Immigration Appeal Division Rules (SOR/2002-230)

Regulations are current to 2017-10-13

Immigration Appeal Division Rules

SOR/2002-230

IMMIGRATION AND REFUGEE PROTECTION ACT

Registration 2002-06-11

Immigration Appeal Division Rules

P.C. 2002-1000  2002-06-11

The Chairperson of the Immigration and Refugee Board, pursuant to subsection 161(1) of the Immigration and Refugee Protection ActFootnote a 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 Appeal 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 ActFootnote a, hereby approves the annexed Immigration Appeal 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.

Definitions

Marginal note:Definitions

 The following definitions apply in these Rules.

Act

Loi

Act means the Immigration and Refugee Protection Act. (Loi)

appellant

appelant

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

contact information

coordonnées

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)

Division

Section

Division means the Immigration Appeal Division. (Section)

officer

agent

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

party

partie

party means the appellant or the respondent. (partie)

proceeding

procédure

proceeding includes a hearing, a conference, an application or an alternative dispute resolution process. (procédure)

registry office

greffe

registry office means a business office of the Division. (greffe)

respondent

intimé

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 proceeding. (intimé)

Communicating with the Division

Marginal note:Communicating with the Division

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

Appeal by a Sponsor

Marginal note:Notice of appeal
  •  (1) A person who has filed an application to sponsor a foreign national as a member of the family class and who wants to appeal a decision not to issue a permanent resident visa to the foreign national must provide to the Division a notice of appeal and the officer’s written reasons for the refusal.

  • Marginal note:Time limit

    (2) The notice of appeal and the written reasons for refusal must be received by the Division no later than 30 days after the appellant received the written reasons for the refusal.

  • Marginal note:Documents provided to the Minister

    (3) The Division must provide the notice of appeal and the written reasons for the refusal to the Minister without delay.

Marginal note:Appeal record
  •  (1) 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 application for sponsorship and the sponsor’s undertaking;

    • (d) any document that the Minister has that is relevant to the applications, to the reasons for the refusal or to any issue in the appeal; and

    • (e) the written reasons for the refusal.

  • Marginal note:Providing the appeal record

    (2) The Minister must provide the appeal record to the appellant and the Division.

  • Marginal note:Proof that record was provided

    (3) The Minister must provide to the Division, together with the appeal record, a written statement of how and when the appeal record was provided to the appellant.

  • Marginal note:Time limit

    (4) Documents provided under this rule must be received by their recipients no later than 120 days after the Minister received the notice of appeal.

  • Marginal note:Late appeal record

    (5) If the Division does not receive the appeal record within the time limit set out in subrule (4), the Division may

    • (a) ask the Minister to explain, orally or in writing, why the appeal record was not provided on time and to give reasons why the appeal record should be accepted late; or

    • (b) schedule and start the hearing without the appeal record or with only part of the appeal record.

Appeal from a Removal Order Made at an Admissibility Hearing

Marginal note:Notice of appeal
  •  (1) If a foreign national who holds a permanent resident visa, a permanent resident, or a protected person wants to appeal a removal order made at an admissibility hearing, they must provide a notice of appeal

    • (a) by hand to the Immigration Division member who made the removal order; or

    • (b) to the Immigration Appeal Division, together with the removal order.

  • Marginal note:Time limit — Immigration Division member

    (2) An appellant who provides a notice of appeal to an Immigration Division member must provide the notice at the end of the admissibility hearing. The Immigration Division must provide the notice to the Immigration Appeal Division without delay.

  • Marginal note:Time limit — Immigration Appeal Division

    (3) If an appellant provides a notice of appeal to the Immigration Appeal Division, the notice of appeal and the removal order must be received by the Division no later than 30 days after the appellant received the removal order. The Immigration Appeal Division must provide the notice to the Immigration Division without delay.

  • Marginal note:Documents provided to the Minister

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

Marginal note:Appeal record
  •  (1) The Immigration Division must prepare an appeal record that contains

    • (a) a table of contents;

    • (b) the removal order;

    • (c) a transcript of the admissibility hearing;

    • (d) any document accepted as evidence at the admissibility hearing; and

    • (e) any written reasons for the Immigration Division’s decision to make the removal order.

  • Marginal note:Providing the appeal record

    (2) The Immigration Division must provide the appeal record to the appellant, the Minister and the Immigration Appeal Division.

