Policy no. 2003-05
Effective Date: February 15, 1999
Re-issued: June 19, 2003
COURT-ORDERED REHEARINGS
1. Purpose
This policy serves two purposes. First, this policy standardizes the selection of decision-makers when the Federal Court (the Court) refers a matter back to the Immigration and Refugee Board (IRB) for a rehearing. Second, this policy requires priority review of court-ordered rehearings by Legal Services, in order to ensure that the evidence from such files is processed in accordance with the Court order and with the principles of natural justice. Both of these purposes serve the ultimate goal of conducting a fair, effective, and efficient rehearing process that minimizes the possibility of a reasonable apprehension of bias.
2. Application
This Policy is applicable to the Immigration Division, the Refugee Protection Division (RPD), and the Immigration Appeal Division (IAD) of the IRB. The Board's policy on Court Ordered Re-hearings, which originally became effective February 15, 1999, is re-issued with consequential amendments to bring it in line with the terminology and section references in the Immigration and Refugee Protection Act and Board Rules.It replaces the former Court-Ordered Rehearings Policy Paper (#1999-01).
3. Context
Before the Court-Ordered Rehearings Policy came into effect in 1999, the IRB traditionally interpreted Court-ordered rehearings as a requirement for a new hearing or a hearing de novo. It removed from the rehearing case file all documentary evidence except for the originating or jurisdictional document, and the order and reasons of the Court. The IRB also ensured that, where possible, the matter was reheard by decision-makers other than those who made the original decision.
In light of jurisprudence and in accordance with the general principle that a statutory tribunal has control over its proceedings, the IRB adopted a more flexible procedure in conducting court-ordered rehearings with the introduction of the Policy in 1999. The guiding principle of the policy at that time, as at present, is to ensure that, in respect of the principles of natural justice, the use of evidence from previous hearings will not lead to a reasonable apprehension of bias.
4. Definitions
There are none for the purposes of this policy.
5. Policy Statement
Legal Services will review all court-ordered rehearings in order to provide preliminary recommendations on: 1) the interpretation of the remittal; 2) the content of the rehearing case file as set out below; and 3) related matters. Legal Services will treat these cases as a high priority.
The IRB will comply with any directions of the Court regarding the composition of the rehearing panel. In those instances where the Court does not provide directions regarding the composition of the rehearing panel, whenever practicable, the case will be reheard by a decision-maker(s) other than the one (those) who made the original decision.
The IRB will also comply with any specific directions of the Court regarding the contents of the rehearing case file. Where the Court gives no such directions, the content of the rehearing case file will be determined according to whether or not the Court has found a denial of natural justice.
In those instances where the Court does not provide directions, the following persons decide who the decision-maker(s) will be and are ultimately responsible for deciding the contents of the rehearing case file and will instruct the Registry accordingly:
For the Immigration Division: the appropriate Manager
For the Immigration Appeal Division: the appropriate Assistant Deputy Chairperson or Co-ordinating Member
For the Refugee Protection Division: the appropriate Assistant Deputy Chairperson or Co-ordinating Member
File content: where the Court has not found a denial of natural justice
Where the Court has provided no specific directions and has made no determination that there was a denial of natural justice in the original hearing, the rehearing case file will contain:
- jurisdictional documents (for example: notice of appeal, referral to the RPD, request for admissibility hearing or detention review)
- the Court order and any reasons
- the original decision of the IRB and any reasons
- administrative documents (for example: notices to appear)
- exhibits filed at the previous hearing
- any transcripts of the previous hearing
- other evidence on the original file.
File content: where the Court has found a denial of natural justice
Where the Court has determined that there was a denial of natural justice in the original hearing and provides specific directions, the IRB will comply with these directions.
Where the Court has not given specific directions, the only documents that must, in every case, be included in the rehearing case file are the Court order and the jurisdictional documents (for example: notice of appeal, referral to the RPD, request for admissibility hearing, or detention review). Legal Services, where appropriate, may advise the Assistant Deputy Chairperson (or Coordinating Member) or the Manager of the Immigration Division on the need for including any other documents in the rehearing file.
6. Implementation
Related procedural guidelines are contained in the Case Management Manuals of the IRB's three Divisions (Chapter 37- RPD, Chapter 20- IAD, Chapter 25-Immigration Division).
7. Monitoring
Ongoing monitoring and evaluation of this policy will be carried out under the direction of the Divisions' Operations Committees, with the support of Regional Executive Committees and the Policy, Planning and Research Branch.
8. References
Relevant Legislation
Federal Court Act, section 18.1(3).
Immigration and Refugee Protection Act, section 72.
9. Enquiries
For information contact:
Chief, Policy, Development and Coordination Section
Canada Building (Minto Place)
344 Slater Street, 14 th Floor
Ottawa, Ontario K1A 0K1
Fax: (613) 952-9083