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

Remedial and Disciplinary Measures

Marginal note:Request

• 176 (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.

Marginal note:Measures

177 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

178 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

179 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

180 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

• 181 (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

• 182 (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.

Marginal note:Right to be heard

183 The member who is the subject of the inquiry shall be given reasonable notice of the subject-matter of the inquiry and of the time and place of any hearing and shall be given an opportunity, in person or by counsel, to be heard at the hearing, to cross-examine witnesses and to present evidence.

Marginal note:Report to Minister

• 184 (1) After an inquiry has been completed, the judge must submit a report containing the judge’s findings and recommendations, if any, to the Minister.

• Marginal note:Recommendations

  (2) The judge may, for any of the reasons set out in subsection 176(2), recommend in the report that the member be suspended without pay or removed from office or that any other disciplinary measure or any remedial measure be taken.

Marginal note:Transmission of report to Governor in Council

185 If the Minister receives a report of an inquiry in which the judge makes a recommendation, the Minister shall send the report to the Governor in Council who may, if the Governor in Council considers it appropriate, suspend the member without pay, remove the member from office or impose any other disciplinary measure or any remedial measure.

Marginal note:Rights not affected

186 Nothing in sections 176 to 185 affects any right or power of the Governor in Council in relation to the removal of a member from office for cause.

PART 4.1Electronic Administration

Marginal note:Powers

• 186.1 (1) The Minister may administer this Act using electronic means, including as it relates to its enforcement.

• Marginal note:Exception

  (2) This Part does not apply to the Minister of Employment and Social Development in respect of any activity the administration of which is the responsibility of that Minister under this Act.

• Marginal note:Officer

  (3) For greater certainty, any person or class of persons who are designated as officers by the Minister to carry out any purpose of this Act may, in the exercise of their powers or the performance of their duties and functions, use the electronic means that are made available or specified by the Minister.

• Marginal note:Delegation

  (4) For greater certainty, a person who has been authorized by the Minister to do anything that may be done by the Minister under this Act, may do so using the electronic means that are made available or specified by the Minister.

• Marginal note:Decision, determination or examination by automated system

  (5) For greater certainty, an electronic system, including an automated system, may be used by the Minister to make a decision or determination under this Act, or by an officer to make a decision or determination or to proceed with an examination under this Act, if the system is made available to the officer by the Minister.

Marginal note:Conditions for electronic version

186.2 A requirement under this Act to provide a signature, or to make an application, request, claim, decision or determination, or to submit or issue any document, or to give notice or provide information, or to submit a document in its original form, is satisfied by its electronic version, if

• (a) the electronic version is provided by the electronic means, including an electronic system, that are made available or specified by the Minister; and

• (b) any other requirements that may be prescribed have been met.

Marginal note:Regulations

• 186.3 (1) The regulations may provide for any matter respecting the application of section 186.1 and paragraph 186.2(b), and may include provisions respecting

  • (a) the technology or format to be used, or the standards, specifications or processes to be followed, including for the making or verifying of an electronic signature and the manner in which it is to be used; and

  • (b) the date and time when, and the place where, an electronic version of an application, request, claim, notice, decision, determination, document or any information is deemed to be sent or received.

• Marginal note:Requirement to use electronic means

  (2) The regulations may require a foreign national or another individual who, or entity that, makes an application, request or claim, submits any document or provides information under this Act to do so using electronic means, including an electronic system. The regulations may also include provisions respecting those means, including that system, respecting the circumstances in which that application, request or claim may be made, the document may be submitted or the information may be provided by other means and respecting those other means.

• Marginal note:Minister’s power

  (3) The regulations may prescribe the circumstances in which the Minister may require a foreign national or another individual who, or an entity that, makes an application, request or claim, submits any document or provides information under this Act to do so using any means that are specified by the Minister.

• Marginal note:Electronic payments

  (4) The regulations may

  • (a) require that payments that are required to be made or evidence of payment that is required to be provided under this Act must be made or provided by means of an electronic system;

  • (b) include provisions respecting such a system, respecting the circumstances in which those payments may be made or evidence of payments may be provided by other means, and respecting those other means; and

  • (c) include provisions respecting the date and time when, and the place where, an electronic payment or evidence of payment is deemed to be sent or received.