  • Marginal note:Time limit

    (3) The appeal record must be received by its recipients no later than 45 days after the Immigration Division received the notice of appeal.

Appeal from a Removal Order Made at an Examination

Marginal note:Notice of appeal
  •  (1) If a foreign national who holds a permanent resident visa, a permanent resident, or a protected person wants to appeal a removal order made at an examination, they must provide a notice of appeal to the Division together with the removal order.

  • Marginal note:Time limit

    (2) The notice of appeal and the removal order must be received by the Division no later than 30 days after the appellant received the removal order.

  • Marginal note:Documents provided to Minister

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

Marginal note:Appeal record
  •  (1) 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

    • (e) any written reasons for the Minister’s decision to make the removal order.

  • Marginal note:Providing the appeal record

    (2) The Minister must provide the appeal record to the appellant and the Division.

  • Marginal note:Proof that record was provided

    (3) The Minister must provide to the Division, together with the appeal record, a written statement of how and when the appeal record was provided to the appellant.

  • Marginal note:Time limit

    (4) Documents provided under this rule must be received by their recipients no later than 45 days after the Minister received the notice of appeal.

  • Marginal note:Late appeal record

    (5) If the Division does not receive the appeal record within the time limit set out in subrule (4), the Division may

    • (a) ask the Minister to explain, orally or in writing, why the appeal record was not provided on time and to give reasons why the appeal record should be accepted late; or

    • (b) schedule and start the hearing without the appeal record or with only part of the appeal record.

Appeal from a Decision Made Outside Canada on the Residency Obligation

Marginal note:Notice of appeal
  •  (1) If a permanent resident wants to appeal a decision made outside Canada on the residency obligation, the permanent resident must provide to the Division a notice of appeal and the officer’s written decision. The documents must be provided to the Division registry office for the region in Canada where the appellant last resided.

  • Marginal note:Return to Canada

    (2) If the appellant wants to return to Canada for the hearing of the appeal, the appellant must state this in the notice of appeal.

  • Marginal note:Time limit

    (3) The notice of appeal and the written decision must be received by the Division no later than 60 days after the appellant received the written decision.

  • Marginal note:Documents provided to the Minister

    (4) The Division must provide the notice of appeal and the written decision to the Minister without delay.

Marginal note:Appeal record
  •  (1) 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 written decision and written reasons.

  • Marginal note:Providing the appeal record

    (2) The Minister must provide the appeal record to the appellant and the Division.

  • Marginal note:Proof that record was provided

    (3) The Minister must provide to the Division, together with the appeal record, a written statement of how and when the appeal record was provided to the appellant.

  • Marginal note:Time limit

    (4) Documents provided under this rule must be received by their recipients no later than 120 days after the Minister received the notice of appeal.

  • Marginal note:Late appeal record

    (5) If the Division does not receive the appeal record within the time limit set out in subrule (4), the Division may

    • (a) ask the Minister to explain, orally or in writing, why the appeal record was not provided on time and to give reasons why the appeal record should be accepted late; or

    • (b) schedule and start the hearing without the appeal record or with only part of the appeal record.

Appeal by the Minister from a Decision of the Immigration Division in an Admissibility Hearing

Marginal note:Notice of appeal
  •  (1) If the Minister wants to appeal a decision of the Immigration Division in an admissibility hearing, the Minister must provide a notice of appeal to the respondent, the Immigration Division and the Immigration Appeal Division.

  • Marginal note:Proof that document was provided

    (2) The Minister must provide to the Immigration Appeal Division, together with the notice of appeal, a written statement of how and when the notice of appeal was provided to the respondent and the Immigration Division.

  • Marginal note:Time limit

    (3) Documents provided under this rule must be received by their recipients no later than 30 days after the Immigration Division decision was made.

Marginal note:Appeal record
  •  (1) The Immigration Division must prepare an appeal record that contains

    • (a) a table of contents;

    • (b) the Immigration Division decision;

    • (c) a transcript of the admissibility hearing;

    • (d) any document accepted as evidence at the admissibility hearing; and

    • (e) any written reasons for the Immigration Division decision.

  • Marginal note:Providing the appeal record

    (2) The Immigration Division must provide the appeal record to the respondent, the Minister and the Immigration Appeal Division.

  • Marginal note:Time limit

    (3) The appeal record must be received by its recipients no later than 45 days after the Immigration Division received the notice of appeal.

Contact Information

Marginal note:Contact information for the subject of the appeal
  •  (1) A person who is the subject of an appeal must provide their contact information in writing to the Division and the Minister.

