Refugee Protection Division

Marginal note:Proceedings

170. The Refugee Protection Division, in any proceeding before it,

• (a) may inquire into any matter that it considers relevant to establishing whether a claim is well-founded;

• (b) must hold a hearing;

• (c) must notify the person who is the subject of the proceeding and the Minister of the hearing;

• (d) must provide the Minister, on request, with the documents and information referred to in subsection 100(4);

• (e) must give the person and the Minister a reasonable opportunity to present evidence, question witnesses and make representations;

• (f) may, despite paragraph (b), allow a claim for refugee protection without a hearing, if the Minister has not notified the Division, within the period set out in the rules of the Board, of the Minister’s intention to intervene;

• (g) is not bound by any legal or technical rules of evidence;

• (h) may receive and base a decision on evidence that is adduced in the proceedings and considered credible or trustworthy in the circumstances; and

• (i) may take notice of any facts that may be judicially noticed, any other generally recognized facts and any information or opinion that is within its specialized knowledge.

Refugee Appeal Division

Marginal note:Proceedings

171. In the case of a proceeding of the Refugee Appeal Division,

• (a) the Minister may, after giving notice within the period that is required by the rules, intervene in the appeal, including for the purpose of filing submissions;

• (b) the Division may take notice of any facts that may be judicially noticed and of any other generally recognized facts and any information or opinion that is within its specialized knowledge; and

• (c) a decision of a panel of three members of the Refugee Appeal Division has, for the Refugee Protection Division and for a panel of one member of the Refugee Appeal Division, the same precedential value as a decision of an appeal court has for a trial court.

Immigration Division

Marginal note:Composition

• 172. (1) The Immigration Division consists of the Director General and other directors and members necessary to carry out its functions and who are employed in accordance with the Public Service Employment Act.

• Marginal note:Powers

  (2) The Director General and the directors of the Immigration Division have all the powers and may carry out the duties and functions of members of the Division.

Marginal note:Proceedings

173. The Immigration Division, in any proceeding before it,

• (a) must, where practicable, hold a hearing;

• (b) must give notice of the proceeding to the Minister and to the person who is the subject of the proceeding and hear the matter without delay;

• (c) is not bound by any legal or technical rules of evidence; and

• (d) may receive and base a decision on evidence adduced in the proceedings that it considers credible or trustworthy in the circumstances.

Immigration Appeal Division

Marginal note:Court of record

• 174. (1) The Immigration Appeal Division is a court of record and shall have an official seal, which shall be judicially noticed.

• Marginal note:Powers

  (2) The Immigration Appeal Division has all the powers, rights and privileges vested in a superior court of record with respect to any matter necessary for the exercise of its jurisdiction, including the swearing and examination of witnesses, the production and inspection of documents and the enforcement of its orders.

Marginal note:Proceedings

• 175. (1) The Immigration Appeal Division, in any proceeding before it,

  • (a) must, in the case of an appeal under subsection 63(4), hold a hearing;

  • (b) is not bound by any legal or technical rules of evidence; and

  • (c) may receive and base a decision on evidence adduced in the proceedings that it considers credible or trustworthy in the circumstances.

• Marginal note:Presence of permanent resident

  (2) In the case of an appeal by a permanent resident under subsection 63(4), the Immigration Appeal Division may, after considering submissions from the Minister and the permanent resident and if satisfied that the presence of the permanent resident at the hearing is necessary, order the permanent resident to physically appear at the hearing, in which case an officer shall issue a travel document for that purpose.

Remedial and Disciplinary Measures

Marginal note:Request

• 176. (1) The Chairperson may request the Minister to decide whether any member, except a member of the Immigration Division, should be subject to remedial or disciplinary measures for a reason set out in subsection (2).

• Marginal note:Reasons

  (2) The request is to be based on the reason that the member has become incapacitated from the proper execution of that office by reason of infirmity, has been guilty of misconduct, has failed in the proper execution of that office or has been placed, by conduct or otherwise, in a position that is incompatible with due execution of that office.

Marginal note:Measures

177. On receipt of the request, the Minister may take one or more of the following measures:

• (a) obtain, in an informal and expeditious manner, any information that the Minister considers necessary;

• (b) refer the matter for mediation, if the Minister is satisfied that the issues in relation to the request may be appropriately resolved by mediation;

• (c) request of the Governor in Council that an inquiry be held under section 178; or

• (d) advise the Chairperson that the Minister considers that it is not necessary to take further measures under this section or sections 178 to 185.

