Immigration Division Rules

Immigration Division Rules The Chairperson of the Immigration and Refugee Board, pursuant to subsection 161(1) of the Immigration and Refugee Protection Acta and subject to the approval of the Governor in Council, in consultation with the Deputy Chairpersons and the Director General of the Immigration Division, hereby makes the annexed Immigration Division Rules. Ottawa, May 7, 2002 Her Excellency the Governor General in Council, on the recommendation of the Minister of Citizenship and Immigration, pursuant to subsection 161(1) of the Immigration and Refugee Protection Acta, hereby approves the annexed Immigration Division Rules, made on May 7, 2002 by the Chairperson of the Immigration and Refugee Board, in consultation with the Deputy Chairpersons and the Director General of the Immigration Division. S.C. 2001, c. 27 Definitions The following definitions apply in these Rules. Act means the Immigration and Refugee Protection Act. (Loi) admissibility hearing means a hearing held under subsection 44(2) of the Act. (enquête) contact information means a person’s name, postal address and telephone number and the person’s fax number and electronic mail address, if any. (coordonnées) detention review means a forty-eight hour review, a seven-day review and a thirty-day review. (contrôle des motifs de détention) Division means the Immigration Division. (Section) forty-eight hour review means the review of the reasons for continued detention under subsection 57(1) of the Act. (contrôle des quarante-huit heures) party means a permanent resident or foreign national, as the case may be, and the Minister. (partie) proceeding means an admissibility hearing, a detention review, a conference or an application. (procédure) registry office means a business office of the Division. (greffe) seven-day review means the review of the reasons for continued detention required to be held during the seven days following a forty-eight hour review, under subsection 57(2) of the Act. (contrôle des sept jours) thirty-day review means the review of the reasons for continued detention required to be held during the thirty days following each previous review, under subsection 57(2) of the Act. (contrôle des trente jours) Communicating with the Division All communication with the Division must be directed to the registry office specified by the Division. Information provided by the Minister When the Minister requests the Division to hold an admissibility hearing, the Minister must provide to the Division and the permanent resident or foreign national, as the case may be, any relevant information or document that the Minister may have, including the name and other contact information in Canada of the permanent resident or foreign national; the person’s date of birth, sex and citizenship; whether the person is single, married, separated or divorced or is a common-law partner; the inadmissibility report and the Minister’s referral; whether the person has made a claim for refugee protection; the name and address of the place of detention, if the person is detained; the language — English or French — chosen by the person for communicating with the Division; if an interpreter is required, the language or dialect to be interpreted; if the person has counsel, the counsel’s contact information; the client identification number given to the person by the Department of Citizenship and Immigration; the names, sex, date of birth, citizenship, and other contact information of any family member whose case has been referred to the Division, and the client identification number given to them by the Department of Citizenship and Immigration; the date on which the Minister makes the request; the name and title of the Minister’s counsel; whether the Minister has made an application for non-disclosure of information; whether the Minister believes that the person is less than 18 years of age or is unable to appreciate the nature of the proceedings; and the evidence to be presented by the Minister. Change to contact information If the contact information changes, the permanent resident or foreign national, unless detained, must without delay provide the changes in writing to the Division and the Minister. Abuse of process Withdrawal of a request for an admissibility hearing is an abuse of process if withdrawal would likely have a negative effect on the integrity of the Division. If no substantive evidence has been accepted in the proceedings, withdrawal of a request is not an abuse of process. Withdrawal if no evidence has been accepted If no substantive evidence has been accepted in the proceedings, the Minister may withdraw a request by notifying the Division orally at a proceeding or in writing. If the Minister notifies in writing, the Minister must provide a copy of the notice to the other party. Withdrawal if evidence has been accepted If substantive evidence has been accepted in the proceedings, the Minister must make a written application to the Division in order to withdraw a request. Application for reinstatement of withdrawn request The Minister may make a written application to the Division to reinstate a request for an admissibility hearing that was withdrawn. Factors The Division must 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. Favourable decision If the decision at the conclusion of an admissibility hearing is in favour of the permanent resident or foreign national, the member making the decision must date and sign a notice of decision and provide a copy to the parties. Unfavourable decision If the decision is not in favour of the permanent resident or foreign national, the member must date and sign an order indicating the applicable provisions of the Act and provide a copy to the parties. The member must also notify the permanent resident or foreign national of their right to appeal to the Immigration Appeal Division; or if they do not have the right to appeal, their right to file an application for judicial review in the Federal Court. When decision takes effect A decision made orally at a hearing takes effect when a Division member states the decision. A decision made in writing takes effect when the member signs and dates it. Request for written reasons A request made by a party for written reasons for a decision may be made orally at the end of an admissibility hearing or in writing. A request in writing must be received by the Division no later than 10 days after the decision takes effect. If a foreign national or a permanent resident is subject to a detention review, the Minister must provide the Division and the person detained with the following information: the person’s name, sex, date of birth and citizenship; the date and time that the person was first placed in detention; the name and address of the place where the person is being detained; whether the Minister is seeking a detention