in no incremental change in the administrative burden on business. The proposal repeals an existing regulation and replaces it with a new regulatory title. This results in no net increase or decrease in regulatory titles under the one-for-one rule.

Regulatory cooperation and alignment

The proposal is not related to a work plan or commitment under a formal regulatory cooperation forum.

Strategic environmental assessment

In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan concluded that a strategic environmental assessment is not required.

Gender-based analysis plus

The IRB is committed to continue implementing Gender Based Analysis Plus (GBA+) in its operations, policies, programs and initiatives, as well as monitoring the variation of how impacts may be experienced across gender expressions.

The IRB has a fundamental obligation to ensure all parties have a full opportunity to present evidence and make arguments for their case. The proposed IAD Rules include new procedures that will support vulnerable persons, such as greater clarity of the responsibilities of a designated representative for minors or persons unable to appreciate the nature of the proceeding. The proposed Rules also require decision-makers to consider a person’s vulnerabilities when deciding certain applications, such as applications to change the date and time of a proceeding.

It is recognized, however, that a standard procedure may not always fit the needs of every person, particularly vulnerable appellants such as persons experiencing mental illness, homelessness, or addiction. The proposed new Rules would continue to give the IAD the power to modify procedures to ensure the parties receive a fair hearing. In modifying the procedures set out in the proposed Rules, there are several existing policy instruments relating to persons with certain vulnerabilities or who belong to disadvantaged social groups that guide IAD decision-makers, specifically:

• Chairperson Guideline 3: Child Refugee Claimants: Procedural and Evidentiary Issues (under review)
• Chairperson Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution (under review, including expansion to include considerations for immigration appeals)
• Chairperson Guideline 8: Procedures With Respect to Vulnerable Persons Appearing Before the IRB (under review)
• Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression (updated in December 2021)

While these guidelines are not mandatory, the IRB is committed to applying them or, where they are not applied, providing reasoned explanations why doing so is not appropriate under the circumstances. The proposed new IAD Rules would be underpinned by these guidelines, which provide protections and specific accommodations for vulnerable persons, including children, women, and those with diverse sexual orientation or gender identity and expression.

Based on the response from stakeholders to the GBA+ considerations, and on an analysis of the proposed changes to the IAD Rules, the following impacts for specific groups are expected:

• Faster and more efficient proceedings may reduce the stress and anxiety faced by many appellants, as it will reduce the time spent in uncertainty about their immigration status. This uncertainty may particularly affect those with pre-existing mental health conditions, or those who claim they face risks after removal. As such, it can be expected that such vulnerable populations would benefit from faster appeal proceedings.
• Stakeholders raised concerns that the shorter deadlines for providing documents, as well as the new requirement to provide a statement of the purpose of a witness’s testimony and a statement indicating when no documents will be disclosed, may be challenging for self-represented appellants and/or those with mental health challenges, intellectual disabilities or substance use issues. Stakeholders expressed concerns that these measures might negatively impact the appeals of these groups, specifically in cases of non-compliance with the Rules. To address these concerns, the IAD will continue to provide procedural support, such as individualized meetings, to ensure that self-represented parties or parties facing other challenges have a clear understanding of the requirements and steps to be taken. In case of non-compliance, decision-makers will continue to ensure that the parties have had a reasonable opportunity to pursue their appeal considering their individual circumstances.
• The simplification of the IAD Rules, through the use of plain language and the reorganization of the rules, is expected to benefit self-represented appellants, as it will help them to navigate the process. Similarly, many appellants are immigrants whose first language may not be English or French, and they are expected to benefit from the use of less technical language. The development of plain language guides and forms that help appellants understand the process and their obligations would further benefit appellants.
• By clarifying the rules regarding designated representatives, the IRB expects that appellants who require a designated representative, such as minors or adults with mental health challenges, substance use issues, or intellectual disabilities, will receive better assistance, and consequently, a fairer hearing. To this end, the IRB is also reviewing its designated representative program more broadly.

Implementation, compliance and enforcement, and service standards

The Immigration Appeal Division Rules, 2022 will come into force on the 30^th day after the day they are registered and will apply to all pending appeals, subject to the exceptions detailed in the transitional provisions. The IRB will coordinate with portfolio partners before implementation to ensure new requirements set out in the proposed Rules can be achieved.

