COMMENTARIES TO THE IMMIGRATION APPEAL DIVISION RULES
New ground of appeal
Rules 9 and 46 of the IAD Rules deal with the new ground of appeal provided for in subsection 63(4) of the Immigration and Refugee Protection Act. The right of appeal based on this ground is intended for persons outside of Canada who the Department of Citizenship and Immigration Canada (CIC) finds have lost permanent resident status for not meeting the residency obligation for every five-year period as described in section 28 of the Act.
Providing the notice of appeal and the written reasons for decision
The appellant must provide the notice of appeal to the Registry Office of the Immigration Appeal Division (IAD) which serves the province or territory where the appellant last resided in Canada. The notice of appeal has instructions attached which set out the locations of the Registry Offices and the regions of Canada which each Registry Office covers. This information is also available at the Immigration and Refugee Board's Web site: www.irb-cisr.gc.ca.
The notice of appeal and the CIC written decision must be received by the IAD Registry Office no later than 60 days after the appellant received the CIC written decision. The time limit for this type of appeal is longer than the 30-day time limit for the other IAD appeals because the appellant will be outside Canada.
Application to return for a hearing
Where applicable, the appellant must clearly indicate in the notice of appeal that the appellant wants to return to Canada for the hearing of the appeal. The appellant may need a travel document in some situations in order to enter Canada. The appellant must then make an application under rule 46 of the IAD Rules to return to Canada for the hearing of the appeal. The procedure to follow in making the application is discussed in the commentary on rule 46. Under subsection 175(2) of the Act, the Division may then decide whether the appellant should physically appear at the hearing of the appeal.
The Division generally schedules hearings and other proceedings with the agreement of the parties. The Division tries to give parties and their counsel a reasonable amount of time to prepare appeals and schedule appeals and other related proceedings at times when parties and their counsel are available. (Other related proceedings include attendance at a proceeding in the alternative dispute resolution process under rule 20 of the IAD Rules or appearance at a conference under rule 21.) However, while the Division considers the requests of the parties, it is the Division, and not the parties, that decides when cases will be scheduled.
Information to help set a date for a hearing
To help set a date for a hearing, parties and their counsel may be required to provide the following information to the Division: counsel's contact information (IAD Rules, rule 13); the need for an interpreter and the type of interpreter needed (IAD Rules, subsection 18(1)); whether documents have been provided in accordance with the rule on disclosure (IAD Rules, rule 30); information about witnesses (IAD Rules, rule 37); the need for any special equipment such as a television/video recorder or teleconference equipment; and whether any Charter, jurisdictional or unusual legal issues will be raised at the hearing.
Scheduling of hearings at Assignment Court
The hearing dates for most cases will be set at a scheduling conference known as Assignment Court. Parties or their counsel must appear in person at Assignment Court unless the Division tells them that this is not necessary. Assignment Court is held on a regular basis. A member of the Division will be present at Assignment Court and will be responsible for setting the date of the hearing of the appeal. Where parties or their counsel live a considerable distance from the location of the Division where the hearing will take place or where the appellant is being held in detention, a clerk of the division scheduling unit may contact the parties for the purpose of scheduling the hearing or other proceeding. The Division, and not the parties, decides whether parties or their counsel need to appear in person at Assignment Court.
Appearance at Assignment Court may not be necessary
The Division may decide not to require appellants or their counsel to appear in person at Assignment Court in cases where parties represented by counsel are ready to proceed to hearing, are prepared to set a hearing date and will clearly state that they are ready for hearing. It is the responsibility of appellants or their counsel to contact the registry office of the Division by telephone to make a request not to have to appear at Assignment Court. In order not to have to appear at Assignment Court, appellants or their counsel must confirm with a clerk of the division scheduling unit that they are ready to proceed and that a hearing date can be set.
