Immigration Division Rules (SOR/2002-229)

Definitions

Marginal note:Definitions

1 The following definitions apply in these Rules.

Act

Act means the Immigration and Refugee Protection Act. (Loi)

admissibility hearing

admissibility hearing means a hearing held under subsection 44(2) of the Act. (enquête)

contact information

contact information means a person’s name, postal address and telephone number and the person’s fax number and electronic mail address, if any. (coordonnées)

detention review

detention review means a forty-eight hour review, a seven-day review and a thirty-day review. (contrôle des motifs de détention)

Division

Division means the Immigration Division. (Section)

forty-eight hour review

forty-eight hour review means the review of the reasons for continued detention under subsection 57(1) of the Act. (contrôle des quarante-huit heures)

party

party means a permanent resident or foreign national, as the case may be, and the Minister. (partie)

proceeding

proceeding means an admissibility hearing, a detention review, a conference or an application. (procédure)

registry office

registry office means a business office of the Division. (greffe)

seven-day review

seven-day review means the review of the reasons for continued detention required to be held during the seven days following a forty-eight hour review, under subsection 57(2) of the Act. (contrôle des sept jours)

thirty-day review

thirty-day review means the review of the reasons for continued detention required to be held during the thirty days following each previous review, under subsection 57(2) of the Act. (contrôle des trente jours)

Communicating with the Division

Marginal note:Communicating with the Division

2 All communication with the Division must be directed to the registry office specified by the Division.

PART 1Rules Applicable to Admissibility Hearings

Information

Marginal note:Information provided by the Minister

3 When the Minister requests the Division to hold an admissibility hearing, the Minister must provide to the Division and the permanent resident or foreign national, as the case may be, any relevant information or document that the Minister may have, including

• (a) the name and other contact information in Canada of the permanent resident or foreign national;

• (b) the person’s date of birth, sex and citizenship;

• (c) whether the person is single, married, separated or divorced or is a common-law partner;

• (d) the inadmissibility report and the Minister’s referral;

• (e) whether the person has made a claim for refugee protection;

• (f) the name and address of the place of detention, if the person is detained;

• (g) the language — English or French — chosen by the person for communicating with the Division;

• (h) if an interpreter is required, the language or dialect to be interpreted;

• (i) if the person has counsel, the counsel’s contact information;

• (j) the client identification number given to the person by the Department of Citizenship and Immigration;

• (k) the names, sex, date of birth, citizenship, and other contact information of any family member whose case has been referred to the Division, and the client identification number given to them by the Department of Citizenship and Immigration;

• (l) the date on which the Minister makes the request;

• (m) the name and title of the Minister’s counsel;

• (n) whether the Minister has made an application for non-disclosure of information;

• (o) whether the Minister believes that the person is less than 18 years of age or is unable to appreciate the nature of the proceedings; and

• (p) the evidence to be presented by the Minister.

Marginal note:Change to contact information

4 If the contact information changes, the permanent resident or foreign national, unless detained, must without delay provide the changes in writing to the Division and the Minister.

Withdrawing a Request by the Minister for an Admissibility Hearing

Marginal note:Abuse of process

• 5 (1) Withdrawal of a request for an admissibility hearing is an abuse of process if withdrawal would likely have a negative effect on the integrity of the Division. If no substantive evidence has been accepted in the proceedings, withdrawal of a request is not an abuse of process.

• Marginal note:Withdrawal if no evidence has been accepted

  (2) If no substantive evidence has been accepted in the proceedings, the Minister may withdraw a request by notifying the Division orally at a proceeding or in writing. If the Minister notifies in writing, the Minister must provide a copy of the notice to the other party.

• Marginal note:Withdrawal if evidence has been accepted

  (3) If substantive evidence has been accepted in the proceedings, the Minister must make a written application to the Division in order to withdraw a request.

Reinstating a Request by the Minister for an Admissibility Hearing

Marginal note:Application for reinstatement of withdrawn request

• 6 (1) The Minister may make a written application to the Division to reinstate a request for an admissibility hearing that was withdrawn.

• Marginal note:Factors

  (2) The Division must allow the application if it is established that there was a failure to observe a principle of natural justice or if it is otherwise in the interests of justice to allow the application.

Decision

Marginal note:Favourable decision

• 7 (1) If the decision at the conclusion of an admissibility hearing is in favour of the permanent resident or foreign national, the member making the decision must date and sign a notice of decision and provide a copy to the parties.

• Marginal note:Unfavourable decision

  (2) If the decision is not in favour of the permanent resident or foreign national, the member must date and sign an order indicating the applicable provisions of the Act and provide a copy to the parties. The member must also notify the permanent resident or foreign national of

  • (a) their right to appeal to the Immigration Appeal Division; or

  • (b) if they do not have the right to appeal, their right to file an application for judicial review in the Federal Court.

• Marginal note:When decision takes effect

  (3) A decision made orally at a hearing takes effect when a Division member states the decision. A decision made in writing takes effect when the member signs and dates it.

• Marginal note:Request for written reasons

  (4) A request made by a party for written reasons for a decision may be made orally at the end of an admissibility hearing or in writing. A request in writing must be received by the Division no later than 10 days after the decision takes effect.

