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Bill C-11

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Functioning of Board

Rules

161. (1) Subject to the approval of the Governor in Council, and in consultation with the Deputy Chairpersons and the Director General of the Immigration Division, the Chairperson may make rules respecting

    (a) the activities, practice and procedure of each of the Divisions of the Board, including 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.

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.

Provisions that Apply to All Divisions

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.

Procedure

(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.

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.

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.

Powers of a commissioner

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 to do any other thing they consider necessary to provide a full and proper hearing.

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 private, 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 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;

    (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) and (c), a representative or agent of the United Nations High Commissioner for Refugees is entitled to observe proceedings concerning a protected person or a foreign national who has made a claim to refugee protection; and

    (f) despite paragraph (e), the representative or agent may not observe any part of the proceedings that deals with information protected under subsection 86(1), or with information in respect of which an application has been made and not rejected under subsection 86(1).

Right to counsel

167. (1) Both a person who is the subject of Board proceedings and the Minister may, at their own expense, be represented by a barrister or solicitor or other counsel.

Representatio n

(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.

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.

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.

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, the Division must provide written reasons; and

    (f) the period in which to appeal or 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

Proceedings

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 foreign national and the Minister of the hearing;

    (d) must provide the Minister, on request, with the documents and information referred to in subsection 100(4);

    (e) must give the foreign national 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.

Refugee Appeal Division

Proceedings

171. In the case of a proceeding of the Refugee Appeal Division,

    (a) the Minister may, after giving notice within the period that is required by the rules, intervene in the appeal, including for the purpose of filing submissions;

    (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.

Immigration Division

Composition

172. (1) The Immigration Division consists of the Director General and other directors and members necessary to carry out its functions and who are employed in accordance with the Public Service Employment Act.

Powers

(2) The Director General and the directors of the Immigration Division have all the powers and may carry out the duties and functions of members of the Division.

Proceedings

173. The Immigration Division, in any proceeding before it,

    (a) must, where practicable, hold a hearing;

    (b) must notify the Minister and the foreign national of the proceeding and hear the matter without delay;

    (c) is not bound by any legal or technical rules of evidence; and

    (d) may receive and base a decision on evidence adduced in the proceedings that it considers credible or trustworthy in the circumstances.

Immigration Appeal Division

Court of record

174. (1) The Immigration Appeal Division is a court of record and shall have an official seal, which shall be judicially noticed.

Powers

(2) The Immigration Appeal Division has all the powers, rights and privileges vested in a superior court of record with respect to any matter necessary for the exercise of its jurisdiction, including the swearing and examination of witnesses, the production and inspection of documents and the enforcement of its orders.

Proceedings

175. (1) The Immigration Appeal Division, in any proceeding before it,

    (a) must, in the case of an appeal under subsection 63(4), hold a hearing;

    (b) is not bound by any legal or technical rules of evidence; and

    (c) may receive and base a decision on evidence adduced in the proceedings that it considers credible or trustworthy in the circumstances.

Presence of foreign national

(2) In the case of an appeal by a foreign national under subsection 63(4), the Immigration Appeal Division may, after considering submissions from the Minister and the foreign national and if satisfied that the presence of the foreign national at the hearing is necessary, order the foreign national to physically appear at the hearing, in which case an officer shall issue a travel document for that purpose.

Remedial and Disciplinary Measures

Request

176. (1) The Chairperson may request the Minister to decide whether any member, except a member of the Immigration Division, should be subject to remedial or disciplinary measures for a reason set out in subsection (2).

Reasons

(2) The request is to be based on the reason that the member has become incapacitated from the proper execution of that office by reason of infirmity, has been guilty of misconduct, has failed in the proper execution of that office or has been placed, by conduct or otherwise, in a position that is incompatible with due execution of that office.

Measures

177. On receipt of the request, the Minister may take one or more of the following measures:

    (a) obtain, in an informal and expeditious manner, any information that the Minister considers necessary;

    (b) refer the matter for mediation, if the Minister is satisfied that the issues in relation to the request may be appropriately resolved by mediation;

    (c) request of the Governor in Council that an inquiry be held under section 178; or

    (d) advise the Chairperson that the Minister considers that it is not necessary to take further measures under this section or sections 178 to 185.

Appointment of inquirer

178. On receipt of a request referred to in paragraph 177(c), the Governor in Council may, on the recommendation of the Minister of Justice, appoint a judge of a superior court to conduct an inquiry.

Powers

179. The judge has all the powers, rights and privileges that are vested in a superior court, including the power

    (a) to issue a summons requiring any person to appear at the time and place mentioned in the summons to testify about all matters within that person's knowledge relative to the inquiry and to produce any document or thing relative to the inquiry that the person has or controls; and

    (b) to administer oaths and examine any person on oath.

Staff

180. The judge may engage the services of counsel and other persons having technical or specialized knowledge to assist the judge in conducting the inquiry, establish the terms and conditions of their engagement and, with the approval of the Treasury Board, fix and pay their remuneration and expenses.

Exceptions to public hearing

181. (1) An inquiry must be held in public. However, the judge may, on application, take any appropriate measures and make any order that the judge considers necessary to ensure the confidentiality of the inquiry if, after having considered all available alternate measures, the judge is satisfied that there is

    (a) a real and substantial risk that matters involving public security will be disclosed;

    (b) a real and substantial risk to the fairness of the inquiry such that the need to prevent disclosure outweighs the societal interest that the inquiry be conducted in public; or

    (c) a serious possibility that the life, liberty or security of a person will be endangered.

Confidentialit y of application

(2) If the judge considers it appropriate, the judge may take any measures and make any order that the judge considers necessary to ensure the confidentiality of a hearing held in respect of an application under subsection (1).

Rules of evidence

182. (1) In conducting an inquiry, the judge is not bound by any legal or technical rules of evidence and may receive, and base a decision on, evidence presented in the proceedings that the judge considers credible or trustworthy in the circumstances of the case.

Intervenors

(2) An interested party may, with leave of the judge, intervene in an inquiry on any terms and conditions that the judge considers appropriate.

Right to be heard

183. The member who is the subject of the inquiry shall be given reasonable notice of the subject-matter of the inquiry and of the time and place of any hearing and shall be given an opportunity, in person or by counsel, to be heard at the hearing, to cross-examine witnesses and to present evidence.

Report to Minister

184. (1) After an inquiry has been completed, the judge must submit a report containing the judge's findings and recommendations, if any, to the Minister.

Recommendat ions

(2) The judge may, for any of the reasons set out in subsection 176(2), recommend in the report that the member be suspended without pay or removed from office or that any other disciplinary measure or any remedial measure be taken.

Transmission of report to Governor in Council

185. If the Minister receives a report of an inquiry in which the judge makes a recommendation, the Minister shall send the report to the Governor in Council who may, if the Governor in Council considers it appropriate, suspend the member without pay, remove the member from office or impose any other disciplinary measure or any remedial measure.

Rights not affected

186. Nothing in sections 176 to 185 affects any right or power of the Governor in Council in relation to the removal of a member from office for cause.

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