Immigration Appeal Division Rules, 2022 (SOR/2022-277)

Her Excellency the Governor General in Council, on the recommendation of the Minister of Citizenship and Immigration, under subsection 161(1)Footnote ^a of the Immigration and Refugee Protection ActFootnote ^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.

• Return to footnote ^aS.C. 2010, c. 8, s. 20

• Return to footnote ^bS.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)Footnote ^a of the Immigration and Refugee Protection ActFootnote ^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

Marginal note:Definitions

1 The following definitions apply in these Rules.

Act

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

ADR

ADR means alternative dispute resolution. (MARL)

appellant

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

contact information

contact information means

• (a) 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;

• (b) with respect to the Minister’s counsel, their postal address, telephone number and email address and, if any, their fax number; and

• (c) 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

Division means the Immigration Appeal Division of the Board. (Section)

Minister’s appeal

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

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

party

party means the appellant or the respondent. (partie)

proceeding

proceeding includes a hearing, conference, ADR conference, application or proceeding in writing. (procédure)

registry office

registry office means a business office designated as a registry office by the Division. (greffe)

removal order appeal

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

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

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

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

working day means a day other than a Saturday, Sunday or other day on which the Board offices are closed. (jour ouvrable)

General Provisions

Marginal note:General principle

2 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.

Marginal note:No applicable rule

3 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.

Marginal note:Powers of Division

4 The Division may

• (a) 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;

• (b) change a requirement of a rule;

• (c) excuse a person from a requirement of a rule;

• (d) extend or shorten a time limit before it has passed; and

• (e) extend any time limit after it has passed.

Marginal note:Failure to follow Rules

5 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

Marginal note:Communicating with Division

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

Contact Information

Marginal note:Contact information — party other than Minister

• 7 (1) 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.

• Marginal note:Contact information — Minister

  (2) The Minister must provide the contact information of their counsel in writing to the Division and the other party.

• Marginal note:Time limit

  (3) The contact information must be received by the Division and the other party

  • (a) with the notice of appeal, if the party is the appellant; or

  • (b) no later than 20 days after the day on which the party receives the notice of appeal, if the party is the respondent.

• Marginal note:Contact information — counsel retained after time limit

  (4) 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.

Marginal note:Change to contact information

• 8 (1) 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.

• Marginal note:Minister’s counsel

  (2) 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.

Marginal note:Written statement — unpaid counsel

9 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

Marginal note:Becoming counsel of record

10 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.

Marginal note:Request to be removed

• 11 (1) 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.

• Marginal note:Oral request

  (2) 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.

• Marginal note:Division’s permission required

  (3) Counsel remains counsel of record unless the Division grants the request to be removed.

• Marginal note:Counsel of record — stay of removal

  (4) 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.

Marginal note:Removing counsel of record

• 12 (1) 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.

• Marginal note:Removal takes effect

  (2) Counsel ceases to be counsel of record when the Division receives the notice.

Filing an Appeal

Marginal note:Notice of appeal — person

• 13 (1) To file an appeal of a decision, a person must provide to the Division a notice of appeal together with

  • (a) in the case of a sponsorship appeal, the officer’s decision and the written reasons, if any, for the refusal;

  • (b) in the case of a removal order appeal, the removal order; or

  • (c) in the case of a residency obligation appeal, the officer’s decision and the written reasons, if any, for the decision.

• Marginal note:Other information

  (2) The person may also provide any other information that may assist the Division in resolving the appeal as quickly as possible.

• Marginal note:Notice provided to Immigration Division

  (3) 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.

Marginal note:Notice of appeal — admissibility hearing

• 14 (1) 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.

• Marginal note:Notice of appeal provided to Division

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

Marginal note:Notice of appeal — Minister

• 15 (1) To file a Minister’s appeal, the Minister must provide a notice of appeal to the respondent, the Immigration Division and the Division.

• Marginal note:Written statement

  (2) 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.

• Marginal note:Content of notice of appeal — grounds

  (3) In the notice of appeal, the Minister must indicate the grounds of the appeal.

Marginal note:Time limit

16 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

• (a) 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;

• (b) in the case of a removal order appeal, 30 days after the day on which the appellant receives the removal order;

• (c) 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

• (d) in the case of a Minister’s appeal, 30 days after the day on which the Minister receives the Immigration Division’s decision.

