PART 4

IMMIGRATION AND REFUGEE BOARD

Composition of Board

Immigration and Refugee Board

151. The Immigration and Refugee Board consists of the Refugee Protection Division, the Refugee Appeal Division, the Immigration Division and the Immigration Appeal Division.

Composition

152. The Board is composed of a Chairperson and other members as are required to ensure the proper functioning of the Board.

Chairperson and other members

153. (1) The Chairperson and members of the Refugee Protection Division, Refugee Appeal Division and Immigration Appeal Division

    (a) are appointed to the Board by the Governor in Council, to hold office during good behaviour for a term not exceeding seven years, subject to removal by the Governor in Council at any time for cause, to serve in a regional or district office of the Board;

    (b) shall swear the oath or give the solemn affirmation of office set out in the rules of the Board;

    (c) are eligible for reappointment in the same or another capacity;

    (d) shall receive the remuneration that may be fixed by the Governor in Council;

    (e) are entitled to be paid reasonable travel and living expenses incurred while absent in the course of their duties, in the case of a full-time member, from their ordinary place of work or, in the case of a part-time member, while absent from their ordinary place of residence;

    (f) are deemed to be employed in the public service of Canada for the purposes of the Public Service Superannuation Act, the Government Employees Compensation Act and any regulations made under section 9 of the Aeronautics Act;

    (g) may not accept or hold any office or employment or carry on any activity inconsistent with their duties and functions under this Act; and

    (h) if appointed as full-time members, must devote the whole of their time to the performance of their duties under this Act.

Deputy Chairperson and Assistant Deputy Chairpersons

(2) One Deputy Chairperson for each Division referred to in subsection (1) and not more than 10 Assistant Deputy Chairpersons are to be designated by the Governor in Council from among the full-time members of those Divisions.

Full-time and part-time appointments

(3) The Chairperson and the Deputy Chairpersons and Assistant Deputy Chairpersons of the Divisions referred to in subsection (1) are appointed on a full-time basis and the other members are appointed on a full-time or part-time basis.

Qualification

(4) The Deputy Chairperson of the Immigration Appeal Division and a majority of the Assistant Deputy Chairpersons of that Division and at least 10 per cent of the members of the Divisions referred to in subsection (1) must be members of at least five years standing at the bar of a province or notaries of at least five years standing at the Chambre des notaires du Québec.

Disposition after member ceases to hold office

154. A former member of the Board, within eight weeks after ceasing to be a member, may make or take part in a decision on a matter that they heard as a member, if the Chairperson so requests. For that purpose, the former member is deemed to be a member.

Disposition if member unable to take part

155. If a member of a three-member panel is unable to take part in the disposition of a matter that the member has heard, the remaining members may make the disposition and, for that purpose, are deemed to constitute the applicable Division.

Immunity and no summons

156. The following rules apply to the Chairperson and the members in respect of the exercise or purported exercise of their functions under this Act:

    (a) no criminal or civil proceedings lie against them for anything done or omitted to be done in good faith; and

    (b) they are not competent or compellable to appear as a witness in any civil proceedings.

Head Office and Staff

Head office

157. (1) The head office of the Board shall be in the National Capital Region as described in the schedule to the National Capital Act.

Residence - Chairperson

(2) The Chairperson must live in the National Capital Region or within reasonable commuting distance of it.

Personnel

158. The Executive Director and other personnel necessary for the proper conduct of the business of the Board shall be appointed in accordance with the Public Service Employment Act, and the personnel are deemed to be employed in the Public Service for the purposes of the Public Service Superannuation Act.

Duties of Chairperson

Chairperson

159. (1) The Chairperson is, by virtue of holding that office, a member of each Division of the Board and is the chief executive officer of the Board. In that capacity, the Chairperson

    (a) has supervision over and direction of the work and staff of the Board;

    (b) may at any time assign a member appointed under paragraph 153(1)(a) to the Refugee Protection Division, the Refugee Appeal Division and the Immigration Appeal Division;

    (c) may at any time, notwithstanding paragraph 153(1)(a), assign a member, other than a member of the Immigration Division, to work in another regional or district office in order to satisfy operational requirements, but an assignment may not exceed 90 days without the approval of the Governor in Council;

    (d) designates from among the full-time members of the Board coordinating members for a Division, other than the Immigration Division;

    (e) assigns administrative functions to the members of the Board;

    (f) apportions work among the members of the Board and fixes the place, date and time of proceedings;

    (g) takes any action that may be necessary to ensure that the members of the Board carry out their duties efficiently and without undue delay;

    (h) may issue guidelines in writing to members of the Board and identify decisions of the Board as jurisprudential guides, after consulting with the Deputy Chairpersons and the Director General of the Immigration Division, to assist members in carrying out their duties; and

    (i) may appoint and, subject to the approval of the Treasury Board, fix the remuneration of experts or persons having special knowledge to assist the Divisions in any matter.

Delegation

(2) The Chairperson may delegate any of his or her powers under this Act to a member of the Board, other than a member of the Immigration Division, except that

    (a) powers conferred under subsection 161(1) may not be delegated;

    (b) powers referred to in paragraphs (1)(a) and (i) may be delegated to the Executive Director of the Board; and

    (c) powers in relation to the Immigration Division may only be delegated to the Director General, directors or members of that Division.

Absence, incapacity or vacancy

160. In the event of the absence or incapacity of the Chairperson, or if the office of Chairperson is vacant, the Minister may authorize one of the Deputy Chairpersons or any other member of the Board to act as Chairperson.

Functioning of Board

Rules

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

    (a) the activities, practice and procedure of each of the Divisions of the Board, including the periods for appeal, the priority to be given to proceedings, the notice that is required and the period in which notice must be given;

    (b) the conduct of persons in proceedings before the Board, as well as the consequences of, and sanctions for, the breach of those rules;

    (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

    (d) any other matter considered by the Chairperson to require rules.

Tabling in Parliament

(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.

Provisions that Apply to All Divisions

Sole and exclusive jurisdiction

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.

Procedure

(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.

Composition of panels

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.

Presence of parties

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.

Powers of a commissioner

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 may do any other thing they consider necessary to provide a full and proper hearing.

Proceedings - all Divisions

166. Proceedings before a Division are to be conducted as follows:

    (a) subject to the other provisions of this section, proceedings must be held in public;

    (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

      (i) a serious possibility that the life, liberty or security of a person will be endangered if the proceeding is held in public,

      (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

      (iii) a real and substantial risk that matters involving public security will be disclosed;

    (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;

    (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;

    (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 person who has made a claim to refugee protection; and

    (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).

Right to counsel

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.

Representa-
tion

(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.

Abandonment of proceeding

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.

Abuse of process

(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.

Decisions and reasons

169. In the case of a decision of a Division, other than an interlocutory decision:

    (a) the decision takes effect in accordance with the rules;

    (b) reasons for the decision must be given;

    (c) the decision may be rendered orally or in writing, except a decision of the Refugee Appeal Division, which must be rendered in writing;

    (d) if the Refugee Protection Division rejects a claim, written reasons must be provided to the claimant and the Minister;

    (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, or in circumstances set out in the rules of the Board, the Division must provide written reasons; and

    (f) the period in which to 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.