PART 2Rules Applicable to Detention Reviews

Information

Marginal note:Information provided by the Minister

• 8 (1) If a foreign national or a permanent resident is subject to a detention review, the Minister must provide the Division and the person detained with the following information:

  • (a) the person’s name, sex, date of birth and citizenship;

  • (b) whether the person is single, married, separated or divorced or is a common-law partner;

  • (c) whether the person has made a claim for refugee protection;

  • (d) the language — English or French — chosen by the person for communicating with the Division;

  • (e) if an interpreter is required, the language or dialect to be interpreted;

  • (f) if the person has counsel, the counsel’s contact information;

  • (g) the date and time that the person was first placed in detention;

  • (h) the name and address of the place where the person is being detained;

  • (i) whether the Minister is seeking a detention review after the first forty-eight hour detention or after a seven-day or thirty-day review;

  • (j) the identification number given to the person by the Department of Citizenship and Immigration;

  • (k) the provision of the Act under which the review of the reasons for continued detention is required;

  • (l) whether an application for non-disclosure of information has been made; and

  • (m) whether the Minister believes that the person is less than 18 years of age or is unable to appreciate the nature of the proceedings.

• Marginal note:Time limit

  (2) The information must be received by the Division and the person detained

  • (a) in the case of a forty-eight hour review, as soon as possible; and

  • (b) in the case of a seven-day or thirty-day review, at least three days before the date fixed for the review.

Marginal note:Application for early review

• 9 (1) A party may make a written application to the Division requesting a detention review before the expiry of the seven-day or thirty-day period, as the case may be.

• Marginal note:Factor

  (2) The Division may allow the application if the party sets out new facts that justify an early review of the detention.

Marginal note:Removal before detention review

10 The Minister must notify the Division as soon as a permanent resident or foreign national is removed from Canada prior to a scheduled detention review.

Decisions

Marginal note:Notice to the parties

• 11 (1) At the conclusion of a detention review, the member must notify the parties of the member’s decision.

• Marginal note:Order

  (2) The member must date and sign an order for detention or release indicating the applicable provisions of the Act and provide a copy to the parties.

• Marginal note:When decision takes effect

  (3) A decision made orally at a hearing takes effect when a Division member states the decision. A decision made in writing takes effect when the member signs and dates it.

• Marginal note:Request for written reasons

  (4) A request made by a party for written reasons for a decision may be made orally at the end of a detention review or in writing. A request in writing must be received by the Division no later than 10 days after the decision takes effect.

PART 3Rules that Apply to Both Admissibility Hearings and Detention Reviews

Information Relating to Counsel

Marginal note:Counsel’s contact information

12 A permanent resident or foreign national who is represented by counsel must, on obtaining counsel, provide the counsel’s contact information in writing to the Division and the Minister. If that information changes, the permanent resident or foreign national must without delay provide the changes in writing to the Division and the Minister.

Counsel of Record

Marginal note:Becoming counsel of record

13 As soon as counsel for a permanent resident or foreign national agrees to a date for a proceeding, or becomes counsel after a date has been fixed, the counsel becomes counsel of record.

Marginal note:Withdrawal as counsel of record

14 To withdraw as counsel of record, counsel must notify the Division and the Minister in writing as soon as possible. Counsel is no longer counsel of record as soon as the Division receives the notice.

Marginal note:Removal of counsel of record

15 To remove counsel as counsel of record, the permanent resident or foreign national must notify the Division and the Minister in writing as soon as possible. Counsel is no longer counsel of record when the Division receives the notice.

Language of Proceedings

Marginal note:Changing the language of proceedings

• 16 (1) A permanent resident or foreign national may make an application to the Division to change the language of the proceedings to English or French

  • (a) orally or in writing in the case of a forty-eight hour or seven-day review or an admissibility hearing held at the same time; and

  • (b) in writing in all other cases.

• Marginal note:Time limit

  (2) A written application must be received by the Division

  • (a) as soon as possible, in the case of a forty-eight hour or seven-day review or an admissibility hearing held at the same time; and

  • (b) in all other cases, at least five days before the hearing.

Marginal note:Requesting an interpreter

• 17 (1) If a party or a party’s witness needs an interpreter for a proceeding, the party must notify the Division in writing and specify the language or dialect of the interpreter. The notice must be received by the Division

  • (a) as soon as possible, in the case of a forty-eight hour or seven-day review or an admissibility hearing held at the same time; and

  • (b) in all other cases, at least five days before the hearing.

• Marginal note:Interpreter’s oath

  (2) The interpreter must take an oath or make a solemn affirmation to interpret accurately.

Designated Representatives

Marginal note:Duty of counsel to notify the Division

18 If counsel for a party believes that the Division should designate a representative for the permanent resident or foreign national in the proceedings because they are under 18 years of age or unable to appreciate the nature of the proceedings, counsel must without delay notify the Division and the other party in writing. If counsel is aware of a person in Canada who meets the requirements to be designated as a representative, counsel must provide the person’s contact information in the notice.

Marginal note:Requirements for being designated

19 To be designated as a representative, a person must

• (a) be 18 years of age or older;

• (b) understand the nature of the proceedings;

• (c) be willing and able to act in the best interests of the permanent resident or foreign national; and

• (d) not have interests that conflict with those of the permanent resident or foreign national.

Conference

Marginal note:Requirement to participate at a conference

• 20 (1) The Division may require the parties to participate at a conference to discuss issues, relevant facts and any other matter that would make the proceedings more fair and efficient.

• Marginal note:Information or documents

  (2) The Division may require the parties to give any information or document at or before the conference.

• Marginal note:Decisions noted

  (3) The Division must make a written record of any decisions and agreements made at the conference or state them orally at the hearing.