Her Excellency the Governor General in Council, on the recommendation of the Minister of Citizenship and Immigration, under subsection 161(1) a of the Immigration and Refugee Protection Act b, approves the annexed Immigration Appeal Division Rules, 2022, made on October 21, 2022 by the Chairperson of the Immigration and Refugee Board, in consultation with the Deputy Chairpersons. S.C. 2010, c. 8, s. 20 S.C. 2001, c. 27
The Chairperson of the Immigration and Refugee Board, subject to the approval of the Governor in Council, in consultation with the Deputy Chairpersons, makes the annexed Immigration Appeal Division Rules, 2022 under subsection 161(1) a of the Immigration and Refugee Protection Act b.
Ottawa, October 21, 2022
Le président de la Commission de l’immigration et du statut de réfugié, Richard Wex Chairperson of the Immigration and Refugee Board
Definitions
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
with respect to a person other than a Minister’s counsel, the person’s name, postal address and telephone number and, if any, their fax number and email address;
with respect to the Minister’s counsel, their postal address, telephone number and email address and, if any, their fax number; and
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
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.
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.
The Division may
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;
change a requirement of a rule;
excuse a person from a requirement of a rule;
extend or shorten a time limit before it has passed; and
extend any time limit after it has passed.
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
All communication with the Division must be directed to the registry office.
Contact Information
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.
The Minister must provide the contact information of their counsel in writing to the Division and the other party.
The contact information must be received by the Division and the other party
with the notice of appeal, if the party is the appellant; or
no later than 20 days after the day on which the party receives the notice of appeal, if the party is the respondent.
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.
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.
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.
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
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.
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.
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.
Counsel remains counsel of record unless the Division grants the request to be removed.
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.
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.
Counsel ceases to be counsel of record when the Division receives the notice.
Filing an Appeal
To file an appeal of a decision, a person must provide to the Division a notice of appeal together with
in the case of a sponsorship appeal, the officer’s decision and the written reasons, if any, for the refusal;
in the case of a removal order appeal, the removal order; or
in the case of a residency obligation appeal, the officer’s decision and the written reasons, if any, for the decision.
The person may also provide any other information that may assist the Division in resolving the appeal as quickly as possible.
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.
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.
The Immigration Division must provide the notice of appeal and the removal order to the Division without delay.
To file a Minister’s appeal, the Minister must provide a notice of appeal to the respondent, the Immigration Division and the Division.
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.
In the notice of appeal, the Minister must indicate the grounds of the appeal.
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
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;
in the case of a removal order appeal, 30 days after the day on which the appellant receives the removal order;
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
in the case of a Minister’s appeal, 30 days after the day on which the Minister receives the Immigration Division’s decision.
The Division must provide the following documents to the Minister without delay:
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
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.
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.
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
In the case of a sponsorship appeal, the Minister must prepare an appeal record that contains
a table of contents;
the application for a permanent resident visa that was refused;
the sponsorship application and the sponsor’s undertaking;
any document that the Minister has that is relevant to the applications, the reasons for the refusal or any issue in the appeal; and
the written reasons for the refusal, if any.
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 table of contents;
the removal order, if any;
a transcript of the admissibility hearing;
any document accepted as evidence at the admissibility hearing; and
the written reasons, if any, for its decision.
In the case of an appeal of a removal order made at an examination, the Minister must prepare an appeal record that contains
a table of contents;
the removal order;
any document that the Minister has that is relevant to the removal order or to any issue in the appeal; and
any written reasons for the Minister’s decision to make the removal order.
In the case of a residency obligation appeal, the Minister must prepare an appeal record that contains
a table of contents;
any document that the Minister has that is relevant to the decision on the residency obligation or any issue in the appeal; and
the officer’s decision and written reasons, if any, for the decision.
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.
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.
The Immigration Division must provide the appeal record referred to in subrule 20(2) to the parties and the Division.
An appeal record provided under rule 21 must be received no later than
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;
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
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.
If the Division does not receive the appeal record within the time limit set out in rule 22, the Division may
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
schedule and start the hearing and decide the appeal without the appeal record or with only part of the appeal record.
Disclosure of Evidence
If a party wants to use a document in a proceeding, the party must provide the document to the other party and the Division.
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.
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.
Documents provided under subrule 24(1) and the statement provided under subrule 24(2) must be received no later than 60 days after the day on which the party receives the appeal record.
A document that is provided in response to evidence presented by the other party must be received no later than 30 days before the date fixed for the proceeding.
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.
A party who does not meet the time limits set out in rules 26 to 28 in respect of a document may not use the document at the hearing unless the Division allows them to do so.
In deciding whether to allow the party to use the document, the Division must consider any relevant factors, including
the relevance and probative value of the document;
whether the party, with reasonable effort, could have met the time limits set out in rules 26 to 28 in respect of the document;
any prejudice to the other party; and
whether the request to be allowed to use the document was made in a timely manner and the justification for any delay.