The IRB will continue to actively measure, monitor, and report on the performance of the IAD within the context of its annual reports to Parliament.

The IAD expects to have its appeals cases resolved in a timely manner with quality decisions rendered. The performance indicators against which these expected results are measured are set out in the IRB’s 2020-21 Departmental Plan (PDF) and the 2019-20 Departmental Results Report, which are tabled in Parliament on an annual basis.

These indicators include:

• clear, complete and concise decisions;
• percentage of appeals concluded within the service standard set by the IAD; and
• average case processing time.

More detailed performance measures are taken on a monthly and quarterly basis to support tactical decisions in program delivery.

Contact

Julie Wellington
Senior General Counsel, Legal Services
Immigration and Refugee Board of Canada
Canada Building (Minto Place)
344 Slater Street
Ottawa, Ontario
K1A 0K1
Email: IRB.Policy-Politiques.CISR@irb-cisr.gc.ca

PROPOSED REGULATORY TEXT

Notice is given that the Chairperson of the Immigration and Refugee Board, pursuant to subsection 161(1)^{footnote a} of the Immigration and Refugee Protection Act^{footnote b}, subject to the approval of the Governor in Council, in consultation with the Deputy Chairpersons, proposes to make the annexed Immigration Appeal Division Rules, 2022.

Interested persons may make representations concerning the proposed Rules within 30 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part I, and the date of publication of this notice, and be addressed to Julie Wellington, Senior General Counsel, Legal Services, Immigration and Refugee Board of Canada, Canada Building (Minto Place), 344 Slater Street, Ottawa, Ontario K1A 0K1 (email: IRB.Policy-Politiques.CISR@irb-cisr.gc.ca).

