Immigration and Refugee Protection Act (S.C. 2001, c. 27)

Marginal note: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

Marginal note:Rules

• 161 (1) Subject to the approval of the Governor in Council, and in consultation with the Deputy Chairpersons, the Chairperson may make rules respecting

  • (a) the referral of a claim for refugee protection to the Refugee Protection Division;

  • (a.1) the factors to be taken into account in fixing or changing the date of the hearing referred to in subsection 100(4.1);

  • (a.2) the activities, practice and procedure of each of the Divisions of the Board, including the periods for appeal, other than in respect of appeals of decisions of the Refugee Protection Division, 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.

• Marginal note:Distinctions

  (1.1) The rules made under paragraph (1)(c) may distinguish among claimants for refugee protection who make their claims inside Canada on the basis of whether their claims are made at a port of entry or elsewhere or on the basis of whether they are nationals of a country that is, on the day on which their claim is made, a country designated under subsection 109.1(1).

• Marginal note: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

Marginal note: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.

• Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note:Powers of a commissioner

165 The Refugee Protection Division, the Refugee Appeal 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.

Marginal note: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 the absence of the public, 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 Refugee Appeal Division must be held in the absence of the public;

• (c.1) subject to paragraph (d), proceedings before the Immigration Division must be held in the absence of the public if they concern a person who is the subject of a proceeding before the Refugee Protection Division or the Refugee Appeal Division that is pending or who has made an application for protection to the Minister that is pending;

• (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) to (c.1), 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 for refugee protection or an application for protection; and

• (f) despite paragraph (e), the representative or agent may not observe any part of the proceedings that deals with information or other evidence in respect of which an application has been made under section 86, and not rejected, or with information or other evidence protected under that section.

Marginal note:Right to counsel

• 167 (1) A person who is the subject of proceedings before any Division of the Board and the Minister may, at their own expense, be represented by legal or other counsel.

• Marginal note:Representation

  (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.

Marginal note: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.

• Marginal note: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.

Marginal note: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.

Refugee Protection Division

Marginal note:Composition

• 169.1 (1) The Refugee Protection Division consists of the Deputy Chairperson, Assistant Deputy Chairpersons and other members, including coordinating members, necessary to carry out its functions.

• Marginal note:Public Service Employment Act

  (2) The members of the Refugee Protection Division are appointed in accordance with the Public Service Employment Act.

Marginal note:Proceedings

170 The Refugee Protection Division, in any proceeding before it,

• (a) may inquire into any matter that it considers relevant to establishing whether a claim is well-founded;

• (b) must hold a hearing;

• (c) must notify the person who is the subject of the proceeding and the Minister of the hearing;

• (d) must provide the Minister, on request, with the documents and information referred to in subsection 100(4);

• (d.1) may question the witnesses, including the person who is the subject of the proceeding;

• (e) must give the person and the Minister a reasonable opportunity to present evidence, question witnesses and make representations;

• (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;

• (g) is not bound by any legal or technical rules of evidence;

• (h) may receive and base a decision on evidence that is adduced in the proceedings and considered credible or trustworthy in the circumstances; and

• (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.

Marginal note:No reopening of claim or application

170.2 The Refugee Protection Division does not have jurisdiction to reopen on any ground — including a failure to observe a principle of natural justice — a claim for refugee protection, an application for protection or an application for cessation or vacation, in respect of which the Refugee Appeal Division or the Federal Court, as the case may be, has made a final determination.

Refugee Appeal Division

Marginal note:Proceedings

171 In the case of a proceeding of the Refugee Appeal Division,

• (a) the Division must give notice of any hearing to the Minister and to the person who is the subject of the appeal;

• (a.1) subject to subsection 110(4), if a hearing is held, the Division must give the person who is the subject of the appeal and the Minister the opportunity to present evidence, question witnesses and make submissions;

• (a.2) the Division is not bound by any legal or technical rules of evidence;

• (a.3) the Division may receive and base a decision on evidence that is adduced in the proceedings and considered credible or trustworthy in the circumstances;

• (a.4) the Minister may, at any time before the Division makes a decision, after giving notice to the Division and to the person who is the subject of the appeal, intervene in the appeal;

• (a.5) the Minister may, at any time before the Division makes a decision, submit documentary evidence and make written submissions in support of the Minister’s appeal or intervention in the appeal;

• (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

• (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.

Marginal note:No reopening of appeal

171.1 The Refugee Appeal Division does not have jurisdiction to reopen on any ground — including a failure to observe a principle of natural justice — an appeal in respect of which the Federal Court has made a final determination.

Immigration Division

Marginal note:Composition

• 172 (1) The Immigration Division consists of the Deputy Chairperson, Assistant Deputy Chairpersons and other members necessary to carry out its functions.

• Marginal note:Public Service Employment Act

  (2) The members of the Immigration Division are appointed in accordance with the Public Service Employment Act.

Marginal note:Proceedings

173 The Immigration Division, in any proceeding before it,

• (a) must, where practicable, hold a hearing;

• (b) must give notice of the proceeding to the Minister and to the person who is the subject of the proceeding and hear the matter without delay;

• (c) is not bound by any legal or technical rules of evidence; and

• (d) may receive and base a decision on evidence adduced in the proceedings that it considers credible or trustworthy in the circumstances.

Immigration Appeal Division

Marginal note:Court of record

• 174 (1) The Immigration Appeal Division is a court of record and shall have an official seal, which shall be judicially noticed.

• Marginal note:Powers

  (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.

Marginal note:Proceedings

• 175 (1) The Immigration Appeal Division, in any proceeding before it,

  • (a) must, in the case of an appeal under subsection 63(4), hold a hearing;

  • (b) is not bound by any legal or technical rules of evidence; and

  • (c) may receive and base a decision on evidence adduced in the proceedings that it considers credible or trustworthy in the circumstances.

• Marginal note:Presence of permanent resident

  (2) In the case of an appeal by a permanent resident under subsection 63(4), the Immigration Appeal Division may, after considering submissions from the Minister and the permanent resident and if satisfied that the presence of the permanent resident at the hearing is necessary, order the permanent resident to physically appear at the hearing, in which case an officer shall issue a travel document for that purpose.