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Immigration Appeal Division Rules (SOR/2002-230)

Regulations are current to 2022-05-02

Witnesses (continued)

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
 
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