Effective date: April 1, 2010
Amended December 15, 2012
Guidelines Issued by the Chairperson,
Pursuant to PARAGRAPH 159(1)(h)
of the Immigration and Refugee Protection Act
1.1 The Immigration and Refugee Board of Canada (IRB) is a quasi-judicial, independent administrative tribunal that operates less formally and more expeditiously than a traditional court of law. Accordingly, the Immigration and Refugee Protection ActNote 1 (IRPA) requires that each division of the IRB deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit.Note 2
1.2 The IRB originally issued Chairperson's Guideline 6 on December 1, 2003. At the time, it applied only to the Refugee Protection Division (RPD). The Guideline was expanded to the then existing two other divisions, the Immigration Appeal Division (IAD) and the Immigration Division (ID) and was reissued in April, 2010. It is again being updated to reflect important changes to the IRPA set out in the Balanced Refugee Reform ActNote 3 and the Protecting Canada's Immigration System Act.Note 4 These changes include the addition of another division to the IRB, the Refugee Appeal Division (RAD), strict timelines within which the RPD must hear refugee claims, and special detention provisions for designated foreign nationals before the ID.
1.3 In this document, "counsel" refers both to counsel for the subject of a proceeding before the IRB and Minister's counsel.
2.1 The purpose of this Guideline is to explain the process the IRB follows before and during a hearing to ensure fair and efficient scheduling of its proceedings. This Guideline also sets out what the IRB expects of participants and what participants can expect from the IRB. While Chairperson's Guidelines are not mandatory, members are expected to apply them or provide a reasoned justification for not doing so.
2.2 This Guideline is to be read in conjunction with the rules of each division.Note 5 It is intended that it be sufficiently flexible to take into account the various circumstances that arise in the four divisions. To this end, the Guideline first sets out general principles that apply to all four divisions (section three), and then outlines particular circumstances which may give rise to special considerations in each respective division (sections four to seven).
3. Principles Applicable to all Divisions
3.1.1 The IRB has the lawful authority to control its process and to set its own procedures, as long as the principles of natural justice and fairness are followed.Note 6
3.1.2 To fulfil its mandate, the IRB must schedule and conduct its proceedings so that immigration appeals, refugee appeals, admissibility hearings, detention reviews, refugee protection claims, and other proceedings are finalized as quickly as possible and, where applicable, within their legislative timeframes. The IRB must minimize the number of unnecessary postponements and adjournments and conduct cases quickly and fairly.
3.2.1 A party who wishes to make an application to change the date or time of a proceeding must do so according to the rules of the division.Note 7 When the application is denied prior to the proceeding or the IRB was not able to communicate its decision to the party before the proceeding, the party and, if represented their counsel, must still appear at the IRB and be prepared to proceed; otherwise, the IRB may start abandonment proceedings.Note 8
3.2.2 In cases where an application is made a second time, having previously been denied, the IRB will have careful regard for the decision and reasons for the denial of the earlier application and will only allow the new application in exceptional circumstances and where such a change is justified (for example, based on new evidence).
3.3.1 The IRB schedules proceedings based on operational and legislativeNote 9 requirements and the principles of natural justice and fairness.
3.3.2 The IRB is responsible for scheduling cases at the four divisions. The ID and RPD must schedule hearings within the time limits that are set out in the IRPA and its associated regulations, when applicable. At the RPD, the officer from Citizenship and Immigration Canada (CIC) or the Canada Border Services Agency (CBSA) who determines eligibility is responsible for scheduling the date for the refugee hearing at the time of referral based on criteria provided by the RPD; thereafter, scheduling is done by the RPD.
3.3.3 Except in the case of RPD hearing dates set by CIC or CBSA, as well as initial scheduling of some admissibility hearings and some detention reviews at the ID, the IRB endeavours to contact counsel for available dates in the course of assessing whether parties are ready to proceed to a hearing. When requested, counsel are required to submit their available dates for scheduling purposes to the IRB in accordance with the IRB's directions. Counsel who have submitted available dates and are no longer available on those dates must inform the IRB as soon as possible.