Marginal note:Documents provided to Minister

17 The Division must provide the following documents to the Minister without delay:

• (a) if the notice of appeal is provided to the Division under rule 13, the notice of appeal and the documents referred to in paragraph 13(1)(a), (b) or (c), as the case may be; or

• (b) 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

Marginal note:Choice of language

• 18 (1) 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.

• Marginal note:Language — Minister’s appeal

  (2) 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.

Marginal note:Changing language

19 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

Marginal note:Appeal record — sponsorship

• 20 (1) In the case of a sponsorship appeal, 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 sponsorship application and the sponsor’s undertaking;

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

  • (e) the written reasons for the refusal, if any.

• Marginal note:Appeal record — admissibility hearing

  (2) 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) a table of contents;

  • (b) the removal order, if any;

  • (c) a transcript of the admissibility hearing;

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

  • (e) the written reasons, if any, for its decision.

• Marginal note:Appeal record — examination

  (3) In the case of an appeal of a removal order made at an examination, 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

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

• Marginal note:Appeal record — residency obligation

  (4) In the case of a residency obligation appeal, 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 decision and written reasons, if any, for the decision.

Marginal note:Minister provides appeal record

• 21 (1) 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.

• Marginal note:Proof record provided to appellant

  (2) 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.

• Marginal note:Immigration Division provides appeal record

  (3) The Immigration Division must provide the appeal record referred to in subrule 20(2) to the parties and the Division.

Marginal note:Time limit

22 An appeal record provided under rule 21 must be received no later than

• (a) 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;

• (b) 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

• (c) 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.

Marginal note:Late appeal record

23 If the Division does not receive the appeal record within the time limit set out in rule 22, the Division may

• (a) 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

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

Disclosure of Evidence

Marginal note:Disclosure of evidence

• 24 (1) If a party wants to use a document in a proceeding, the party must provide the document to the other party and the Division.

• Marginal note:Statement — no documents

  (2) 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.

Marginal note:Proof document was provided

25 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.

Marginal note:Time limit — 60 days

26 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.

Marginal note:Time limit — response to evidence

27 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.

Marginal note:Time limit for reconsideration – stay

28 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.

Marginal note:Time limit not met

• 29 (1) 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.

• Marginal note:Factors

  (2) In deciding whether to allow the party to use the document, the Division must consider any relevant factors, including

  • (a) the relevance and probative value of the document;

  • (b) whether the party, with reasonable effort, could have met the time limits set out in rules 26 to 28 in respect of the document;

  • (c) any prejudice to the other party; and

  • (d) whether the request to be allowed to use the document was made in a timely manner and the justification for any delay.

Marginal note:Consequence — failure to disclose

30 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

• (a) if that party is the appellant, determine that the appeal has been abandoned in accordance with subsection 168(1) of the Act;

• (b) fix a date and time for the proceeding and start the proceeding on the basis of the materials provided;

• (c) suspend the fixing of a date and time for the proceeding until it determines that the appeal is ready to proceed; or

• (d) take any other action that it deems appropriate.

Documents

Form and Language of Documents

Marginal note:Documents prepared by party

31 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.

Marginal note:More than one document

32 If a party provides more than one document for use in a proceeding, the documents must

• (a) have consecutively numbered pages as if they were one document; and

• (b) be accompanied by a list identifying each of the documents.

Marginal note:Language of documents

• 33 (1) 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.

• Marginal note:Language of Minister’s documents

  (2) 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.

Marginal note:Translator’s statement

34 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

Marginal note:General provision

35 Rules 36 to 41 apply to any document, including a notice, request, application or statement in writing.

Marginal note:Providing documents to Division

• 36 (1) A document that is to be provided to the Division must be provided to the registry office that the Division specifies.

• Marginal note:Documents in public proceedings

  (2) 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).

• Marginal note:Providing documents to Minister

  (3) A document that is to be provided to the Minister must be provided to the Minister’s counsel.

• Marginal note:Providing documents to person other than Minister

  (4) A document that is to be provided to a person other than the Minister must be provided

  • (a) to the person’s counsel or, if they do not have counsel, to the person; and

  • (b) to the person’s designated representative, if any.