review after the first forty-eight hour detention or after a seven-day or thirty-day review; the identification number given to the person by the Department of Citizenship and Immigration; the provision of the Act under which the review of the reasons for continued detention is required; whether an application for non-disclosure of information has been made; and whether the Minister believes that the person is less than 18 years of age or is unable to appreciate the nature of the proceedings. Time limit The information must be received by the Division and the person detained in the case of a forty-eight hour review, as soon as possible; and in the case of a seven-day or thirty-day review, at least three days before the date fixed for the review. Application for early review A party may make a written application to the Division requesting a detention review before the expiry of the seven-day or thirty-day period, as the case may be. Factor The Division may allow the application if the party sets out new facts that justify an early review of the detention. Removal before detention review The Minister must notify the Division as soon as a permanent resident or foreign national is removed from Canada prior to a scheduled detention review. Notice to the parties At the conclusion of a detention review, the member must notify the parties of the member’s decision. Order The member must date and sign an order for detention or release indicating the applicable provisions of the Act and provide a copy to the parties. A request made by a party for written reasons for a decision may be made orally at the end of a detention review or in writing. A request in writing must be received by the Division no later than 10 days after the decision takes effect. Counsel’s contact information A permanent resident or foreign national who is represented by counsel must, on obtaining counsel, provide the counsel’s contact information in writing to the Division and the Minister. If that information changes, the permanent resident or foreign national must without delay provide the changes in writing to the Division and the Minister. Becoming counsel of record As soon as counsel for a permanent resident or foreign national agrees to a date for a proceeding, or becomes counsel after a date has been fixed, the counsel becomes counsel of record. Withdrawal as counsel of record To withdraw as counsel of record, counsel must notify the Division and the Minister in writing as soon as possible. Counsel is no longer counsel of record as soon as the Division receives the notice. Removal of counsel of record To remove counsel as counsel of record, the permanent resident or foreign national must notify the Division and the Minister in writing as soon as possible. Counsel is no longer counsel of record when the Division receives the notice. Changing the language of proceedings A permanent resident or foreign national may make an application to the Division to change the language of the proceedings to English or French orally or in writing in the case of a forty-eight hour or seven-day review or an admissibility hearing held at the same time; and in writing in all other cases. A written application must be received by the Division as soon as possible, in the case of a forty-eight hour or seven-day review or an admissibility hearing held at the same time; and in all other cases, at least five days before the hearing. Requesting an interpreter If a party or a party’s witness needs an interpreter for a proceeding, the party must notify the Division in writing and specify the language or dialect of the interpreter. The notice must be received by the Division Interpreter’s oath The interpreter must take an oath or make a solemn affirmation to interpret accurately. Duty of counsel to notify the Division If counsel for a party believes that the Division should designate a representative for the permanent resident or foreign national in the proceedings because they are under 18 years of age or unable to appreciate the nature of the proceedings, counsel must without delay notify the Division and the other party in writing. If counsel is aware of a person in Canada who meets the requirements to be designated as a representative, counsel must provide the person’s contact information in the notice. Requirements for being designated To be designated as a representative, a person must be 18 years of age or older; understand the nature of the proceedings; be willing and able to act in the best interests of the permanent resident or foreign national; and not have interests that conflict with those of the permanent resident or foreign national. Requirement to participate at a conference The Division may require the parties to participate at a conference to discuss issues, relevant facts and any other matter that would make the proceedings more fair and efficient. Information or documents The Division may require the parties to give any information or document at or before the conference. Decisions noted The Division must make a written record of any decisions and agreements made at the conference or state them orally at the hearing. Fixing a date The Division must fix the date for a hearing and any other proceeding relating to the hearing. The Division may require the parties to participate in the preparation of a schedule of proceedings by appearing at a scheduling conference or otherwise providing information. Notice to appear The Division must notify the parties, orally or in writing, of the date, time and location of a hearing. The Division may order the person who holds a permanent resident or foreign national in custody to bring the permanent resident or foreign national to a hearing at a location specified by the Division. Documents prepared by party A document prepared for use by a party in a proceeding must be typewritten on one side of 21.5 cm by 28 cm (8½" x 11") paper and the pages must be numbered. Photocopies Any photocopy provided by a party must be a clear copy of the document photocopied and be on one side of 21.5 cm by 28 cm (8½" x 11") paper and the pages must be numbered. Numbered documents A party must number consecutively each document provided by the party. List of documents If more than one document is provided, the party must provide a list of the documents and their numbers. Language of documents All documents used at a proceeding must be in English or French or, if in another language, be provided with an English or French translation and a translator’s declaration. Language of Minister’s documents If the Minister provides a document that is not in the language of the proceedings, the Minister must provide a translation and a translator’s declaration. Translator’s declaration A translator’s declaration must include the translator’s name, the language translated and a statement signed by the translator that the translation