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Procedures for Streaming IAD
Cases
Streaming Criteria and Analysis
Case Management, December 2006
TABLE OF CONTENTS
- Introduction: Enhanced Case Management
- Resolution Streams
- Streaming Criteria and Analysis by Case Type
- Removal Order Appeals:
- Serious Criminality (as qualified by s. 64(2)
IRPA)
- Criminality (s. 36
IRPA)
- Security, human or international rights violations,
organized criminality (s. 64(1)
IRPA)
- Misrepresentations
- Entrepreneurs
- Residency obligation
- Minister's appeal
- Sponsorship Appeals:
- Serious Criminality (as qualified by s. 64(2)
IRPA)
- Criminality (s. 36
IRPA)
- Security, human or international rights violations,
organized criminality (s. 64(1)
IRPA)
- Spouse/common-law partner/conjugal partner
- Adoption
- Dependent child of sponsor/Dependent child
of applicant
- Not a member of the family class
- Not a sponsor
- Financial refusal (sponsor or applicant related)
- Health ground refusal
- Other cases of Non-compliance with IRPA
- Misrepresentation
- Other
- Residency Obligation Appeals - s. 63(4)
IRPA:
Introduction: Enhanced Case Management
The IAD
Innovation Plan calls for an enhanced case management system, to promote
early information gathering, early resolution and to ensure that scheduled
appeals are hearing-ready.
Part of the case management process involves streaming the appeals into
appropriate resolution streams.
Streaming consists of matching each appeal to a case management process
which is best suited to resolving the appeal while respecting procedural
fairness. The goal of streaming is to make the most efficient use of resources
to support the resolution process, and in so doing create the capacity
to reduce the inventory of appeals and associated processing times, enhance
the quality of resolutions and seek greater efficiencies in case management
and scheduling.
The objective of these procedures is to provide a flexible framework
that governs the process of identifying the apparent degree of complexity
of each appeal and assigning it to a case management stream so that it
can be dealt with quickly and fairly.
The following are some of the principles which guide the streaming of
cases:
- Streaming is the basic tool of case management
Streaming supports quality resolution and adjudication
by identifying the characteristics of each appeal and then matching
resources with each appeal in a way that corresponds to the complexity
of the case. This approach enables simpler cases to be dealt with
earlier, possibly without a hearing or with less hearing time.
- Streaming is a permanent feature of case management
While it is a necessary feature of any attempt
to clear a backlog of cases, streaming is a practice not limited to
clearing a backlog. It is the means to manage cases efficiently, whether
or not there is a backlog.
- Streaming is universal in its application
To effectively manage its entire caseload,
the IAD
will stream all cases. Streaming is not limited to a particular group
or type of cases.
- Streaming decisions are informed by the experience of adjudication
Case management choices are informed by the
actual experience of the IAD
in informally resolving and adjudicating appeals. Accordingly, the
directions set by the Deputy Chairperson of the IAD
as part of the Division's adjudication strategy determine which types
of appeals are placed in the various case management streams.
- Streaming is a case management tool, not an adjudicative tool
The assignment of an appeal to a particular
stream is simply a case management tool. It does not influence the
adjudication of the merits of the appeal. In the case of resolution
of an appeal without a hearing, it is ultimately the responsibility
of the parties to show that an appeal cannot be resolved without a
hearing. In the case of the adjudication of an appeal, it is ultimately
the responsibility of the member to decide whether to allow, dismiss
or stay an appeal based solely on the merits of the individual appeal.
In all of its streaming activities, the IAD
is committed to the following key principles:
- Efficiency, through the accuracy and simplicity of process;
- Consistency, by adopting a consistent approach to key elements of
the process;
- Integrity, through the transparency of process which results in fair
resolutions and the issuance of sound and well-reasoned decisions in
cases which are adjudicated; and
- Fairness, through adopting a process that adheres to the principles
of natural justice.
Resolution Streams
Note: In cases involving multiple
grounds for the issuance of a removal order or for the refusal of a sponsored
application for permanent residence, the triage officer should select
the resolution stream that is most likely to lead to a quick and efficient
resolution of the appeal. Also, it is always possible that a resolution
stream different from the first will be selected during the process, depending
on the information gathered.
- Paper hearings for appeals (other than residency
obligation appeals) where according to IAD
Rule 25(1), it would not be unfair to any party to proceed in writing
and there is no need for oral testimony to decide the case:
- Jurisdictional issue which, if resolved against the appellant,
would mean that there is clearly no right of appeal according to
s. 63 or s. 64
IRPA.
- Determinative factual issue with no credibility assessment required
which, if resolved against the appellant, would mean that the IAD
has no discretionary jurisdiction according to s. 65
IRPA.
- Determinative legal issue.
