GUIDE TO PROCEEDINGS BEFORE THE IMMIGRATION DIVISION

Transcription

1 GUIDE TO PROCEEDINGS BEFORE THE IMMIGRATION DIVISION Legal Services

2 Table of Contents About the Guide to Proceedings Before the Immigration Division ii, iii Notes and references..iv Chapter 1... POWERS OF THE IMMIGRATION DIVISION Chapter BEFORE THE HEARING Chapter 3...MAKING AND PROVIDING APPLICATIONS Chapter 4.. PUBLIC OR PRIVATE HEARINGS Chapter 6...LANGUAGE OF PROCEEDINGS AND INTERPRETER Chapter DESIGNATED REPRESENTATIVE Chapter 8.RIGHT TO COUNSEL Chapter CHANGING THE LOCATION OF A HEARING Chapter 10...CHANGING THE DATE OR TIME OF A HEARING Chapter JOINING OR SEPARATING CASES. Chapter CONSTITUTIONAL QUESTIONS Chapter 13..EVIDENCE AND SUBMISSIONS Chapter DECISIONS AND REASONS i Legal Services

3 MEMORANDUM Date: To: Immigration Division members From: Krista Daley General Counsel / Director, Legal Services Subject: Guide to Proceedings Before the Immigration Division Attached please find the Guide to Proceedings Before the Immigration Division, dated August 26, 2005, prepared by Legal Services. The Guide is intended to assist Immigration Division members in their work. It was written during 2003 and The date at which each chapter was completed is indicated at the bottom right-hand side of the page. The Guide will be updated following a review beginning in the coming months. We want to make sure the Guide meets your needs. If you have any comments about the format or the content of this work, please forward them to Anna Colaianni, Legal Services, Eastern Region. As is the case with all major reference works produced by Legal Services, this work is available through INTRANET and the Web site, and you may find electronic search capabilities will facilitate your use of this work. Original signed by Krista Daley

4 About the Guide to Proceedings Before the Immigration Division This document was prepared in order to guide the members of the Immigration Division in the many procedural decisions that they will have to make before or during a hearing. Basically, the members of the Immigration Division preside over two types of hearings: admissibility hearings in order to determine the merits of allegations of inadmissibility and to take the applicable removal measures, if any; detention reviews in order to determine whether a person detained under the Act may be released on whatever conditions the member considers necessary. The procedure for a hearing varies depending on whether it is an admissibility hearing or a detention review, but the difference lies mainly in the presentation of evidence and the parties submissions [see Chapter 13]. The matters dealt with in this guide apply, for the most part, to both types of hearings. Specific features, depending on whether an admissibility hearing or a detention review is involved, are noted. So that members can perform their functions properly, namely, to exercise effective control over the hearings at which they preside, following the rules of procedural fairness and respecting the principles of natural justice, the Act confers powers on the members, the most important of which are examined in this guide. In addition, it is important to examine the Immigration Division Rules, which are a valuable tool to assist members in using their powers appropriately. ii Legal Services

5 The Rules govern the work, procedure and practice of the Immigration Division. Among other things, they help ensure that hearings run smoothly. The Rules are divided into three parts: Part 1: Part 2: Part 3: Rules applicable to admissibility hearings Rules applicable to detention reviews Rules applicable to both admissibility hearings and detention reviews Most of the Rules apply to both types of hearings. Rules specific to admissibility hearings and detention reviews are identified in the various chapters. A number of procedural issues may arise before or during a hearing. It is therefore not possible to cover them in chronological order in this guide. Nevertheless, wherever practicable, they are presented in accordance with the stages of preparing for the hearing, the hearing itself and concluding the hearing. iii Legal Services

6 Notes and References The following definitions apply in this guide: Act means the Immigration and Refugee Protection Act, S.C. 2001, c. 27. Rule or Rules means the Immigration Division Rules, SOR/ hour review, 7-day review and 30-day review mean the forty-eight hour review, seven-day review and thirty-day review, as defined in section 1 of the Rules. Charter means the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982 [Schedule B of the Canada Act, 1982 (1982, U.K., c. 11)]. The text of some sections of the Act and the text of the Rules are not reproduced in this document. Readers should consult this document in conjunction with the relevant legislation. iv Legal Services

7 TABLE OF CONTENTS 1. POWERS OF THE IMMIGRATION DIVISION INTRODUCTION CONDUCT OF HEARINGS SECTION 173 OF THE ACT Nature of the hearing GENERAL POWERS SECTION 165 OF THE ACT Powers under the Inquiries Act Power to do any other thing considered necessary to provide a full and proper hearing OTHER POWERS OF THE IMMIGRATION DIVISION EXERCISE OF DISCRETION ANNEX 1-A i Legal Services June 2003