is accurate. Disclosure of documents by a party If a party wants to use a document at a hearing, the party must provide a copy to the other party and the Division. The copies must be received General provision Rules 28 to 31 apply to any document, including a notice or a written request or application. Providing documents to the Division A document provided to the Division must be provided to a Division member at a proceeding or to the registry office specified by the Division. Providing documents to the Minister A document provided to the Minister must be provided to the Minister’s counsel. Providing documents to a permanent resident or foreign national A document provided to a permanent resident or foreign national must be provided to them or, if they have counsel, to their counsel. How to provide a document A document can be provided in the following ways: by hand; by regular mail or registered mail; by courier or priority post; by fax if the recipient has a fax number and the document has no more than 20 pages, unless the recipient consents to receiving more than 20 pages; and by electronic mail if the Division allows. If document cannot be provided under rule 29 If a party after making reasonable efforts is unable to provide a document in a way required by rule 29, 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. When a document is considered received by the Division A document provided to the Division is considered received by the Division on the day the document is date stamped by the Division. When a document provided by regular mail is considered received by a party A document provided by regular mail to a party is considered to be received seven days after the day it was mailed. If the seventh day is a Saturday, Sunday or other statutory holiday, the document is considered to be received on the next working day. Providing witness information If a party wants to call a witness, the party must provide in writing to the other party and the Division the following witness information: the purpose and substance of the witness’s testimony or, in the case of an expert witness, a summary of the testimony to be given signed by the expert witness; the time needed for the witness’s testimony; the party’s relationship to the witness; in the case of an expert witness, a description of their qualifications; whether the party wants the witness to testify by videoconference or telephone; and the number of witnesses that the party intends to call. The witness information must be received by the Division and the other party as soon as possible in the case of a forty-eight hour or seven-day review or an admissibility hearing held at the same time; and Application for a summons A party who wants the Division to order a person to testify at a hearing must make an application to the Division for a summons, either orally at a proceeding or in writing. In deciding whether to issue a summons, the Division must consider any relevant factors, including the necessity of the testimony to a full and proper hearing; and the ability of the person to give that testimony. Using the summons If a party wants to use a summons, the party must provide the summons to the summoned person by hand; provide a copy of the summons to the Division with a written statement of how and when the summons was provided; and pay or offer to pay the summoned person the applicable witness fees and travel expenses set out in Tariff A of the Federal Court Rules, 1998. Cancelling a summons A person summoned to appear may make a written application to the Division to cancel the summons. Arrest warrant If a person does not obey a summons to appear, the party who requested the summons may make a written application to the Division to issue a warrant for the arrest of the person. Supporting evidence The party must provide supporting evidence for the written application by affidavit or statutory declaration. Requirements for issue of arrest warrant The Division may issue a warrant if the person was provided the summons by hand or the person is avoiding being provided the summons; the person was paid or offered the applicable witness fees and travel expenses set out in Tariff A of the Federal Court Rules, 1998; the person did not appear at the hearing as required by the summons; and the person’s testimony is still needed for a full and proper hearing. Content of a warrant A warrant issued by the Division for the arrest of a person must include directions concerning detention and release. Excluded witness Unless allowed by the Division, no person shall communicate to a witness excluded from a hearing room any testimony given while the witness was excluded until that witness has finished testifying. Unless these Rules provide otherwise, 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 under rule 38; who wants to respond to the application must respond under rule 39; and who wants to reply to a response must reply under rule 40. Application to the Division Unless these Rules provide otherwise, an application must follow this rule. Time limit and form of application The application must be made orally or in writing, and as soon as possible or within the time limit provided in the Act or these Rules. Procedure in oral application For an application made orally, the Division determines the applicable procedure. Content of written application A party who makes a written application must state the decision that the party wants the Division to make; give reasons why the Division should make that decision; include any evidence that the party wants the Division to consider in deciding the application; and in the case of an application that is not specified in these Rules, include supporting evidence in the form of a statutory declaration or affidavit. Providing the application A party who makes a written application must provide to the other party, a copy of the application; and to the Division, the original application, together with a written statement of how and when the party provided the copy to the other party. Responding to a written application A response to a written application must be in writing. In a response the party must state the decision the party wants the Division to make; include any evidence that the party wants the Division to consider when it decides the application; and include supporting evidence in the form of a statutory declaration or affidavit, if the response is to an application that is not provided for by these Rules. Providing the response A party who responds to a written application must provide to the other party, a copy of the response; and to the Division, the original response, together with a written statement of how and when the party provided the copy to the other party. Documents provided under this rule must be received by their recipients in all other cases, no later than five days after the party