PART 4Immigration and Refugee Board (continued)
Composition of Board (continued)
Marginal note:Disposition after member ceases to hold office
154 A former member of the Board, within eight weeks after ceasing to be a member, may make or take part in a decision on a matter that they heard as a member, if the Chairperson so requests. For that purpose, the former member is deemed to be a member.
Marginal note:Disposition if member unable to take part
155 If a member of a three-member panel is unable to take part in the disposition of a matter that the member has heard, the remaining members may make the disposition and, for that purpose, are deemed to constitute the applicable Division.
Marginal note:Immunity and no summons
156 The following rules apply to the Chairperson and the members in respect of the exercise or purported exercise of their functions under this Act:
(a) no criminal or civil proceedings lie against them for anything done or omitted to be done in good faith; and
(b) they are not competent or compellable to appear as a witness in any civil proceedings.
Head Office and Staff
Marginal note:Head office
Marginal note:Residence — Chairperson
(2) The Chairperson must live in the National Capital Region or within reasonable commuting distance of it.
158 The Executive Director and other personnel necessary for the proper conduct of the business of the Board shall be appointed in accordance with the Public Service Employment Act, and the personnel are deemed to be employed in the public service for the purposes of the Public Service Superannuation Act.
- 2001, c. 27, s. 158
- 2003, c. 22, s. 225(E)
Duties of Chairperson
159 (1) The Chairperson is, by virtue of holding that office, a member of each Division of the Board and is the chief executive officer of the Board. In that capacity, the Chairperson
(a) has supervision over and direction of the work and staff of the Board;
(b) may at any time assign a member appointed under paragraph 153(1)(a) to the Refugee Appeal Division or the Immigration Appeal Division;
(c) may at any time, despite paragraph 153(1)(a), assign a member of the Refugee Appeal Division or the Immigration Appeal Division to work in another regional or district office to satisfy operational requirements, but an assignment may not exceed 120 days without the approval of the Governor in Council;
(d) may designate, from among the full-time members appointed under paragraph 153(1)(a), coordinating members for the Refugee Appeal Division or the Immigration Appeal Division;
(e) assigns administrative functions to the members of the Board;
(f) apportions work among the members of the Board and fixes the place, date and time of proceedings;
(g) takes any action that may be necessary to ensure that the members of the Board carry out their duties efficiently and without undue delay;
(h) may issue guidelines in writing to members of the Board and identify decisions of the Board as jurisprudential guides, after consulting with the Deputy Chairpersons, to assist members in carrying out their duties; and
(i) may appoint and, subject to the approval of the Treasury Board, fix the remuneration of experts or persons having special knowledge to assist the Divisions in any matter.
(2) The Chairperson may delegate any of his or her powers under this Act to a member of the Board, except that
(a) powers referred to in subsection 161(1) may not be delegated;
(b) powers referred to in paragraphs (1)(a) and (i) may be delegated to the Executive Director of the Board;
(c) powers in relation to the Immigration Appeal Division and the Refugee Appeal Division may only be delegated to the Deputy Chairperson, the Assistant Deputy Chairpersons, or other members, including coordinating members, of either of those Divisions; and
(d) powers in relation to the Immigration Division or the Refugee Protection Division may only be delegated to the Deputy Chairperson, the Assistant Deputy Chairpersons or other members, including coordinating members, of that Division.
- 2001, c. 27, s. 159
- 2010, c. 8, s. 19
Marginal note:Absence, incapacity or vacancy
160 In the event of the absence or incapacity of the Chairperson, or if the office of Chairperson is vacant, the Minister may authorize one of the Deputy Chairpersons or any other member of the Board to act as Chairperson.
Functioning of Board
161 (1) Subject to the approval of the Governor in Council, and in consultation with the Deputy Chairpersons, the Chairperson may make rules respecting
(a) the referral of a claim for refugee protection to the Refugee Protection Division;
(a.1) the factors to be taken into account in fixing or changing the date of the hearing referred to in subsection 100(4.1);
(a.2) the activities, practice and procedure of each of the Divisions of the Board, including the periods for appeal, other than in respect of appeals of decisions of the Refugee Protection Division, the priority to be given to proceedings, the notice that is required and the period in which notice must be given;
(b) the conduct of persons in proceedings before the Board, as well as the consequences of, and sanctions for, the breach of those rules;
(c) the information that may be required and the manner in which, and the time within which, it must be provided with respect to a proceeding before the Board; and
(d) any other matter considered by the Chairperson to require rules.