  • Marginal note:Time limit

    (2) The contact information must be received by the Division and the Minister

    • (a) with the notice of appeal, if the person is the appellant; and

    • (b) no later than 20 days after the person received a notice of appeal, if the Minister is the appellant.

  • Marginal note:Counsel’s contact information

    (3) A person who is represented by counsel must, on obtaining counsel, provide without delay the counsel’s contact information in writing to the Division and the Minister.

  • Marginal note:Change to contact information

    (4) If the contact information of the person or their counsel changes, the person must without delay provide the changes in writing to the Division and the Minister.

Counsel of Record

Marginal note:Becoming counsel of record

 As soon as counsel for a person who is the subject of an appeal agrees to a date for a proceeding, or becomes counsel after a date for a proceeding has been fixed, the counsel becomes counsel of record for the person.

Marginal note:Request to be removed as counsel of record
  •  (1) To be removed as counsel of record, counsel must make a request in writing to the Division and provide a copy of the request to the person represented and the Minister.

  • Marginal note:Request received two days or less before proceeding

    (2) If counsel’s request is received by the recipients two working days or less before the date of a proceeding, counsel must appear at the proceeding and make the request orally.

Marginal note:Removing counsel of record
  •  (1) To remove counsel as counsel of record, the person who is the subject of the appeal must provide written notice to the Division, to counsel and to the Minister that counsel is no longer the person’s counsel.

  • Marginal note:Ceasing to be counsel of record

    (2) Counsel is no longer counsel of record when the Division receives the notice.

Language of the Appeal

Marginal note:Choice of language
  •  (1) A person who is the subject of an appeal must choose English or French as the language of the appeal. If the person is appealing, the person must indicate their choice in the notice of appeal. If the Minister is appealing, the person must notify the Division and the Minister of their choice in writing. The notice must be received by the Division and by the Minister no later than 20 days after the person received the notice of appeal.

  • Marginal note:Changing the choice of language

    (2) A person who is the subject of an appeal may change the choice of language by notifying the Division and the Minister in writing. The notice must be received by the Division and the Minister no later than 20 days before the next proceeding.

Marginal note:Need for an interpreter
  •  (1) 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 no later than 20 days before the proceeding.

  • Marginal note:Interpreter’s oath

    (2) The interpreter must take an oath or make a solemn affirmation to interpret accurately.

Designated Representative

Marginal note:Duty of counsel to notify
  •  (1) If counsel for either party believes that the Division should designate a representative for the person who is the subject of the appeal because they are under 18 years of age or unable to appreciate the nature of the proceedings, counsel must without delay notify the Division 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.

  • Marginal note:Requirements for being designated

    (2) To be designated as a representative, a person must

    • (a) be 18 years of age or older;

    • (b) understand the nature of the proceedings;

    • (c) be willing and able to act in the best interests of the person to be represented; and

    • (d) not have interests that conflict with those of the person to be represented.

Proceedings in an Appeal

Alternative Dispute Resolution Process

Marginal note:Participation in the alternative dispute resolution process
  •  (1) The Division may require the parties to participate in an alternative dispute resolution process in order to encourage the parties to resolve an appeal without a hearing.

  • Marginal note:Dispute resolution officer

    (2) The Division must assign a member of the Division or any other person to act as a dispute resolution officer for an appeal that uses the alternative dispute resolution process. A member who acts as a dispute resolution officer for an appeal must not hear that appeal.

  • Marginal note:Obligations of parties and counsel

    (3) The parties and their counsel must

    • (a) participate in the alternative dispute resolution process in good faith;

    • (b) follow the directions given by the Division with respect to the process, including the manner of participation;

    • (c) disclose to each other and the Division any document to be relied on in the process, and any document that the Division requires to be prepared or disclosed; and

    • (d) be prepared as a party, or have authority as counsel, to resolve the appeal.

  • Marginal note:Confidentiality

    (4) Any information, statement or document that any person gives in an alternative dispute resolution process is confidential. It must not be disclosed later in the appeal or made public unless

    • (a) it was obtained in a way that was not part of the alternative dispute resolution process;

    • (b) it relates to an offence under the Act, or a breach of these Rules; or

    • (c) the person who gave the information, statement or document agrees to its disclosure.

  • Marginal note:Agreement

    (5) An agreement to resolve an appeal that is reached through the alternative dispute resolution process must be in writing, signed by the parties or their counsel and approved by the Division. An agreement to resolve an appeal is not confidential under subrule (4).