8 1. POWERS OF THE IMMIGRATION DIVISION 1.1 INTRODUCTION An administrative agency like the Immigration Division exists only because Parliament has provided for its creation by statute. Such a statutory creature may exercise only the powers that have been expressly or impliedly conferred on it by statute. (In contrast, a superior court of record, such as a superior court or a provincial supreme court, has inherent powers that allow it to take all the measures necessary to ensure that its orders are complied with and that justice is done.) In other words, any measure taken or decision rendered by the Immigration Division must flow from a legislative provision. The powers conferred on the Immigration Division are diffuse. The Act must therefore be examined carefully to determine what measures the Immigration Division is authorized to take. This chapter sets out the manner in which the Immigration Division is required to perform its duties and exercise the main powers conferred on it, for the purpose of achieving its objectives. 1.2 CONDUCT OF HEARINGS SECTION 173 OF THE ACT According to paragraphs 173(a) and (b) of the Act, the Immigration Division must carry out its duties by holding hearings and must give notice of the proceedings to the parties 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. A case is brought before the Immigration Division when the Minister forwards a request for an admissibility hearing or a detention review to the Division [for further details, see Chapter 3 Making and Providing Applications]. 1-1 Legal Services June 2003

9 1.2.1 Nature of the hearing The hearing is adversarial. The two parties may adduce evidence, cross-examine witnesses and make submissions. Party is defined in Rule 1 as a permanent resident or foreign national, as the case may be, and the Minister. In practice, a permanent resident or foreign national is referred to as the person concerned. The person may be represented by a lawyer or other counsel of the person s choice. The Minister is represented at a hearing by an employee of Citizenship and Immigration Canada, who is referred to as the Minister s counsel. 1.3 GENERAL POWERS SECTION 165 OF THE ACT Section 165 of the Act is worded as follows: 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 Powers under the Inquiries Act As stated in section 165 of the Act, the members of the Immigration Division have the same powers as a commissioner appointed under Part I of the Inquiries Act. Commissioners appointed under Part I of the Inquiries Act [see Annex 1-A] have the power to summon witnesses and require them to give evidence, orally or in writing, and on oath, and produce such documents and things as the commissioners deem requisite. To enforce the attendance of witnesses, they have the powers of a court of record in civil cases. This is what allows members, among other things, to: issue a summons (Rules 33 and 34); issue a warrant of arrest if the person does not appear at the hearing as required by the summons (Rule 35). [For further details, see Chapter 13 Evidence and Submissions] 1-2 Legal Services June 2003

10 1.3.2 Power to do any other thing considered necessary to provide a full and proper hearing Section 165 of the Act also provides that members may do any other thing they consider necessary to provide a full and proper hearing. This catch-all provision gives members broad discretion and allows them to do anything necessary for the conduct of the hearing. In addition, it justifies the general provisions set out in Rules 49, 50 and 51, namely, that the Division may act on its own, that the Rules are not exhaustive, that they may be changed and that they may be waived. On the one hand, some situations require the member to make decisions on procedure, even where there is no specific legislative provision that permits it. A practical example would be where a member requires a security guard to be present in the hearing room because the member is of the opinion that the person who is the subject of the admissibility hearing or detention review may pose a threat to the safety of the participants. On the other hand, the strict application of certain rules could, in specific circumstances, contravene a provision of the Act or a principle of natural justice or lead to infringement of a right guaranteed by the Charter. The member must therefore take all of the circumstances of the case into account when exercising discretion with respect to procedure. 1.4 OTHER POWERS OF THE IMMIGRATION DIVISION In addition to the powers provided for in section 165 of the Act, members may exercise the powers conferred by other provisions of the Act to ensure that the proceedings are conducted fairly and efficiently. The most important of these provisions are found in 1-3 Legal Services June 2003

11 Part 4 of the Act, under the heading Provisions that Apply to All Divisions. For example, the member has the power and sometimes the obligation: to conduct a hearing by a means of live telecommunication (section 164 of the Act) 1 ; determine whether the hearing will be held in private or in public (section 166 of the Act and Rules 45 and 46) [see Chapter 4 Public or Private Hearing]; designate a representative in the case of a minor or a person who is unable to appreciate the nature of the proceedings (subsection 167(2) of the Act and Rules 18 and 19) [see Chapter 7 Designated Representative]; determine that a proceeding brought before it has been abandoned (subsection 168(1) of the Act) [see Chapter 14 Decisions and Reasons]; make a finding of abuse of process (subsection 168(2) of the Act and Rule 5) [see Chapter 14 Decisions and Reasons]; examine information in the absence of the permanent resident or foreign national (sections 86 and 78 of the Act and Rule 41) [see Chapter 5 Non-Disclosure of Information]. 1.5 EXERCISE OF DISCRETION As an administrative tribunal, the Immigration Division must proceed with fairness and in accordance with the principles of natural justice. It must also proceed informally and quickly. An Immigration Division member is always required to make a great many interlocutory decisions that may, to varying degrees, affect the conduct of the hearing. When making such decisions, the member must always be mindful of these requirements, which, moreover, are imposed on the member by subsection 162(2) of the Act: 1 In practice, telephone and video communications are used regularly. 1-4 Legal Services June 2003