Ottawa, June 6, 2022

Wendy Nixon
Assistant Clerk of the Privy Council

TABLE OF PROVISIONS

Immigration Appeal Division Rules, 2022

Definitions

1 Definitions

General Provisions

2 General principle

3 No applicable rule

4 Powers of Division

5 Failure to follow Rules

Communicating with the Division

6 Communicating with Division

Contact Information

7 Contact information — party other than Minister

8 Change to contact information

9 Written statement — unpaid counsel

Counsel of Record

10 Becoming counsel of record

11 Request to be removed

12 Removing counsel of record

Filing an Appeal

13 Notice of appeal — person

14 Notice of appeal — admissibility hearing

15 Notice of appeal — Minister

16 Time limit

17 Documents provided to Minister

Language of the Appeal

18 Choice of language

19 Changing language

Appeal Record

20 Appeal record

21 Minister provides appeal record

22 Time limit

23 Late appeal record

Disclosure of Evidence

24 Disclosure of evidence

25 Proof document was provided

26 Time limit

27 Written statement regarding documents

28 Time limit for reconsideration – stay

29 Failure to respect time limit

30 Requirements of rules 24 to 28 not met

Documents

Form and Language of Documents

31 Documents prepared by party

32 More than one document

33 Language of documents

34 Translator’s declaration

Providing a Document

35 General provision

36 Providing documents to Division

37 Providing electronic document

38 Electronic signature

39 Application — inability to provide document

40 Receipt of document by Division

41 Extension of time limit — next working day

Designated Representatives

42 Designation — Immigration Division

43 Duty of counsel to notify — minor

44 Duty to notify — inability to appreciate proceedings

45 Purpose of counsel’s notice

46 Content of notice

47 Factors to consider

48 Criteria for designated representative

49 Responsibilities of designated representative

50 Termination of designation

51 End of designation — 18 years of age

52 End of designation

Interpreters

53 Need for interpreter

54 Interpreter’s oath

Witnesses

Witness Information

55 Providing witness information

56 Failure to provide witness information

Summons

57 Requesting summons

58 Cancelling summons

59 Arrest warrant

Notice to Appear

60 Content of notice

61 Date fixed for hearing

62 Party in custody

63 Failure to appear

Appeal

Informal Resolution Process

64 Participation in informal resolution process

65 Obligations of parties and counsel

66 Confidentiality of discussions

67 Document not confidential

68 Disclosure to responsible authorities

69 ADR conference

70 Assignment of ADR conference facilitator

71 Agreement in ADR conference

Conferences

72 Requirement to participate in conference

73 Written record

Conduct of a Hearing

74 General

75 Excluded witnesses

76 Oral submissions

Proceeding in Writing

77 Proceeding in writing

Stay of Removal Order

78 Application to reconsider appeal

79 Reconsideration on Division’s own initiative

80 Notice of cancellation of stay

81 Proof document was provided

82 Notice of cancellation of stay

83 Response to notice of cancellation of stay

Applications

General

84 General provision

Making an Application

85 Form of application and time limit

Written Response and Reply

86 Responding to written application

87 Replying to written response

Changing Location

88 Application

89 Factors

Changing Date or Time

90 Application

91 Exceptional circumstances

92 Subsequent application

Proceeding Conducted in Absence of the Public

93 Form of application

Withdrawing an Appeal

94 Abuse of process

Reinstating an Appeal After Withdrawal

95 Application to reinstate withdrawn appeal

96 Factors

97 Subsequent application

Application to Reopen Appeal

98 Form and content of application

99 Factors

100 Subsequent application

Notice of Constitutional Question

101 Notice of constitutional question

Decisions

102 Notice of decision

103 Written reasons

104 When decision takes effect

Transitional Provisions

105 Application

Repeal

106 Repeal

Coming into Force

107 30th day after registration

SCHEDULE

Immigration Appeal Division Rules, 2022

Definitions

Definitions

1 The following definitions apply in these Rules.

Act

means the Immigration and Refugee Protection Act. (Loi)

ADR

means alternative dispute resolution. (MARL)

appellant

means a person who makes an appeal to the Division. (appelant)

contact information

means

• (a) with respect to a person, the person’s name, postal address and telephone number and, if any, their fax number and email address; and
• (b) 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)

Division

means the Immigration Appeal Division of the Board. (Section)

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)

officer

means a person designated as an officer by the Minister under subsection 6(1) of the Act. (agent)

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

General principle

2 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.

No applicable rule

3 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.

Powers of Division

4 The Division may

• (a) after giving the parties notice and an opportunity to object, act on its own initiative, without a party having to make an application or request to the Division;
• (b) change a requirement of a rule;
• (c) excuse a person from a requirement of a rule;
• (d) extend or shorten a time limit before it has passed; and
• (e) extend any time limit after it has passed.

Failure to follow Rules

5 Unless proceedings are declared invalid by the Division, a failure to follow any requirement of these Rules does not make the proceedings invalid.

Communicating with the Division

Communicating with Division

6 All communication with the Division must be directed to the registry office.

Contact Information

Contact information — party other than Minister

7 (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.

Contact information — Minister

(2) The Minister must provide the contact information of their counsel in writing to the Division and the other party.

Time limit

(3) The contact information must be received by the Division and the other party

• (a) with the notice of appeal, if the party is the appellant; or
• (b) no later than 20 days after the day on which the party receives the notice of appeal, if the party is the respondent.

Contact information — counsel retained after time limit

(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.

Change to contact information

8 (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.

Minister’s counsel

(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.

Written statement — unpaid counsel

9 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

Becoming counsel of record

10 As soon as counsel, other than counsel for the Minister, provides a document to the Division on behalf of a party, the counsel becomes counsel of record for the party.

Request to be removed

11 (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.

Oral request

(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.

Division’s permission required

(3) Counsel remains counsel of record unless the Division grants the request to be removed.

Counsel of record — stay of removal

(4) If the Division stays a removal order in accordance with section 68 of the Act, counsel remains counsel of record for the party unless the counsel notifies the Division in writing that they have ceased to be counsel of record for the party.

Removing counsel of record

12 (1) If a party other than the Minister wants to remove their counsel of record, they must provide the Division, their counsel of record and the Minister with written notice removing the counsel as counsel of record.

Removal takes effect

(2) Counsel ceases to be counsel of record when the Division receives the notice.

Filing an Appeal

Notice of appeal — person

13 (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.

Other information

(2) The person may also provide any other information that may assist the Division in resolving the appeal as quickly as possible.