If a party does not provide either a document or a written statement within the time limit set out in rule 26, the Division may
if that party is the appellant, determine that the appeal has been abandoned in accordance with subsection 168(1) of the Act;
fix a date and time for the proceeding and start the proceeding on the basis of the materials provided;
suspend the fixing of a date and time for the proceeding until it determines that the appeal is ready to proceed; or
take any other action that it deems appropriate.
Documents
Form and Language of Documents
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.
If a party provides more than one document for use in a proceeding, the documents must
have consecutively numbered pages as if they were one document; and
be accompanied by a list identifying each of the documents.
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.
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.
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
Rules 36 to 41 apply to any document, including a notice, request, application or statement in writing.
A document that is to be provided to the Division must be provided to the registry office that the Division specifies.
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).
A document that is to be provided to the Minister must be provided to the Minister’s counsel.
A document that is to be provided to a person other than the Minister must be provided
to the person’s counsel or, if they do not have counsel, to the person; and
to the person’s designated representative, if any.
A document may be provided
by email or other electronic means, if the Division allows;
by regular or registered mail;
by courier or priority post;
by fax, if the document is no more than 20 pages long or the recipient consents to receiving more than 20 pages; or
by hand.
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).
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.
An electronic document provided by the Division is considered to be the original version of the document.
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.
Any requirement under these Rules that a document be signed is satisfied, in the case of an electronic document, by an electronic signature.
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.
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.
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.
A document provided to the Division is considered to be received
in the case of a paper document, on the date indicated by the date stamp that the registry office places on the document; and
in the case of an electronic document, on the date and at the time indicated by the electronic means used to provide it.
A document that is provided to a party by regular mail is considered to be received seven days after the day it was mailed, or 20 days after the day it was mailed if the document was sent to or from a place outside Canada.
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.
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
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.
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
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
the appeal is against a removal order made at an admissibility hearing and the Immigration Division has designated a representative for the person.
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.
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.
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.
A notice provided under rule 43 or 44 must
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;
indicate the reasons why counsel believes that a representative should be designated; and
be accompanied by any available documents supporting the designation.
When determining whether a person is unable to appreciate the nature of the proceedings, the Division must consider any relevant factors, including
whether the person can understand the reason for the proceeding and can instruct counsel;
the person’s statements and behaviour at the proceeding;
expert evidence, if any, on the person’s intellectual or physical faculties, age or mental condition; and
whether the person has had a representative designated for them for a proceeding in a division other than the Immigration Division.
Before designating a person as a representative, the Division must be satisfied that the person
is 18 years of age or older;
understands the nature of the proceedings;
is willing and able to act in the best interests of the person they are to represent;
does not have interests that conflict with those of the person they are to represent; and
has been informed of the responsibilities of a designated representative and is willing and able to fulfill them.
The responsibilities of a designated representative include
deciding whether to retain counsel and, if counsel is retained, instructing counsel or assisting the represented person in instructing counsel;
making decisions regarding the appeal or assisting the represented person in making those decisions;
informing the represented person about the various stages of the appeal
assisting the represented person in gathering evidence to support their case and in providing evidence and, if necessary, being a witness at the hearing
protecting the interests of the represented person and putting forward the best possible case to the Division; and
informing and consulting the represented person to the extent possible when making decisions about their case.
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.
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.
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
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.
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.
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.
The interpreter must take an oath or make a solemn affirmation to interpret accurately.
Witnesses
Witness Information
A party who wants to call a witness must provide the following information in writing to the other party and the Division:
the witness’s contact information;
a brief statement of the purpose and substance of the witness’s testimony;
the time needed for the witness’s testimony;
the party’s relationship to the witness;
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
in the case of an expert witness,
a description of the expert witness’s qualifications, and
a brief summary of the testimony to be given, signed by the expert witness.
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.
Documents provided under this rule must be received no later than 30 days before the date fixed for the hearing.
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
the reason why the information was not provided;
whether the proposed testimony is relevant and has probative value; and
in the case of a party other than the Minister, whether the party has counsel.
Summons
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.
The Division must consider any relevant factors before deciding to issue a summons, including whether
the testimony of the person is necessary to a full and proper hearing;
the person is able to give the testimony; and
the person has agreed to be summoned as a witness.
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, 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
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.
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).
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.
A party who makes a written request must provide supporting evidence in an accompanying affidavit or statutory declaration.
The Division may issue an arrest warrant only if
the person summoned 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 as determined in accordance with Tariff A of the Federal Courts Rules;
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.
When the Division issues an arrest warrant, the warrant must include directions concerning detention and release.
Notice to Appear
The Division must notify the parties in writing of the date, time and location fixed for any proceeding.