Note: Where a paper hearing fails
to resolve the case, a Member will choose another stream according
to the complexity of the issues raised.
- Early resolution by informal methods (e.g.
phone calls, letters to the parties obtaining further documentation,
obtaining agreed statements of facts). If no tangible results within
4 weeks, select another hearing stream.
Note: In cases where the appellant
fails to respond to early information resolution written requests,
the triage officer should send the file to abandonment (show cause).
A two-step procedure is recommended with the exception of loss of
contact with the appellant (returned mail rather than no response).
If the failure is due to unreturned phone calls, the triage officer
should consider a written request or send the case to Assignment Court,
which could ultimately lead to abandonment if the default to proceed
persists.
- ADR
- Screened for likely successful resolution.
- Short hearing (6 - 8 per day; single issue).
- Medium hearing (3 per day).
- Full hearing (2 per day).
- Complex hearing (more than half a day). These cases
are exceptional.
Note: The triage unit may consult with the member
Manager on streaming decisions, as required.
Streaming Criteria and Analysis by Case Type
I) Removal Order Appeals:
- Serious Criminality (as qualified by
s. 64(2) IRPA)
Serious criminality: With respect to a crime that was punished
in Canada by a term of imprisonment of at least two
years. This includes time spent in pre-sentence custody,
which is usually credited on the basis of a 2 for 1 ratio. However,
credit for other than a 1 for 1 basis must be clear based on documentation.
(Need for triage officer to read sentencing judgement/warrant
of committal in some cases): Paper hearing (jurisdictional issue:
no right of appeal).
- Criminality (s. 36
IRPA)
CBSA
early review - Early informal resolution:
- Ask CBSA
whether file screened in for early review and whether there is a
possibility of receiving an agreed statement of facts or a joint
recommendation for a stay. If early resolution fails, stream to
Full hearing.
Note: If information indicates
that an appellant has had a subsequent conviction since the issuance
of the deportation order which would fall within s. 64
(2) IRPA,
the triage officer should contact CBSA
to determine if a removal order has been made in respect of this new
conviction. If not, the appeal should be scheduled for Medium hearing
immediately.
- Security, human or international rights
violations, organized criminality (s. 64(1)
IRPA)
Paper hearing (jurisdictional issue: no right of appeal).
- Misrepresentations
Medium to Full hearing depending on the complexity.
- Entrepreneurs
Early informal resolution to collect H & C
information and assess whether breach has been remedied and there
is proof of the remedy so as to ascertain if Minister may be in a
position to provide a positive recommendation on H & C
or whether the case is suitable for streaming to ADR.
- If not resolved: Medium to Full hearing.
Note: Need discussions with CBSA
to confirm that early informal resolution attempts may result in joint
recommendation in writing to allow the appeal.
- Residency obligation
Early informal resolution if appellant has been in Canada close to
730 days within requisite period. Collect H & C
information and in particular assess whether appellant has close family
(spouse and children) in Canada, ties to "home" country
have been severed and serious efforts have been made to establish
and remain in Canada:
- ADR
or Medium hearing if only one appellant is involved (i.e.
if no other related removals involving other family members are
also appealed and which could potentially be joined because of similar
facts, similar time spent in Canada, etc.),
no challenge to legal validity is proposed, (unless all legal challenges
can be dealt with in writing, in advance of the hearing) and it
involves a departure order of an individual without a lengthy and
complex history of dealings with immigration.
- If additional grounds for the removal order: Full hearing.
- Minister's appeal
Full hearing.
II) Sponsorship Appeals:
- Serious Criminality (as qualified by
s. 64(2) IRPA)
Serious criminality: With respect to a crime that was punished
in Canada by a term of imprisonment of at least two
years. This includes time spent in pre-sentence custody,
which is usually credited on the basis of a 2 for 1 ratio. However,
credit for other than a 1 for 1 basis must be clear based on documentation.
(Need for triage officer to read sentencing judgement/warrant
of committal in some cases). Paper hearing (jurisdictional issue:
no right of appeal).
- Criminality (s. 36
IRPA)
- If offence relatively minor including sentence, Early informal
resolution opportunity to collect H & C
information and to inquire if applicant has received pardon or if
there is evidence of rehabilitation. If early resolution fails -
Medium to Full hearing depending on the complexity.
- Others: Full hearing.
- Security, human or international rights
violations, organized criminality (s. 64(1)
IRPA)
Paper hearing (jurisdictional issue: no right of appeal).
- Spouse/common-law partner/conjugal partner
- Marriage under age 16 and under 16 at the time of filing of application
for permanent residence: Paper hearing (determinative
factual issue with no credibility assessment).
- Prior sponsorship undertaking in respect of a spouse, common-law
partner or conjugal partner and the period in respect of that undertaking
(3 years) has not ended: Paper hearing (determinative
factual issue with no credibility assessment).