Notice provided to Immigration Division

(3) If the Division is provided under paragraph (1)(b) with a notice of appeal of a removal order made at an admissibility hearing, the Division must provide the notice of appeal to the Immigration Division without delay.

Notice of appeal — admissibility hearing

14 (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.

Notice of appeal provided to Division

(2) The Immigration Division must provide the notice of appeal and the removal order to the Division without delay.

Notice of appeal — Minister

15 (1) To file a Minister’s appeal, the Minister must provide a notice of appeal to the respondent, the Immigration Division and the Division.

Written statement

(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.

Content of notice of appeal — Minister

(3) In the notice of appeal, the Minister must indicate the grounds of the appeal.

Time limit

16 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.

Documents provided to Minister

17 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

Choice of language

18 (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.

Language — Minister’s 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.

Changing language

19 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

Appeal record — sponsorship

20 (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.

Appeal record — admissibility hearing

(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, if any, of the admissibility hearing;
• (d) any document accepted as evidence at the admissibility hearing; and
• (e) the written reasons, if any, for its decision.

Appeal record — examination

(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.

Appeal record — residency obligation

(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.

Minister provides appeal record

21 (1) On receipt of a written request from the Division, the Minister must provide the appeal record referred to in subrule 20(1), (3) or (4) to the appellant and the Division.

Proof record provided to appellant

(2) The appeal record provided to the Division under subrule (1) must be accompanied by a written statement indicating how and when the Minister provided the appeal record to the appellant.

Immigration Division provides appeal record

(3) The Immigration Division must provide the appeal record referred to in subrule 20(2) to the parties and the Division.

Time limit

22 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.

Late appeal record

23 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

Disclosure of evidence

24 (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.

Clarification

(2) If a document has been provided to the other party and the Division under paragraph 65(c), it is deemed to have been provided in accordance with subrule (1) for the rest of the appeal.

Statement — no documents

(3) 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.

Proof document was provided

25 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.

Time limit

26 (1) Subject to subrule (2), documents provided under subrule 24(1) and the statement provided under subrule 24(3) must be received no later than 45 days after the day on which the party receives the appeal record under subrule 21(1) or (3).

30 days

(2) The following documents must be received no later than 30 days before the date fixed for the proceeding:

• (a) a document that is provided in response to evidence presented by the other party; and
• (b) a document that could not reasonably have been received within the time limit set out in subrule (1).

Written statement regarding documents

27 Documents provided under paragraph 26(2)(b) must be accompanied by a written statement that explains why they could not reasonably have been received within the time limit set out in subrule 26(1).

Time limit for reconsideration – stay

28 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.

Failure to respect time limit

29 If a party does not provide either a document or a written statement within the time limits set out in subrule 26(1), the Division may

• (a) if that party is the appellant, determine that the appeal has been abandoned in accordance with subsection 168(1) of the Act;
• (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 decides that the appeal is ready to proceed; or
• (d) take any other action that it deems appropriate.

Requirements of rules 24 to 28 not met

30 (1) A party who does not meet the requirements of rules 24 to 28 in respect of a document may not use the document at the hearing unless the Division allows them to do so.

Factors

(2) In deciding whether to allow a party referred to in subrule (1) to use a document, the Division must consider any relevant factors, including

• (a) the relevance and probative value of the document; and
• (b) whether the party, with reasonable effort, could have met the requirements of rules 24 to 28 in respect of the document.

Documents

Form and Language of Documents

Documents prepared by party

31 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.

More than one document

32 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.

Language of documents

33 (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.

Language of Minister’s documents

(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.

Translator’s statement

34 In a written statement referred to in rule 33, the translator must include their name, the language and, if any, dialect translated and a statement that the translation is accurate.

Providing a Document

General provision

35 Rules 36 to 41 apply to any document, including a notice, request, application or statement in writing.

Providing documents to Division

36 (1) A document that is to be provided to the Division must be provided to the registry office that the Division specifies.

Documents in public proceedings

(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).

Providing documents to Minister

(3) A document that is to be provided to the Minister must be provided to the Minister’s counsel.

Providing documents to person other than Minister

(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.

How to provide documents

(5) A document may be provided

• (a) by hand;
• (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 email or other electronic means, if the Division allows.

Providing electronic document

37 (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).

