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

Stay of Removal Order

Marginal note:Application to reconsider appeal

• 78 (1) If the Division has stayed a removal order, a party who makes an application to reconsider the appeal

  • (a) must make the application in accordance with rule 85, but is not required to provide an accompanying affidavit or statutory declaration under subrule 85(3); and

  • (b) must provide with their application a written statement indicating whether the conditions of the stay have been complied with.

• Marginal note:Response

  (2) The other party must respond to the application in accordance with rule 86 and provide with their response a written statement of whether the conditions of the stay have been complied with.

Marginal note:Reconsideration on Division’s own initiative

• 79 (1) If the Division reconsiders an appeal on its own initiative under subsection 68(3) of the Act, it must notify the parties in writing.

• Marginal note:Time limit for providing statement

  (2) Each party must provide to the Division and the other party, within the time limit specified by the Division, a written statement indicating whether the conditions of the stay have been complied with.

Marginal note:Notice of cancellation of stay

80 If a stay of removal is cancelled under subsection 68(4) of the Act, the Minister must provide the Division and the other party with written notice of the cancellation stating

• (a) the name of the person convicted;

• (b) the date and place of conviction;

• (c) the offence and the relevant provision of an Act of Parliament; and

• (d) if the offence is not punishable by a maximum term of imprisonment of at least 10 years, the term of imprisonment that was imposed.

Marginal note:Proof document was provided

81 The Minister must, together with the notice under rule 80, provide a written statement indicating how and when the notice was provided to the other party.

Marginal note:Notice of cancellation of stay

82 If the Minister provides written notice of the cancellation under rule 80, the Division must process the notice in the same manner as an application.

Marginal note:Response to notice of cancellation of stay

83 A party responding to a notice provided under rule 80 must respond in accordance with rule 86.

Applications

General

Marginal note:General provision

84 Unless these Rules provide otherwise

• (a) a party who wants the Division to make a decision on any matter in a proceeding, including the procedure to be followed, must make an application to the Division in accordance with rule 85;

• (b) a party who wants to respond to the application must respond in accordance with rule 86; and

• (c) a party who wants to reply to a response must reply in accordance with rule 87.

Making an Application

Marginal note:Form of application and time limit

• 85 (1) Unless these Rules provide otherwise, an application must be made in writing without delay.

• Marginal note:Content of application

  (2) In the application, the party must

  • (a) state what decision the party wants the Division to make;

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

  • (c) if the views of the other party are known, state whether the other party agrees to the application.

• Marginal note:Affidavit or statutory declaration

  (3) Unless these Rules provide otherwise, any evidence that the party wants the Division to consider with a written application must be given in an affidavit or statutory declaration that accompanies the application.

• Marginal note:Providing application

  (4) A party who makes a written application must provide

  • (a) to the other party, the application and any accompanying affidavit or statutory declaration; and

  • (b) to the Division, the application and any accompanying affidavit or statutory declaration, together with a written statement indicating how and when the party provided the documents to the other party.

• Marginal note:Oral application

  (5) The Division may allow a party to make an application orally at a proceeding if the party demonstrates that, with reasonable effort, they could not have made a written application before the beginning of the proceeding.

Written Response and Reply

Marginal note:Responding to written application

• 86 (1) A response to a written application must be in writing, state what decision the party wants the Division to make and give reasons why the Division should make that decision.

• Marginal note:Evidence in written response

  (2) Subject to subrule (3), any evidence that the party wants the Division to consider with the written response must be given in an affidavit or statutory declaration that accompanies the response.

• Marginal note:Evidence not required

  (3) If the party who made the application was not required to give evidence in an affidavit or statutory declaration together with the application, then evidence is not required to be given in an affidavit or statutory declaration that accompanies the written response unless the Division orders otherwise.

• Marginal note:Providing response

  (4) A party who responds to a written application must provide

  • (a) to the other party, the response and any accompanying affidavit or statutory declaration; and

  • (b) to the Division, the response and any accompanying affidavit or statutory declaration, together with a written statement indicating how and when the party provided the documents to the other party.

• Marginal note:Time limit

  (5) Documents provided under subrule (4) must be received no later than seven days after the party receives the application.

Marginal note:Replying to written response

• 87 (1) A reply to a written response must be in writing.

• Marginal note:Evidence in reply

  (2) Subrules 86(2) to (4) apply to the reply.

• Marginal note:Time limit

  (3) Documents provided under subrule (2) must be received no later than five days after the day on which the party receives the response.

Changing Location

Marginal note:Application

• 88 (1) A party who makes an application to the Division to change the location of a proceeding must make the application in accordance with rule 85, but is not required to provide an accompanying affidavit or statutory declaration under subrule 85(3).

• Marginal note:Time limit

  (2) Documents provided under this rule must be received no later than 30 days before the date fixed for the proceeding.

• Marginal note:Duty to appear

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

Marginal note:Factors

89 In deciding the application for a change of location, the Division must consider any relevant factors, including

• (a) whether the party resides in the location where they request that the proceeding be held;

• (b) whether a change of location would allow the appeal to be full and proper;

• (c) whether a change of location would likely delay the proceeding;

• (d) how a change of location would affect the parties;

• (e) whether a change of location is necessary to accommodate the vulnerabilities of a person;

• (f) whether a hearing may be conducted by a means of live telecommunication with the parties; and

• (g) the operational requirements of the Division.