• Marginal note:Incorporation by reference

  (5) The regulations may incorporate by reference the standards or specifications of any government, person or organization, either as they exist on a specified date or as amended from time to time.

Marginal note:Clarification

186.4 If any provision of this Act or the regulations authorizes an officer or another individual to require a foreign national or another individual or an entity to submit a visa or other document or to provide information, the officer or individual is not precluded by this Part from requiring the foreign national, other individual or entity to submit the visa or other document or to provide the information, as the case may be, in accordance with that provision.

PART 5Transitional Provisions, Consequential and Related Amendments, Coordinating Amendments, Repeals and Coming into Force

Transitional Provisions

Marginal note:Definition of former Act

187 For the purposes of sections 188 to 201, former Act means the Immigration Act, chapter I-2 of the Revised Statutes of Canada, 1985, and, where applicable, the regulations and rules made under it.

Marginal note:Continuation

• 188 (1) The Immigration and Refugee Board continued by section 57 of the former Act is hereby continued.

• Marginal note:Chairperson, Deputy Chairpersons, Assistant Deputy Chairpersons

  (2) The Chairperson, Deputy Chairpersons and Assistant Deputy Chairpersons appointed under the former Act continue in the same capacity with the Board until the expiry or revocation of their respective appointments.

• Marginal note:Continuation — members

  (3) A member appointed under the former Act to the Convention Refugee Determination Division or the Immigration Appeal Division continues in office as a member of the Board until the expiry or revocation of their appointment.

• Marginal note:Executive Director

  Footnote ^*(4) The person who, on the coming into force of this section, held the office of Executive Director of the Board is deemed to have been appointed to that office under section 158, without prejudice to any salary and benefits he or she may receive by virtue of having held that office before that coming into force.

  • Return to footnote ^*[Note: Section 188 in force June 28, 2002, see SI/2002-97.]

Marginal note:Powers

Footnote ^*189 Sections 94.6, 102.001 to 102.003 and 107.1 of the former Act are, despite paragraph 274(a), deemed not to be repealed and the Minister may exercise any of the powers described in those sections with respect to any business or fund that was approved by the Minister before the coming into force of paragraph 274(a).

• Return to footnote ^*[Note: Paragraph 274(a) in force June 28, 2002, see SI/2002-97.]

Marginal note:Application of this Act

Footnote ^*190 Every application, proceeding or matter under the former Act that is pending or in progress immediately before the coming into force of this section shall be governed by this Act on that coming into force.

• Return to footnote ^*[Note: Section 190 in force June 28, 2002, see SI/2002-97.]

Marginal note:Convention Refugee Determination Division

Footnote ^*191 Every application, proceeding or matter before the Convention Refugee Determination Division under the former Act that is pending or in progress immediately before the coming into force of this section, in respect of which substantive evidence has been adduced but no decision has been made, shall be continued under the former Act by the Refugee Protection Division of the Board.

• Return to footnote ^*[Note: Section 191 in force June 28, 2002, see SI/2002-97.]

Marginal note:Immigration Appeal Division

Footnote ^*192 If a notice of appeal has been filed with the Immigration Appeal Division immediately before the coming into force of this section, the appeal shall be continued under the former Act by the Immigration Appeal Division of the Board.

• Return to footnote ^*[Note: Section 192 in force June 28, 2002, see SI/2002-97.]

Marginal note:Continuation by Immigration Division

Footnote ^*193 Every application, proceeding or matter before the Adjudication Division under the former Act that is pending or in progress immediately before the coming into force of this section, in respect of which substantive evidence has been adduced but no decision has been made, shall be continued under this Act by the Immigration Division of the Board.

• Return to footnote ^*[Note: Section 193 in force June 28, 2002, see SI/2002-97.]

Marginal note:Refugee Protection Division

194 In cases referred to in section 191, a decision by the Refugee Protection Division following a hearing that has been commenced by the Convention Refugee Determination Division is not subject to an appeal under section 110.

Marginal note:Convention Refugee Determination Division

195 A decision made by the Convention Refugee Determination Division before the coming into force of this section is not subject to an appeal under section 110.

Marginal note:Appeals

196 Despite section 192, an appeal made to the Immigration Appeal Division before the coming into force of this section shall be discontinued if the appellant has not been granted a stay under the former Act and the appeal could not have been made because of section 64 of this Act.