COMMENTARIES
TO THE
IMMIGRATION APPEAL DIVISION RULES
RULE 9
Commentary
Rules 9 and 46 of the IAD
Rules deal with the new ground of appeal provided for in subsection 63(4)
of the Immigration and Refugee Protection Act. The right of appeal
based on this ground is intended for persons outside of Canada who the
Department of Citizenship and Immigration Canada (CIC)
finds have lost permanent resident status for not meeting the residency
obligation for every five-year period as described in section 28 of the
Act.
The appellant must provide the notice of appeal to the Registry Office
of the Immigration Appeal Division (IAD)
which serves the province or territory where the appellant last resided
in Canada. The notice of appeal has instructions attached which set out
the locations of the Registry Offices and the regions of Canada which
each Registry Office covers. This information is also available at the
Immigration and Refugee Board's Web site: www.irb-cisr.gc.ca.
The notice of appeal and the CIC
written decision must be received by the IAD
Registry Office no later than 60 days after the appellant received the
CIC
written decision. The time limit for this type of appeal is longer than
the 30-day time limit for the other IAD
appeals because the appellant will be outside Canada.
Where applicable, the appellant must clearly indicate in the notice of
appeal that the appellant wants to return to Canada for the hearing of
the appeal. The appellant may need a travel document in some situations
in order to enter Canada. The appellant must then make an application
under rule 46 of the IAD
Rules to return to Canada for the hearing of the appeal. The procedure
to follow in making the application is discussed in the commentary on
rule 46. Under subsection 175(2) of the Act, the Division may then decide
whether the appellant should physically appear at the hearing of the appeal.
RULE 22
Commentary
The Division generally schedules hearings and other proceedings with the
agreement of the parties. The Division tries to give parties and their
counsel a reasonable amount of time to prepare appeals and schedule appeals
and other related proceedings at times when parties and their counsel
are available. (Other related proceedings include attendance at a proceeding
in the alternative dispute resolution process under rule 20 of the IAD
Rules or appearance at a conference under rule 21.) However, while the
Division considers the requests of the parties, it is the Division, and
not the parties, that decides when cases will be scheduled.
To help set a date for a hearing, parties and their counsel may be required
to provide the following information to the Division: counsel's contact
information (IAD
Rules, rule 13); the need for an interpreter and the type of interpreter
needed (IAD
Rules, subsection 18(1)); whether documents have been provided in accordance
with the rule on disclosure (IAD
Rules, rule 30); information about witnesses (IAD
Rules, rule 37); the need for any special equipment such as a television/video
recorder or teleconference equipment; and whether any Charter, jurisdictional
or unusual legal issues will be raised at the hearing.
The hearing dates for most cases will be set at a scheduling
conference known as Assignment Court. Parties or their counsel must appear
in person at Assignment Court unless the Division tells them that this
is not necessary. Assignment Court is held on a regular basis. A member
of the Division will be present at Assignment Court and will be responsible
for setting the date of the hearing of the appeal. Where parties or their
counsel live a considerable distance from the location of the Division
where the hearing will take place or where the appellant is being held
in detention, a clerk of the division scheduling unit may contact the
parties for the purpose of scheduling the hearing or other proceeding.
The Division, and not the parties, decides whether parties or their counsel
need to appear in person at Assignment Court.
The Division may decide not to require appellants or their counsel to
appear in person at Assignment Court in cases where parties represented
by counsel are ready to proceed to hearing, are prepared to set a hearing
date and will clearly state that they are ready for hearing. It is the
responsibility of appellants or their counsel to contact the registry
office of the Division by telephone to make a request not to have to appear
at Assignment Court. In order not to have to appear at Assignment Court,
appellants or their counsel must confirm with a clerk of the division
scheduling unit that they are ready to proceed and that a hearing date
can be set.