Readiness to be heard
The Division will only set hearing dates at the request of parties where cases are ready to be heard. It will not set hearing dates where cases are not ready to proceed to hearing. In setting dates, parties should consider the Division's Rules on disclosing documents (IAD Rules, rules 30 and 31) and on providing documents (IAD Rules, rules 32 to 36). Parties must also ensure that witnesses are available for the requested hearing dates. If parties state that they are ready to proceed and a hearing date is set based on that statement, the parties will be expected to proceed on the date set, whether they are ready or not. Where a party has stated that the party is ready to proceed, and later states that he or she is not ready to proceed, the Division may require the party or the party's counsel to appear in person at Assignment Court in the future, for this and any other appeal.
The Division may set a hearing date on its own
The Division may set a hearing date where the parties have been given a reasonable time to prepare, whether or not the case is ready for hearing. This may happen where the Division is of the opinion that a party is trying to delay the hearing of an appeal or has not actively worked on the preparation of the appeal.
Scheduling of proceedings other than hearings
The Division will usually, but not always, schedule proceedings other than hearings by telephone.
Inadmissibility appeals based on health grounds
For direction on scheduling this type of appeal, reference should be made to the commentary on inadmissibility appeals based on health grounds that is set out at the end of these IAD Rules. The commentary deals with scheduling and other issues related to appeals involving this ground of inadmissibility.
The time limit for the disclosure of medical documents set out in subsection 30(4) of the IAD Rules must be read together with the commentary on appeals based on inadmissibility on health grounds that appears after the end of the IAD Rules. The commentary deals with the requirements for disclosure and other issues related to this type of inadmissibility appeal.
Form of the application
As required by subsection 46(1) of the IAD Rules, an application to return to Canada for a hearing is to be made in writing and in accordance with rule 43. The Division will decide the application based on the written evidence and written submissions of the parties. Therefore, it is important that the parties provide all the evidence and supporting reasons the parties believe will assist the Division in deciding the application. Under s. 175(2) of the Act, the Division may order that permanent resident to physically appear at the hearing if it is satisfied that the presence of the permanent resident is necessary.
Content of the application: Under the general rule on applications, the appellant must:
- state the decision the appellant wants the Division to make under subsection 175(2) of the Immigration and Refugee Protection Act; i.e., an order requiring the physical appearance of the appellant at the hearing of the appeal;
- state the reasons why the Division should make that order, i.e., why the appellant's physical appearance at the hearing is necessary;
- state whether the Minister agrees to the application;
- include any evidence the appellant wants the Division to consider in deciding the application. This evidence must be in the form of a statutory declaration or affidavit.
The application documents must be received by the Division and the Minister no later than 60 days after the Division received the notice of appeal.
Subsection 162(2) of the Immigration and Refugee Protection Act requires the Division to deal with all proceedings before it "as informally and quickly as the circumstances and the considerations of fairness and natural justice permit".
The Division generally sets hearing dates with the consent of the parties. The exceptions to this practice arise where parties or their counsel do not respond to efforts by the Division to set a hearing date, or seek to delay the setting of a hearing date without justification. In such instances, the Division sets a hearing date that gives the parties a reasonable amount of time to prepare.
In every case where a hearing date is set, it is expected that the parties will have completed the evidence-gathering process sufficiently in advance of the hearing date to ensure compliance with the requirements for disclosure set out in the IAD Rules. It is expected that the parties will be prepared to proceed on the date set for hearing. Furthermore, where parties have consented to a hearing date, that consent will be regarded as an explicit and positive commitment to the Division to be present, to be prepared to proceed, and to have made no other commitments that will make their attendance impossible.
Subsection 48(4) of the IAD Rules sets out a list of factors that the Division may consider when it decides an application to change the date or time of a proceeding.
If a date was fixed after the Division consulted or tried to consult the party, then exceptional circumstances will be needed before the Division allows an application for a change of the date.
The consent of the parties is a relevant factor, but it is not determinative. Neither party should expect that the Division will allow an application to change the date or time of a proceeding merely because the other party consents to the application.
If a counsel accepts a retainer from an appellant who has consented to a hearing date, it will be presumed that counsel has also agreed to that date - and therefore will be ready to appear and present their client's case on that date. If counsel cannot appear, it is expected that they will make adequate arrangements for their client's representation through the appearance of an associate, partner or agent who is prepared to go ahead on the date set for hearing.
