Immigration and Refugee Protection Act (S.C. 2001, c. 27)

Marginal note:Right to counsel

• 167 (1) A person who is the subject of proceedings before any Division of the Board and the Minister may, at their own expense, be represented by legal or other counsel.

• Marginal note:Representation

  (2) If a person who is the subject of proceedings is under 18 years of age or unable, in the opinion of the applicable Division, to appreciate the nature of the proceedings, the Division shall designate a person to represent the person.

Marginal note:Abandonment of proceeding

• 168 (1) A Division may determine that a proceeding before it has been abandoned if the Division is of the opinion that the applicant is in default in the proceedings, including by failing to appear for a hearing, to provide information required by the Division or to communicate with the Division on being requested to do so.

• Marginal note:Abuse of process

  (2) A Division may refuse to allow an applicant to withdraw from a proceeding if it is of the opinion that the withdrawal would be an abuse of process under its rules.

Marginal note:Decisions and reasons

169 In the case of a decision of a Division, other than an interlocutory decision:

• (a) the decision takes effect in accordance with the rules;

• (b) reasons for the decision must be given;

• (c) the decision may be rendered orally or in writing, except a decision of the Refugee Appeal Division, which must be rendered in writing;

• (d) if the Refugee Protection Division rejects a claim, written reasons must be provided to the claimant and the Minister;

• (e) if the person who is the subject of proceedings before the Board or the Minister requests reasons for a decision within 10 days of notification of the decision, or in circumstances set out in the rules of the Board, the Division must provide written reasons; and

• (f) the period in which to apply for judicial review with respect to a decision of the Board is calculated from the giving of notice of the decision or from the sending of written reasons, whichever is later.

Refugee Protection Division

Marginal note:Composition

• 169.1 (1) The Refugee Protection Division consists of the Deputy Chairperson, Assistant Deputy Chairpersons and other members, including coordinating members, necessary to carry out its functions.

• Marginal note:Public Service Employment Act

  (2) The members of the Refugee Protection Division are appointed in accordance with the Public Service Employment Act.

Marginal note:Proceedings

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

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

• (b) must hold a hearing;

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

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

• (d.1) may question the witnesses, including the person who is the subject of the proceeding;

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

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

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

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

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

Marginal note:No reopening of claim or application

170.2 The Refugee Protection Division does not have jurisdiction to reopen on any ground — including a failure to observe a principle of natural justice — a claim for refugee protection, an application for protection or an application for cessation or vacation, in respect of which the Refugee Appeal Division or the Federal Court, as the case may be, has made a final determination.

Refugee Appeal Division

Marginal note:Proceedings

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

• (a) the Division must give notice of any hearing to the Minister and to the person who is the subject of the appeal;

• (a.1) subject to subsection 110(4), if a hearing is held, the Division must give the person who is the subject of the appeal and the Minister the opportunity to present evidence, question witnesses and make submissions;

• (a.2) the Division is not bound by any legal or technical rules of evidence;

• (a.3) the Division may receive and base a decision on evidence that is adduced in the proceedings and considered credible or trustworthy in the circumstances;

• (a.4) the Minister may, at any time before the Division makes a decision, after giving notice to the Division and to the person who is the subject of the appeal, intervene in the appeal;

• (a.5) the Minister may, at any time before the Division makes a decision, submit documentary evidence and make written submissions in support of the Minister’s appeal or intervention in the appeal;

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

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

Marginal note:No reopening of appeal

171.1 The Refugee Appeal Division does not have jurisdiction to reopen on any ground — including a failure to observe a principle of natural justice — an appeal in respect of which the Federal Court has made a final determination.

Immigration Division

Marginal note:Composition

• 172 (1) The Immigration Division consists of the Deputy Chairperson, Assistant Deputy Chairpersons and other members necessary to carry out its functions.

• Marginal note:Public Service Employment Act

  (2) The members of the Immigration Division are appointed in accordance with the Public Service Employment Act.

Marginal note:Proceedings

173 The Immigration Division, in any proceeding before it,

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

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

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

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

Immigration Appeal Division

Marginal note:Court of record

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

• Marginal note:Powers

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

Marginal note:Proceedings

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

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

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

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

• Marginal note:Presence of permanent resident

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

Remedial and Disciplinary Measures

Marginal note:Request

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

• Marginal note:Reasons

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

Marginal note:Measures

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

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

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

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

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

Marginal note:Appointment of inquirer

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

Marginal note:Powers

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

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

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

Marginal note:Staff

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

Marginal note:Exceptions to public hearing

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

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

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

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

• Marginal note:Confidentiality of application

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

Marginal note:Rules of evidence

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

• Marginal note:Intervenors

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

Marginal note:Right to be heard

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

Marginal note:Report to Minister

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

• Marginal note:Recommendations

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

Marginal note:Transmission of report to Governor in Council

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

Marginal note:Rights not affected

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

PART 4.1Electronic Administration

Marginal note:Powers

• 186.1 (1) The Minister may administer this Act using electronic means, including as it relates to its enforcement.

• Marginal note:Exception

  (2) This Part does not apply to the Minister of Employment and Social Development in respect of any activity the administration of which is the responsibility of that Minister under this Act.

• Marginal note:Officer

  (3) For greater certainty, any person or class of persons who are designated as officers by the Minister to carry out any purpose of this Act may, in the exercise of their powers or the performance of their duties and functions, use the electronic means that are made available or specified by the Minister.

• Marginal note:Delegation

  (4) For greater certainty, a person who has been authorized by the Minister to do anything that may be done by the Minister under this Act, may do so using the electronic means that are made available or specified by the Minister.

• Marginal note:Decision, determination or examination by automated system

  (5) For greater certainty, an electronic system, including an automated system, may be used by the Minister to make a decision or determination under this Act, or by an officer to make a decision or determination or to proceed with an examination under this Act, if the system is made available to the officer by the Minister.