• Marginal note:Means of providing documents

  (5) A document may be provided

  • (a) by email or other electronic means, if the Division allows;

  • (b) by regular or registered mail;

  • (c) by courier or priority post;

  • (d) by fax, if the document is no more than 20 pages long or the recipient consents to receiving more than 20 pages; or

  • (e) by hand.

Marginal note:Providing electronic document

• 37 (1) 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).

• Marginal note:Notice of requirements

  (2) 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.

• Marginal note:Original document

  (3) An electronic document provided by the Division is considered to be the original version of the document.

• Marginal note:Retention of paper document

  (4) 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.

Marginal note:Electronic signature

• 38 (1) Any requirement under these Rules that a document be signed is satisfied, in the case of an electronic document, by an electronic signature.

• Marginal note:Definition of electronic signature

  (2) 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.

Marginal note:Application — inability to provide document

• 39 (1) 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.

• Marginal note:Allowing application

  (2) 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.

Marginal note:Receipt of document by Division

• 40 (1) A document provided to the Division is considered to be received

  • (a) in the case of a paper document, on the date indicated by the date stamp that the registry office places on the document; and

  • (b) in the case of an electronic document, on the date and at the time indicated by the electronic means used to provide it.

• Marginal note:Receipt of document by party — regular mail

  (2) 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.

• Marginal note:Receipt of document by party — electronic

  (3) 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.

Marginal note:Extension of time limit — next working day

41 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

Marginal note:Designation — Immigration Division

42 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.

Marginal note:Duty of counsel to notify — minor

43 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

• (a) 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

• (b) the appeal is against a removal order made at an admissibility hearing and the Immigration Division has designated a representative for the person.

Marginal note:Duty to notify — inability to appreciate proceedings

• 44 (1) 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.

• Marginal note:Exception

  (2) 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.

Marginal note:Purpose of counsel’s notice

45 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.

Marginal note:Content of notice

46 A notice provided under rule 43 or 44 must

• (a) 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;

• (b) indicate the reasons why counsel believes that a representative should be designated; and

• (c) be accompanied by any available documents supporting the designation.

Marginal note:Factors to consider

47 When determining whether a person is unable to appreciate the nature of the proceedings, the Division must consider any relevant factors, including

• (a) whether the person can understand the reason for the proceeding and can instruct counsel;

• (b) the person’s statements and behaviour at the proceeding;

• (c) expert evidence, if any, on the person’s intellectual or physical faculties, age or mental condition; and

• (d) whether the person has had a representative designated for them for a proceeding in a division other than the Immigration Division.

Marginal note:Criteria for designated representative

48 Before designating a person as a representative, the Division must be satisfied that the person

• (a) is 18 years of age or older;

• (b) understands the nature of the proceedings;

• (c) is willing and able to act in the best interests of the person they are to represent;

• (d) does not have interests that conflict with those of the person they are to represent; and

• (e) has been informed of the responsibilities of a designated representative and is willing and able to fulfill them.

Marginal note:Responsibilities of designated representative

49 The responsibilities of a designated representative include

• (a) deciding whether to retain counsel and, if counsel is retained, instructing counsel or assisting the represented person in instructing counsel;

• (b) making decisions regarding the appeal or assisting the represented person in making those decisions;

• (c) informing the represented person about the various stages of the appeal

• (d) assisting the represented person in gathering evidence to support their case and in providing evidence and, if necessary, being a witness at the hearing

• (e) protecting the interests of the represented person and putting forward the best possible case to the Division; and

• (f) informing and consulting the represented person to the extent possible when making decisions about their case.

Marginal note:Termination of designation

50 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.

Marginal note:End of designation — 18 years of age

51 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.

Marginal note:End of designation

52 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

Marginal note:Need for interpreter

• 53 (1) 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.

• Marginal note:Time limit

  (2) 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.

• Marginal note:Need for interpreter — witness

  (3) 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.

Marginal note:Interpreter’s oath

54 The interpreter must take an oath or make a solemn affirmation to interpret accurately.

Witnesses

Witness Information

Marginal note:Providing witness information

• 55 (1) A party who wants to call a witness must provide the following information in writing to the other party and the Division:

  • (a) the witness’s contact information;

  • (b) a brief statement of the purpose and substance of the witness’s testimony;

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

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

  • (e) 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

  • (f) in the case of an expert witness,

    • (i) a description of the expert witness’s qualifications, and

    • (ii) a brief summary of the testimony to be given, signed by the expert witness.