(1.1) The rules made under paragraph (1)(c) may distinguish among claimants for refugee protection who make their claims inside Canada on the basis of whether their claims are made at a port of entry or elsewhere or on the basis of whether they are nationals of a country that is, on the day on which their claim is made, a country designated under subsection 109.1(1).
Marginal note:Tabling in Parliament
(2) The Minister shall cause a copy of any rule made under subsection (1) to be laid before each House of Parliament on any of the first 15 days on which that House is sitting after the approval of the rule by the Governor in Council.
- 2001, c. 27, s. 161
- 2010, c. 8, s. 20
- 2012, c. 17, ss. 49, 61, 84
Provisions that Apply to All Divisions
Marginal note:Sole and exclusive jurisdiction
162 (1) Each Division of the Board has, in respect of proceedings brought before it under this Act, sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction.
(2) Each Division shall deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit.
Marginal note:Composition of panels
163 Matters before a Division shall be conducted before a single member unless, except for matters before the Immigration Division, the Chairperson is of the opinion that a panel of three members should be constituted.
Marginal note:Presence of parties
164 Where a hearing is held by a Division, it may, in the Division’s discretion, be conducted in the presence of, or by a means of live telecommunication with, the person who is the subject of the proceedings.
Marginal note:Powers of a commissioner
165 The Refugee Protection Division, the Refugee Appeal 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.
- 2001, c. 27, s. 165
- 2010, c. 8, s. 22
Marginal note:Proceedings — all Divisions
166 Proceedings before a Division are to be conducted as follows:
(a) subject to the other provisions of this section, proceedings must be held in public;
(b) on application or on its own initiative, the Division may conduct a proceeding in the absence of the public, or take any other measure that it considers necessary to ensure the confidentiality of the proceedings, if, after having considered all available alternate measures, the Division is satisfied that there is
(i) a serious possibility that the life, liberty or security of a person will be endangered if the proceeding is held in public,
(ii) a real and substantial risk to the fairness of the proceeding such that the need to prevent disclosure outweighs the societal interest that the proceeding be conducted in public, or
(iii) a real and substantial risk that matters involving public security will be disclosed;
(c) subject to paragraph (d), proceedings before the Refugee Protection Division and the Refugee Appeal Division must be held in the absence of the public;
(c.1) subject to paragraph (d), proceedings before the Immigration Division must be held in the absence of the public if they concern a person who is the subject of a proceeding before the Refugee Protection Division or the Refugee Appeal Division that is pending or who has made an application for protection to the Minister that is pending;
(d) on application or on its own initiative, the Division may conduct a proceeding in public, or take any other measure that it considers necessary to ensure the appropriate access to the proceedings if, after having considered all available alternate measures and the factors set out in paragraph (b), the Division is satisfied that it is appropriate to do so;
(e) despite paragraphs (b) to (c.1), a representative or agent of the United Nations High Commissioner for Refugees is entitled to observe proceedings concerning a protected person or a person who has made a claim for refugee protection or an application for protection; and
(f) despite paragraph (e), the representative or agent may not observe any part of the proceedings that deals with information or other evidence in respect of which an application has been made under section 86, and not rejected, or with information or other evidence protected under that section.
- 2001, c. 27, s. 166
- 2008, c. 3, s. 5
- 2012, c. 17, s. 50
Marginal note:Right to counsel
167 (1) A person who is the subject of proceedings before any Division of the Board and the Minister may, at their own expense, be represented by legal or other counsel.
(2) If a person who is the subject of proceedings is under 18 years of age or unable, in the opinion of the applicable Division, to appreciate the nature of the proceedings, the Division shall designate a person to represent the person.
- 2001, c. 27, s. 167
- 2010, c. 8, s. 23
- 2012, c. 17, s. 63
Marginal note:Abandonment of proceeding
168 (1) A Division may determine that a proceeding before it has been abandoned if the Division is of the opinion that the applicant is in default in the proceedings, including by failing to appear for a hearing, to provide information required by the Division or to communicate with the Division on being requested to do so.
