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Chapter 14

DECISIONS AND REASONS

  1. 14.1 INTRODUCTION
  2. 14.2 REQUIREMENTS FOR ALL DECISIONS OTHER THAN INTERLOCUTORY DECISIONS
    1. 14.2.1 Duty to give reasons
    2. 14.2.2 When a decision takes effect
  3. 14.3 ADMISSIBILITY HEARING
    1. 14.3.1 Decision under section 45 of the Act
    2. 14.3.2 Closing the Division file
    3. 14.3.3 Decision under section 168 of the Act
      1. 14.3.3.1 Abandonment
        1. 14.3.3.1.1 Possible consequences of determining that a proceeding has been abandoned
      2. 14.3.3.2 Withdrawal and abuse of process
  4. 14.4 DETENTION REVIEW HEARING
    1. 14.4.1 Generally
    2. 14.4.2 Decision under section 58 of the Act

14.  DECISIONS AND REASONS

14.1  INTRODUCTION

After having analysed and weighed the evidence and taken the parties' submissions into consideration, the member must make a decision under section 45 or 58 of the Act, depending on whether an admissibility hearing or a detention review hearing is involved. If the person who is the subject of the proceeding is not present, the member may also end the hearing on a purely administrative level. Under section 168 of the Act, an admissibility hearing may also be terminated in another manner, by abandonment or withdrawal.

This chapter sets out the requirements that govern decisions, other than interlocutory decisions, and the various features of the different kinds of decisions that may be taken to end a hearing.

14.2  REQUIREMENTS FOR ALL DECISIONS OTHER THAN INTERLOCUTORY DECISIONS

Decisions other than interlocutory decisions are those that end a hearing. They are subject to the requirements of section 169 of the Act, which reads as follows:

169. In the case of a decision of a Division, other than an interlocutory decision:

  1. the decision takes effect in accordance with the rules;
  2. reasons for the decision must be given;
  3. the decision may be rendered orally or in writing, except a decision of the Refugee Appeal Division, which must be rendered in writing;
  4. if the Refugee Protection Division rejects a claim, written reasons must be provided to the claimant and the Minister;
  5. 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
  6. 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.

In summary, reasons must be given for all decisions other than interlocutory decisions. The panel may render its decision orally or in writing, but written reasons must be provided to the parties on request.

The duty to give reasons for a decision must be distinguished from the duty to provide written reasons when a party requests them. Most Immigration Division decisions are rendered orally and, as a general rule, the reasons for the decision are stated orally at the same time. The reasons are normally transcribed and provided to the parties. The result is that the Division receives few requests for written reasons.

As will be seen below, there may be circumstances where a member may render his decision orally without giving reasons at the same time. To comply with the requirements of paragraph 169(b) of the Act, the member must give the reasons for the decision as soon as possible following the conclusion of the hearing and transmit them to the parties [see also sections 14.3.1 – Decision under section 45 of the Act and 14.4.2 – Decision under section 58 of the Act].

14.2.1  Duty to give reasons

Whether the reasons are stated orally or in writing, they must be proper, adequate and intelligible and must give consideration to the substantial points of argument raised by the parties. 1 The reasons should allow the parties to know the underlying rationale for the the panel's decision and permit the unsuccessful party to decide whether to seek recourse against the decision. 2

Accordingly, the reasons for a decision rendered under section 45 or 58 of the Act should reflect:

  • the allegations against the person who is the subject of the proceeding;
  • a summary of the evidence;
  • an analysis and assessment of the evidence; 3
  • the findings of fact;
  • the legal arguments, if any;
  • the applicable law; and
  • the decision.

14.2.2  When a decision takes effect

The time at which a decision takes effect varies depending on whether the decision is rendered orally or in writing. Subsections 7(3) and 11(3) of the Rules complete paragraph 169(a) of the Act on the subject of when a decision takes effect. They provide that a decision made orally takes effect when it is stated by the member. A decision made in writing takes effect when the member signs and dates it. The point of this is that, once the decision takes effect, the member is functus officio. Therefore, the decision cannot be changed once it takes effect. 4

14.3  ADMISSIBILITY HEARING

An admissibility hearing will most often lead to a decision under section 45 of the Act. In certain circumstances, the panel will take administrative action to close the file without rendering a decision within the meaning of the Act. At any stage of the hearing, the panel may also end the hearing by making a decision under section 168 of the Act.

14.3.1  Decision under section 45 of the Act

After holding an admissibility hearing, the member must render his or her decision as soon as possible and inform the parties of it. As paragraph 169(b) of the Act provides, reasons must be given for the decision. Decisions where oral reasons are given after a short recess, if necessary, are frequent and are strongly encouraged. Complex cases may require that the decision be reserved.