• Marginal note:Proof document was provided

  (2) 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.

• Marginal note:Time limit — 30 days

  (3) Documents provided under this rule must be received no later than 30 days before the date fixed for the hearing.

Marginal note:Failure to provide witness information

56 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

• (a) the reason why the information was not provided;

• (b) whether the proposed testimony is relevant and has probative value; and

• (c) in the case of a party other than the Minister, whether the party has counsel.

Summons

Marginal note:Requesting summons

• 57 (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 during a proceeding or in writing.

• Marginal note:Factors

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

  • (a) the testimony of the person is necessary to a full and proper hearing;

  • (b) the person is able to give the testimony; and

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

• Marginal note:Using summons

  (3) 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, 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

  • (c) 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.

Marginal note:Cancelling summons

58 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).

Marginal note:Arrest warrant

• 59 (1) 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.

• Marginal note:Written request

  (2) A party who makes a written request must provide supporting evidence in an accompanying affidavit or statutory declaration.

• Marginal note:Requirements for issue of arrest warrant

  (3) The Division may issue an arrest warrant only 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 as determined in accordance with Tariff A of the Federal Courts Rules;

  • (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 arrest warrant

  (4) When the Division issues an arrest warrant, the warrant must include directions concerning detention and release.

Notice to Appear

Marginal note:Content of notice

• 60 (1) The Division must notify the parties in writing of the date, time and location fixed for any proceeding.

• Marginal note:Changes to date, time or location

  (2) If any changes are made to the date, time or location, the Division must notify the parties in writing without delay.

Marginal note:Date fixed for hearing

61 The hearing must take place at least 30 days after the day on which the parties receive the notice to appear, unless

• (a) the hearing has been adjourned or postponed; or

• (b) the parties consent to an earlier date.

Marginal note:Party in custody

62 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.

Marginal note:Failure to appear

63 If a party fails to appear at a proceeding, the Division may

• (a) determine that the appeal has been abandoned in accordance with subsection 168(1) of the Act;

• (b) hold the proceeding in the absence of the party;

• (c) prohibit the party from presenting further evidence, questioning witnesses, or making submissions to the Division;

• (d) decide the issues in the proceeding on the basis of the evidence provided; or

• (e) take any other action that it considers appropriate.

Appeal

Informal Resolution Process

Marginal note:Participation in informal resolution process

64 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.

Marginal note:Obligations of parties and counsel

• 65 (1) 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

  • (a) participate in good faith;

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

  • (c) provide to each other and to the Division any document that the Division requires them to prepare or provide.

• Marginal note:Clarification

  (2) 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.

Marginal note:Confidentiality of discussions — informal resolution process

66 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

• (a) the information could be obtained in a way that is not part of the informal resolution process;

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

• (c) the person who gave the information agrees to its disclosure.

Marginal note:Document not confidential

67 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.

Marginal note:Disclosure to responsible authorities

68 Disclosure under paragraph 66(b) may be made only to the authorities responsible for enforcement of the Act or these Rules.

Marginal note:ADR conference

• 69 (1) 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.

• Marginal note:Request provided to other party

  (2) The party must provide the request made under subrule (1) to the other party.

Marginal note:Assignment of ADR conference facilitator

• 70 (1) The Division must assign a member of the Division or an employee of the Board as ADR conference facilitator.

• Marginal note:Member must not hear appeal

  (2) A member of the Division who facilitates an ADR conference must not hear the appeal, unless the parties agree.

Marginal note:Agreement in ADR conference

• 71 (1) 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.

• Marginal note:Agreement not confidential

  (2) The agreement is not confidential.

Conferences

Marginal note:Requirement to participate in conference

• 72 (1) 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

  • (a) try to resolve some or all of the issues;

  • (b) narrow the issues in order to simplify the hearing;

  • (c) discuss issues, relevant facts and any other matter that would make the appeal as fair and efficient as possible; and

  • (d) give information to help the Division fix a date for the proceeding.

• Marginal note:Information or documents

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

Marginal note:Written record

73 The Division must make a written record of any decision or agreement made at a conference.

Conduct of a Hearing

Marginal note:General

• 74 (1) The Division must, in any hearing before it, give the parties the opportunity to present evidence, question witnesses and make submissions.

