Immigration Division Rules (SOR/2002-229)

Marginal note:Excluded witness

36 Unless allowed by the Division, no person shall communicate to a witness excluded from a hearing room any testimony given while the witness was excluded until that witness has finished testifying.

Applications

Marginal note:General provision

37 Unless these Rules provide otherwise, a party

• (a) who wants the Division to make a decision on any matter in a proceeding, including the procedure to be followed, must make an application to the Division under rule 38;

• (b) who wants to respond to the application must respond under rule 39; and

• (c) who wants to reply to a response must reply under rule 40.

How to Make an Application

Marginal note:Application to the Division

• 38 (1) Unless these Rules provide otherwise, an application must follow this rule.

• Marginal note:Time limit and form of application

  (2) The application must be made orally or in writing, and as soon as possible or within the time limit provided in the Act or these Rules.

• Marginal note:Procedure in oral application

  (3) For an application made orally, the Division determines the applicable procedure.

• Marginal note:Content of written application

  (4) A party who makes a written application must

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

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

  • (c) include any evidence that the party wants the Division to consider in deciding the application; and

  • (d) in the case of an application that is not specified in these Rules, include supporting evidence in the form of a statutory declaration or affidavit.

• Marginal note:Providing the application

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

  • (a) to the other party, a copy of the application; and

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

How to Respond to a Written Application

Marginal note:Responding to a written application

• 39 (1) A response to a written application must be in writing. In a response the party must

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

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

  • (c) include any evidence that the party wants the Division to consider when it decides the application; and

  • (d) include supporting evidence in the form of a statutory declaration or affidavit, if the response is to an application that is not provided for by these Rules.

• Marginal note:Providing the response

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

  • (a) to the other party, a copy of the response; and

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

• Marginal note:Time limit

  (3) Documents provided under this rule must be received by their recipients

  • (a) as soon as possible, in the case of a forty-eight hour or seven-day review or an admissibility hearing held at the same time; and

  • (b) in all other cases, no later than five days after the party received a copy of the application.

How to Reply to a Written Response

Marginal note:Replying to a written response

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

• Marginal note:Providing the reply

  (2) A party who replies must provide

  • (a) to the other party, a copy of the reply; and

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

• Marginal note:Time limit

  (3) Documents provided under this rule must be received by their recipients

  • (a) as soon as possible, in the case of a forty-eight hour or seven-day review or an admissibility hearing held at the same time; and

  • (b) in all other cases, no later than three days after the party received a copy of the response.

Non-disclosure of Information

Marginal note:Application to prohibit disclosure

• 41 (1) An application made by the Minister for non-disclosure of information must be made in writing as soon as possible.

• Marginal note:Exclusion from hearing room

  (2) If an application is made during a hearing, the Division must exclude the permanent resident or foreign national, and their counsel, from the hearing room.

• Marginal note:Providing summary to the Minister

  (3) The summary that the Division proposes to provide to the permanent resident or foreign national under paragraph 78(h) of the Act may be provided to the Minister by any means that ensures its confidentiality.

Changing the Location of a Hearing

Marginal note:Application to change the location of a hearing

• 42 (1) A party may make an application to the Division to change the location of a hearing.

• Marginal note:Factors

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

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

  • (b) whether a change of location would likely delay or slow the hearing;

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

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

  • (e) whether a change of location would endanger public safety.

• Marginal note:Duty to appear at the hearing

  (3) Unless a party receives a decision from the Division allowing the application, the party must appear for the hearing at the location fixed and be ready to start or continue the hearing.

Changing the Date or Time of a Hearing

Marginal note:Application to change the date or time of a hearing

• 43 (1) A party may make an application to the Division to change the date or time of a hearing.

• Marginal note:Factors

  (2) 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, the existence of exceptional circumstances for allowing the application;

  • (b) when the party made the application;

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

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

  • (e) the nature and complexity of the matter to be heard;

  • (f) whether the party has counsel;

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

  • (h) whether the time and date fixed for the hearing was peremptory; and

  • (i) whether allowing the application would unreasonably delay the proceedings or likely cause an injustice.

• Marginal note:Duty to appear at the hearing

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

Joining or Separating Hearings

Marginal note:Application to join hearings

• 44 (1) A party may make an application to the Division to join hearings.

• Marginal note:Application to separate hearings

  (2) A party may make an application to the Division to separate hearings that are joined.

• Marginal note:Factors

  (3) Before deciding an application, the Division must consider any information provided by the applicant and any other relevant information, including

  • (a) whether the hearings involve similar questions of law or fact;

  • (b) whether allowing the application would promote the efficient administration of the work of the Division; and

  • (c) whether allowing the application would likely cause an injustice.

Proceedings Conducted in Private

Marginal note:Application for proceeding conducted in private

• 45 (1) A person who makes an application to the Division to have a proceeding conducted in private must apply in writing and follow this rule.

• Marginal note:Content of application

  (2) In the application, the person must state the decision that the person wants the Division to make, and may request that the hearing of the application be conducted in private.

• Marginal note:Providing the application

  (3) The person must provide a copy of the application to the parties and the original application to the Division.

• Marginal note:Time limit

  (4) A document provided under this rule must be received by its recipient

  • (a) as soon as possible, in the case of a forty-eight hour or seven-day review or an admissibility hearing held at the same time; and

  • (b) in all other cases, at least five days before the hearing.

• Marginal note:Hearing of the application

  (5) At the hearing, the person must give reasons why the Division should conduct the proceeding in private and present any evidence that the person wants the Division to consider in deciding the application.

Proceeding Conducted in Public

Marginal note:Application for proceeding conducted in public

• 46 (1) A person who makes an application to the Division to have a proceeding conducted in public must apply in writing and follow this rule.

• Marginal note:Content of application

  (2) In the application, the person must

  • (a) state the decision that the person wants the Division to make;

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

  • (c) include any evidence that the person wants the Division to consider in deciding the application.

• Marginal note:Providing the application

  (3) The person must provide the original application and two copies to the Division. The Division must provide a copy of the application to the parties.

• Marginal note:Time limit

  (4) A document provided under this rule must be received by the Division

  • (a) as soon as possible, in the case of a forty-eight hour or seven-day review or an admissibility hearing held at the same time; and

  • (b) in all other cases, at least five days before the hearing.

Notice of Constitutional Question

Marginal note:Notice of constitutional question

• 47 (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, in accordance with 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.