12 162.(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. In practice, it is not always easy for a member to carry out the duties imposed on him or her under subsection 162(2) of the Act. The duty to act fairly and in accordance with the principles of natural justice may at times interfere with the duty to act informally and quickly. For example, granting an adjournment of the hearing on the application of a party has an adverse effect on how quickly the case is heard and decided. Conversely, the refusal to grant an adjournment could result, in some circumstances, in an infringement of the right to be heard. In all cases, the member must take into account the rights of the parties, the provisions of the Act and the Rules and all of the circumstances of the case when making an interlocutory decision. In some cases where fundamental rights are involved, such as cases where an interpreter is needed or where a representative must be designated for a person who is a minor or a person who is unable to appreciate the nature of the proceedings, the decision to adjourn the hearing is undoubtedly correct. In practice, such situations are infrequent because the registry office generally makes the necessary arrangements before the hearing. In most cases, the issues are not so clear-cut. The member must then use his or her judgment to ensure that the hearing proceeds as quickly as possible, but without infringing the rights of the parties and without breaching the principles of natural justice. 1-5 Legal Services June 2003

13 ANNEX 1-A INQUIRIES ACT An Act respecting public and departmental inquiries SHORT TITLE Short title 1. This Act may be cited as the Inquiries Act R.S., c. I-13, s. 1. PART I PUBLIC INQUIRIES Inquiry 2. The Governor in Council may, whenever the Governor in Council deems it expedient, cause inquiry to be made into and concerning any matter connected with the good government of Canada or the conduct of any part of the public business thereof. R.S., c. I-13, s. 2. Appointment of commissioners 3. Where an inquiry as described in section 2 is not regulated by any special law, the Governor in Council may, by a commission, appoint persons as commissioners by whom the inquiry shall be conducted. R.S., c. I-13, s. 3. Powers of commissioners concerning evidence 4. The commissioners have the power of summoning before them any witnesses, and of requiring them to (a) give evidence, orally or in writing, and on oath or, if they are persons entitled to affirm in civil matters on solemn affirmation; and (b) produce such documents and things as the commissioners deem requisite to the full investigation of the matters into which they are appointed to examine. R.S., c. I-13, s. 4. Idem, enforcement 5. The commissioners have the same power to enforce the attendance of witnesses and to compel them to give evidence as is vested in any court of record in civil cases. R.S., c. I-13, s Legal Services June 2003

14 TABLE OF CONTENTS 2. BEFORE THE HEARING INTRODUCTION REQUEST FOR A HEARING Admissibility hearing Requirement to provide evidence Detention review hour review and 7-day review Early review Location of the detention review FIXING THE HEARING DATE AND NOTIFYING THE PARTIES REVIEWING THE FILE Main checks Conference ANNEX 2-A i Legal Services June 2003

15 2. BEFORE THE HEARING 2.1 INTRODUCTION The Rules require the Minister to submit his or her request for an admissibility hearing or detention review, along with certain information, to the Immigration Division. This allows the Immigration Division to perform its role more effectively. Based on that information, the registry office can make the necessary arrangements to ensure that everything is in place so that, if at all possible, the hearing can proceed on the date fixed. Nonetheless, this responsibility also lies with the member, who must examine the file and do whatever is needed to resolve any matter that might result in the postponement of the hearing. Preparation is essential for the smooth conduct of the hearing. Reviewing the file enables the member to become familiar with the nature of the upcoming hearing; quickly settle preliminary issues; anticipate, in some cases, which applications the parties will make; and, often, identify the issues. This chapter describes the main steps to be taken before the hearing begins. 2.2 REQUEST FOR A HEARING When the Minister wants to bring a case before the Immigration Division for an admissibility hearing or a detention review, the request must be addressed to the registry office under Rule 3 or 8. Citizenship and Immigration Canada (CIC) complies with these rules by providing a form entitled Request for Admissibility Hearing / Request for Detention Review [see Annex 2-A] Admissibility hearing When the Minister refers a case to the Immigration Division for an admissibility hearing, the request must, according to Rule 3, provide various information that allows the 2-1 Legal Services June 2003