3.3.4 The IRB attempts to accommodate counsel's calendar based on the dates provided; however, the IRB is not bound by counsel's availability, and these attempts cannot interfere with the IRB's ability to schedule its proceedings efficiently, fairly, and within legislated timeframes. It is the division and not the parties that decides when cases will be scheduled.
3.3.5 The IRB may also require a party to participate in a scheduling conference to help the division fix a date for a proceeding.Note 10
3.3.6 If counsel is retained in so many proceedings before the IRB that the IRB cannot schedule cases efficiently or within the legislated timeframes taking counsel's availability into account, the IRB may schedule proceedings on dates when counsel is not available.
3.3.7 The IRB routinely prioritizes the following types of cases, or takes other appropriate measures, to ensure fair and efficient administrative processing:
- unaccompanied minors;
- persons who are being detained under the IRPA;
- persons who are likely to be a danger to public health or to public safety, or would cause excessive demands on health or social services;
- persons who are serving a sentence for a criminal offence;
- persons whom the division has identified as requiring priority processing;
- persons who have had a proceeding adjourned or postponed and for which a resumption date is required; and
- cases that are remitted for redetermination by the Federal Court or the RAD.
3.4 Vulnerable Persons
3.4.1 The IRB accommodates the special needs of persons identified as vulnerable under Chairperson's Guideline 8, Guideline on Procedures with Respect to Vulnerable Persons Appearing before the IRB.Note 11
3.5 Official Languages and Use of an Interpreter
3.5.1 The IRB recognizes that the parties, their counsel and witnesses have the right to participate in the official language of their choice and have the right to simultaneous interpretation of either official language if it is requested by a party.Note 12 Parties should inform the relevant division without delay in accordance with the division's rules if an interpreter will be required for the hearing, including the language and dialect required.
3.5.2 The IRB also recognizes that any member of the public, including counsel, has the right to communicate with the IRB in the official language of their choice. Therefore, a counsel may communicate with IRB personnel on scheduling matters in either official language,Note 13 even if it is not the official language chosen by the person who is the subject of the proceeding.
3.6.1 The IRB recognizes that parties have the right to be represented by counsel,Note 14 but this right is not absolute. The opportunity to retain counsel is not unlimited. The parties and any counsel they choose to retain must be ready and able to appear and proceed according to the scheduling requirements of the divisionNote 15 and the requirements of the legislation.
3.6.2 If counsel is retained after a date has already been set for a proceeding, the party is responsible for making sure that counsel is available and ready to proceed on the scheduled date. The IRB does not generally allow applications to change the date or time of a proceeding if a party chooses to retain counsel who is not available on a date that has already been fixed.
3.6.3 The IRB provides the parties with reasonable notice of the date and time of a proceeding in every case, which will vary according to the circumstances and the type of proceeding. The IRB therefore expects that counsel will be available and prepared to present the party's case on the date and time set by the IRB. Where, for any reason, counsel is unable to appear at a proceeding, counsel is expected to make the necessary arrangements to be replaced by another counsel who is prepared to proceed with the case on the scheduled date and time. If counsel does not appear, the IRB may decide to proceed without counsel or, if applicable, to start abandonment proceedings or to conclude that a case has been abandoned.
3.6.4 The fact that counsel wants to take time off, fulfil other professional duties or attend to personal matters that are neither urgent nor unforeseen are not sufficient reasons to allow an application to change the date or time of a proceeding.
3.7 Medical reasons
3.7.1 If an application to change the date or time of a proceeding is made for medical reasons, other than those associated with counsel, the application should be supported by a medical certificate.Note 16 While there are specific requirements regarding medical certificates in the rules of some of the divisions,Note 17 generally all medical certificates should contain enough information to allow the member to decide the application. This information includes why the subject of the proceedings cannot participate in the proceeding on the date fixed and when it is expected that he or she will be able to do so.
3.8 Self-represented Persons
3.8.1 The IRB will be sensitive to the situation of self-represented parties who are unfamiliar with its rules and processes.
3.8.2 The IRB endeavours to inform self-represented parties of its process sufficiently in advance of the proceeding to help ensure that they will be ready to proceed on the scheduled date. This includes informing them of the right to be represented by counsel. The IRB expects self-represented parties to be prepared to present their case on the scheduled date.
