Hearings are usually held in the IRB offices in the region where the matter has been referred to the Division [see Annex 9-A]. Where the person in question is detained by authorities other than immigration authorities, the hearing is held in the prison or penitentiary where the person is detained. In some circumstances, the Division fixes the location of a hearing in a prison, penitentiary or immigration detention centre in order to accommodate Citizenship and Immigration Canada (CIC).
The parties are informed of the hearing location by a Notice to Appear for a hearing that must specify, inter alia, the location of the hearing (Rule 22). Rule 42(1) provides that a party may make an application to the Division to change the location of a hearing. The word "location" is to be interpreted broadly. An application for a change of location can be made not just to have the hearing transferred from one region or one city to another, but also to move the hearing from a detention facility to an IRB office.Note 1
Although Rule 42 authorizes the Minister to make such an application, in practice, the application is usually made by the person who is the subject of the proceedings. This is so because, if the Minister wants the hearing to be held in another region, all he or she has to do is file a notice indicating that the hearing will be held in the region of his or her choice. Where, because of the circumstances, the Minister requests that the hearing be held in a particular location, for example, at an immigration detention centre rather than in the IRB offices, an administrative agreement is generally worked out in advance and the Division fixes the location of the hearing accordingly.Note 2
More often than not, the person who is the subject of the proceedings will apply to change the location of the hearing because the person wants the hearing to be held in a different region. Sometimes, although rarely, an application is made to move the hearing from a detention facility to an IRB office [for more details, see section 9.5.5 - Effect on the parties].
9.2.1 Hearing fixed in a detention facility
Where a hearing is to be held in a prison, penitentiary or immigration detention centre, an application by the detained person to change the location of the hearing should be granted only in exceptional circumstances.
In the first place, it should be noted that it is doubtful whether a member has the jurisdiction to allow an application to change the location of a hearing by a person who is detained in a prison or a penitentiary by authorities other than immigration authorities. For example, a person serving a term of imprisonment can receive an authorization for a temporary absence only if the warden of the institution or the Parole Board grants it. Where the person is also detained under the Act, an order to change the location of a hearing could be carried out only at the end of the detention period imposed by the other authorities. To consider an application to change the location of the hearing in such circumstances would therefore be premature.
Where a person is detained solely for immigration reasons, whether in an immigration detention centre or a prison or penitentiary,Note 3 it would appear, although the matter is undecided, that the tribunal would have the jurisdiction to grant an application to change the location of a hearing.
In Ariyarathnam,Note 4 the Federal Court considered the provisions of the former Immigration Act and decided that the adjudicator [the member] lacked jurisdiction to decide that the detention review would be held in the IRB offices and not in the detention centre.
Arguably, this decision no longer applies since the legislation has been amended. In the first place, an application to change the hearing location under the former Adjudication Division RulesNote 5 (the former Rules) applied only to admissibility hearings; such an application was expressly excluded in the case of a detention review. Under the current Rules, the provision obviously applies to both kinds of hearing since it is found in Part 3, entitled "Rules that apply to both admissibility hearings and detention reviews."
Furthermore, the former Immigration Act had no analogue to subsection 57(3) of the Act:
57. (3) In a review under subsection (1) or (2), an officer shall bring the permanent resident or the foreign national before the Immigration Division or to a place specified by it. [Emphasis added.]
The only provision that dealt with the issue was former Rule 18, which was worded as follows:
18. Where a person concerned is detained, the Adjudication Division may order the person who detains the person concerned to bring the latter in custody to a conference or hearing held in respect of the person concerned.
The Federal Court has interpreted section 18 of the old Rules as meaning that "an adjudicator can order that a detained person be brought to a conference or hearing within the detention facility"Note 6 [emphasis added] and not as the power to order that the person be taken to another place outside the detention facility.
The wording of subsection 57(3) of the Act is much clearer, in our opinion. These substantive legislative changes probably mean that Ariyarathnamis no longer applicable. Nonetheless, where a hearing has been fixed in a detention facility, a change of location should be granted only in exceptional circumstances because the change could cause serious prejudice to the Minister and endanger public safety [for more details, see sections 9.5.5 - Effect on the parties and 9.5.6 - Public safety].