Notice of requirements

(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.

Original document

(3) An electronic document provided by the Division is considered to be the original version of the document.

Retention of paper document

(4) A person who provides to the Division an electronic document whose original version is a paper document must retain that original version for the duration of the appeal and must, on request, provide it to the Division.

Electronic signature

38 (1) Any requirement under these Rules that a document be signed is satisfied, in the case of an electronic document, by an electronic signature.

Definition of 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.

Application — inability to provide document

39 (1) If a party is unable to provide a document in accordance with rule 36, the party may make an application to the Division to be allowed to provide the document in another way or to be excused from providing the document.

Allowing application

(2) The Division may allow the application only if it is of the opinion that the party has made reasonable efforts to provide the document to the person to whom the document must be provided.

Receipt of document by Division

40 (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.

Receipt of document by party — regular mail

(2) A document that is provided to a party by regular mail is considered to be received 7 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.

Receipt of document by party — electronic

(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.

Extension of time limit — next working day

41 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

Designation — Immigration Division

42 If the Immigration Division designated a representative for a person in the proceedings relating to the decision being appealed, the representative is deemed to have been designated for the appeal, unless the Division decides otherwise.

Duty of counsel to notify — minor

43 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.

Duty to notify — inability to appreciate proceedings

44 (1) If counsel for a party believes that the Division should designate a representative for a person because the person is unable to appreciate the nature of the proceedings, counsel must notify the Division in writing without delay.

Exception

(2) Counsel is not required to notify the Division under subrule (1) if the appeal is against a decision made at an admissibility hearing and the Immigration Division designated a representative for the person.

Purpose of counsel’s notice

45 The purpose of a notice under rule 43 or 44 is to assist the Division in determining whether, in accordance with subsection 167(2) of the Act, it must designate a representative.

Content of notice

46 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.

Factors to consider

47 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.

Criteria for designated representative

48 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.

Responsibilities of designated representative

49 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.

Termination of designation

50 The Division may, on its own initiative or on the request of a party, terminate a designation if the Division is of the opinion that the representative is no longer required or suitable. The Division may designate a new representative if required.

End of designation — 18 years of age

51 The designation of a representative for a person who is under 18 years of age ends when the person reaches 18 years of age unless the representative has also been designated because the person is unable to appreciate the nature of the proceedings.

End of designation

52 The designation of a representative for a person ends when the Division makes a decision allowing or dismissing the appeal or a decision that stays the removal order.

Interpreters

Need for interpreter

53 (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.

Time limit

(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.

Need for interpreter — witness

(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.

Interpreter’s oath

54 The interpreter must take an oath or make a solemn affirmation to interpret accurately.

Witnesses

Witness Information

Providing witness information

55 (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.

Proof document was provided

(2) Documents provided to the Division under this rule must be accompanied by a written statement indicating how and when they were provided to the other party.

Time limit

(3) Documents provided under this rule must be received no later than 45 days after the day on which the party receives the appeal record under subrule 21(1) or (3), as the case may be.

Failure to provide witness information

56 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
• (c) in the case of a party other than the Minister, whether the party has counsel.

Summons

Requesting summons

57 (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.

Factors

(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.

Using summons

(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.

Cancelling summons

58 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).

Arrest warrant

59 (1) If a person does not obey a summons to appear as a witness, the party who requested the summons may make a request to the Division, orally or in writing, to issue a warrant for the person’s arrest.

Written request

(2) A party who makes a written request must provide supporting evidence in an accompanying affidavit or statutory declaration.

Requirements for issue of arrest warrant

(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.

Content of arrest warrant

(4) When the Division issues an arrest warrant, the warrant must include directions concerning detention and release.

Notice to Appear

Content of notice

60 (1) The Division must notify the parties in writing of the date, time and location fixed for the proceeding.

Changes to date, time or location

(2) If any changes are made to the date, time or location, the Division must notify the parties in writing without delay.

Date fixed for hearing

61 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.

Party in custody

62 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.

Failure to appear

63 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;
• (c) prohibit the party from presenting further evidence, questioning witnesses, or making submissions to the Division;
• (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

Participation in informal resolution process

64 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.