3.9 Time to Prepare for Proceedings
3.9.1 The IRB gives advance notice of the date and time fixed for its proceedings. The notice period will vary depending on the circumstances of the case and the type of proceeding. It is therefore expected that parties will have adequate time to prepare. An application to change the date or time of a proceeding based on the fact that parties have not had enough time to prepare must be fully substantiated. In deciding the application, the IRB considers what efforts have been made to be prepared for that proceeding.
3.10 Other Immigration Proceedings
3.10.1 The fact that immigration or other proceedings involving the party are in progress is not generally a sufficient reason to allow an application to change the date or time of a proceeding.Note 18
3.11.1 The fact that all parties to a proceeding agree to an application to change the date or time of a proceeding does not, in itself, mean that the IRB will allow the application.Note 19
3.12 Legal Aid
3.12.1 The fact that a party is waiting for an application for legal aid to be approved is not generally a sufficient reason to allow an application to change the date or time of a proceeding.Note 20 However, members may consider delays in the processing of legal aid applications that were beyond the control of the party.Note 21
4. Immigration Appeal Division
4.1 The IAD allows applications to change the date or time of a proceeding only in exceptional circumstances and where such a change is justified. When considering an application, the member considers all relevant factors, including those set out in IAD Rule 48(4), with an important consideration being whether or not the parties were consulted by the IAD and had agreed to the date and time. Where the parties have agreed to the date and time of a proceeding, that agreement will be regarded as an explicit and positive commitment to the IAD to be present and to be prepared to proceed at that date and time.
4.2 The IAD often hears witnesses who are located in other countries, particularly in residency obligation appeals and sponsorships appeals. Parties who wish to testify from abroad or call witnesses who are situated abroad are responsible for supplying a reliable means of communication, such as valid, pre-paid calling cards and a functional land-line telephone connection, in order to facilitate their testimony. The IAD will not generally grant an application to change the date or time of a proceeding in order to make arrangements to communicate with the party or witness, if the party has not supplied such means of communication or has not acted diligently in doing so.
4.3 The fact that there are pending criminal charges or a pending appeal of a conviction on criminal charges related to the appellant is not generally a sufficient reason for the IAD to grant an application to change the date or time of a hearing.
5. Refugee Appeal Division
5.1 The RAD holds an oral hearing only in limited circumstances.Note 22 While the time limits set out in the Immigration and Refugee Protection Regulations (IRPR)Note 23 for rendering a decision at the RAD do not apply when an oral hearing is held, the regulations signal a legislative intent for the expeditious resolution of refugee appeals.
5.2 The RAD allows applications to change the date or time of a proceeding only in exceptional circumstances and where such a change is justified. When considering an application, the member considers all relevant factors, including those set out in RAD Rule 67(5) with an important consideration being whether or not the parties were consulted by the RAD and had agreed to the date and time. Where the parties have agreed to the date and time of a proceeding, that agreement will be regarded as an explicit and positive commitment to the RAD to be present and to be prepared to proceed at that date and time.
5.3 In addition to the general requirements set out in section 3.7 of this Guideline, applications to change the date or time of a proceeding based on medical reasons, other than those related to counsel, must include the information required in Refugee Appeal Division Rules 67(7), (8) and (9).
6. Immigration Division
6.1 The ID allows applications to change the date or time of a proceeding only in exceptional circumstances and where such a change is justified. When considering an application, the member considers all relevant factors, including those set out in ID Rule 43(2), with an important consideration being whether or not the parties were consulted by the ID and had agreed to the date and time. Where the parties have agreed to the date and time of a proceeding, that agreement will be regarded as an explicit and positive commitment to the ID to be present and to be prepared to proceed at that date and time.
6.2 In addition, for detention reviews, compliance with mandatory statutory timeframes is a guiding principle.Note 24
6.3 The ID does not generally grant applications to change the date or time of a detention review if doing so will result in the review being conducted outside the mandatory statutory timeframes. In cases where such an application is granted, the review will be rescheduled at the earliest possible date.