Conference

Marginal note:Requirement to participate at a conference
  •  (1) The Division may require the parties to participate at a conference to discuss issues, relevant facts and any other matter that would make the appeal more fair and efficient.

  • Marginal note:Information or documents

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

  • Marginal note:Written record

    (3) The Division must make a written record of any decision or agreement made at the conference.

Fixing a Date for a Proceeding

Marginal note:Fixing a date

 The Division may require the parties to participate in a scheduling conference or otherwise give information to help the Division fix a date for a proceeding.

Notice to Appear

Marginal note:Notice to appear

 The Division must notify the parties of the date, time and location of a proceeding.

Subject of an Appeal in Custody

Marginal note:Custody

 The Division may order a person who holds a person who is the subject of an appeal in custody to bring the person in custody to a proceeding at the location specified by the Division.

Proceeding in Writing

Marginal note:Proceeding in writing
  •  (1) Instead of holding a hearing, the Division may require the parties to proceed in writing if this would not be unfair to any party and there is no need for the oral testimony of a witness.

  • Marginal note:Exception

    (2) Subsection (1) does not apply to an appeal against a decision made outside Canada on the residency obligation.

Stay of Removal Order

Marginal note:Application to reconsider an appeal
  •  (1) If the Division has stayed a removal order, a party who makes an application to the Division to reconsider the appeal must

    • (a) follow rule 43, but the party is not required to give evidence in an affidavit or statutory declaration; and

    • (b) provide with their application a written statement of whether the subject of the appeal has complied with the conditions of the stay.

  • Marginal note:Response

    (2) The other party must respond to the application and provide with their response a written statement of whether the subject of the appeal has complied with the conditions of the stay.

  • Marginal note:Reconsideration on Division’s own initiative

    (3) If the Division reconsiders an appeal on its own initiative, the Division must notify the parties. The parties must provide to the Division and each other, within the time period specified by the Division, a written statement of whether the subject of the appeal has complied with the conditions of the stay.

Marginal note:Notice requirement — cancellation of stay
  •  (1) If a stay of removal is cancelled under subsection 68(4) of the Act, the Minister must provide the Division and the subject of the appeal with written notice of the cancellation.

  • Marginal note:Content of notice

    (2) In the notice, the Minister must state

    • (a) the name of the person convicted;

    • (b) the date and place of conviction;

    • (c) the offence and 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.

  • Marginal note:Proof that document was provided

    (3) The Minister must provide to the Division, together with the written notice, a written statement of how and when the notice was provided to the subject of the appeal.

Documents

Form and Language of Documents

Marginal note:Documents prepared by party
  •  (1) 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.

  • Marginal note:Photocopies

    (2) 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.

  • Marginal note:Numbered documents

    (3) A party must number consecutively each document provided by the party.

  • Marginal note:List of documents

    (4) If more than one document is provided, the party must provide a list of the documents and their numbers.

Marginal note:Language of documents — subject of the appeal
  •  (1) All documents used at a proceeding by a person who is the subject of an appeal must be in English or French or, if in another language, be provided with an English or French translation and a translator’s declaration.

  • Marginal note:Language of documents — Minister

    (2) All documents used by the Minister at a proceeding must be in the language of the appeal, or be provided with a translation and the translator’s declaration.

  • Marginal note:Translator’s declaration

    (3) 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

Marginal note:Disclosure of documents by a party
  •  (1) If a party wants to use a document at a hearing, the party must provide a copy to the other party and the Division.

  • Marginal note:Proof that document was provided

    (2) Together with the copy provided to the Division, the party must provide a written statement of how and when a copy was provided to the other party.

  • Marginal note:Time limit — general

    (3) Subject to subrule (4), documents provided under this rule must be received by the Division and the other party

    • (a) no later than 20 days before the hearing; or

    • (b) if the document is provided to respond to another document provided by the other party, no later than 10 days before the hearing.

  • Marginal note:Time limit — medical documents

    (4) A medical document provided in an appeal based on inadmissibility on health grounds must be received by the Division and the other party no later than 60 days before the hearing or, if the document is provided to respond to another medical document, no later than 30 days before the hearing.

Marginal note:Use of undisclosed documents

 A party who does not provide a document as required by rule 30 may not use the document at the hearing unless allowed by the Division.

