Immigration Appeal Division Rules, 2022 (SOR/2022-277)

Marginal note:Minister provides appeal record

• 21 (1) On receipt of a written request from the Division, the Minister must provide the appeal record referred to in subrule 20(1), (3) or (4) to the appellant and the Division.

• Marginal note:Proof record provided to appellant

  (2) The appeal record provided to the Division under subrule (1) must be accompanied by a written statement indicating how and when the Minister provided the appeal record to the appellant.

• Marginal note:Immigration Division provides appeal record

  (3) The Immigration Division must provide the appeal record referred to in subrule 20(2) to the parties and the Division.

Marginal note:Time limit

22 An appeal record provided under rule 21 must be received no later than

• (a) 60 days after the day on which the Minister receives a request referred to in subrule 21(1), in the case of a sponsorship appeal or a residency obligation appeal;

• (b) 30 days after the day on which the Immigration Division receives the notice of appeal, in the case of an appeal of a removal order made at an admissibility hearing or a Minister’s appeal; or

• (c) 30 days after the day on which the Minister receives a request referred to in subrule 21(1), in the case of an appeal of a removal order made at an examination.

Marginal note:Late appeal record

23 If the Division does not receive the appeal record within the time limit set out in rule 22, the Division may

• (a) require the Minister or the Immigration Division, as the case may be, to explain why the appeal record is late and give reasons why the appeal record should be accepted late; or

• (b) schedule and start the hearing and decide the appeal without the appeal record or with only part of the appeal record.

Disclosure of Evidence

Marginal note:Disclosure of evidence

• 24 (1) If a party wants to use a document in a proceeding, the party must provide the document to the other party and the Division.

• Marginal note:Statement — no documents

  (2) If a party does not intend to use any documents in a proceeding, the party must provide a written statement to the Division indicating that intention.

Marginal note:Proof document was provided

25 Documents provided to the Division for use in a proceeding must be accompanied by a written statement indicating how and when they were provided to the other party.

Marginal note:Time limit — 60 days

26 Documents provided under subrule 24(1) and the statement provided under subrule 24(2) must be received no later than 60 days after the day on which the party receives the appeal record.

Marginal note:Time limit — response to evidence

27 A document that is provided in response to evidence presented by the other party must be received no later than 30 days before the date fixed for the proceeding.

Marginal note:Time limit for reconsideration – stay

28 In the case of a hearing that is held for the reconsideration of the appeal of a removal order that has been stayed, documents provided under subrule 24(1) for use in the hearing must be received no later than 30 days before the date fixed for the hearing.

Marginal note:Time limit not met

• 29 (1) A party who does not meet the time limits set out in rules 26 to 28 in respect of a document may not use the document at the hearing unless the Division allows them to do so.

• Marginal note:Factors

  (2) In deciding whether to allow the party to use the document, the Division must consider any relevant factors, including

  • (a) the relevance and probative value of the document;

  • (b) whether the party, with reasonable effort, could have met the time limits set out in rules 26 to 28 in respect of the document;

  • (c) any prejudice to the other party; and

  • (d) whether the request to be allowed to use the document was made in a timely manner and the justification for any delay.

Marginal note:Consequence — failure to disclose

30 If a party does not provide either a document or a written statement within the time limit set out in rule 26, the Division may

• (a) if that party is the appellant, determine that the appeal has been abandoned in accordance with subsection 168(1) of the Act;

• (b) fix a date and time for the proceeding and start the proceeding on the basis of the materials provided;

• (c) suspend the fixing of a date and time for the proceeding until it determines that the appeal is ready to proceed; or

• (d) take any other action that it deems appropriate.

Documents

Form and Language of Documents

Marginal note:Documents prepared by party

31 A document prepared by a party for use in a proceeding must be legible, in 12-point Times New Roman, Arial or Tahoma font and on one or both sides of consecutively numbered 21.5 cm by 28 cm (8½ in. by 11 in.) pages.

Marginal note:More than one document

32 If a party provides more than one document for use in a proceeding, the documents must

• (a) have consecutively numbered pages as if they were one document; and

• (b) be accompanied by a list identifying each of the documents.

Marginal note:Language of documents

• 33 (1) All documents used by a party other than the Minister in a proceeding must be in English or French or, if in another language, be provided together with an English or French translation and a written statement signed by the translator.

• Marginal note:Language of Minister’s documents

  (2) All documents used by the Minister in a proceeding must be in the language of the appeal or be provided together with a translation in the language of the appeal and a written statement signed by the translator.

Marginal note:Translator’s statement

34 In a written statement referred to in rule 33, the translator must include their name, the language and, if any, dialect translated and a statement that the translation is accurate.

Providing a Document

Marginal note:General provision

35 Rules 36 to 41 apply to any document, including a notice, request, application or statement in writing.

Marginal note:Providing documents to Division

• 36 (1) A document that is to be provided to the Division must be provided to the registry office that the Division specifies.

• Marginal note:Documents in public proceedings

  (2) All documents provided to the Division in a proceeding conducted in public are placed on the Division’s public record unless the person providing a document makes an application under subrule 93(1).

• Marginal note:Providing documents to Minister

  (3) A document that is to be provided to the Minister must be provided to the Minister’s counsel.

• Marginal note:Providing documents to person other than Minister

  (4) A document that is to be provided to a person other than the Minister must be provided

  • (a) to the person’s counsel or, if they do not have counsel, to the person; and

  • (b) to the person’s designated representative, if any.