• Marginal note:Issues and evidence

  (2) Taking into account the nature and complexity of the issues and the relevance of the evidence, the Division may

  • (a) narrow the issues to be addressed at the hearing, including by identifying facts that are not in dispute;

  • (b) establish the order in which the issues are to be addressed;

  • (c) direct and limit the evidence to be presented; and

  • (d) limit the number and the length of questioning of witnesses.

• Marginal note:Questioning witnesses

  (3) The Division may question any witness at any point during the hearing.

• Marginal note:Additional evidence or witnesses

  (4) The Division may notify the parties if additional evidence or witnesses are likely to assist the Division in deciding the appeal.

Marginal note:Excluded witness

75 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.

Marginal note:Oral submissions

• 76 (1) Submissions must be made orally at the end of a hearing unless the Division orders otherwise.

• Marginal note:Limits on submissions

  (2) After all the evidence has been heard, the Division may

  • (a) set time limits for submissions, taking into account the complexity of the issues and the amount of relevant evidence heard; and

  • (b) indicate what issues need to be addressed in the submissions.

Proceeding in Writing

Marginal note:Proceeding in writing

• 77 (1) 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.

• Marginal note:Appeal record

  (2) The Division may make a decision in a proceeding in writing without being provided with the appeal record under rule 21.

• Marginal note:Exception

  (3) 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

Marginal note:Application to reconsider appeal

• 78 (1) If the Division has stayed a removal order, a party who makes an application to reconsider the appeal

  • (a) 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

  • (b) must provide with their application a written statement indicating whether the conditions of the stay have been complied with.

• Marginal note:Response

  (2) 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.

Marginal note:Reconsideration on Division’s own initiative

• 79 (1) If the Division reconsiders an appeal on its own initiative under subsection 68(3) of the Act, it must notify the parties in writing.

• Marginal note:Time limit for providing statement

  (2) 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.

Marginal note:Notice of cancellation of stay

80 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

• (a) the name of the person convicted;

• (b) the date and place of conviction;

• (c) the offence and the 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 document was provided

81 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.

Marginal note:Notice of cancellation of stay

82 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.

Marginal note:Response to notice of cancellation of stay

83 A party responding to a notice provided under rule 80 must respond in accordance with rule 86.

Applications

General

Marginal note:General provision

84 Unless these Rules provide otherwise

• (a) 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;

• (b) a party who wants to respond to the application must respond in accordance with rule 86; and

• (c) a party who wants to reply to a response must reply in accordance with rule 87.

Making an Application

Marginal note:Form of application and time limit

• 85 (1) Unless these Rules provide otherwise, an application must be made in writing without delay.

• Marginal note:Content of application

  (2) In the 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 the views of the other 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 a written application must be given in an affidavit or statutory declaration that accompanies the application.

• Marginal note:Providing application

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

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

  • (b) 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.

• Marginal note:Oral application

  (5) 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

Marginal note:Responding to written application

• 86 (1) 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.

• Marginal note:Evidence in written response

  (2) 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.

• Marginal note:Evidence not required

  (3) 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.

• Marginal note:Providing response

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

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

  • (b) 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.

• Marginal note:Time limit

  (5) Documents provided under subrule (4) must be received no later than seven days after the party receives the application.

Marginal note:Replying to written response

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

• Marginal note:Evidence in reply

  (2) Subrules 86(2) to (4) apply to the reply.

• Marginal note:Time limit

  (3) 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

Marginal note:Application

• 88 (1) 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).

• Marginal note:Time limit

  (2) Documents provided under this rule must be received no later than 30 days before the date fixed for the proceeding.

• Marginal note:Duty to appear

  (3) 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.

Marginal note:Factors

89 In deciding the application for a change of location, the Division must consider any relevant factors, including

• (a) whether the party resides in the location where they request that the proceeding be held;

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

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

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

• (e) whether a change of location is necessary to accommodate the vulnerabilities of a person;

• (f) whether a hearing may be conducted by a means of live telecommunication with the parties; and

• (g) the operational requirements of the Division.

Changing Date or Time

Marginal note:Application

• 90 (1) 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).

• Marginal note:Time limit and content of application

  (2) The application must

  • (a) 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

  • (b) 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.

• Marginal note:Notice of period specified by Division

  (3) 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.

• Marginal note:Oral application

  (4) 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.

• Marginal note:Duty to appear

  (5) 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.