Obligations of parties and counsel

65 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
• (c) provide to each other and to the Division any document to be used in the process and any document that the Division requires them to prepare or provide.

Confidentiality of discussions

66 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) information about the matter 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.

Document not confidential

67 A document provided for the purposes of an informal resolution process, including an ADR conference, is not confidential unless it is the subject of a measure taken under paragraph 166(b) of the Act.

Disclosure to responsible authorities

68 Disclosure under paragraph 66(b) may be made only to the authorities responsible for enforcement of the Act or these Rules.

ADR conference

69 (1) The Division may decide to hold an ADR conference on its own initiative or on receipt of a request made by a party that contains

• (a) a statement of the reasons the party believes the appeal can be resolved through the ADR process; and
• (b) all documents that the party intends to use in the ADR process.

Request provided to other party

(2) The party must provide the request made under subrule (1) to the other party.

Assignment of ADR conference facilitator

70 (1) The Division must assign a member of the Division or an employee of the Board as ADR conference facilitator.

Member must not hear appeal

(2) A member of the Division who facilitates an ADR conference must not hear the appeal, unless the parties agree.

Agreement in ADR conference

71 (1) An agreement to resolve an appeal that is reached through an ADR conference must be confirmed by the parties or their counsel and approved in writing by the Division.

Agreement not confidential

(2) The agreement is not confidential.

Conferences

Requirement to participate in conference

72 (1) The Division may 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 fairer and more efficient; and
• (d) give information to help the Division fix a date for the proceeding.

Information or documents

(2) The Division may require the parties to provide any information or document at or before the conference.

Written record

73 The Division must make a written record of any decision or agreement made at a conference.

Conduct of a Hearing

General

74 (1) The Division must, in any hearing before it, give the parties the opportunity to present evidence, question witnesses and make submissions.

Issues and evidence

(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 the 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.

Questioning witnesses

(3) The Division may question any witness at any point during the hearing.

Additional evidence or witnesses

(4) The Division may notify the parties if additional evidence or witnesses are likely to assist the Division in deciding the appeal.

Excluded witnesses

75 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.

Oral submissions

76 (1) Submissions must be made orally at the end of a hearing unless the Division orders otherwise.

Limits on submissions

(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

Proceeding in writing

77 (1) Instead of holding a hearing, the Division may require the parties to proceed in writing if doing so would not be unfair to any party and a hearing is not otherwise required.

Appeal record

(2) The Division may make a decision in a proceeding in writing without being provided with the appeal record under rule 21.

Exception

(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

Application to reconsider appeal

78 (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.

Response

(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.

Reconsideration on Division’s own initiative

79 (1) If the Division reconsiders an appeal on its own initiative under subsection 68(3) of the Act, it must notify the parties in writing.

Time limit for providing statement

(2) The parties must provide to the Division and the other party, within the time limit specified by the Division, a written statement indicating whether the conditions of the stay have been complied with.

Notice of cancellation of stay

80 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.

Proof document was provided

81 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.

Notice of cancellation of stay

82 If the Minister provides written notice of the cancellation under rule 80, the Division must process the notice in the same manner as an application.

Response to notice of cancellation of stay

83 A party responding to a notice provided under rule 80 must respond in accordance with rule 86.

Applications

General

General provision

84 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

Form of application and time limit

85 (1) Unless these Rules provide otherwise, an application must be made in writing without delay.

Content of application

(2) In the application, the party must

• (a) state what decision the party wants the Division to make;
• (b) give reasons why the Division should make that decision; and
• (c) if the views of the other party are known, state whether the other party agrees to the application.

Affidavit or statutory declaration

(3) Unless these Rules provide otherwise, any evidence that the party wants the Division to consider with a written application must be given in an affidavit or statutory declaration that accompanies the application.

Providing application

(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
• (b) to the Division, the application and any accompanying affidavit or statutory declaration, together with a written statement indicating how and when the party provided the documents to the other party.

Oral application

(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

Responding to written application

86 (1) A response to a written application must be in writing and must state what decision the party wants the Division to make and give reasons why the Division should make that decision.

Evidence in written response

(2) Subject to subrule (3), any evidence that the party wants the Division to consider with the written response must be given in an affidavit or statutory declaration that accompanies the response.