- In the case where the foreign national is the sponsor's spouse,
the sponsor or the foreign national was, at the time of their marriage,
the spouse of another person: Paper hearing (determinative
factual issue with no credibility assessment). Medium hearing if
indication given that expert witness will be called to testify on
the interpretation of foreign law concerning the validity of a divorce
or the validity of a previous marriage. If CBSA
intends to challenge the credentials of the expert witness, the
case should be streamed to a Full hearing.
- Res Judicata: Paper hearing to determine whether res
judicata applicable:
- May require oral evidence to determine the issue (Short hearing).
Full hearing if it is determined that res judicata
(or abuse of process) does not apply.
- Conjugal partners who do not meet the definition of conjugal partner
because they had not known each other for at least 12 months at
the time of the filing of the application for permanent residence: Paper
hearing (determinative factual issue with no credibility assessment).
- Conjugal partners who do not meet the definition of conjugal partner
because they are not in a conjugal relationship or it is a bad faith
relationship.
- Early informal resolution to obtain information. ADR
if evidence points to an ongoing conjugal relationship (lengthy
period of time together - more than 12 months prior to the time
of the filing of the application for permanent residence and
factors indicate a marriage-like relationship, a child or pregnancy).
- Medium to Full hearing depending on the complexity.
- Prior alleged immigration fraud.
- Significant credibility concerns at interview such that
it is likely that CBSA
will want to examine at hearing.
- Significant compatibility issue (e.g.
combination of a number of compatibility factors).
- Legality of marriage refusal and Bad Faith Relationship (spouse)
- Paper hearing (legality of marriage: determinative issue capable
of proof on paper - no need to examine bad faith relationship
if legality issue results in paper dismissal). See 8.a) below.
- If legality established - See 9 below.
- If not suitable for paper hearing or if paper hearing leaves
legality issue unresolved, Full hearing to examine Legality
and Bad Faith Relationship.
- Legality of marriage refusal (Genuineness not disputed):
- Paper hearing (determinative issue capable of proof on paper)
e.g. statute prohibits
marriage between people of this relationship and oral evidence
not required or foreign divorce not recognized under Canadian
law.
- Early informal resolution - To obtain information on foreign
law, narrow issues and where appropriate explore the possibility
of a conversion to conjugal partner category, which would dispose
of the appeal.
- Medium hearing if indication given that expert witness will
be called as a witness on the interpretation of foreign law
or existence of a custom. If CBSA
intends to challenge the credentials of the expert witness,
the case should be streamed to a Full hearing.
- Bad Faith Relationship, spouse (Legality not disputed):
- Early informal resolution to obtain information. ADR
if evidence points to an ongoing spousal relationship (lengthy
period of time together, family involvement in the wedding and
continued family interconnections, a child or pregnancy).
- Medium to Full hearing depending on the complexity.
- Prior alleged immigration fraud.
- Significant credibility concerns at interview such that
it is likely that CBSA
will want to examine at hearing.
- Significant compatibility issue (e.g.
combination of a number of compatibility factors).
- Adoption
- Legality of adoption and Bad Faith Relationship:
- Paper hearing (legality of adoption: determinative issue capable
of proof on paper - no need to examine bad faith relationship
if legality issue results in paper dismissal). See 2.a) below.
- If legality established, Full hearing - See 3. below.
- If not suitable for paper hearing or if paper hearing leaves
legality issue unresolved, Full hearing to examine Legality
and Bad Faith Relationship.
- Legality of adoption (Genuineness not disputed):
- Paper hearing (determinative issue capable of proof on paper).
- Medium hearing if indication given that expert witness will
be called as a witness on the interpretation of foreign law
or existence of a custom. If CBSA
intends to challenge the credentials of the expert witness,
the case should be streamed to a Full hearing.
- Bad Faith Relationship (Legality not disputed):
Full hearing. Adoptions are almost always highly contentious
where genuine parent-child relationship is questioned.
- Dependent child of sponsor/Dependent
child of applicant
- Dependent child of sponsor:
- Paper hearing (determinative factual issue with no credibility
assessment (e.g.
overage and working; married or has common-law partner).
- If not suitable for paper, or if paper hearing leaves issue
unresolved: Medium to Full hearing, depending on
the complexity of the case.
- Proof of relationship at issue: Early resolution - See
G) below.
- Dependent child of applicant:
Note: These cases involve
the sponsorship of father/mother (applicants) and dependent children
(siblings of the sponsor).
- Appeal when there is no refusal but a deletion of a child
and the other applicants were issued visas: Paper
hearing, no jurisdiction (no refusal of a member of the family
class in relation to the sponsor).
