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| Rules
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161. (1) Subject to the approval of the
Governor in Council, and in consultation with
the Deputy Chairpersons and the Director
General of the Immigration Division, the
Chairperson may make rules respecting
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(a) the activities, practice and procedure of
each of the Divisions of the Board,
including priority to be given to
proceedings, the notice that is required and
the period in which notice must be given;
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(b) the conduct of persons in proceedings
before the Board, as well as the
consequences of, and sanctions for, the
breach of those rules;
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(c) the information that may be required and
the manner in which, and the time within
which, it must be provided with respect to
a proceeding before the Board; and
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(d) any other matter considered by the
Chairperson to require rules.
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| Tabling in
Parliament
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(2) The Minister shall cause a copy of any
rule made under subsection (1) to be laid
before each House of Parliament on any of the
first 15 days on which that House is sitting
after the approval of the rule by the Governor
in Council.
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| Sole and
exclusive
jurisdiction
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162. (1) Each Division of the Board has, in
respect of proceedings brought before it under
this Act, sole and exclusive jurisdiction to
hear and determine all questions of law and
fact, including questions of jurisdiction.
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| Procedure
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(2) Each Division shall deal with all
proceedings before it as informally and
quickly as the circumstances and the
considerations of fairness and natural justice
permit.
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| Composition
of panels
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163. Matters before a Division shall be
conducted before a single member unless,
except for matters before the Immigration
Division, the Chairperson is of the opinion
that a panel of three members should be
constituted.
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| Presence of
parties
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164. Where a hearing is held by a Division,
it may, in the Division's discretion, be
conducted in the presence of, or by a means of
live telecommunication with, the person who
is the subject of the proceedings.
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| Powers of a
commissioner
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165. The Refugee Protection Division and
the Immigration Division and each member of
those Divisions have the powers and authority
of a commissioner appointed under Part I of
the Inquiries Act and to do any other thing they
consider necessary to provide a full and proper
hearing.
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| Proceedings
- all
Divisions
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166. Proceedings before a Division are to be
conducted as follows:
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(a) subject to the other provisions of this
section, proceedings must be held in public;
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(b) on application or on its own initiative,
the Division may conduct a proceeding in
private, or take any other measure that it
considers necessary to ensure the
confidentiality of the proceedings, if, after
having considered all available alternate
measures, the Division is satisfied that there
is
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(i) a serious possibility that the life,
liberty or security of a person will be
endangered if the proceeding is held in
public,
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(ii) a real and substantial risk to the
fairness of the proceeding such that the
need to prevent disclosure outweighs the
societal interest that the proceeding be
conducted in public, or
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(iii) a real and substantial risk that
matters involving public security will be
disclosed;
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(c) subject to paragraph (d), proceedings
before the Refugee Protection Division and
the Immigration Division concerning a
claimant of refugee protection, proceedings
concerning cessation and vacation
applications and proceedings before the
Refugee Appeal Division must be held in
private;
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(d) on application or on its own initiative,
the Division may conduct a proceeding in
public, or take any other measure that it
considers necessary to ensure the
appropriate access to the proceedings if,
after having considered all available
alternate measures and the factors set out in
paragraph (b), the Division is satisfied that
it is appropriate to do so;
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(e) despite paragraphs (b) and (c), a
representative or agent of the United
Nations High Commissioner for Refugees
is entitled to observe proceedings
concerning a protected person or a foreign
national who has made a claim to refugee
protection; and
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(f) despite paragraph (e), the representative
or agent may not observe any part of the
proceedings that deals with information
protected under subsection 86(1), or with
information in respect of which an
application has been made and not rejected
under subsection 86(1).
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| Right to
counsel
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167. (1) Both a person who is the subject of
Board proceedings and the Minister may, at
their own expense, be represented by a
barrister or solicitor or other counsel.
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| Representatio
n
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(2) If a person who is the subject of
proceedings is under 18 years of age or unable,
in the opinion of the applicable Division, to
appreciate the nature of the proceedings, the
Division shall designate a person to represent
the person.
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| Abandonment
of proceeding
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168. (1) A Division may determine that a
proceeding before it has been abandoned if the
Division is of the opinion that the applicant is
in default in the proceedings, including by
failing to appear for a hearing, to provide
information required by the Division or to
communicate with the Division on being
requested to do so.
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| Abuse of
process
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(2) A Division may refuse to allow an
applicant to withdraw from a proceeding if it
is of the opinion that the withdrawal would be
an abuse of process under its rules.
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| Decisions and
reasons
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169. In the case of a decision of a Division,
other than an interlocutory decision:
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(a) the decision takes effect in accordance
with the rules;
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(b) reasons for the decision must be given;
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(c) the decision may be rendered orally or in
writing, except a decision of the Refugee
Appeal Division, which must be rendered in
writing;
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(d) if the Refugee Protection Division
rejects a claim, written reasons must be
provided to the claimant and the Minister;
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(e) if the person who is the subject of
proceedings before the Board or the
Minister requests reasons for a decision
within 10 days of notification of the
decision, the Division must provide written
reasons; and
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(f) the period in which to appeal or apply for
judicial review with respect to a decision of
the Board is calculated from the giving of
notice of the decision or from the sending of
written reasons, whichever is later.