16 Division to make the necessary arrangements to ensure that the admissibility hearing can, if at all possible, proceed on the date fixed for it. A copy of the request must be provided to the person concerned. The registry office that receives the request must be provided with the following: the identity of the person concerned so that it can open a file and enter the case in the schedule (Rule 3(a) and (b)); the person s marital status and, if appropriate, the contact information for any family members who are also the subject of an admissibility hearing so that it can be decided whether the cases should be joined (Rule 3(c) and (k); contact information so that the Division can communicate with the person concerned and with that person s counsel (Rule 3(a), (f) and (i)); documents establishing the jurisdiction of the Division, the date of the request, the name and title of Minister s counsel (Rule 3(d), (l) and (m)); the official language chosen for the proceedings and whether an interpreter is needed so that arrangements can be made to have a certified interpreter available on the date fixed for the hearing (Rule 3(g) and (h)); indications of whether the person concerned has made a claim for refugee protection or of whether the Minister has made an application for non-disclosure of information so that the necessary physical arrangements can be made to hold the proceedings in private and to protect information (Rule 3(e) and (n)); an indication of whether the person concerned is less than 18 years of age or is unable to appreciate the nature of the proceedings so that arrangements can be made to have a designated representative available on the date fixed for the hearing (Rule 3(o)); the client identification number given to the person by CIC, which will be used for all future communications (Rule 3(j)). 2-2 Legal Services June 2003

17 Requirement to provide evidence The Minister must also provide, along with the request for an admissibility hearing, the evidence that he or she intends to present at the hearing (Rule 3(p)). This requirement is not always complied with [see also Chapter 13 Evidence and Submissions]. If the notice is accompanied by an application for non-disclosure of information, the requirement will obviously not be met, at least in part [for more details, see Chapter 5 Non-Disclosure of Information]. Furthermore, the Minister routinely submits some documents only at the hearing. Sometimes, the relevance of a document does not become apparent until the hearing. But, regardless of the Minister s motives, if the evidence is relevant and of crucial importance, it may be difficult to refuse to accept it on the grounds that the requirements of Rule 3(p) have not been met. Failure to observe a requirement of the Rules cannot justify an infringement of a principle of natural justice [for more details, see Chapter 13 Evidence and Submissions] Detention review Under Rule 8, the Minister must include certain information with his or her request for a detention review. As in the case of a request for an admissibility hearing, the registry office needs this information so that it can make the necessary arrangements to ensure that the hearing is held on the date fixed [see Admissibility hearing]. Since subsections 57(1) and (2) of the Act provide for specific time limits for detention reviews, it is even more important to ensure that all measures are in place so that the member can proceed with the hearing on the date fixed for the review. 57.(1) Within 48 hours after a permanent resident or a foreign national is taken into detention, or without delay afterward, the Immigration Division must review the reasons for the continued detention. (2) At least once during the seven days following the review under subsection (1), and at least once during each 30-day period following each previous review, the Immigration Division must review the reasons for the continued detention. 2-3 Legal Services June 2003

18 Rule 8 also requires the Minister to indicate whether the review is a 48-hour review or a 7-day or 30-day review hour review and 7-day review The 48-hour review and the 7-day review leave little time for disclosure and for making and providing applications in writing to the other party before the hearing. The evidence is often presented at the hearing. This is also true of applications, which are often made orally at the hearing. Moreover, when the Rules provide for time limits, they generally do not apply to 48-hour reviews or 7-day reviews or to admissibility hearings held at the time of such reviews. The Rules also mention an admissibility hearing held at the same time because, in practice, an admissibility hearing concerning a detainee is, wherever possible, scheduled to coincide with the detention review. When this happens, the member holds the admissibility hearing first and then the detention review Early review Except for the 48-hour review, the time limits cannot be exceeded, but they can, on application by a party, be brought forward if new facts justify it. At the end of a hearing where the detention is continued, the member usually fixes the date for the next 7-day or 30-day review after consulting with the registry office. An application for early review may be made under Rule 9. The application must be made in writing and must meet the requirements of Rule 38(4) and 38(5) [see Procedures and time limits for submitting an application] Location of the detention review According to subsection 57(3) of the Act and Rule 23, the Minister must bring the detainee to the hearing at a location specified by the Division. Generally, the detainee is brought before the tribunal for the hearing. An exception to this rule is a case where the 2-4 Legal Services June 2003