Providing a Document

Marginal note:General provision

 Rules 33 to 36 apply to any document, including a notice or request in writing.

Marginal note:Providing documents to the Division
  •  (1) A document provided to the Division must be provided to the registry office specified by the Division.

  • Marginal note:Providing documents to the Minister

    (2) A document provided to the Minister must be provided to the Minister’s counsel.

  • Marginal note:Providing documents to the subject of an appeal

    (3) A document provided to a person who is the subject of an appeal must be provided to the person or, if the person has counsel, to their counsel.

Marginal note:How to provide a document

 A document can be provided in any of the following ways:

  • (a) by hand;

  • (b) by regular mail or registered mail;

  • (c) by courier or priority post;

  • (d) 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

  • (e) by electronic mail if the Division allows.

Marginal note:If document cannot be provided under rule 34
  •  (1) If a party is unable to provide a document in a way required by rule 34, 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.

  • Marginal note:Form of application

    (2) The application must be made under rule 43.

  • Marginal note:Factor

    (3) The Division may allow the application if the party has made reasonable efforts to provide the document to the other party.

Marginal note:When a document is considered received by the Division
  •  (1) A document provided to the Division is considered to be received by the Division on the day the document is date stamped by the Division.

  • Marginal note:When a document sent by regular mail is considered received by a party

    (2) A document sent to a party by regular mail is considered to be received seven days after the day it was mailed. A document sent to a party by regular mail to or from a place outside Canada is considered to be received 20 days after the day it was mailed. If the seventh day or the twentieth day, as the case may be, is a Saturday, Sunday or statutory holiday, the document is considered to be received on the next working day.

Witnesses

Marginal note:Providing witness information
  •  (1) 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:

    • (a) the witness’s contact information;

    • (b) the time needed for the witness’s testimony;

    • (c) the party’s relationship to the witness;

    • (d) whether the party wants the witness to testify by videoconference or telephone; and

    • (e) in the case of an expert witness, a report signed by the expert witness giving their qualifications and summarizing their evidence.

  • Marginal note:Proof that document was provided

    (2) The witness information must be provided to the Division together with a written statement of how and when it was provided to the other party.

  • Marginal note:Time limit

    (3) Documents provided under this rule must be received by their recipients no later than 20 days before the hearing.

  • Marginal note:Failure to provide witness information

    (4) If a party does not provide the witness information as required under this rule, the witness may not testify at the hearing unless the Division allows the witness to testify.

Marginal note:Requesting a summons
  •  (1) A party who wants the Division to order a person to testify at a hearing must make a request to the Division for a summons, either orally at a proceeding or in writing.

  • Marginal note:Factors

    (2) In deciding whether to issue a summons, the Division must consider any relevant factors, including

    • (a) the necessity of the testimony to a full and proper hearing;

    • (b) the ability of the person to give that testimony; and

    • (c) whether the person has agreed to be summoned as a witness.

  • Marginal note:Using the summons

    (3) If a party wants 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 with a written statement of how and when the summons was provided; and

    • (c) 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.

Marginal note:Cancelling a summons
  •  (1) If a person summoned to appear as a witness at a proceeding wants the summons cancelled, the person must make an application in writing to the Division.

  • Marginal note:Application

    (2) The person must follow rule 43, but is not required to provide an affidavit or statutory declaration with the application.

Marginal note:Arrest warrant
  •  (1) If a person does not obey a summons to appear, the party who requested the summons may make a request to the Division orally at a hearing, or in writing, to issue a warrant for the arrest of the person.

  • Marginal note:Written request

    (2) A party who makes a written request for a warrant must provide supporting evidence by affidavit or statutory declaration.

  • Marginal note:Requirements for issue of arrest warrant

    (3) The Division may issue an arrest warrant 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 set out in Tariff A of the Federal Court Rules, 1998;

    • (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.

  • Marginal note:Content of a warrant

    (4) A warrant issued by the Division for the arrest of a person must include directions concerning detention and release.

Marginal note:Excluded witness

 Unless allowed by the Division, a person must not communicate to a witness excluded from a hearing room any testimony given while the witness was excluded until that witness has finished testifying.

Applications

Marginal note:General provision

 Unless these Rules provide otherwise

  • (a) a party who wants the Division to make a decision on any matter in an appeal, including the procedure to be followed, must make an application to the Division under rule 43;

  • (b) a party who wants to respond to the application must respond under rule 44; and

  • (c) a party who wants to reply to a response must reply under rule 45.