Rule 7 states the requirements for decisions in admissibility hearings and specifies the circumstances in which they take effect. If the decision is in favour of the permanent resident or foreign national, the member must, under Rule 7(1), date and sign a notice of decision and provide a copy to the parties. If the decision is not in favour of the permanent resident or foreign national, the member must, under Rule 7(2), date and sign a removal order and provide a copy to the parties.

Paragraph 169(c) of the Act provides that a decision may be rendered orally or in writing, but whenever practicable decisions of the Immigration Division are rendered orally in the presence of the person who is the subject of the proceeding. If the decision is reserved, the hearing should be adjourned and a date be fixed for its resumption that is convenient to both parties so the decision and the reasons may be communicated to them orally. In practice, a favourable notice of decision or a removal order are signed and provided to the parties immediately after the oral decision has been rendered. In most cases, therefore, the decision takes effect at the time it is rendered orally under Rule 7(3).

This practice was adopted because the notice of decision or the removal order must in principle be signed by the person who is the subject of the proceeding 5 and because, if the decision is not in favour of the person who is the subject of the proceeding, the member must inform him, under Rule 7(2), of the recourses at his disposal. This information appears on the removal order, but it is preferable to give it orally. 6 In practice, the reasons for decision are given orally when the decision is rendered and are subsequently transcribed and sent to both parties, even where there is no request for this purpose. Thus, the parties rarely request written reasons under Rule 10(7).

Sometimes, the member may know how he or she will decide in a case but needs some time to structure the reasons clearly. Wherever practicable, the member should refrain from rendering a decision if he or she is not prepared to give reasons. However, if the circumstances so require, 7 a decision may be rendered orally without stating the reasons for the decision at the same time. If this happens, the member must provide reasons for the decision later in order to comply with paragraph 169(b) of the Act. It is suggested that the member briefly explain why he or she is not giving reasons for the decision and, in consultation with the parties, he or she should fix a date in the near future by which the reasons will have been prepared and should inform the parties that the written reasons will be sent to them no later than that date.

14.3.2  Closing the Division file

Where a person who is the subject of the proceeding does not appear for the hearing and his or her absence is not explained, the member normally ends the admissibility hearing by closing his file. 8 This is a purely administrative action. Usually the Minister will issue an arrest warrant under subsection 55(1) of the Act and, if the person is eventually found, he or she could technically apply for the hearing to continue. However, the Minister will often prepare a new report under section 44 of the Act, a report that will be referred to the Division. This allows the Division to close files that would otherwise remain active for months or even years.

14.3.3  Decision under section 168 of the Act

The panel may end the admissibility hearing at any stage by determining that the case has been abandoned or withdrawn. 9 Withdrawing the case may, in certain circumstances, give rise to an abuse of process according to section 168 of the Act, which reads as follows:

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.

(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.

Two comments should be made about this provision. First, with regard to the hearings of the Immigration Division, it would appear that the “applicant” [ l'intéressé] referred to in this section is the Minister. 10 The term “applicant” [ intéressé] in the Act and the Immigration and Refugee Protection Regulations (the Regulations), 11 depending on the context, can designate the person who is the subject of the proceeding 12 or the Minister. For the purposes of section 168 of the Act, the term arguably applies to the Minister since it is he or she who initiates any proceeding before the Immigration Division. The person who is the subject of the proceeding cannot abandon or withdraw from an admissibility hearing or a detention review hearing since this person is the subject of the hearing. 13

Next, section 168 of the Act does not apply to a detention review hearing because a decision determining that the case has been abandoned or withdrawn or that there has been an abuse of process is not a decision on the merits of the detention and cannot lead to the release of the detainee. According to section 56 of the Act, as soon as a detainee is brought before the Division for the first detention review, the officer ceases to have jurisdiction to release the person. A decision to detain or release the person then falls entirely within the Division's jurisdiction. A detention not in keeping with the requirements of sections 57 and 58 of the Act would be illegal.

14.3.3.1  Abandonment

There are no provisions in the Regulations or the Rules that govern abandonment. The wording of subsection 168(1) of the Act gives a few indications concerning the failure to pursue a case. Even if the Minister fails to appear, provide information required by the Division or communicate with the Division on being requested to do so, it does not necessarily follow that the case has been abandoned. The use of the term “may” leaves the member with broad discretion to determine whether a proceeding has been abandoned. In exercising his or her discretion, the member should consider the reasons for the Minister's default. If there has been a breach, the member notifies the Minister and allows him or her to explain the default. If the Minister's counsel is present, the notice can be given verbally in the hearing room.