19 person is also detained by other authorities, for example, if the person is serving a sentence in a prison or penitentiary. Furthermore, depending on the region, some Immigration Division offices may be unsuitable for receiving detainees who might be a danger to public security. This type of case is covered by administrative agreements between CIC and the Immigration Division that provide for such hearings to be held in the place of detention. 1 Holding a hearing in a prison or penitentiary can also have repercussions on the public or private nature of the hearing. This aspect is examined in Chapter 4, more specifically, in Hearings in a detention institution. When a hearing is held outside Division offices, careful preparation to minimize the possibility of a postponement is even more important since the member often has no access to on-site support, not to mention that the participants, including the member, must travel to the location. 2.3 FIXING THE HEARING DATE AND NOTIFYING THE PARTIES After making all necessary arrangements, the registry office must fix the date for the hearing (Rule 21), notify the parties (Rule 22) and provide the file to the member who has been designated to conduct the admissibility hearing or detention review. Practices in this regard may vary from region to region (Rule 21). 1 In M.C.I. v. Ariyarathnam, Sivathakaran (F.C.T.D., No. IMM ), Dawson, January 17, 2002, the Federal Court interpreted the provisions of the former Immigration Act (section 103 of the Act and Rules 7, 18 and 30). It found that an adjudicator (Immigration Division member) had no jurisdiction to order the detention review to be held in a location other than where the person was detained, despite the lack of adequate facilities. The Court noted that the provisions of the Act and the Rules were not a model of clarity. Since subsection 57(3) of the Act is much clearer, it is generally thought that this case law is no longer applicable [see also Hearings in a detention institution]. 2-5 Legal Services June 2003

20 2.4 REVIEWING THE FILE Reviewing the file is essential for the smooth conduct of the hearing. A good understanding of the case file helps the member exercise effective control over the hearing and complete it as quickly as possible Main checks A member who is given a file for an admissibility hearing or a detention review should: if it is for an admissibility hearing, ensure that the file contains the officer s report and the referral, as well as all of the information required under Rule 3; if it is for a detention review, ensure that the file contains all of the information required under Rule 8; in all cases, pay special attention to the following: Has the person concerned claimed refugee protection? This information will help the member determine whether the hearing should be held in private or in public. [see Chapter 4 Public or Private Hearing] Is there a note stating that the person concerned is less than 18 years of age or is unable to appreciate the nature of the proceedings? If so, have arrangements been made to ensure that someone is present who could be suitably designated to act as a representative on the date fixed for the hearing? [see Chapter 7 Designated Representative] Is there a note indicating that an interpreter is required? If so, has the registry office made arrangements to ensure that an interpreter is present on the day fixed for the hearing? [see Chapter 6 Language of Proceedings and Interpreter] 2-6 Legal Services June 2003

21 Is there a note indicating that an application for nondisclosure of information has been made? If so, is the application in the file? Have arrangements been made for the hearing to be held in private and in the absence of the person concerned and his or her counsel? [see Chapter 5 Non-Disclosure of Information] Are other family members the subject of an admissibility hearing or a detention review? If so, has the registry office joined the files? [see Chapter 11 Joining or Separating Cases] Does the file contain specific applications by the parties? When were the applications made? Did the Division respond? If the applicant has not received a response or has received a negative response to his or her application, the applicant may make the application again orally at the hearing. The member will then be better prepared to decide on the issue. It is important for the member to do the above checks, because some concern duties that he or she will have to perform at the outset of the hearing. Failure to carry out these duties may invalidate the proceedings or adversely affect one of the two parties if the obligations the Act imposes on the member are not complied with. In addition, the member will be able to ensure, if need be, that the necessary arrangements have been made or will be made so that the hearing can proceed on the date and at the time fixed. In this way, the member discharges his or her duty under subsection 162(2) of the Act to deal with the proceeding quickly Conference When the member is given a relatively complex file and he or she believes it advisable to settle certain procedural issues before the hearing begins, the member can call the parties to a conference (Rule 20), if time permits, of course, given the specific time limits that the Act imposes for detention reviews. The conference can also be used during an 2-7 Legal Services June 2003

22 admissibility hearing for the same reasons. This procedure is rarely used in the Immigration Division, but it may prove useful in some cases. It is not necessary to record the discussions at a conference. However, at the outset of the hearing, or when it resumes, as the case may be, the member must either state whatever decision was made or summarize the agreements reached at the conference so that they can be reflected in the hearing transcript or put them in writing, in which case he or she should mark the document and place it in the file as an exhibit (Rule 20(3)). 2-8 Legal Services June 2003

23 ANNEX 2-A 2-9 Legal Services June 2003

24 TABLE OF CONTENTS 3. MAKING AND PROVIDING APPLICATIONS INTRODUCTION GENERAL PROVISION APPLICATIONS MADE IN WRITING Procedures and time limits for providing an application Procedures Time limits Procedures and time limits for providing a response or a reply Procedures Time limits Manner and means of providing documents APPLICATIONS MADE ORALLY Procedure to be followed Restrictions on applications made orally i Legal Services June 2003

