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

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

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 for the purposes of the Public Service Superannuation Act and in the federal public administration for the purposes of 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.

(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.

(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.

(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.

2001, c. 27, s. 153; 2003, c. 22, s. 173.

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.

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.

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.

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.

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

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.

2001, c. 27, s. 158; 2003, c. 22, s. 225(E).

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.

(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.

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.

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.

(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.

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.

(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.

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.

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.

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.

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).

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.

(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.

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.

(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.

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.

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);

(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.

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

(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;

(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.

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.

(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.

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.

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

(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.

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.

(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.

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).

(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.

177. On receipt of the request, the Minister may take one or more of the following measures:

(a) obtain, in an informal and expeditious manner, any information that the Minister considers necessary;

(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;

(c) request of the Governor in Council that an inquiry be held under section 178; or

(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.

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.

179. The judge has all the powers, rights and privileges that are vested in a superior court, including the power

(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

(b) to administer oaths and examine any person on oath.

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.

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

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

(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

(c) a serious possibility that the life, liberty or security of a person will be endangered.

(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).

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.

(2) An interested party may, with leave of the judge, intervene in an inquiry on any terms and conditions that the judge considers appropriate.

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.

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.

(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.

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.

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.

187. For the purposes of sections 188 to 201, “former Act” means the Immigration Act, chapter I-2 of the Revised Statutes of Canada, 1985, and, where applicable, the regulations and rules made under it.

188. (1) The Immigration and Refugee Board continued by section 57 of the former Act is hereby continued.

(2) The Chairperson, Deputy Chairpersons and Assistant Deputy Chairpersons appointed under the former Act continue in the same capacity with the Board until the expiry or revocation of their respective appointments.

(3) A member appointed under the former Act to the Convention Refugee Determination Division or the Immigration Appeal Division continues in office as a member of the Board until the expiry or revocation of their appointment.

*(4) The person who, on the coming into force of this section, held the office of Executive Director of the Board is deemed to have been appointed to that office under section 158, without prejudice to any salary and benefits he or she may receive by virtue of having held that office before that coming into force.

* [Note: Section 188 in force June 28, 2002, see SI/2002-97.]

*189. Sections 94.6, 102.001 to 102.003 and 107.1 of the former Act are, despite paragraph 274(a), deemed not to be repealed and the Minister may exercise any of the powers described in those sections with respect to any business or fund that was approved by the Minister before the coming into force of paragraph 274(a).

* [Note: Paragraph 274(a) in force June 28, 2002, see SI/2002-97.]

*190. Every application, proceeding or matter under the former Act that is pending or in progress immediately before the coming into force of this section shall be governed by this Act on that coming into force.

* [Note: Section 190 in force June 28, 2002, see SI/2002-97.]

*191. Every application, proceeding or matter before the Convention Refugee Determination Division under the former Act that is pending or in progress immediately before the coming into force of this section, in respect of which substantive evidence has been adduced but no decision has been made, shall be continued under the former Act by the Refugee Protection Division of the Board.

* [Note: Section 191 in force June 28, 2002, see SI/2002-97.]

*192. If a notice of appeal has been filed with the Immigration Appeal Division immediately before the coming into force of this section, the appeal shall be continued under the former Act by the Immigration Appeal Division of the Board.

* [Note: Section 192 in force June 28, 2002, see SI/2002-97.]

*193. Every application, proceeding or matter before the Adjudication Division under the former Act that is pending or in progress immediately before the coming into force of this section, in respect of which substantive evidence has been adduced but no decision has been made, shall be continued under this Act by the Immigration Division of the Board.

* [Note: Section 193 in force June 28, 2002, see SI/2002-97.]

194. In cases referred to in section 191, a decision by the Refugee Protection Division following a hearing that has been commenced by the Convention Refugee Determination Division is not subject to an appeal under section 110.

*195. A decision made by the Convention Refugee Determination Division before the coming into force of this section is not subject to an appeal under section 110.

* [Note: Section 195 not in force.]

*196. Despite section 192, an appeal made to the Immigration Appeal Division before the coming into force of this section shall be discontinued if the appellant has not been granted a stay under the former Act and the appeal could not have been made because of section 64 of this Act.

* [Note: Section 196 in force June 28, 2002, see SI/2002-97.]

197. Despite section 192, if an appellant who has been granted a stay under the former Act breaches a condition of the stay, the appellant shall be subject to the provisions of section 64 and subsection 68(4) of this Act.

198. The Refugee Protection Division has jurisdiction to consider decisions of the Convention Refugee Determination Division that are set aside by the Federal Court, the Federal Court of Appeal or the Supreme Court of Canada, and shall dispose of those matters in accordance with the provisions of this Act.

2001, c. 27, s. 198; 2002, c. 8, s. 194.

199. Sections 112 to 114 apply to a redetermination of a decision set aside by the Federal Court with respect to an application for landing as a member of the post-determination refugee claimants in Canada class within the meaning of the Immigration Regulations, 1978.

*200. Subsection 31(1) does not apply with respect to persons who were permanent residents, within the meaning of the former Act, on the coming into force of this section.

* [Note: Section 200 in force June 28, 2002, see SI/2002-97.]

201. The regulations may provide for measures regarding the transition between the former Act and this Act, including measures regarding classes of persons who will be subject in whole or in part to this Act or the former Act and measures regarding financial and enforcement matters.

202. [Amendment]

203. [Amendment]

204. and 205. [Amendments]

206. [Amendment]

207. [Amendment]

208. [Amendments]

209. [Amendment]

210. [Amendment]

211. to 214. [Amendments]

215. [Amendment]

216. to 218. [Amendments]

219. [Amendment]

220. [Amendment]

221. and 222. [Amendments]

223. to 226. [Amendments]

227. [Amendment]

227.1 to 232. [Amendments]

233. [Amendment]

234. [Amendment]

235. to 241. [Amendments]

242. and 243. [Amendments]

244. [Amendment]

245. [Repealed, 2004, c. 15, s. 110]

246. and 247. [Amendments]

248. and 249. [Amendments]

250. to 252. [Amendments]

253. [Amendments]

254. [Amendment]

255. [Amendment]

256. to 258. [Amendments]

259. [Amendment]

260. [Amendment]

261. [Amendments]

262. [Amendment]

263. to 267. [Amendments]

268. [Amendment]

269. [Amendment]

270. [Amendment]

271. [Amendment]

272. [Amendment]

273. Unless the context requires otherwise, “Immigration Act” is replaced by “Immigration and Refugee Protection Act” in

(a) any regulation, as defined in section 2 of the Statutory Instruments Act; and

(b) any other instrument made

(i) in the execution of a power conferred by or under an Act of Parliament, or

(ii) by or under the authority of the Governor in Council.

273.1 [Amendments]

274. [Repeals]

*275. The provisions of this Act come into force on a day or days to be fixed by order of the Governor in Council.

* [Note: Sections 1 and 4 in force December 6, 2001, see SI/2001-119; sections 2, 3, 5 to 72, 74 to 109, 112 to 170, 172 to 193, 196 to 244 and 246 to 274 in force June 28, 2002, see SI/2002-97.]

E. This Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country.

F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:

(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

(c) he has been guilty of acts contrary to the purposes and principles of the United Nations.

1. For the purposes of this Convention, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

2. This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application.