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| Proceedings
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170. The Refugee Protection Division, in
any proceeding before it,
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(a) may inquire into any matter that it
considers relevant to establishing whether a
claim is well-founded;
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(c) must notify the foreign national and the
Minister of the hearing;
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(d) must provide the Minister, on request,
with the documents and information
referred to in subsection 100(4);
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(e) must give the foreign national and the
Minister a reasonable opportunity to
present evidence, question witnesses and
make representations;
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(f) may, despite paragraph (b), allow a claim
for refugee protection without a hearing, if
the Minister has not notified the Division,
within the period set out in the rules of the
Board, of the Minister's intention to
intervene;
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(g) is not bound by any legal or technical
rules of evidence;
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(h) may receive and base a decision on
evidence that is adduced in the proceedings
and considered credible or trustworthy in
the circumstances; and
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(i) may take notice of any facts that may be
judicially noticed, any other generally
recognized facts and any information or
opinion that is within its specialized
knowledge.
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| Proceedings
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171. In the case of a proceeding of the
Refugee Appeal Division,
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(a) the Minister may, after giving notice
within the period that is required by the
rules, intervene in the appeal, including for
the purpose of filing submissions;
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(b) the Division may take notice of any facts
that may be judicially noticed and of any
other generally recognized facts and any
information or opinion that is within its
specialized knowledge; and
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(c) a decision of a panel of three members
of the Refugee Appeal Division has, for the
Refugee Protection Division and for a panel
of one member of the Refugee Appeal
Division, the same precedential value as a
decision of an appeal court has for a trial
court.
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| Composition
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172. (1) The Immigration Division consists
of the Director General and other directors and
members necessary to carry out its functions
and who are employed in accordance with the
Public Service Employment Act.
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| Powers
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(2) The Director General and the directors
of the Immigration Division have all the
powers and may carry out the duties and
functions of members of the Division.
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| Proceedings
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173. The Immigration Division, in any
proceeding before it,
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(a) must, where practicable, hold a hearing;
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(b) must notify the Minister and the foreign
national of the proceeding and hear the
matter without delay;
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(c) is not bound by any legal or technical
rules of evidence; and
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(d) may receive and base a decision on
evidence adduced in the proceedings that it
considers credible or trustworthy in the
circumstances.
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| Court of
record
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174. (1) The Immigration Appeal Division
is a court of record and shall have an official
seal, which shall be judicially noticed.
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| Powers
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(2) The Immigration Appeal Division has
all the powers, rights and privileges vested in
a superior court of record with respect to any
matter necessary for the exercise of its
jurisdiction, including the swearing and
examination of witnesses, the production and
inspection of documents and the enforcement
of its orders.
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| Proceedings
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175. (1) The Immigration Appeal Division,
in any proceeding before it,
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(a) must, in the case of an appeal under
subsection 63(4), hold a hearing;
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(b) is not bound by any legal or technical
rules of evidence; and
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(c) may receive and base a decision on
evidence adduced in the proceedings that it
considers credible or trustworthy in the
circumstances.
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| Presence of
foreign
national
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(2) In the case of an appeal by a foreign
national under subsection 63(4), the
Immigration Appeal Division may, after
considering submissions from the Minister
and the foreign national and if satisfied that
the presence of the foreign national at the
hearing is necessary, order the foreign
national to physically appear at the hearing, in
which case an officer shall issue a travel
document for that purpose.
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| Request
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176. (1) The Chairperson may request the
Minister to decide whether any member,
except a member of the Immigration Division,
should be subject to remedial or disciplinary
measures for a reason set out in subsection (2).
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| Reasons
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(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.
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| Measures
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177. On receipt of the request, the Minister
may take one or more of the following
measures:
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(a) obtain, in an informal and expeditious
manner, any information that the Minister
considers necessary;
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(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;
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(c) request of the Governor in Council that
an inquiry be held under section 178; or
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(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.
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| Appointment
of inquirer
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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.
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| Powers
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179. The judge has all the powers, rights
and privileges that are vested in a superior
court, including the power
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(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
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(b) to administer oaths and examine any
person on oath.
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| Staff
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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.
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| Exceptions to
public hearing
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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
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(a) a real and substantial risk that matters
involving public security will be disclosed;
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(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
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(c) a serious possibility that the life, liberty
or security of a person will be endangered.
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| Confidentialit
y of
application
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(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).
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| Rules of
evidence
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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.
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| Intervenors
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(2) An interested party may, with leave of
the judge, intervene in an inquiry on any terms
and conditions that the judge considers
appropriate.
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| Right to be
heard
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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.
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| Report to
Minister
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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.
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| Recommendat
ions
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(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.
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| Transmission
of report to
Governor in
Council
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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.
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| Rights not
affected
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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.
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