Immigration Division Rules (SOR/2002-229)

Changing the Date or Time of a Hearing

Marginal note:Application to change the date or time of a hearing

• 43 (1) A party may make an application to the Division to change the date or time of a hearing.

• Marginal note:Factors

  (2) In deciding the application, the Division must consider any relevant factors, including

  • (a) in the case of a date and time that was fixed after the Division consulted or tried to consult the party, the existence of exceptional circumstances for allowing the application;

  • (b) when the party made the application;

  • (c) the time the party has had to prepare for the hearing;

  • (d) the efforts made by the party to be ready to start or continue the hearing;

  • (e) the nature and complexity of the matter to be heard;

  • (f) whether the party has counsel;

  • (g) any previous delays and the reasons for them;

  • (h) whether the time and date fixed for the hearing was peremptory; and

  • (i) whether allowing the application would unreasonably delay the proceedings or likely cause an injustice.

• Marginal note:Duty to appear at the hearing

  (3) Unless a party receives a decision from the Division allowing the application, the party must appear for the hearing at the date and time fixed and be ready to start or continue the hearing.

Joining or Separating Hearings

Marginal note:Application to join hearings

• 44 (1) A party may make an application to the Division to join hearings.

• Marginal note:Application to separate hearings

  (2) A party may make an application to the Division to separate hearings that are joined.

• Marginal note:Factors

  (3) Before deciding an application, the Division must consider any information provided by the applicant and any other relevant information, including

  • (a) whether the hearings involve similar questions of law or fact;

  • (b) whether allowing the application would promote the efficient administration of the work of the Division; and

  • (c) whether allowing the application would likely cause an injustice.

Proceedings Conducted in Private

Marginal note:Application for proceeding conducted in private

• 45 (1) A person who makes an application to the Division to have a proceeding conducted in private must apply in writing and follow this rule.

• Marginal note:Content of application

  (2) In the application, the person must state the decision that the person wants the Division to make, and may request that the hearing of the application be conducted in private.

• Marginal note:Providing the application

  (3) The person must provide a copy of the application to the parties and the original application to the Division.

• Marginal note:Time limit

  (4) A document provided under this rule must be received by its recipient

  • (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:Hearing of the application

  (5) At the hearing, the person must give reasons why the Division should conduct the proceeding in private and present any evidence that the person wants the Division to consider in deciding the application.

Proceeding Conducted in Public

Marginal note:Application for proceeding conducted in public

• 46 (1) A person who makes an application to the Division to have a proceeding conducted in public must apply in writing and follow this rule.

• Marginal note:Content of application

  (2) In the application, the person must

  • (a) state the decision that the person wants the Division to make;

  • (b) give reasons why the Division should make that decision; and

  • (c) include any evidence that the person wants the Division to consider in deciding the application.

• Marginal note:Providing the application

  (3) The person must provide the original application and two copies to the Division. The Division must provide a copy of the application to the parties.

• Marginal note:Time limit

  (4) A document provided under this rule 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.

Notice of Constitutional Question

Marginal note:Notice of constitutional question

• 47 (1) A party who wants to challenge the constitutional validity, applicability or operability of a legislative provision must complete a notice of constitutional question.

• Marginal note:Form and content of notice

  (2) The party must provide notice using either Form 69, “Notice of Constitutional Question”, set out in the Federal Court Rules, 1998, or any other form that includes

  • (a) the name of the party;

  • (b) the Division file number;

  • (c) the date, time and place of the hearing;

  • (d) the specific legislative provision that is being challenged;

  • (e) the relevant facts relied on to support the constitutional challenge; and

  • (f) a summary of the legal argument to be made in support of the constitutional challenge.

• Marginal note:Providing the notice

  (3) The party must provide

  • (a) a copy of the notice of constitutional question to the Attorney General of Canada and to the attorney general of every province and territory of Canada, in accordance with section 57 of the Federal Courts Act;

  • (b) a copy of the notice to the other party; and

  • (c) the original notice to the Division, together with a written statement of how and when a copy of the notice was provided under paragraphs (a) and (b).

• Marginal note:Time limit

  (4) Documents provided under this rule must be received by their recipients no later than 10 days before the day the constitutional argument will be made.

Oral Representations

Marginal note:Oral representations

48 Representations made by a party must be made orally at the end of a hearing unless the Division orders otherwise.

General Provisions

Marginal note:No applicable rule

49 In the absence of a provision in these Rules dealing with a matter raised during the proceedings, the Division may do whatever is necessary to deal with the matter.

Marginal note:Powers of the Division

50 The Division may

• (a) act on its own, without a party having to make an application or request to the Division;

• (b) change a requirement of a rule;

• (c) excuse a person from a requirement of a rule; and

• (d) extend or shorten a time limit, before or after the time limit has passed.

Marginal note:Failing to follow a rule

51 Unless proceedings are declared invalid by the Division, a failure to follow any requirement of these Rules does not make the proceedings invalid.

Coming into Force

Marginal note:Coming into force

Footnote ^*52 These Rules come into force on the day on which section 161 of the Act comes into force.

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