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

Act current to 2020-01-16 and last amended on 2019-06-21. Previous Versions

PART 4Immigration and Refugee Board (continued)

Refugee Appeal Division

Marginal note:Proceedings

 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.

  • 2001, c. 27, s. 171
  • 2010, c. 8, s. 28
  • 2012, c. 17, s. 52

Marginal note:No reopening of appeal

 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.

  • 2012, c. 17, s. 53

Immigration Division

Marginal note:Composition

  • 2001, c. 27, s. 172
  • 2010, c. 8, s. 29

Marginal note:Proceedings

 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

  •  (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

  •  (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

  •  (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.

  • 2001, c. 27, s. 176
  • 2010, c. 8, s. 30

Marginal note:Measures

 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

 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

 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

 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

  •  (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

  •  (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.

 
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