If any changes are made to the date, time or location, the Division must notify the parties in writing without delay.
The hearing must take place at least 30 days after the day on which the parties receive the notice to appear, unless
the hearing has been adjourned or postponed; or
the parties consent to an earlier date.
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.
If a party fails to appear at a proceeding, the Division may
determine that the appeal has been abandoned in accordance with subsection 168(1) of the Act;
hold the proceeding in the absence of the party;
prohibit the party from presenting further evidence, questioning witnesses, or making submissions to the Division;
decide the issues in the proceeding on the basis of the evidence provided; or
take any other action that it considers appropriate.
Appeal
Informal Resolution Process
The Division may require the parties to participate in an informal resolution process in order to encourage them to resolve an appeal without a hearing.
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
participate in good faith;
follow the directions given by the Division with respect to the process, including the manner of participation; and
provide to each other and to the Division any document that the Division requires them to prepare or provide.
If a document has been provided to the other party and the Division under paragraph (1)(c) for the purpose of an informal resolution process, it is deemed to have been provided in accordance with rule 26 for the rest of the appeal.
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
the information could be obtained in a way that is not part of the informal resolution process;
the matter relates to an offence under the Act or a breach of these Rules; or
the person who gave the information agrees to its disclosure.
A document provided for the purposes of an informal resolution process, including an ADR conference, is not confidential and may be used for the rest of the appeal.
Disclosure under paragraph 66(b) may be made only to the authorities responsible for enforcement of the Act or these Rules.
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 statement of the reasons the party believes the appeal can be resolved through such a conference.
The party must provide the request made under subrule (1) to the other party.
The Division must assign a member of the Division or an employee of the Board as ADR conference facilitator.
A member of the Division who facilitates an ADR conference must not hear the appeal, unless the parties agree.
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.
The agreement is not confidential.
Conferences
The Division may, on its own initiative or on receipt of a request made by a party, require the parties to participate in a conference, other than an ADR conference, to
try to resolve some or all of the issues;
narrow the issues in order to simplify the hearing;
discuss issues, relevant facts and any other matter that would make the appeal as fair and efficient as possible; and
give information to help the Division fix a date for the proceeding.
The Division may require the parties to provide any information or document at or before the conference.
The Division must make a written record of any decision or agreement made at a conference.
Conduct of a Hearing
The Division must, in any hearing before it, give the parties the opportunity to present evidence, question witnesses and make submissions.
Taking into account the nature and complexity of the issues and the relevance of the evidence, the Division may
narrow the issues to be addressed at the hearing, including by identifying facts that are not in dispute;
establish the order in which the issues are to be addressed;
direct and limit the evidence to be presented; and
limit the number and the length of questioning of witnesses.
The Division may question any witness at any point during the hearing.
The Division may notify the parties if additional evidence or witnesses are likely to assist the Division in deciding the appeal.
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.
Submissions must be made orally at the end of a hearing unless the Division orders otherwise.
After all the evidence has been heard, the Division may
set time limits for submissions, taking into account the complexity of the issues and the amount of relevant evidence heard; and
indicate what issues need to be addressed in the submissions.
Proceeding in Writing
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.
The Division may make a decision in a proceeding in writing without being provided with the appeal record under rule 21.
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
If the Division has stayed a removal order, a party who makes an application to reconsider the appeal
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
must provide with their application a written statement indicating whether the conditions of the stay have been complied with.
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.
If the Division reconsiders an appeal on its own initiative under subsection 68(3) of the Act, it must notify the parties in writing.
Each party 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.
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
the name of the person convicted;
the date and place of conviction;
the offence and the relevant provision of an Act of Parliament; and
if the offence is not punishable by a maximum term of imprisonment of at least 10 years, the term of imprisonment that was imposed.
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.
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.
A party responding to a notice provided under rule 80 must respond in accordance with rule 86.
Applications
General
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 in accordance with rule 85;
a party who wants to respond to the application must respond in accordance with rule 86; and
a party who wants to reply to a response must reply in accordance with rule 87.
Making an Application
Unless these Rules provide otherwise, an application must be made in writing without delay.
In the application, the party must
state what decision the party wants the Division to make;
give reasons why the Division should make that decision; and
if the views of the other party are known, state whether the other party agrees to the application.
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.
A party who makes a written application must provide
to the other party, the application and any accompanying affidavit or statutory declaration; and
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.
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
A response to a written application must be in writing, state what decision the party wants the Division to make and give reasons why the Division should make that decision.
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.
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.
A party who responds to a written application must provide
to the other party, the response and any accompanying affidavit or statutory declaration; and
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.
Documents provided under subrule (4) must be received no later than seven days after the party receives the application.
A reply to a written response must be in writing.
Subrules 86(2) to (4) apply to the reply.
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
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).