25 3. MAKING AND PROVIDING APPLICATIONS 3.1 INTRODUCTION The Rules set out the procedure and the time limits for making and providing applications and, in some cases, what factors are to be considered in ruling on the various applications. A number of applications are specifically provided for in the Rules and are dealt with in the chapters that follow. This chapter deals with the general provisions for applications found in Rules 37, 38, 39 and 40. The introductory words to Rule 37 state Unless these Rules provide otherwise,.. This means that specific provisions take precedence over general provisions, but the latter complete any specific provisions. 3.2 GENERAL PROVISION Rule 37 states that an application to the Immigration Division is to be made by a party under Rule 38, that the other party may respond to it under Rule 39, and that the applicant may reply to the response under Rule 40. According to Rule 38(2), an application may be made orally or in writing. 3.3 APPLICATIONS MADE IN WRITING Between the time a request for an admissibility hearing or a detention review is filed with the registry office and the date fixed for the hearing, the Division may receive various applications which the registry office or the regional director will respond to or which will be provided to the member responsible for the hearing. An application made before the beginning of a hearing is generally made in writing, which does not rule out the 3-1 Legal Services June 2003

26 possibility that an informal application may be made by telephone. An example would be an application for a change in the time fixed for a 48-hour detention review. An application in writing may also be made while the hearing is adjourned. In this case, it will be provided to the member before whom the case has been brought so that he or she can rule on the application. It is also possible, although rare, for an application in writing to be made in person at the hearing. In contrast to the situation where an application is made orally at the hearing and the other party is usually present to hear it and respond if he or she wishes, the other party has no knowledge of applications in writing unless they are provided to him or her. The Rules therefore set out the procedures and the time limits for making and providing applications in writing, as well as responses to the applications and replies to the responses Procedures and time limits for providing an application Procedures The principle is that an application in writing must be provided to the registry office. However, when a case is already before a member, the application in writing may be addressed to the member (see Rules 27 and 28(1)). According to Rule 38(4), the application must state the decision the party wants; give reasons why that decision is wanted; include any relevant evidence; be accompanied by an affidavit or statutory declaration, only in the case of an application that is not specifically provided for in the Rules. 3-2 Legal Services June 2003

27 The application must be provided to the other party (Rule 38(5)(a)) to allow for a response and a reply in the form and within the time limits set out in Rules 9 and 40. The application is provided to the Division, accompanied by a written statement of how and when the party provided it (Rule 38(5)(b)). The statement referred to in this section does not have to be formal. A simple note on the application, such as true copy provided to the other party, is acceptable Time limits According to Rule 38(2), an application must be made as soon as possible or within the time limit provided in the Act or the Rules. The general provisions concerning applications (Rules 37 to 40) do not provide for any specific time limits, but instead, refer to the provisions of the Act, for example, subsection 57(2) of the Act concerning the 7-day and 30-day detention reviews, and Rule 45(4) concerning an application to have a hearing conducted in private Procedures and time limits for providing a response or a reply Procedures According to Rule 39(1), the response must contain the same items as the application [see Procedures]. With respect to replies, the Rules govern only their form and do not cover content. Rule 40(1) merely states that a reply to a written response must be in writing. A written statement of how and when the party provided the copy to the other party is also required for a response or a reply (Rules 39(2)(b) and 40(2)(b)). As in the case of the written statement of how and when the party provided the copy to the other party, the statement referred to in the Rules does not have to be formal. A simple note on the response or reply, such as true copy provided to the other party, is acceptable. 3-3 Legal Services June 2003

28 Time limits Rules 39(3) and 40(3) provide for time limits for the reception of responses and replies by their recipients. However, in view of the very short amount of time allotted for 48-hour and 7-day detention reviews, as well as for admissibility hearings held at the same time as those reviews, a reasonable amount of time in which to respond or reply in writing frequently cannot be given. Moreover, the applicant may have made the application only a few days before the date fixed for the hearing. If the date fixed for the hearing is so close that it does not allow the other party to comply with the time limit for responding to the written application, the member should refrain from making a decision on the written application before the hearing. The application should, in this case, be dealt with at the hearing, which will give the party who is entitled to make a response the opportunity to make it orally. If necessary, the reply can also be made orally Manner and means of providing documents Rule 27 states that Rules 28 to 31 apply to documents, notices, written requests and applications. Chapter 13 covers filing and providing documents. Where the Rules require a notice in writing, this is dealt with in the chapter on that subject [see, for example, Rules 14 and 15 and Chapter 8 Right to Counsel]. The manner and the means that can be used to provide the applications to the parties and to the Division are set out in Rules 28, 29 and 30. Rule 31 outlines presumptions as to the date of reception of applications by the Division or a party. The provisions are self-explanatory and do not require special comment except in connection with providing documents to the person who is the subject of the proceeding. Although Rule 28(3) states that a document that is to be provided to the person concerned may be sent to that person s counsel, it is recommended that it also be sent to the person concerned, as well as to his or her counsel. This practice lessens the chance that the 3-4 Legal Services June 2003