- Refusal of entire application for misrepresentation: Paper
hearing (jurisdictional issue: no right of appeal). See L)
below.
- Refusal of entire application on ground that child does not
qualify as dependent child and possibly additional grounds: Medium
to Full hearing depending on the complexity of the case.
- Not a member of the family class
- Section 117(9)(d) IRPR: Paper
hearing (determinative factual issue with no credibility assessment).
- Nieces, nephews, siblings, step-parents (where a biological parent
not sponsored). Review for exceptions: Paper hearing.
- Proof of relationship:
- Early informal resolution opportunity to obtain proof of relationship
of any kind, including DNA
results.
- If appellant chooses to provide DNA
results: Paper hearing.
- If no DNA
or other conclusive evidence received: Short hearing.
- Not a sponsor
- Not a permanent resident/Canadian citizen: Paper hearing
(determinative factual issue with no credibility assessment).
- Not 18 or older: Paper hearing (determinative factual
issue with no credibility assessment).
- Application not in accordance with Regulations: Paper
hearing (determinative factual issue with no credibility assessment).
- Not residing in Canada and sponsor not Canadian citizen: Medium
hearing - The issue of where residing often requires oral evidence.
- Not residing in Canada and sponsor is a Canadian citizen, but
not sponsoring spouse/common-law/conjugal/dependent child: Medium
hearing - In these cases the issue of where residing usually requires
oral evidence.
- Not residing in Canada and sponsor is a Canadian citizen sponsoring
spouse/ common‑law/ conjugal/ dependent child: Informal
early resolution. If early informal resolution fails, stream to
Medium hearing.
- Financial refusal (sponsor or applicant
related)
- Does not meet MNI
or Quebec financial criteria:
- Early informal resolution: Letter requesting current
financial information and other H & C
information.
- If early informal resolution fails: Short hearing.
- Sponsor on social assistance:
- Early informal resolution: Letter requesting current
financial information and other H & C
information.
- If early informal resolution fails: Short hearing.
- Prior default on undertaking:
- Early informal resolution: Letter requesting current
financial information, details of any repayment of debt and
other H & C
information.
- If early resolution fails: Short hearing.
- Applicant related refusals for financial reasons
- Early informal resolution: letter requesting current information
on ability and willingness to support him/herself and arrangements
for care and support as well as other H & C
information
- If early informal resolution fails: Short hearing
- Health ground refusal
Early informal resolution: Determine if legal validity
contested.
- If legal validity contested: Full hearing.
- If legal validity uncontested: obtain H & C
information and assess possibility of ADR.
If ADR
not reasonably likely to resolve, stream to Full hearing.
- Other cases of Non-compliance with IRPA
- Failure to attend medical examination.
- Early informal resolution: Inquire if appellant
will withdraw and agree to attend interview on re-processing
(assumes visa office will reopen file).
- If no resolution: Short hearing.
- Failure to attend interview.
- Early informal resolution: Inquire if appellant
will withdraw and agree to attend interview on re-processing
(assumes visa office will reopen file).
- If no resolution: Short hearing.
- Failure to answer questions at interview.
- Failure to provide documentation.
- Early informal resolution: Inquire if appellant
will withdraw and agree to provide documentation on re-processing
(assumes visa office will reopen file).
- If no resolution: Short hearing.
- Prior deportation unrelated to criminality.
- Early informal resolution: Where this is the only
ground of refusal, inquire if appellant has applied for permission
to return and collect H & C
information so as to ascertain if Minister may be in a position
to provide a positive recommendation on H & C.
- If not resolved: Medium hearing.
Note: Need discussions with CBSA
to confirm that early informal resolution attempts may result in joint
recommendation to allow in paper hearing.
- Misrepresentation
- If applicant is not a spouse/common-law partner or dependent child
in relation to the sponsor: Paper hearing (jurisdictional
issue: no right of appeal).
- If applicant is a spouse/common-law partner or dependent child
in relation to the sponsor: Medium to Full hearing depending
on the complexity.
- Other
Note: The list below is not exhaustive.
- In-land refusal: Paper hearing (jurisdictional issue:
no right of appeal).
- Notice of appeal unrelated to sponsorship/removal/ residency obligation: Paper
hearing (jurisdictional issue: no right of appeal).
- Unsuccessful application for an exemption under s. 25
IRPA
(jurisdictional issue: no right of appeal).
- Appeal related to expiry of unused permanent resident visa: Paper
hearing (jurisdictional issue: no right of appeal).
- Notice of appeal filed late: Paper hearing for late
filing.
- If no response: Dismiss for late filing.
- If extension sought and refused by Member: Paper
hearing dismissal.
- If extension sought and granted by Member: Stream
as per grounds of refusal.
III) Residency Obligation Appeals - s. 63(4)
IRPA
Medium hearing.
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