• Marginal note:Means of providing documents

  (5) A document may be provided

  • (a) by email or other electronic means, if the Division allows;

  • (b) by regular or registered mail;

  • (c) by courier or priority post;

  • (d) by fax, if the document is no more than 20 pages long or the recipient consents to receiving more than 20 pages; or

  • (e) by hand.

Marginal note:Providing electronic document

• 37 (1) Any electronic document, including an affidavit or statutory declaration, that meets the requirements specified by the Division is deemed to have been provided in accordance with subrules 36(1), (3) and (4).

• Marginal note:Notice of requirements

  (2) The Division must publish or post notice of the requirements referred to in subrule (1) in a manner that will allow public access to them.

• Marginal note:Original document

  (3) An electronic document provided by the Division is considered to be the original version of the document.

• Marginal note:Retention of paper document

  (4) A person who provides to the Division an electronic document whose original version is a paper document must retain that original version for the duration of the appeal and must, on request, provide it to the Division.

Marginal note:Electronic signature

• 38 (1) Any requirement under these Rules that a document be signed is satisfied, in the case of an electronic document, by an electronic signature.

• Marginal note:Definition of electronic signature

  (2) For the purposes of subrule (1), electronic signature means a signature that consists of one or more letters, characters or other symbols in digital form that are incorporated in, attached to or associated with the document.

Marginal note:Application — inability to provide document

• 39 (1) If a party is unable to provide a document in accordance with rule 36, the party may make an application to the Division to be allowed to provide the document in another way or to be excused from providing the document.

• Marginal note:Allowing application

  (2) The Division may allow the application only if it is of the opinion that the party has made reasonable efforts to provide the document to the person to whom the document must be provided.

Marginal note:Receipt of document by Division

• 40 (1) A document provided to the Division is considered to be received

  • (a) in the case of a paper document, on the date indicated by the date stamp that the registry office places on the document; and

  • (b) in the case of an electronic document, on the date and at the time indicated by the electronic means used to provide it.

• Marginal note:Receipt of document by party — regular mail

  (2) A document that is provided to a party by regular mail is considered to be received seven days after the day it was mailed, or 20 days after the day it was mailed if the document was sent to or from a place outside Canada.

• Marginal note:Receipt of document by party — electronic

  (3) A document that is provided electronically to a party is considered to be received at the date and time indicated by the electronic means used to provide it.

Marginal note:Extension of time limit — next working day

41 When the time limit for providing a document falls on a day that is not a working day, the time limit is extended to the next working day.

Designated Representatives

Marginal note:Designation — Immigration Division

42 If the Immigration Division designated a representative for a person in the proceedings relating to the decision being appealed, the representative is deemed to have been designated for the appeal, unless the Division decides otherwise.

Marginal note:Duty of counsel to notify — minor

43 If counsel for a party believes that the Division should designate a representative for a person because the person is under 18 years of age, the counsel must notify the Division in writing without delay, unless

• (a) the appeal is being heard together with the appeal of the person’s parent, guardian or tutor and the parent, guardian or tutor is 18 years of age or older; or

• (b) the appeal is against a removal order made at an admissibility hearing and the Immigration Division has designated a representative for the person.

Marginal note:Duty to notify — inability to appreciate proceedings

• 44 (1) If counsel for a party believes that the Division should designate a representative for a person because the person is unable to appreciate the nature of the proceedings, counsel must notify the Division in writing without delay.

• Marginal note:Exception

  (2) Counsel is not required to notify the Division under subrule (1) if the appeal is against a decision made at an admissibility hearing and the Immigration Division designated a representative for the person.

Marginal note:Purpose of counsel’s notice

45 The purpose of a notice under rule 43 or 44 is to assist the Division in determining whether, in accordance with subsection 167(2) of the Act, it must designate a representative.

Marginal note:Content of notice

46 A notice provided under rule 43 or 44 must

• (a) indicate whether counsel is aware of a person in Canada who meets the requirements to be designated as a representative and, if they are aware, provide the person’s contact information;

• (b) indicate the reasons why counsel believes that a representative should be designated; and

• (c) be accompanied by any available documents supporting the designation.

Marginal note:Factors to consider

47 When determining whether a person is unable to appreciate the nature of the proceedings, the Division must consider any relevant factors, including

• (a) whether the person can understand the reason for the proceeding and can instruct counsel;

• (b) the person’s statements and behaviour at the proceeding;

• (c) expert evidence, if any, on the person’s intellectual or physical faculties, age or mental condition; and

• (d) whether the person has had a representative designated for them for a proceeding in a division other than the Immigration Division.

Marginal note:Criteria for designated representative

48 Before designating a person as a representative, the Division must be satisfied that the person

• (a) is 18 years of age or older;

• (b) understands the nature of the proceedings;

• (c) is willing and able to act in the best interests of the person they are to represent;

• (d) does not have interests that conflict with those of the person they are to represent; and

• (e) has been informed of the responsibilities of a designated representative and is willing and able to fulfill them.

Marginal note:Responsibilities of designated representative

49 The responsibilities of a designated representative include

• (a) deciding whether to retain counsel and, if counsel is retained, instructing counsel or assisting the represented person in instructing counsel;

• (b) making decisions regarding the appeal or assisting the represented person in making those decisions;

• (c) informing the represented person about the various stages of the appeal

• (d) assisting the represented person in gathering evidence to support their case and in providing evidence and, if necessary, being a witness at the hearing

• (e) protecting the interests of the represented person and putting forward the best possible case to the Division; and

• (f) informing and consulting the represented person to the extent possible when making decisions about their case.