Documents provided under this rule must be received no later than 30 days before the date fixed for the proceeding.
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.
In deciding the application for a change of location, the Division must consider any relevant factors, including
whether the party resides in the location where they request that the proceeding be held;
whether a change of location would allow the appeal to be full and proper;
whether a change of location would likely delay the proceeding;
how a change of location would affect the parties;
whether a change of location is necessary to accommodate the vulnerabilities of a person;
whether a hearing may be conducted by a means of live telecommunication with the parties; and
the operational requirements of the Division.
Changing Date or Time
A party who makes an application to the Division to change the date or time of a proceeding must make the application in accordance with rule 85, but is not required to provide an accompanying affidavit or statutory declaration under subrule 85(3).
The application must
be received by the Division at least three working days before the date fixed for the proceeding, unless the application is made for medical reasons or other emergencies, in which case it must be made without delay; and
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.
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.
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.
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.
The Division may allow the application only if it determines that there are exceptional circumstances and must take into consideration any relevant factors including
whether the application was made in a timely manner and, if it was not, the justification for the delay;
any previous change in the date or time of the proceeding;
the rights and interests of the parties;
the need to change the date or time of the proceeding to accommodate the vulnerabilities of a person;
the nature and complexity of the matter to be heard; and
the operational requirements of the Division.
If the party made a previous application to change the date or time of a proceeding and that application was denied, the Division must consider the reasons for the denial and may allow the subsequent application only if the subsequent application is based on exceptional circumstances supported by new evidence.
Proceeding Conducted in Absence of the Public
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.
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.
A person who is allowed by the Division to respond to the application must respond in accordance with rule 86.
The Division may take any measures it considers necessary to ensure the confidentiality of the application.
An application made under this rule must be received no later than 20 days before the date fixed for the proceeding.
Withdrawing an Appeal
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.
If no substantive evidence has been accepted in the appeal, withdrawal of the appeal is not an abuse of process.
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.
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
An appellant may apply to the Division to reinstate an appeal that was withdrawn.
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.
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.
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
An application to reopen an appeal must be made in accordance with rule 85 and must include
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
in the case of an application made by the Minister, the contact information of the Minister’s counsel.
If a party other than the Minister alleges in their application that their former counsel provided inadequate representation, the party must provide the application
to their former counsel before providing it to the Division; and
to the Division, accompanied by a written statement indicating how and when it was provided to their former counsel.
In deciding the application to reopen an appeal, the Division must consider any relevant factors, including
whether the application was made in a timely manner and, if not, the justification for the delay; and
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.
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.
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
A party who wants to challenge the constitutional validity, applicability or operability of a legislative provision must complete a notice of constitutional question.
The notice must be completed using Form 69 of the Federal Courts Rules or any other form that sets out
the party’s name;
the Division file number;
the date, time and location of the hearing;
the specific legislative provision that is being challenged;
the material facts relied on to support the constitutional challenge; and
a summary of the legal argument to be made in support of the constitutional challenge.
The party must provide the notice to
the Attorney General of Canada and the attorney general of every province, in accordance with section 57 of the Federal Courts Act;
the other party; and
the Division.
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.
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
When the Division makes a decision, other than an interlocutory decision, it must provide a written notice of decision to the parties.
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.
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.
A decision, other than an interlocutory decision, takes effect
if it is made in writing
by a single member, when the member signs and dates the reasons for the decision; or
by a panel of three members, when all of the members of the panel sign and date their reasons for the decision; and
if it is given orally at a hearing
by a single member, when the member states the decision and gives the reasons; or
by a panel of three members, when all of the members of the panel state their decision and give their reasons.
Transitional Provisions
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.
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.
Subrule 20(4) of the Immigration Appeal Division Rules, as they read immediately before the day on which these Rules come into force, continues to apply to any confidential information, statement or document given in an ADR conference for which the date of the notice to appear is before that day.
If an appeal is filed before the day on which these Rules come into force,
the statement referred to in subrule 24(2) of these Rules is not required in respect of the appeal; and
the time limits for providing or receiving documents set out in subrules 30(3) and (4) and 37(3) of the Immigration Appeal Division Rules, as they read immediately before that day, continue to apply.
Repeal
The Immigration Appeal Division Rules 1 are repealed. SOR/2002-230
Coming into Force
These Rules come into force on the 30th day after the day on which they are registered.
Information and Written Statements — Counsel not Representing or Advising for Consideration
Board division and file number.
Name of counsel who is representing or advising the party other than the Minister and who is not receiving consideration for those services.
Name of counsel’s firm or organization, if applicable, and counsel’s email address, telephone number and postal address.
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.
Written statement signed by the party other than the Minister that the counsel who is representing or advising the party is not receiving consideration.
Written statement signed by counsel that they are not receiving consideration for representing or advising the party other than the Minister.