29 person concerned will not receive the documents if, for example, communication between counsel and client is poor or there is a change of counsel. 3.4 APPLICATIONS MADE ORALLY In practice, applications are frequently made orally at the hearing. According to Rule 38(3), when an application is made orally, the member determines the procedure that will apply. This means that the member has the discretion needed to proceed as he or she sees fit, but, as the person presiding at the hearing, the member nevertheless has a duty to ensure that the proceedings are fair Procedure to be followed In order for the proceedings to be fair, the member should: require the applicant to state the reasons in support of his or her application [and, if appropriate, to justify any delay in making the application at the earliest possible moment]; permit the other party to respond to the application; permit a reply; ensure that a copy of any document provided in support of the application, response or reply is provided to the other party. Rules 39 and 40 govern the procedures and time limits for providing the response and the reply to a written application. However, the member may also use the provisions of Rule 38 concerning written applications as a model when determining the procedure that will apply when an application is made orally [see Procedures and time limits for providing an application; Procedures and time limits for providing a response or a reply]. These rules are consistent with the principles of natural justice, which require that both parties have a reasonable opportunity to be heard, including with respect to procedural issues. 3-5 Legal Services June 2003

30 3.4.2 Restrictions on applications made orally It is important to remember that the specific provisions of the Rules that govern applications take precedence over the general provisions. These provisions require some applications to be made in writing. Sometimes, a departure from the requirements of a rule that governs a specific kind of application does not involve serious consequences. In some cases, however, although Rule 50 allows applications to be made orally, it would be inappropriate, except in very unusual circumstances, to allow an application, such as an application for non-disclosure of information, to be made orally [for more details, see Chapter 5 Non-Disclosure of Information]. Furthermore, an application made orally may sometimes take the other party by surprise and give rise to an application for an adjournment. The member must rule on the application, taking into account the provisions of the Act and the Rules and all of the circumstances in the case. 3-6 Legal Services June 2003

31 TABLE OF CONTENTS 4. PUBLIC OR PRIVATE HEARINGS INTRODUCTION IDENTIFYING THE PEOPLE PRESENT AT A HEARING People whose presence is authorized at any time People whose presence must be authorized by the member Witnesses Observers and interveners PRINCIPLES GOVERNING PRIVATE AND PUBLIC HEARINGS Loss of status as a claimant of refugee protection HEARING IN PRIVATE Application of the principle Presence of observers Exclusion of observers Hearing in private on application or on the member s own initiative Interpretation of paragraph 166(b) of the Act Introductory words to paragraph 166(b) Standard of proof i Legal Services June 2003

32 Subparagraph 166(b) (i) Life, liberty or security Subparagraph 166(b) (ii) - Fairness of the proceeding Subparagraph 166(b) (iii) Public security Application to have a proceeding conducted in private Procedures and time limits for providing the application Content of the application Hearing the application Hearing in private on the member s own initiative HEARING IN PUBLIC Application of the principle Immigration Division premises Hearing in a detention institution Access to the detention institution Inadequate space Hearing in public on application or on the member s own initiative Interpretation of paragraph 166(d) of the Act Difference between the English and French versions Codification of case law principles Public proceeding with any other measure considered necessary Application to have a proceeding conducted in public ii Legal Services June 2003

33 Procedures and time limits for providing the application Content of the application Response to an application to have the proceeding conducted in public Assessing the application Circumstances justifying conducting a hearing in public on the member s own initiative iii Legal Services June 2003

34 4. PUBLIC OR PRIVATE HEARINGS 4.1 INTRODUCTION Whether a member is presiding at an admissibility hearing or a detention review, one of the first issues that must be settled is whether the hearing is to be held in public or in private. Under paragraphs 166(a) and 166(c) of the Act, proceedings must be held in public unless they concern a claimant of refugee protection, in which case they must be held in private. Compliance with these provisions is the responsibility of the Immigration Division member, who must rule on the issue at the outset of the hearing. Parliament has also provided in paragraphs 166(b) and (d) of the Act that the Division may conduct a proceeding in public or in private on application or on its own initiative regardless of whether any of the other principles in paragraphs (a) or (c) applies. This chapter is intended to guide members in identifying the various elements that can help them determine which of the two principles applies and to decide on applications to have hearings conducted in public or in private or to order such a measure on their own initiative when the circumstances suggest it. 4.2 IDENTIFYING THE PEOPLE PRESENT AT A HEARING A number of people may attend a hearing: the member; the Minister s counsel; the permanent resident or foreign national, as the case may be, who is the subject of the admissibility hearing or the detention review (the person concerned); the counsel of the person concerned; the designated representative, if the person concerned is under 18 years of age or is unable to appreciate the nature of the proceedings; 4-1 Legal Services June 2003