The Division will only set hearing dates at the request
of parties where cases are ready to be heard. It will not set hearing
dates where cases are not ready to proceed to hearing. In setting dates,
parties should consider the Division's Rules on disclosing documents (IAD
Rules, rules 30 and 31) and on providing documents (IAD
Rules, rules 32 to 36). Parties must also ensure that witnesses are available
for the requested hearing dates. If parties state that they are ready
to proceed and a hearing date is set based on that statement, the parties
will be expected to proceed on the date set, whether they are ready or
not. Where a party has stated that the party is ready to proceed, and
later states that he or she is not ready to proceed, the Division may
require the party or the party's counsel to appear in person at Assignment
Court in the future, for this and any other appeal.
The Division may set a hearing date where the parties have been
given a reasonable time to prepare, whether or not the case is ready for
hearing. This may happen where the Division is of the opinion that a party
is trying to delay the hearing of an appeal or has not actively worked
on the preparation of the appeal.
The Division will usually, but not always, schedule proceedings other
than hearings by telephone.
For direction on scheduling this type of appeal, reference should be made
to the commentary on inadmissibility appeals based on health grounds that
is set out at the end of these IAD
Rules. The commentary deals with scheduling and other issues related to
appeals involving this ground of inadmissibility.
RULE 30(4)
Commentary
The time limit for the disclosure of medical documents set out in subsection
30(4) of the IAD
Rules must be read together with the commentary on appeals based on inadmissibility
on health grounds that appears after the end of the IAD
Rules. The commentary deals with the requirements for disclosure and other
issues related to this type of inadmissibility appeal.
RULE 46
Commentary
As required by subsection 46(1) of the IAD
Rules, an application to return to Canada for a hearing is to be made
in writing and in accordance with rule 43. The Division will decide the
application based on the written evidence and written submissions of the
parties. Therefore, it is important that the parties provide all the evidence
and supporting reasons the parties believe will assist the Division in
deciding the application. Under s. 175(2) of the Act, the Division may
order that permanent resident to physically appear at the hearing if it
is satisfied that the presence of the permanent resident is necessary.
Content of the application: Under the general rule on applications,
the appellant must:
- state the decision the appellant wants the Division to make under
subsection 175(2) of the Immigration and Refugee Protection Act;
i.e., an order requiring the physical appearance of the appellant at
the hearing of the appeal;
- state the reasons why the Division should make that order, i.e., why
the appellant's physical appearance at the hearing is necessary;
- state whether the Minister agrees to the application;
- include any evidence the appellant wants the Division to consider
in deciding the application. This evidence must be in the form of a
statutory declaration or affidavit.
The application documents must be received by the Division and the Minister
no later than 60 days after the Division received the notice of appeal.
RULE 48
Commentary
Subsection 162(2) of the Immigration and Refugee Protection Act
requires the Division to deal with all proceedings before it "as
informally and quickly as the circumstances and the considerations of
fairness and natural justice permit".
The Division generally sets hearing dates with the consent of the parties.
The exceptions to this practice arise where parties or their counsel do
not respond to efforts by the Division to set a hearing date, or seek
to delay the setting of a hearing date without justification. In such
instances, the Division sets a hearing date that gives the parties a reasonable
amount of time to prepare.
In every case where a hearing date is set, it is expected that the parties
will have completed the evidence-gathering process sufficiently in advance
of the hearing date to ensure compliance with the requirements for disclosure
set out in the IAD
Rules. It is expected that the parties will be prepared to proceed on
the date set for hearing. Furthermore, where parties have consented to
a hearing date, that consent will be regarded as an explicit and positive
commitment to the Division to be present, to be prepared to proceed, and
to have made no other commitments that will make their attendance impossible.
Subsection 48(4) of the IAD
Rules sets out a list of factors that the Division may consider when it
decides an application to change the date or time of a proceeding.
If a date was fixed after the Division consulted or tried to consult
the party, then exceptional circumstances will be needed before the Division
allows an application for a change of the date.
The consent of the parties is a relevant factor, but it is not determinative.
Neither party should expect that the Division will allow an application
to change the date or time of a proceeding merely because the other party
consents to the application.
If a counsel accepts a retainer from an appellant who has consented to
a hearing date, it will be presumed that counsel has also agreed to that
date and therefore will be ready to appear and present their client's
case on that date. If counsel cannot appear, it is expected that they
will make adequate arrangements for their client's representation through
the appearance of an associate, partner or agent who is prepared to go
ahead on the date set for hearing.