6.4 The ID does not grant applications to hold detention reviews outside the mandatory timeframes for the sole reason that the subject of the proceedings waives the right to have the detention reviewed within the timeframe.Note 25
6.5 The ID does not grant applications to change the date or time of an admissibility hearing for the purpose of providing relief from the effect of issuing a removal order, such as avoiding the impact the issuance of a removal order may have on other legal processes.Note 26
6.6 The fact that there is a pending appeal of a conviction on criminal charges related to the subject of the proceedings or a pending application for Ministerial relief from inadmissibilityNote 27 is not generally a sufficient reason for the ID to grant an application to change the date or time of an admissibility hearing.
6.7 The fact that the subject of the proceedings is detained will be an important consideration when deciding an application to change the date and time of an admissibility hearing. In such a case, if the application is granted, the admissibility hearing will be rescheduled at the earliest possible time.
6.8 The ID expects the Minister to be prepared to proceed in an admissibility hearing from the date it is referred to the Division. The ID will not generally grant an application to change the date or time of an admissibility hearing brought by the Minister where the application is made in order to gather further evidence or prepare for the proceedings where it was reasonably foreseeable on the date of referral that such documentation or such efforts would be required.
7. Refugee Protection Division
7.1 On December 15, 2012 substantial amendments to the IRPA came into force. These changes signal a clear Parliamentary shift toward an emphasis on the expeditious resolution of refugee claims. This shift was further implemented through amendments to the IRPR. The Regulations stipulate, for the first time, that dates for refugee hearings be fixed within specific timeframes, being 30, 45, or 60 days depending on the type of claim.Note 28
7.2 In light of the amendments to IRPA and the Regulations, the RPD takes a strict approach to scheduling and to applications to change the date or time of a hearing. Compliance with the mandatory regulatory timeframes for conducting RPD hearings is a guiding principle.
7.3 The RPD expects parties and their counsel to be ready to proceed on the date and time scheduled for the hearing. Applications to change the date or time of the hearing will be granted only in exceptional circumstancesNote 29 and, where the application would cause the hearing to be heard outside the statutory timeframes, only if the evidence indicates that it is necessary in order to conform with the principles of natural justice.Note 30
7.4 Where an application to change the date or time of a hearing is granted, the RPD will normally reschedule the hearing within ten working days.Note 31 Counsel and the parties are expected to be prepared to proceed on a date fixed during that time period.
7.5 The RPD recognizes that, at the time the officer fixes the date for a refugee hearing, the claimant may not have retained counsel or may not have their counsel's available dates. Consequently, the RPD grants applications to change the date or time of a hearing that was set by the officer if the application is made in accordance with Rule 54(5) of the Refugee Protection Division Rules, subject only to the division's operational requirements. If the application is granted, the new date must be within the time limits set out in the Regulations for the hearing of the claim. In all other cases, the RPD will generally not grant an application to change the date or time of the proceeding based solely on the fact that the claimant chose counsel who is not available on the date the officer fixed for the hearing.
7.6 In addition to the general requirements set out in section 3.7 of this Guideline, applications to change the date or time of a proceeding based on medical reasons, other than those related to counsel, must include the information required in Refugee Protection Division Rules 54(6), (7) and (8).
7.7 If a party requests a change of date or time of the proceedings for the purpose of obtaining documentation, the RPD generally proceeds and will determine at the end of the hearing whether or not it is necessary to grant a delay to obtain and provide the documents.
7.8 In accordance with the Instructions Governing the Management of Refugee Protection Claims Awaiting Front-end Security Screening,Note 32 and acting on its own initiative, the RPD may administratively postpone certain proceedings when confirmation from the Canada Border Services Agency on front-end security screening of a claimant has not been received.
7.9 Despite the changes to the IRPA that came into force on December 15, 2012, the RPD also continues to hear transitional claims that were referred to it prior to the coming into force of those amendments. In such cases, the mandatory time limits for the hearing of refugee claims set out in the Regulations do not apply. In these transitional cases, the RPD approach to applications to change the date or time of a proceeding, and to rescheduling a hearing following an accepted application to change the date or time of a proceeding, reflects this distinct legal context within which these claims were referred to the RPD.
For information, contact:
Director, Policy and Procedures Directorate
Minto Place - Canada Building
344 Slater Street, 14th floor
Ottawa, Ontario K1A 0K1