Evidence not required

(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.

Providing response

(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
• (b) to the Division, the response and any accompanying affidavit or statutory declaration, together with a written statement indicating how and when the party provided the documents to the other party.

Time limit

(5) Documents provided under subrule (4) must be received no later than seven days after the party receives the application.

Replying to written response

87 (1) A reply to a written response must be in writing.

Evidence in reply

(2) Subrules 86(2) to (4) apply to the reply.

Time limit

(3) Documents provided under subrule (2) must be received no later than five days after the day on which the party receives the response.

Changing Location

Application

88 (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).

Time limit

(2) Documents provided under this rule must be received no later than 30 days before the date fixed for the proceeding.

Duty to appear

(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.

Factors

89 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

Application

90 (1) A party who makes an application to the Division to change the date or time of a proceeding must make that application in accordance with rule 85, but is not required to provide an accompanying affidavit or statutory declaration under subrule 85(3).

Time limit and content of application

(2) The application must

• (a) be received by the Division no later than 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.

Notice of period specified by Division

(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.

Oral application

(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.

Duty to appear

(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.

Exceptional circumstances

91 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 a proceeding;
• (c) the rights and interests of the parties;
• (d) the need to change the time and date 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.

Subsequent application

92 If the party made a previous application to change the time and date 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

Form of application

93 (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.

Request to respond to application

(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.

Form of response — rule 86

(3) A person who is allowed by the Division to respond to the application must respond in accordance with rule 86.

Confidentiality measures

(4) The Division may take any measures it considers necessary to ensure the confidentiality of the application.

Time limit

(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

Abuse of process

94 (1) For the purposes of subsection 168(2) of the Act, withdrawal of an appeal is an abuse of process if withdrawal would likely have a negative effect on the integrity of the Division.

No substantive evidence accepted

(2) If no substantive evidence has been accepted in the appeal, withdrawal of the appeal is not an abuse of process.

Withdrawal if no substantive evidence accepted

(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.

Withdrawal if substantive evidence accepted

(4) If substantive evidence has been accepted in the appeal, a party who wants to withdraw their appeal must make an application to the Division in accordance with rule 85.

Reinstating an Appeal After Withdrawal

Application to reinstate withdrawn appeal

95 (1) An appellant may apply to the Division to reinstate an appeal that was withdrawn.

Form and content of application

(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.

Factors

96 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.

Subsequent application

97 If the appellant has made a previous application to reinstate an appeal and that application was denied, the Division must consider the reasons for the previous denial and may allow the subsequent application only if there are exceptional circumstances supported by new evidence.

Application to Reopen Appeal

Form and content of application

98 (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.

Allegations against former 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.

Factors

99 (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.

Natural justice

(2) In the case of an application that is made other than under section 71 of the Act, the Division must not allow the application unless it is established that there was a failure to observe a principle of natural justice.

Subsequent application

100 If the appellant has made a previous application to reopen an appeal and that application was denied, the Division must consider the reasons for the previous denial and must not allow the subsequent application unless there are exceptional circumstances supported by new evidence.

Notice of Constitutional Question

Notice of constitutional question

101 (1) A party who wants to challenge the constitutional validity, applicability or operability of a legislative provision must complete a notice of constitutional question.

Form and content of notice

(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.

Providing notice

(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.

Notice provided to 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.

Time limit

(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

Notice of decision

102 When the Division makes a decision, other than an interlocutory decision, it must provide a written notice of decision to the parties.

Written reasons

103 (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.

Request for written reasons

(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.

When decision takes effect

104 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

Application

105 (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.

Appeal record

(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.

Confidentiality — ADR process

(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 process for which the date of the notice to appear is before that day.

Disclosure of documents

(4) If a party receives an appeal record before the day on which these Rules come into force,

• (a) the statement referred to in subrule 24(3) of these Rules is not required in respect of the appeal; and
• (b) the time limits for providing 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

Repeal

106 The Immigration Appeal Division Rules ^{footnote 1} are repealed.

Coming into Force

30th day after registration

107 These Rules come into force on the 30th day after the day on which they are registered.

SCHEDULE

(Rule 9)

Information and Written Statements — Counsel not Representing or Advising for Consideration

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.