How to Make an Application

Marginal note:Form of application and time limit
  •  (1) An application must be made in writing and without delay unless

    • (a) these Rules provide otherwise; or

    • (b) the Division allows it to be made orally at a proceeding after considering any relevant factors, including whether the party with reasonable effort could have made the application in writing before the proceeding.

  • Marginal note:Content of application

    (2) Unless these Rules provide otherwise, in a written 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 there is another party and the views of that party are known, state whether the other party agrees to the application.

  • Marginal note:Affidavit or statutory declaration

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

  • Marginal note:Providing the application

    (4) A party who makes a written application must provide

    • (a) to the other party, a copy of the application and any affidavit or statutory declaration; and

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

How to Respond to a Written Application

Marginal note:Responding to a written application
  •  (1) A response to a written application must be in writing. In a response the party must

    • (a) state what decision the party wants the Division to make; and

    • (b) give reasons why the Division should make that decision.

  • Marginal note:Evidence in a written response

    (2) 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. Unless the Division requires it, an affidavit or statutory declaration is not required if the party who made the application was not required to provide an affidavit or statutory declaration.

  • Marginal note:Providing the response

    (3) A party who responds to a written application must provide

    • (a) to the other party, a copy of the response and any affidavit or statutory declaration; and

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

  • Marginal note:Time limit

    (4) Documents provided under this rule must be received by the recipients no later than seven days after the party received the copy of the application.

How to Reply to a Written Response

Marginal note:Replying to a written response
  •  (1) A reply to a written response must be in writing.

  • Marginal note:Evidence in the reply

    (2) Any evidence that the party wants the Division to consider with the written reply must be given in an affidavit or statutory declaration together with the reply. Unless the Division requires it, an affidavit or statutory declaration is not required if the party was not required to provide a statutory declaration or affidavit with the application.

  • Marginal note:Providing the reply

    (3) A party who replies to a written response must provide

    • (a) to the other party, a copy of the reply and any affidavit or statutory declaration; and

    • (b) to the Division, the original reply and any affidavit or statutory declaration, together with a written statement of how and when the party provided the copy to the other party.

  • Marginal note:Time limit

    (4) Documents provided under this rule must be received by their recipients no later than five days after the party received the copy of the response.

Return to Canada to Appear at a Hearing

Marginal note:Application for an order to appear
  •  (1) A permanent resident who appeals a decision made outside Canada on the residency obligation may make an application to the Division for an order that they physically appear at the hearing.

  • Marginal note:Form of application

    (2) The application must be made under rule 43.

  • Marginal note:Time limit

    (3) Documents provided under this rule must be received by their recipients no later than 60 days after the Division received the notice of appeal.

Changing the Location of the Proceeding

Marginal note:Application to change the location of a proceeding
  •  (1) A party may make an application to the Division to change the location of a proceeding.

  • Marginal note:Form of application

    (2) The party must follow rule 43, but is not required to give evidence in an affidavit or statutory declaration.

  • Marginal note:Time limit

    (3) Documents provided under this rule must be received by their recipients no later than 30 days before the proceeding.

  • Marginal note:Factors

    (4) In deciding the application, the Division must consider any relevant factors, including

    • (a) whether the party is residing in the location where the party wants the proceeding to be held;

    • (b) whether a change of location would allow the proceeding to be full and proper;

    • (c) whether a change of location would likely delay or slow the proceeding;

    • (d) how a change of location would affect the operation of the Division; and

    • (e) how a change of location would affect the parties.

  • Marginal note:Duty to appear at the proceeding

    (5) 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.

Changing the Date or Time of a Proceeding

Marginal note:Application to change the date or time of a proceeding
  •  (1) A party may make an application to the Division to change the date or time of a proceeding.

  • Marginal note:Form and content of application

    (2) The party must

    • (a) follow rule 43, but is not required to give evidence in an affidavit or statutory declaration; and

    • (b) give at least six dates, within the period specified by the Division, on which the party is available to start or continue the proceeding.

  • Marginal note:Application received two days or less before proceeding

    (3) If the party’s application is received by the recipients two working days or less before the date of a proceeding, the party must appear at the proceeding and make the request orally.