Unrepresented appellants are advised of their right to representation at the beginning of the appeal process and at the Scheduling Conference. Therefore, unrepresented appellants are expected to retain counsel without delay and to retain counsel who are available to appear on any date that is set with the appellant's consent. This expectation will be a factor in any application that an unrepresented appellant may make to change the date of a proceeding on the grounds that they have not yet retained counsel or that the counsel they did retain is not available for the date that had been set with the appellant's consent.
Where a hearing has started but cannot be completed on the fixed date, the Division will attempt to set resumption dates no more than six weeks later. Unless there are exceptional circumstances, parties and their counsel should be prepared to agree to a resumption date within that time frame.
Applications must be timely, in writing, and with notice to the other party. Applications must be made as far as possible before the date of the proceeding. Such applications must be made in writing and be provided to the other party as required in rule 43 of the IAD Rules. Where an application has not been provided to the other party, the Division will not consider the application.
Duty to provide alternative dates
All applications for changing the date or time of a proceeding must be accompanied by a minimum of six alternative dates to which the proceeding may be rescheduled. A party who is making an application should contact the Scheduling Unit of the Division to obtain a range of dates acceptable to the Division. The Division will not consider applications where the party has not provided a sufficient number of alternative dates.
Applications received two working days or less before the hearing
The Division may not have enough time to consider and decide applications to change the date or time of a proceeding that are received by the other party or by the Division two working days or less before the date of proceeding. Where the parties do not receive a response to an application, the parties must be prepared to go ahead with the proceeding on the fixed date (see below).
Where no response to an application is received from the Division, it should be assumed that the application has been dismissed
In any case where the Division cannot communicate its decision to the parties regarding an application to change the date or time of a proceeding, the parties should not assume that the application has been allowed. Rather, they are to assume that the application has been dismissed. They must then be prepared to attend on the proceeding date with all parties, counsel, witnesses and documents available, and they must be prepared to go ahead with the proceeding. A party is still able to attempt to make the application again at the beginning of the hearing or proceeding itself.
Where an application is dismissed, the proceeding will go ahead
Where an application to change the date or time of a proceeding is made orally at the proceeding itself or a party attempts again at the proceeding to make an application to change the date or time after a previous application was dismissed, all counsel and the parties must attend on the proceeding date to make submissions on the application. Parties must have their witnesses and documentary evidence available and must be prepared to go ahead with the appeal if the application is dismissed.
Inadmissibility Appeals based on Health Grounds (scheduling and disclosure issues)
Resolving an appeal without a hearing and scheduling an appeal where a hearing is required
Parties can often resolve an appeal based on inadmissibility on health grounds without a hearing. The medical condition of applicants found inadmissible on health grounds may change over time, and the original medical assessments leading to that finding may be looked at again.
The first time that appellants and their counsel appear in person at Assignment Court, they must be prepared to state the grounds of appeal. Where they do, the Minister's counsel can assess whether Citizenship and Immigration Canada (CIC) might be willing to consider resolving the appeal without a hearing, and the Division can decide whether it is possible to resolve the appeal without a hearing. Where appellants and their counsel do not state the grounds of appeal and a second appearance in Assignment Court is required, the Division will determine whether or not the appellant is responding quickly enough, and the Division may limit the time for the process and schedule the appeal for hearing.
Where the legal validity of a refusal is being challenged, CIC may consider reassessing inadmissibility and require the applicant to undergo further medical examinations abroad. This will mean lengthy delays in the process before the Division. Delays may also occur where the appellant presents new medical evidence to challenge the legal validity of a refusal. Different considerations apply where the legal validity of a refusal is not challenged and the appeal is based solely on humanitarian and compassionate considerations. In this situation, there will not be any new medical instructions, and the appeal should be scheduled for hearing after the appellant has confirmed that the appeal is based on those considerations alone.
Where the legal validity of a medical refusal is being challenged, the Division will not consider setting a hearing date until it is satisfied that the CIC will be able to assess any new medical evidence prior to that date. However, the Division may set a hearing date regardless of whether or not the appellant has made the necessary confirmation or CIC has finished assessing the new medical evidence as it is the Division that decides when cases will be scheduled.