Marginal note:Exceptional circumstances

91 The Division may allow the application only if it determines that there are exceptional circumstances and must take into consideration any relevant factors including

• (a) whether the application was made in a timely manner and, if it was not, the justification for the delay;

• (b) any previous change in the date or time of the proceeding;

• (c) the rights and interests of the parties;

• (d) the need to change the date or time of the proceeding to accommodate the vulnerabilities of a person;

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

• (f) the operational requirements of the Division.

Marginal note:Subsequent application

92 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

Marginal note:Form of application

• 93 (1) 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.

• Marginal note:Request to respond to application

  (2) 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.

• Marginal note:Form of response — rule 86

  (3) A person who is allowed by the Division to respond to the application must respond in accordance with rule 86.

• Marginal note:Confidentiality measures

  (4) The Division may take any measures it considers necessary to ensure the confidentiality of the application.

• Marginal note:Time limit

  (5) An application made under this rule must be received no later than 20 days before the date fixed for the proceeding.

Withdrawing an Appeal

Marginal note:Abuse of process

• 94 (1) 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.

• Marginal note:No substantive evidence accepted

  (2) If no substantive evidence has been accepted in the appeal, withdrawal of the appeal is not an abuse of process.

• Marginal note:Withdrawal if no substantive evidence accepted

  (3) 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.

• Marginal note:Withdrawal if substantive evidence accepted

  (4) 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

Marginal note:Application to reinstate withdrawn appeal

• 95 (1) An appellant may apply to the Division to reinstate an appeal that was withdrawn.

• Marginal note:Form and content of application

  (2) 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.

Marginal note:Factors

96 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.

Marginal note:Subsequent application

97 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

Marginal note:Form and content of application

• 98 (1) An application to reopen an appeal must be made in accordance with rule 85 and must include

  • (a) 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

  • (b) in the case of an application made by the Minister, the contact information of the Minister’s counsel.

• Marginal note:Allegations against former counsel

  (2) If a party other than the Minister alleges in their application that their former counsel provided inadequate representation, the party must provide the application

  • (a) to their former counsel before providing it to the Division; and

  • (b) to the Division, accompanied by a written statement indicating how and when it was provided to their former counsel.

Marginal note:Factors

• 99 (1) In deciding the application to reopen an appeal, the Division must consider any relevant factors, including

  • (a) whether the application was made in a timely manner and, if not, the justification for the delay; and

  • (b) 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.

• Marginal note:Natural justice

  (2) 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.

Marginal note:Subsequent application

100 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

Marginal note:Notice of constitutional question

• 101 (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 notice must be completed using Form 69 of the Federal Courts Rules or any other form that sets out

  • (a) the party’s name;

  • (b) the Division file number;

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

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

  • (e) the material 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 notice

  (3) The party must provide the notice to

  • (a) the Attorney General of Canada and the attorney general of every province, in accordance with section 57 of the Federal Courts Act;

  • (b) the other party; and

  • (c) the Division.

• Marginal note:Notice provided to Division

  (4) 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.

• Marginal note:Time limit

  (5) 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

Marginal note:Notice of decision

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

Marginal note:Written reasons

• 103 (1) 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.

• Marginal note:Request for written reasons

  (2) 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.

Marginal note:When decision takes effect

104 A decision, other than an interlocutory decision, takes effect

• (a) if it is made in writing

  • (i) by a single member, when the member signs and dates the reasons for the decision; or

  • (ii) by a panel of three members, when all of the members of the panel sign and date their reasons for the decision; and

• (b) if it is given orally at a hearing

  • (i) by a single member, when the member states the decision and gives the reasons; or

  • (ii) by a panel of three members, when all of the members of the panel state their decision and give their reasons.

Transitional Provisions

Marginal note:Application

• 105 (1) 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.

• Marginal note:Appeal record

  (2) 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.

• Marginal note:Confidentiality — ADR

  (3) 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.

• Marginal note:Disclosure of documents

  (4) If an appeal is filed before the day on which these Rules come into force,

  • (a) the statement referred to in subrule 24(2) of these Rules is not required in respect of the appeal; and

  • (b) 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

106 The Immigration Appeal Division RulesFootnote ¹ are repealed.

• Return to footnote ¹SOR/2002-230

Coming into Force

Marginal note:30th day after registration

107 These Rules come into force on the 30th day after the day on which they are registered.