9.4 DUTY TO APPEAR AT THE LOCATION FIXED
Where an application that was made in writing before the beginning of the hearing is dismissed or if the application was made too late to allow the Division to respond to it before the date fixed for the hearing, the party must, according to Rule 42(3), appear for the hearing at the location fixed and be ready to start or continue the hearing. The party may, when he appears at the location fixed, resubmit his application orally at the outset of the hearing. However, the member may rightly reject an application that is made late because of a lack of diligence on the part of the person who is the subject of the proceeding.Note 7
A member who sees that the person who is the subject of the proceedingNote 8 is not present may either adjourn the hearing or bring it to an end. If he sees that counsel for the person who is the subject of the proceedings is not present, the member may hold the hearing or adjourn it [for more details, see Chapter 10 - Changing the Date or Time of a Hearing, section 10.3.1 - Procedure where there is a failure to appear at the date and time fixed].
9.5 FACTORS TO CONSIDER IN DECIDING AN APPLICATION
In deciding an application to change the location of a hearing, the member must consider any relevant factors, including those listed in Rule 42(2). He or she must consider:
- whether a change of location would allow the hearing to be full and proper;
- whether a change of location would likely delay or slow the hearing;
- how a change of location would affect the operation of the Division;
- how a change of location would affect the parties;
- whether a change of location would endanger public safety.
A number of factors may have an impact on one or more of the elements listed in the provision. The member must weigh them to determine whether he or she will allow the application. It is not possible to anticipate all of the various combinations of factors that may justify a change of location for a hearing. However, a non-exhaustive list of the factors that should be considered as they relate to one or more of the items set out above with comments and examples of each may prove useful.
9.5.1 General factors
The following is a non-exhaustive list of questions the member may consider in relation to one or more of the factors listed in the provision:
- Is the person being detained? Can he or she be moved? Is there any danger to public safety? What consequences may there be for the Minister?
- Are there conditions of release that would prevent the person from going to the location where the person would like the hearing to be held?
- Does the hearing involve a person who is under 18 years of age or unable to appreciate the nature of the proceedings and whose most suitable "designated representative" is in another location?
- Would a change of location facilitate joining hearings that ought to be joined (see Rule 44)?
- What additional costs or disadvantages would there be for the Division?
- If the person who is the subject of the proceedings has claimed refugee protection, is that person waiting for a hearing before the Refugee Protection Division? At what location?
- What additional costs and disadvantages would there be for the Minister?
- To what extent would refusing a change of location cause the person who is the subject of the proceedings serious financial or other prejudice?
- Is a change of location necessary so that the person can prepare his or her case adequately and present all relevant evidence? Can the "problem" be resolved in another way, for example, by instructing another counsel or by presenting the evidence by affidavit, teleconferencing or videoconferencing?
9.5.2 A full and proper hearing
A change of location would permit a full and proper hearing, for example, if the person who is the subject of the proceedings is a person who is under 18 years of age or unable to appreciate the nature of the proceedings and the person most suitable to act as his or her designated representative is in another region or if the hearings for persons who are in different locations should be joined.
Most of the time, the person who is the subject of the proceedings will argue that his or her final destination in Canada is somewhere other than the place fixed for the hearing, or the person may argue that he or she has moved to another city where family members or friends live who could testify or furnish security for his or her release. As a general rule, it is not necessary to change the location of the hearing to ensure a full and proper hearing. If the member believes that the testimony is important, he or she may consider other methods such as affidavits, teleconferencing or videoconferencing. Making a deposit or signing a guarantee can be done at the CIC offices in the city where the surety lives.
Sometimes, the person who is the subject of the proceedings will argue that the presence of counsel of his or her choice is necessary to ensure a full and proper hearing for his case but that counsel lives in another city and lacks the time or the desire to travel to the designated location for the hearing, whereas he would agree to represent the person if the hearing were held in another city.
As a general rule, in order to ensure a full and proper hearing of the case, it is unnecessary to change the location of the hearing so as to take into account the choice of counsel by the person who is the subject of the proceedings. The person should choose among counsel who are available and willing to attend at the location fixed for the hearing [for more details, see Chapter 8 - Right to counsel]. However, sometimes counsel has represented the person before, is already conversant with the case or for some other reason has significant involvement with the case. To ensure a full and proper hearing of the case, it may then be appropriate to have the particular counsel chosen by the person who is the subject of the proceeding present.
9.5.3 Delaying or slowing the hearing
Generally, an application to change the location of a hearing will delay or slow the proceeding since other arrangements will have to be made in order to hold the hearing in another region, including transferring the record, scheduling the hearing and arranging for an interpreter, if necessary. Moreover, where the application is made at the hearing, granting it will inevitably lead to an adjournment.