received a copy of the application. Replying to a written response A reply to a written response must be in writing. Providing the reply A party who replies must provide to the other party, a copy of the reply; and to the Division, the original reply, together with a written statement of how and when the party provided the copy to the other party. in all other cases, no later than three days after the party received a copy of the response. Application to prohibit disclosure An application made by the Minister for non-disclosure of information must be made in writing as soon as possible. Exclusion from hearing room If an application is made during a hearing, the Division must exclude the permanent resident or foreign national, and their counsel, from the hearing room. Providing summary to the Minister The summary that the Division proposes to provide to the permanent resident or foreign national under paragraph 78(h) of the Act may be provided to the Minister by any means that ensures its confidentiality. Application to change the location of a hearing A party may make an application to the Division to change the location of a hearing. In deciding the application, the Division must consider any relevant factors, including whether a change of location would allow the hearing to be full and proper; whether a change of location would likely delay or slow the hearing; how a change of location would affect the operation of the Division; how a change of location would affect the parties; and whether a change of location would endanger public safety. Duty to appear at the hearing Unless a party receives a decision from the Division allowing the application, the party must appear for the hearing at the location fixed and be ready to start or continue the hearing. Application to change the date or time of a hearing A party may make an application to the Division to change the date or time of a hearing. in the case of a date and time that was fixed after the Division consulted or tried to consult the party, the existence of exceptional circumstances for allowing the application; when the party made the application; the time the party has had to prepare for the hearing; the efforts made by the party to be ready to start or continue the hearing; the nature and complexity of the matter to be heard; whether the party has counsel; any previous delays and the reasons for them; whether the time and date fixed for the hearing was peremptory; and whether allowing the application would unreasonably delay the proceedings or likely cause an injustice. Unless a party receives a decision from the Division allowing the application, the party must appear for the hearing at the date and time fixed and be ready to start or continue the hearing. Application to join hearings A party may make an application to the Division to join hearings. Application to separate hearings A party may make an application to the Division to separate hearings that are joined. Before deciding an application, the Division must consider any information provided by the applicant and any other relevant information, including whether the hearings involve similar questions of law or fact; whether allowing the application would promote the efficient administration of the work of the Division; and whether allowing the application would likely cause an injustice. Application for proceeding conducted in private A person who makes an application to the Division to have a proceeding conducted in private must apply in writing and follow this rule. Content of application In the application, the person must state the decision that the person wants the Division to make, and may request that the hearing of the application be conducted in private. The person must provide a copy of the application to the parties and the original application to the Division. A document provided under this rule must be received by its recipient Hearing of the application At the hearing, the person must give reasons why the Division should conduct the proceeding in private and present any evidence that the person wants the Division to consider in deciding the application. Application for proceeding conducted in public A person who makes an application to the Division to have a proceeding conducted in public must apply in writing and follow this rule. In the application, the person must state the decision that the person wants the Division to make; give reasons why the Division should make that decision; and include any evidence that the person wants the Division to consider in deciding the application. The person must provide the original application and two copies to the Division. The Division must provide a copy of the application to the parties. A document provided under this rule must be received by the Division Notice of constitutional question 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 The party must provide notice using either Form 69, “Notice of Constitutional Question”, set out in the Federal Court Rules, 1998, or any other form that includes the name of the party; the Division file number; the date, time and place of the hearing; the specific legislative provision that is being challenged; the relevant facts relied on to support the constitutional challenge; and a summary of the legal argument to be made in support of the constitutional challenge. Providing the notice The party must provide a copy of the notice of constitutional question to the Attorney General of Canada and to the attorney general of every province and territory of Canada, in accordance with section 57 of the Federal Courts Act; a copy of the notice to the other party; and the original notice to the Division, together with a written statement of how and when a copy of the notice was provided under paragraphs (a) and (b). Documents provided under this rule must be received by their recipients no later than 10 days before the day the constitutional argument will be made. Oral representations Representations made by a party must be made orally at the end of a hearing unless the Division orders otherwise. No applicable rule In the absence of a provision in these Rules dealing with a matter raised during the proceedings, the Division may do whatever is necessary to deal with the matter. Powers of the Division The Division may act on its own, without a party having to make an application or request to the Division; change a requirement of a rule; excuse a person from a requirement of a rule; and extend or shorten a time limit, before or after the time limit has passed. Failing to follow a rule Unless proceedings are declared invalid by the Division, a failure to follow any requirement of these Rules does not make the proceedings invalid. Coming into force These Rules come into force on the day on which section 161 of the Act comes into force. [Note: Rules in force June 28, 2002, see SI/2002-97.]