Unrepresented appellants are advised of their right to representation
at the beginning of the appeal process and at the Scheduling Conference.
Therefore, unrepresented appellants are expected to retain counsel without
delay and to retain counsel who are available to appear on any date that
is set with the appellant's consent. This expectation will be a factor
in any application that an unrepresented appellant may make to change
the date of a proceeding on the grounds that they have not yet retained
counsel or that the counsel they did retain is not available for the date
that had been set with the appellant's consent.
Where a hearing has started but cannot be completed on the fixed date,
the Division will attempt to set resumption dates no more than six weeks
later. Unless there are exceptional circumstances, parties and their counsel
should be prepared to agree to a resumption date within that time frame.
Applications must be timely, in writing, and with notice to the other
party. Applications must be made as far as possible before the date of
the proceeding. Such applications must be made in writing and be provided
to the other party as required in rule 43 of the IAD
Rules. Where an application has not been provided to the other party,
the Division will not consider the application.
All applications for changing the date or time of a proceeding must be
accompanied by a minimum of six alternative dates to which the proceeding
may be rescheduled. A party who is making an application should contact
the Scheduling Unit of the Division to obtain a range of dates acceptable
to the Division. The Division will not consider applications where the
party has not provided a sufficient number of alternative dates.
The Division may not have enough time to consider and decide applications
to change the date or time of a proceeding that are received by the other
party or by the Division two working days or less before the date of proceeding.
Where the parties do not receive a response to an application, the parties
must be prepared to go ahead with the proceeding on the fixed date (see
below).
In any case where the Division cannot communicate its decision
to the parties regarding an application to change the date or time of
a proceeding, the parties should not assume that the application has been
allowed. Rather, they are to assume that the application has been dismissed.
They must then be prepared to attend on the proceeding date with all parties,
counsel, witnesses and documents available, and they must be prepared
to go ahead with the proceeding. A party is still able to attempt to make
the application again at the beginning of the hearing or proceeding itself.
Where an application to change the date or time of a proceeding is made
orally at the proceeding itself or a party attempts again at the proceeding
to make an application to change the date or time after a previous application
was dismissed, all counsel and the parties must attend on the proceeding
date to make submissions on the application. Parties must have their witnesses
and documentary evidence available and must be prepared to go ahead with
the appeal if the application is dismissed.
Commentary
Inadmissibility Appeals based on Health Grounds (scheduling
and disclosure issues)
Parties can often resolve an appeal based on inadmissibility on health
grounds without a hearing. The medical condition of applicants found inadmissible
on health grounds may change over time, and the original medical assessments
leading to that finding may be looked at again.
The first time that appellants and their counsel appear in person at
Assignment Court, they must be prepared to state the grounds of appeal.
Where they do, the Minister's counsel can assess whether Citizenship and
Immigration Canada (CIC)
might be willing to consider resolving the appeal without a hearing, and
the Division can decide whether it is possible to resolve the appeal without
a hearing. Where appellants and their counsel do not state the grounds
of appeal and a second appearance in Assignment Court is required, the
Division will determine whether or not the appellant is responding quickly
enough, and the Division may limit the time for the process and schedule
the appeal for hearing.
Where the legal validity of a refusal is being challenged, CIC
may consider reassessing inadmissibility and require the applicant to
undergo further medical examinations abroad. This will mean lengthy delays
in the process before the Division. Delays may also occur where the appellant
presents new medical evidence to challenge the legal validity of a refusal.
Different considerations apply where the legal validity of a refusal is
not challenged and the appeal is based solely on humanitarian and compassionate
considerations. In this situation, there will not be any new medical instructions,
and the appeal should be scheduled for hearing after the appellant has
confirmed that the appeal is based on those considerations alone.
Where the legal validity of a medical refusal is being challenged, the
Division will not consider setting a hearing date until it is satisfied
that the CIC
will be able to assess any new medical evidence prior to that date. However,
the Division may set a hearing date regardless of whether or not the appellant
has made the necessary confirmation or CIC
has finished assessing the new medical evidence as it is the Division
that decides when cases will be scheduled.
