COMMENTARIES
TO THE
IMMIGRATION DIVISION RULES
RULE 19
(DESIGNATED REPRESENTATIVES)
Commentaries
A representative must be designated for any person who is the subject
of an admissibility hearing or a detention review if this person is under
the age of 18 years (a "minor") or is unable to appreciate the
nature of the proceedings (an "incompetent person") (Immigration
and Refugee Protection Act, subsection 167(2)).
means that the person cannot understand the reason for the
hearing or why it is important or cannot give meaningful instructions
to counsel about his or her case. An opinion regarding competency may
be based on the person's own admission, the person's observable behaviour
at the proceeding, or on expert opinion on the person's mental health
or intellectual or physical faculties.
The member presiding at a proceeding will decide whether to designate
a representative and who that representative will be. The member will
usually, but not always, designate a parent, another relative, or legal
guardian to be the representative, if that person meets the specified
requirements.
The member presiding at a proceeding may end a designation if the member
decides that the representative is no longer suitable. A designation is
ended automatically by operation of law when the person who is the subject
of the admissibility hearing or detention review reaches 18 years of age.
The Division will not delay a proceeding until the minor has reached 18
merely to avoid having to designate a representative.
The member presiding at a proceeding must designate a representative even
when the minor or incompetent person has legal or other counsel. However,
where appropriate, a designated representative may act as counsel.
Before designating a person as a representative, the member presiding
at a proceeding will inform that person of, and will assess that person's
ability to, fulfill his or her responsibilities, including:
- retaining and instructing counsel or assisting the minor or incompetent
person in instructing counsel;
- making other decisions regarding the case or assisting the minor or
incompetent person to make those decisions;
- informing the minor or incompetent person about the various stages
and procedures in the processing of his or her case;
- assisting in gathering evidence to support the minor or incompetent
person's case and providing evidence and being a witness at the hearing
if necessary;
- generally protecting the interests of the minor or incompetent person
and putting forward the best possible case to the Division.
As much as possible, the designated representative should inform and consult
the minor or incompetent person when making decisions about the case.
However, the role of the designated representative will vary, depending
on the level of understanding of the minor or incompetent person. Minors
will vary in their ability to participate in making decisions, depending
on the type of decision that has to be made, their age and their maturity.
Incompetent persons may also have some ability to participate in making
decisions, depending on the type of decision that has to be made and the
nature and severity of their disorder or disability.
Subsection 4l(1)
Commentaries
When the Minister makes an application for non-disclosure of information
to the Immigration Division, he will inform the permanent resident or
foreign national who is the subject of an admissibility hearing or detention
review, and provide the latter with a copy of his application, as required
under subsection 38(5) of the Rules.
Under paragraphs 3(n) and 8(l) of the Rules, the Minister
will also indicate this in his request for an admissibility hearing or
detention review.
Subsection 41(3)
Commentaries
In order to comply with the provisions set out in section 78 of the Act,
the Immigration Division will ensure that the Minister agrees to the disclosure
of the information contained in the summary of the evidence that is to
be provided to the permanent resident or foreign national.
Subsection 45(5)
Commentaries
Admissibility hearings and detention reviews are conducted in public,
unless the permanent resident or foreign national is a claimant, in which
case the proceeding is conducted in private.
When an admissibility hearing or detention review is to be conducted
in public, a person may apply to have the proceeding conducted in private
or the Immigration Division may, on its own initiative, so order if it
considers this appropriate, taking into account the factors set out in
paragraphs 166(b)(i), (ii) and (iii) of the Act.
The Immigration Division may take any necessary measures to ensure the
confidentiality of the proceeding, such as:
a) hearing in private the evidence concerning the factors to be taken
into consideration;
b) ordering that the proceeding be conducted in private, in whole or
in part.
Subsection 46(4)
Commentaries
Admissibility hearings and detention reviews are conducted in public,
unless the permanent resident or foreign national is a claimant, in which
case the proceeding is conducted in private.
When an admissibility hearing or detention review is to be held in private
because it involves a claimant, a person may apply to have a proceeding
conducted in public or the Immigration Division may, on its own initiative,
so order if it considers this appropriate, taking into account the factors
set out in paragraphs 166(b)(i), (ii) and (iii) of the Act.
Even if it allows the proceeding to be conducted in public, the Immigration
Division may take any necessary measures to ensure the confidentiality
of the proceeding, such as:
- hearing in private the evidence concerning the factors to be taken
into consideration;
- ordering a ban on publication of the proceedings, in whole or in
part.
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