  • Marginal note:Factors

    (4) In deciding the application, the Division must consider any relevant factors, including

    • (a) in the case of a date and time that was fixed after the Division consulted or tried to consult the party, any exceptional circumstances for allowing the application;

    • (b) when the party made the application;

    • (c) the time the party has had to prepare for the proceeding;

    • (d) the efforts made by the party to be ready to start or continue the proceeding;

    • (e) in the case of a party who wants more time to obtain information in support of the party’s arguments, the ability of the Division to proceed in the absence of that information without causing an injustice;

    • (f) the knowledge and experience of any counsel who represents the party;

    • (g) any previous delays and the reasons for them;

    • (h) whether the time and date fixed for the proceeding were peremptory;

    • (i) whether allowing the application would unreasonably delay the proceedings; and

    • (j) the nature and complexity of the matter to be heard.

  • Marginal note:Duty to appear at the proceeding

    (5) Unless a party receives a decision from the Division allowing the application, the party must appear for the proceeding at the date and time fixed and be ready to start or continue the proceeding.

Proceeding to Be Held in Private

Marginal note:Form of application
  •  (1) A person who wants to have a proceeding held in private, or who wants the Division to take any other measure to ensure the confidentiality of the proceedings, must make an application to the Division under rule 43.

  • Marginal note:Time limit

    (2) Documents provided under this rule must be received by their recipients no later than 20 days before the proceeding.

  • Marginal note:Response by non-party

    (3) Any person may make a written request to the Division to be allowed to respond to an application by another person or a party to have a proceeding held in private. If the Division allows the request, the person must respond under rule 44.

  • Marginal note:Temporary confidentiality

    (4) The Division may do anything to ensure the confidentiality of the information in the application.

Withdrawing an Appeal

Marginal note:Abuse of process
  •  (1) Withdrawal of an appeal is an abuse of process if it would likely have a negative effect on the integrity of the Division. If no substantive evidence has been accepted in the appeal, withdrawal is not an abuse of process.

  • Marginal note:Withdrawal if no substantive evidence has been accepted

    (2) If no substantive evidence has been accepted in the appeal, a party may withdraw their appeal by notifying the Division orally at a proceeding or in writing.

  • Marginal note:Withdrawal if subtantive evidence has been accepted

    (3) If substantive evidence has been accepted in the appeal, a party who wants to withdraw their appeal must make an application under rule 43.

Reinstating an Appeal After Withdrawal

Marginal note:Application to reinstate a withdrawn appeal
  •  (1) A person may apply to the Division to reinstate an appeal that was made by that person and withdrawn.

  • Marginal note:Form and content of application

    (2) The person must follow rule 43 and include their contact information in the application.

  • Marginal note:Factors

    (3) 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.

Notice of Constitutional Question

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

  • Marginal note:Form and content of notice

    (2) 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

    • (a) the name of the party;

    • (b) the Division file number;

    • (c) the date, time and place of the hearing;

    • (d) the specific legislative provision that is being challenged;

    • (e) the relevant 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.

  • Marginal note:Providing the notice

    (3) The party must provide

    • (a) 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, according to section 57 of the Federal Courts Act;

    • (b) a copy of the notice to the other party; and

    • (c) 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).

  • Marginal note:Time limit

    (4) 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.

  • 2002, c. 8, s. 182.

Decisions

Marginal note:Notice of decision

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

Marginal note:Written reasons for decision on appeal by a sponsor or that stays a removal order
  •  (1) The Division must provide to the parties, together with the notice of decision, written reasons for a decision on an appeal by a sponsor or for a decision that stays a removal order.

  • Marginal note:Written reasons provided on request

    (2) A request made by a party for written reasons for a decision, other than a decision referred to in subrule (1) or an interlocutory decision, must be in writing. The request must be received by the Division no later than 10 days after the party received the notice of decision.

Marginal note:When decision of single member takes effect

 A decision of the Division made orally by one Division member at a proceeding takes effect when the member states the decision. A decision made in writing takes effect when the member signs and dates the decision.

Marginal note:When decision of three-member panel takes effect

 A decision of the Division made orally by a panel of three members takes effect when all the members state their decision. A decision made in writing takes effect when all members of the panel sign and date the decision.

General Provisions

Marginal note:No applicable rule

 In the absence of a provision in these Rules dealing with a matter raised during an appeal, the Division may do whatever is necessary to deal with the matter.

Marginal note:Powers of the Division

 The Division may

  • (a) 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; and

  • (d) extend or shorten a time limit, before or after the time limit has passed.

Marginal note: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

Marginal note:Coming into force

 These Rules come into force on the day on which section 161 of the Act comes into force.

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