On the other hand, if more sittings are required because of the complexity of the case and if the person who is the subject of the proceedings asks to have his hearing held in an office where there are few pending cases, a change of location might speed up the proceedings. This would also be true if, for example, the hearing would be unduly delayed because of the scarcity of interpreters who speak the person's language fluently but in a large centre where such interpreters are more numerous it could quickly proceed.
Initially, it may seem that changing the location of a hearing will inevitably delay or slow the hearing, but there are some factors that can occasionally have the opposite effect. Thus, it is important to evaluate the situation as a whole.
9.5.4 Operation of the Division
One must proceed from the premise that, under the Act, it is up to the Division to fix the location of a hearing and that it is not in its interest, from an operational standpoint, to authorize changes of location because of the arrangements it will have to make to hold the hearing elsewhere. More often than not, such changes result in additional cost and inconvenience to the Division. Even if the application is made in writing before the hearing, a number of arrangements will often have already been made by the registry office: opening the file, communications with the parties and the interpreter, if any, and scheduling. Where an application to change the location of a hearing is allowed, the record must be transferred and the same arrangements must be made all over again in the region where the hearing will be held.
Furthermore, if witnesses living in another location must be heard, this may result in the Division's incurring significant expense, depending on what arrangements can be made in the circumstances, or it may make the case so complex that it would be much simpler to allow the application to change the location. The member must weigh all these factors.
Moreover, the operation of the Division may be disrupted if, for example, the change of location means transferring the record from an office where there are few pending cases to an office where there are many. Some people are aware of the volume of work in the various offices of the Division and may apply for transfers solely to delay their hearing as much as possible and, possibly, their removal from the country. Applications of this kind that are not made in good faith may rightly be dismissed.
9.5.5 Effect on the parties
A change of location necessarily has an effect on both parties, often positive for the one and negative for the other. For example, a person who has moved to Vancouver whose hearing is to be held in Montreal may suffer serious financial prejudice if the person's application for a change of location is refused. The person must pay for the trip to Montreal, not to mention the fact that he may have already paid counsel in Vancouver to review his file. Moreover, if the application is granted, the Minister will inevitably be at a disadvantage and will have to bear the additional expense. He will have to transfer his file and, while one Minister's counsel was prepared for the case, another counsel will have to review the file and prepare the case.
The member should determine which of the two parties would suffer the greater prejudice. However, even if he determines that the person who is the subject of the proceedings would suffer the greater prejudice, an application to change the location may be refused if other relevant factors, including those listed in Rule 42(2), militate in favour of dismissing the application.
Where the location fixed for the hearing is in a detention facility, a change of location will necessarily cause the Minister serious prejudice since he or she will have to provide for the transportation and surveillance of the detained person, which is very expensive, particularly if the hearing is to take place in a different region. Furthermore, even if the change of location does not result in a change of region, the detained person may, in some cases, pose a threat to public safety and necessitate special security arrangements if the hearing is held in an IRB office.
Where a hearing has been fixed in a detention facility, a change of location for the hearing may be argued for if the space set aside for holding the hearing is inadequate. It is also not unusual for such places to be inappropriate in that they are very small and sometimes lack sufficient seating to accommodate all participants. The result is inconvenience, not just for the parties, but for everyone. Normally, this state of affairs does not in itself justify a change of location for a hearing [see section 9.2.1 - Hearing fixed in a detention facility].
9.5.6 Public safety
This factor is relevant where a person is detained on the grounds that he or she represents a danger for public safety [for more details, see "Inadmissibility and detention, Part II - Detention] and his or her application is to have the hearing moved from a detention facility to an IRB office. More often than not, the person who is the subject of the proceedings will argue that he or she must call witnesses who do not meet the criteria for admission to the institution or that the hearing is public and that some members of the public cannot be admitted to the institution.
Such grounds should not prevail over the risk of endangering public safety. In terms of hearing witnesses, the member should consider other solutions, such as affidavits or means of live telecommunication (section 164 of the Act). As concerns members of the public who cannot be admitted to the institution, the case law indicates that a "public hearing" does not require taking unreasonable measuresNote 9 [see also Chapter 4 - Hearing in public or in private, section 220.127.116.11 - Hearings in a detention facility].