35 the interpreter; the witnesses; the observers; the interveners (the press). Some of these people are authorized to attend the hearing at any time, regardless of whether the hearing is held in public or in private. Others require the authorization of the member People whose presence is authorized at any time In most cases, the only people present at a hearing, apart from the member, are the Minister s counsel, the person concerned and his or her counsel, if any, and the interpreter, if any. Their seats in the hearing room are assigned, which lets the member know in advance the roles of those present. If a representative accompanies a person under 18 years of age or a person who is unable to appreciate the nature of the proceedings, the member should identify and designate that person at the beginning of the hearing. This topic is covered in detail in Chapter 7. These people participate in the hearing, and their presence is authorized at all times, regardless of whether the hearing is conducted in public or in private. There is an exception to this rule if the Minister has made an application for non-disclosure of information [for more details, see Chapter 5]. 4-2 Legal Services June 2003

36 4.2.2 People whose presence must be authorized by the member Witnesses Generally speaking, the member will exclude witnesses from the hearing room before beginning the presentation of the evidence [for more details, see Chapter 13 Evidence and Submissions]. Occasionally, a witness may be authorized to remain in the hearing room throughout the proceeding if, for example, his or her testimony only concerns the performance bond that he or she would be prepared to give to secure the release of the person concerned. With the exception of when he or she is testifying, the witness remains in the hearing room as an observer Observers and interveners Anyone other than the parties and their counsel, the designated representative, the interpreter and the witnesses when testifying is an observer. This includes members of the press if there is no objection to their presence. Observers are not authorized to intervene during the hearing unless they are called as witnesses or they acquire intervener status. Observers acquire intervener status if they have an interest in the case. In most cases, this involves members of the press, who are authorized to intervene only to the extent that they want to argue freedom of the press as guaranteed by paragraph 2(b) of the Canadian Charter of Rights and Freedoms. 1 With a few exceptions, interveners and observers are not authorized to remain in the room if the hearing is held in private [for more details, see Presence of observers and Exclusion of observers] 1 2. Everyone has the following fundamental freedoms: (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; 4-3 Legal Services June 2003

37 4.3 PRINCIPLES GOVERNING PRIVATE AND PUBLIC HEARINGS Paragraphs 166(a) and (c) of the Act read as follows: 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; (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. In other words, the principle is that hearings are held in public unless they concern a claimant of refugee protection, in which case the hearings are held in private. By these provisions, Parliament recognizes that a claimant of refugee protection is entitled to a high level of confidentiality because of the need to protect his or her safety and that of others. Normally, the information provided by the Minister (Rules 3(e) and 8(c)) will indicate whether the person concerned has filed a claim for refugee protection. However, even if the information in the file indicates that there is no claim for refugee protection, it is strongly recommended that, when a member notices that there are people in the room other than the usual participants (that is, the Minister s counsel, the person concerned, his or her counsel and the interpreter), the member should check with the parties to make sure that no claim for refugee protection has been filed, even before making his or her opening remarks. Such precautions are necessary because, if there has been a mistake or if the person concerned decides to make a claim for refugee protection at the hearing, the mere disclosure of the person s name could, in certain circumstances, endanger his or her safety and that of others. The member would then have to make arrangements, as outlined below, to ensure that the information is kept confidential. 4-4 Legal Services June 2003

38 Even if the member sees that the usual participants are the only people present in the room, it is important that the member indicate at the outset of the hearing whether the hearing is to be conducted in public or in private so that any subsequent request for access to the Division file may be processed accordingly. Occasionally, an indication that the hearing is being held in public may trigger an application to have the hearing conducted in private, under paragraph 166(b) of the Act and Rule 45 [for more details, see Hearing in private on application or on the member s own initiative]. Conversely, an indication that the hearing is being held in private may sometimes trigger an application under paragraph 166(d) of the Act and Rule 46 to have the hearing conducted in public [for more details, see Hearing in public on application or on the member s own initiative] Loss of status as a claimant of refugee protection When several hearings are held concerning the same person (for example, when the person concerned is detained and is the subject of an admissibility hearing and a number of detention review hearings), it is possible that some hearings will be held in private and others, in public. The person concerned ceases to be a claimant of refugee protection when: an immigration officer determines that the claim is ineligible (sections 100 and 101 of the Act); the Refugee Protection Division rejects the claim for refugee protection (sections 96, 97 and 107 of the Act). The principle is that any hearing following such a decision is held in public even if the decision of the immigration officer or the Refugee Protection Division is the subject of an 4-5 Legal Services June 2003