If the appellant's new medical evidence specifically addresses the issues raised in the medical notification, which is included in the appeal record, then the likelihood of resolving the issue of legal validity is greater, and even if the issue cannot be resolved, the hearing of the appeal will be more focused.
When seeking new medical information, appellants and their counsel should give to any examining physician or specialist a copy of the applicant's medical notification, as well as a copy of the summary assessment, which sets out all the codes that may make up the medical profile. When the appellant is challenging the legal validity of a refusal, any medical report should expressly and clearly address the grounds of inadmissibility being disputed (e.g., the doctor's opinion on the applicant's health condition and/or the annual cost of any future excessive demand on health or social services).
Where the new medical evidence is so vague or irrelevant to the issues that the Division is not satisfied that it is likely that the appeal can be resolved without a hearing, the Division may schedule the appeal for hearing so as to avoid any further delay.
After the appellant informs the Division that the appellant wants to present new evidence to challenge the legal basis of the refusal, the Division will find out how long it will take to obtain the evidence and establish a timeframe for submitting it to CIC. The Division will generally limit appellants and their counsel to a single submission of new medical evidence in the process of trying to resolve an appeal without a hearing.
When new medical information is submitted to CIC, the Minister's counsel has a duty to advise both the appellant and the Division promptly whether the new medical information might cause CIC to change its view of the case. If CIC does not change its position and a resolution is not possible, then the Division will schedule the appeal for hearing. If CIC indicates that it is willing to issue new medical instructions and may reconsider its position, then the Minister's counsel must advise both the appellant and the Division accordingly as soon as possible.
The longest delays in appeals based on inadmissibility on health grounds occur where CIC has issued new medical instructions and the applicant then undergoes another medical examination. To reduce delays, it is necessary that both parties to the appeal take responsibility for moving the case forward. The appellant has a duty to ensure that the applicant follows instructions from the visa post about any further medical examinations. Appellants and their counsel must actively ensure that the visa post has the applicant's current address on file and is aware of the best way to contact the applicant. They must also ensure that the applicant is aware of the need to follow timeframes set by the visa post for arranging and undergoing medical examinations, as well as the need to provide the visa post with passport-size photographs of the applicant if the visa post no longer has photographs on file.
The Minister's counsel must advise the Division and the appellant whether or not the applicant has followed the instructions given by the visa post. At every scheduled Assignment Court, the Minister's counsel must also inform the Division and the appellant about the status of the case, i.e., any recent progress made by the visa post in processing the results of the medical examinations.
The procedure outlined above sets out obligations of both the appellant and CIC. The Division will monitor the progress of each appeal by requiring parties to appear in person at Assignment Court or to provide information in writing about any progress that may have been made.
If at any time either party wants to stop the process of attempting to resolve the appeal without a hearing, the party may notify the Division and the other party, and the Division will schedule the appeal for hearing following the scheduling procedure described in this commentary.
Appeals based solely on humanitarian and compassionate considerations
Even where an appellant accepts that the applicant's medical condition might reasonably be expected to cause excessive demand on health or social services or that the applicant is inadmissible on other health grounds, medical evidence may still be submitted to attempt to show that the degree of excessive demand or the likelihood of danger to public health or safety is less than originally believed.
Subsection 30(3) of the IAD Rules sets out a 20-day time limit for disclosing evidence and a 10-day time limit for disclosing evidence in response. Given the nature of medical evidence, a qualified physician usually has to interpret and analyze the evidence to assist counsel in understanding and using it. For this reason, the 20-day time limit for disclosure and the 10-day time limit for disclosing evidence in response are often not long enough for parties to have their experts assess, and respond to, medical evidence. Subsection 30(4) of the IAD Rules thus provides for a 60-day time limit for disclosing any medical documents in an appeal based on inadmissibility on health grounds, and a 30-day time limit for responding documents. However, the Division will generally require disclosure of all medical evidence by both parties before setting a hearing date.