Marginal note:Abuse of process
(2) A Division may refuse to allow an applicant to withdraw from a proceeding if it is of the opinion that the withdrawal would be an abuse of process under its rules.
Marginal note:Decisions and reasons
169 In the case of a decision of a Division, other than an interlocutory decision:
(a) the decision takes effect in accordance with the rules;
(b) reasons for the decision must be given;
(c) the decision may be rendered orally or in writing, except a decision of the Refugee Appeal Division, which must be rendered in writing;
(d) if the Refugee Protection Division rejects a claim, written reasons must be provided to the claimant and the Minister;
(e) if the person who is the subject of proceedings before the Board or the Minister requests reasons for a decision within 10 days of notification of the decision, or in circumstances set out in the rules of the Board, the Division must provide written reasons; and
(f) the period in which to apply for judicial review with respect to a decision of the Board is calculated from the giving of notice of the decision or from the sending of written reasons, whichever is later.
Refugee Protection Division
169.1 (1) The Refugee Protection Division consists of the Deputy Chairperson, Assistant Deputy Chairpersons and other members, including coordinating members, necessary to carry out its functions.
Marginal note:Public Service Employment Act
(2) The members of the Refugee Protection Division are appointed in accordance with the Public Service Employment Act.
- 2010, c. 8, s. 26
170 The Refugee Protection Division, in any proceeding before it,
(a) may inquire into any matter that it considers relevant to establishing whether a claim is well-founded;
(b) must hold a hearing;
(c) must notify the person who is the subject of the proceeding and the Minister of the hearing;
(d) must provide the Minister, on request, with the documents and information referred to in subsection 100(4);
(d.1) may question the witnesses, including the person who is the subject of the proceeding;
(e) must give the person and the Minister a reasonable opportunity to present evidence, question witnesses and make representations;
(f) may, despite paragraph (b), allow a claim for refugee protection without a hearing, if the Minister has not notified the Division, within the period set out in the rules of the Board, of the Minister’s intention to intervene;
(g) is not bound by any legal or technical rules of evidence;
(h) may receive and base a decision on evidence that is adduced in the proceedings and considered credible or trustworthy in the circumstances; and
(i) may take notice of any facts that may be judicially noticed, any other generally recognized facts and any information or opinion that is within its specialized knowledge.
- 2001, c. 27, s. 170
- 2010, c. 8, s. 27
Marginal note:No reopening of claim or application
170.2 The Refugee Protection Division does not have jurisdiction to reopen on any ground — including a failure to observe a principle of natural justice — a claim for refugee protection, an application for protection or an application for cessation or vacation, in respect of which the Refugee Appeal Division or the Federal Court, as the case may be, has made a final determination.
- 2012, c. 17, s. 51
Refugee Appeal Division
171 In the case of a proceeding of the Refugee Appeal Division,
(a) the Division must give notice of any hearing to the Minister and to the person who is the subject of the appeal;
(a.1) subject to subsection 110(4), if a hearing is held, the Division must give the person who is the subject of the appeal and the Minister the opportunity to present evidence, question witnesses and make submissions;
(a.2) the Division is not bound by any legal or technical rules of evidence;
(a.3) the Division may receive and base a decision on evidence that is adduced in the proceedings and considered credible or trustworthy in the circumstances;
(a.4) the Minister may, at any time before the Division makes a decision, after giving notice to the Division and to the person who is the subject of the appeal, intervene in the appeal;
(a.5) the Minister may, at any time before the Division makes a decision, submit documentary evidence and make written submissions in support of the Minister’s appeal or intervention in the appeal;
(b) the Division may take notice of any facts that may be judicially noticed and of any other generally recognized facts and any information or opinion that is within its specialized knowledge; and
(c) a decision of a panel of three members of the Refugee Appeal Division has, for the Refugee Protection Division and for a panel of one member of the Refugee Appeal Division, the same precedential value as a decision of an appeal court has for a trial court.
- 2001, c. 27, s. 171
- 2010, c. 8, s. 28
- 2012, c. 17, s. 52
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