Changing Date or Time

Marginal note:Application

• 90 (1) A party who makes an application to the Division to change the date or time of a proceeding must make the application in accordance with rule 85, but is not required to provide an accompanying affidavit or statutory declaration under subrule 85(3).

• Marginal note:Time limit and content of application

  (2) The application must

  • (a) be received by the Division at least three working days before the date fixed for the proceeding, unless the application is made for medical reasons or other emergencies, in which case it must be made without delay; and

  • (b) indicate at least six dates and times that are within the period specified by the Division and at which the party is available to start or continue the proceeding.

• Marginal note:Notice of period specified by Division

  (3) The Division must publish or post notice of the period referred to in paragraph (2)(b) in a manner that will allow public access to it.

• Marginal note:Oral application

  (4) If the party is unable to make the application in accordance with paragraph (2)(a), the party must appear on the date and at the time fixed for the proceeding and make the application orally at the proceeding.

• Marginal note:Duty to appear

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

Marginal note:Exceptional circumstances

91 The Division may allow the application only if it determines that there are exceptional circumstances and must take into consideration any relevant factors including

• (a) whether the application was made in a timely manner and, if it was not, the justification for the delay;

• (b) any previous change in the date or time of the proceeding;

• (c) the rights and interests of the parties;

• (d) the need to change the date or time of the proceeding to accommodate the vulnerabilities of a person;

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

• (f) the operational requirements of the Division.

Marginal note:Subsequent application

92 If the party made a previous application to change the date or time of a proceeding and that application was denied, the Division must consider the reasons for the denial and may allow the subsequent application only if the subsequent application is based on exceptional circumstances supported by new evidence.

Proceeding Conducted in Absence of the Public

Marginal note:Form of application

• 93 (1) A person may make an application to the Division in accordance with rule 85 to have a proceeding conducted in the absence of the public, or to request that the Division take any other measure to ensure the confidentiality of the proceedings.

• Marginal note:Request to respond to application

  (2) Any person may make a written request to the Division to be allowed to respond to an application to have a proceeding held in the absence of the public.

• Marginal note:Form of response — rule 86

  (3) A person who is allowed by the Division to respond to the application must respond in accordance with rule 86.

• Marginal note:Confidentiality measures

  (4) The Division may take any measures it considers necessary to ensure the confidentiality of the application.

• Marginal note:Time limit

  (5) An application made under this rule must be received no later than 20 days before the date fixed for the proceeding.

Withdrawing an Appeal

Marginal note:Abuse of process

• 94 (1) For the purposes of subsection 168(2) of the Act, withdrawal of an appeal is an abuse of process if withdrawal would likely have a negative effect on the integrity of the Division.

• Marginal note:No substantive evidence accepted

  (2) If no substantive evidence has been accepted in the appeal, withdrawal of the appeal is not an abuse of process.

• Marginal note:Withdrawal if no substantive evidence accepted

  (3) If no substantive evidence has been accepted in the appeal, a party may withdraw their appeal by notifying the Division either orally at a proceeding or in writing.

• Marginal note:Withdrawal if substantive evidence accepted

  (4) If substantive evidence has been accepted in the appeal, a party who wants to withdraw their appeal must make an application to the Division in accordance with rule 85.

Reinstating an Appeal After Withdrawal

Marginal note:Application to reinstate withdrawn appeal

• 95 (1) An appellant may apply to the Division to reinstate an appeal that was withdrawn.

• Marginal note:Form and content of application

  (2) The appellant must make the application in accordance with rule 85 and include in the application their contact information and, if represented by counsel, their counsel’s contact information.

Marginal note:Factors

96 The Division may 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.

Marginal note:Subsequent application

97 If the appellant has made a previous application to reinstate an appeal and that application was denied, the Division must consider the reasons for the previous denial and may allow the subsequent application only if there are exceptional circumstances supported by new evidence.

Application to Reopen Appeal

Marginal note:Form and content of application

• 98 (1) An application to reopen an appeal must be made in accordance with rule 85 and must include

  • (a) in the case of an application made by a party other than the Minister, the contact information of the party and, if they are represented by counsel, of their counsel; and

  • (b) in the case of an application made by the Minister, the contact information of the Minister’s counsel.

• Marginal note:Allegations against former counsel

  (2) If a party other than the Minister alleges in their application that their former counsel provided inadequate representation, the party must provide the application

  • (a) to their former counsel before providing it to the Division; and

  • (b) to the Division, accompanied by a written statement indicating how and when it was provided to their former counsel.

Marginal note:Factors

• 99 (1) In deciding the application to reopen an appeal, the Division must consider any relevant factors, including

  • (a) whether the application was made in a timely manner and, if not, the justification for the delay; and

  • (b) if the applicant did not make an application for leave to apply for judicial review or an application for judicial review, the reasons why an application was not made.

• Marginal note:Natural justice

  (2) In the case of an application that is made other than under section 71 of the Act, the Division must not allow the application unless it is established that there was a failure to observe a principle of natural justice.