Marginal note:Appointment of inquirer

178. On receipt of a request referred to in paragraph 177(c), the Governor in Council may, on the recommendation of the Minister of Justice, appoint a judge of a superior court to conduct an inquiry.

Marginal note:Powers

179. The judge has all the powers, rights and privileges that are vested in a superior court, including the power

• (a) to issue a summons requiring any person to appear at the time and place mentioned in the summons to testify about all matters within that person’s knowledge relative to the inquiry and to produce any document or thing relative to the inquiry that the person has or controls; and

• (b) to administer oaths and examine any person on oath.

Marginal note:Staff

180. The judge may engage the services of counsel and other persons having technical or specialized knowledge to assist the judge in conducting the inquiry, establish the terms and conditions of their engagement and, with the approval of the Treasury Board, fix and pay their remuneration and expenses.

Marginal note:Exceptions to public hearing

• 181. (1) An inquiry must be held in public. However, the judge may, on application, take any appropriate measures and make any order that the judge considers necessary to ensure the confidentiality of the inquiry if, after having considered all available alternate measures, the judge is satisfied that there is

  • (a) a real and substantial risk that matters involving public security will be disclosed;

  • (b) a real and substantial risk to the fairness of the inquiry such that the need to prevent disclosure outweighs the societal interest that the inquiry be conducted in public; or

  • (c) a serious possibility that the life, liberty or security of a person will be endangered.

• Marginal note:Confidentiality of application

  (2) If the judge considers it appropriate, the judge may take any measures and make any order that the judge considers necessary to ensure the confidentiality of a hearing held in respect of an application under subsection (1).

Marginal note:Rules of evidence

• 182. (1) In conducting an inquiry, the judge is not bound by any legal or technical rules of evidence and may receive, and base a decision on, evidence presented in the proceedings that the judge considers credible or trustworthy in the circumstances of the case.

• Marginal note:Intervenors

  (2) An interested party may, with leave of the judge, intervene in an inquiry on any terms and conditions that the judge considers appropriate.

Marginal note:Right to be heard

183. The member who is the subject of the inquiry shall be given reasonable notice of the subject-matter of the inquiry and of the time and place of any hearing and shall be given an opportunity, in person or by counsel, to be heard at the hearing, to cross-examine witnesses and to present evidence.

Marginal note:Report to Minister

• 184. (1) After an inquiry has been completed, the judge must submit a report containing the judge’s findings and recommendations, if any, to the Minister.

• Marginal note:Recommendations

  (2) The judge may, for any of the reasons set out in subsection 176(2), recommend in the report that the member be suspended without pay or removed from office or that any other disciplinary measure or any remedial measure be taken.

Marginal note:Transmission of report to Governor in Council

185. If the Minister receives a report of an inquiry in which the judge makes a recommendation, the Minister shall send the report to the Governor in Council who may, if the Governor in Council considers it appropriate, suspend the member without pay, remove the member from office or impose any other disciplinary measure or any remedial measure.

Marginal note:Rights not affected

186. Nothing in sections 176 to 185 affects any right or power of the Governor in Council in relation to the removal of a member from office for cause.

PART 5TRANSITIONAL PROVISIONS, CONSEQUENTIAL AND RELATED AMENDMENTS, COORDINATING AMENDMENTS, REPEALS AND COMING INTO FORCE

Transitional Provisions

Marginal note:Definition of “former Act”

187. For the purposes of sections 188 to 201, “former Act” means the Immigration Act, chapter I-2 of the Revised Statutes of Canada, 1985, and, where applicable, the regulations and rules made under it.

Marginal note:Continuation

• 188. (1) The Immigration and Refugee Board continued by section 57 of the former Act is hereby continued.

• Marginal note:Chairperson, Deputy Chairpersons, Assistant Deputy Chairpersons

  (2) The Chairperson, Deputy Chairpersons and Assistant Deputy Chairpersons appointed under the former Act continue in the same capacity with the Board until the expiry or revocation of their respective appointments.

• Marginal note:Continuation — members

  (3) A member appointed under the former Act to the Convention Refugee Determination Division or the Immigration Appeal Division continues in office as a member of the Board until the expiry or revocation of their appointment.

• Marginal note:Executive Director

  (4) The person who, on the coming into force of this section, held the office of Executive Director of the Board is deemed to have been appointed to that office under section 158, without prejudice to any salary and benefits he or she may receive by virtue of having held that office before that coming into force.