If the appellant's new medical evidence specifically addresses the issues
raised in the medical notification, which is included in the appeal record,
then the likelihood of resolving the issue of legal validity is greater,
and even if the issue cannot be resolved, the hearing of the appeal will
be more focused.
When seeking new medical information, appellants and their counsel should
give to any examining physician or specialist a copy of the applicant's
medical notification, as well as a copy of the summary assessment, which
sets out all the codes that may make up the medical profile. When the
appellant is challenging the legal validity of a refusal, any medical
report should expressly and clearly address the grounds of inadmissibility
being disputed (e.g., the doctor's opinion on the applicant's health condition
and/or the annual cost of any future excessive demand on health or social
services).
Where the new medical evidence is so vague or irrelevant to the issues
that the Division is not satisfied that it is likely that the appeal can
be resolved without a hearing, the Division may schedule the appeal for
hearing so as to avoid any further delay.
After the appellant informs the Division that the appellant wants to
present new evidence to challenge the legal basis of the refusal, the
Division will find out how long it will take to obtain the evidence and
establish a timeframe for submitting it to CIC.
The Division will generally limit appellants and their counsel to a single
submission of new medical evidence in the process of trying to resolve
an appeal without a hearing.
When new medical information is submitted to CIC,
the Minister's counsel has a duty to advise both the appellant and the
Division promptly whether the new medical information might cause CIC
to change its view of the case. If CIC
does not change its position and a resolution is not possible, then the
Division will schedule the appeal for hearing. If CIC
indicates that it is willing to issue new medical instructions and may
reconsider its position, then the Minister's counsel must advise both
the appellant and the Division accordingly as soon as possible.
The longest delays in appeals based on inadmissibility on health grounds
occur where CIC
has issued new medical instructions and the applicant then undergoes another
medical examination. To reduce delays, it is necessary that both parties
to the appeal take responsibility for moving the case forward. The appellant
has a duty to ensure that the applicant follows instructions from the
visa post about any further medical examinations. Appellants and their
counsel must actively ensure that the visa post has the applicant's current
address on file and is aware of the best way to contact the applicant.
They must also ensure that the applicant is aware of the need to follow
timeframes set by the visa post for arranging and undergoing medical examinations,
as well as the need to provide the visa post with passport-size photographs
of the applicant if the visa post no longer has photographs on file.
The Minister's counsel must advise the Division and the appellant whether
or not the applicant has followed the instructions given by the visa post.
At every scheduled Assignment Court, the Minister's counsel must also
inform the Division and the appellant about the status of the case, i.e.,
any recent progress made by the visa post in processing the results of
the medical examinations.
The procedure outlined above sets out obligations of both the appellant
and CIC.
The Division will monitor the progress of each appeal by requiring parties
to appear in person at Assignment Court or to provide information in writing
about any progress that may have been made.
If at any time either party wants to stop the process of attempting to
resolve the appeal without a hearing, the party may notify the Division
and the other party, and the Division will schedule the appeal for hearing
following the scheduling procedure described in this commentary.
Even where an appellant accepts that the applicant's medical condition
might reasonably be expected to cause excessive demand on health or social
services or that the applicant is inadmissible on other health grounds,
medical evidence may still be submitted to attempt to show that the degree
of excessive demand or the likelihood of danger to public health or safety
is less than originally believed.
Subsection 30(3) of the IAD
Rules sets out a 20-day time limit for disclosing evidence and a 10-day
time limit for disclosing evidence in response. Given the nature of medical
evidence, a qualified physician usually has to interpret and analyze the
evidence to assist counsel in understanding and using it. For this reason,
the 20-day time limit for disclosure and the 10-day time limit for disclosing
evidence in response are often not long enough for parties to have their
experts assess, and respond to, medical evidence. Subsection 30(4) of
the IAD
Rules thus provides for a 60-day time limit for disclosing any medical
documents in an appeal based on inadmissibility on health grounds, and
a 30-day time limit for responding documents. However, the Division will
generally require disclosure of all medical evidence by both parties before
setting a hearing date.
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