However, if the Minister's counsel is absent at the beginning of the hearing, the member generally allows a 15-minute waiting period. Once that time is up, the member may call a brief recess to ask the registry office to contact CIC to find out why counsel did not appear. The Minister's counsel may simply have been delayed or some emergency may have prevented him or her from appearing. It is extremely rare that the problem is not resolved at that stage. Usually, CIC offers a reasonable explanation and immediately arranges for another Minister's counsel to attend.

If the member fails to obtain the required information within a reasonable time, he or she fixes a date for the continuation of the hearing. A notice in writing is sent to the Minister's counsel informing him that, if he or she fails to appear on the date fixed for the continuation of the hearing, the Division may determine that the proceeding before it has been abandoned. If the Minister's counsel appears at the next sitting, the member may rightly request that he or she explain his or her absence from the earlier sitting. Depending on the explanation, he or she may excuse the Minister's counsel for the default or determine that the proceeding has been abandoned.

Before the current Act came into force, the Immigration Division did not have the power to determine that a proceeding had been abandoned. Accordingly, there is no case law on this subject. However, there is ample case law concerning determinations by the former Convention Refugee Determination Division (now the Refugee Protection Division) that a proceeding had been abandoned and some general principles have emerged from those authorities that can guide the Immigration Division. For example, there is the principle that a proceeding should not be determined to have been abandoned if the person's justifications for his failure to appear are reasonable. This explains why it is important for the panel to notify the Minister and allow him or her to explain himself or herself before determining that the proceeding before it has been abandoned.

14.3.3.1.1  Possible consequences of determining that a proceeding has been abandoned

In practice, it is extremely rare for the Minister to fail to pursue a case. An application to withdraw is generally made if, for some reason, the Minister does not wish to pursue the case. However, if the situation arises, the member considers all of the circumstances of the case before determining that the proceeding before him has been abandoned. This is because such a decision is not without consequences. The Minister could later refer the case back to the Division based on the same allegations, which, at a later hearing, could lead to res judicata arguments. If the panel accepts such arguments, the Minister will be unable to remove a person who is possibly inadmissible.

The former Immigration Act (the former Act) had a specific provision that excluded the application of this doctrine. 14 There is no provision in the current Act that bars the application of this doctrine, which applies to public and to administrative law, unless there is legislation excluding its application. 15 The doctrine applies where three requirements are met: (1) the previous decision is final; (2) the parties are the same in each proceeding; and (3) the same question is to be decided.

Although there is no provision in the current Act that is equivalent to section 34 of the former Act, the Minister could, following a determination that a proceeding had been abandoned, make a new report based on the same allegations and refer the matter again to the Division.

The case law developed on this subject under the former Act 16 is obviously inapplicable given the differences between the provisions of the former Act and those of the current Act. However, it appears that the third requirement, that “the same question is to be decided”, which must be present for res judicata to apply, is not present. A determination that a proceeding has been abandoned does not decide the substantive issue, namely whether the person is inadmissible and should be the subject of a removal order. In order for the doctrine of res judicata to apply, the previously decided issue must have been fundamental. It must concern substantive facts, findings of law or findings of mixed fact and law. 17

In addition, in Danyluk, 18 the Supreme Court of Canada considered this issue. It confirmed that, even if the three requirements are met, the panel must then exercise its discretion to decide whether the doctrine of res judicatashould be applied. The appeal was allowed because the lower courts had committed an error of principle in failing to address the issue of the discretion. The following principle emerges from this decision: the doctrine of res judicata, which was developed by the courts to serve the ends of justice, should not be applied mechanically to work an injustice.

Even if, in the light of the case law on the subject, an argument based on the doctrine of res judicata would not be accepted, it is unclear how the superior courts would interpret Parliament's failure to enact a statutory provision equivalent to section 34 of the former Act. When a member is considering whether to exercise the powers conferred on him or her by subsection 168(1) of the Act, he or she must give the Minister an opportunity to provide an explanation.

14.3.3.2  Withdrawal and abuse of process

The wording of subsection 168(2) of the Act allows the Division to refuse a withdrawal from a proceeding before it if it is of the opinion that the withdrawal would be an abuse of process under its rules.

Rule 5 governs the withdrawal of a request and abuse of process. Rule 5(1) provides that a withdrawal is not an abuse of process if no evidence has been accepted in the context of a proceeding. According to Rule 5(2), the Minister may withdraw a request for a hearing by notifying the Division orally at a proceeding or in writing if no substantive evidence has been accepted. According to Rule 5(3), if he wishes to withdraw his request for a hearing when substantive evidence has been accepted, the Minister must make a written application to the Division and give reasons to justify it.

Most of the time, the Minister notifies the registry office before the hearing begins or the member at the beginning of the hearing that the case is being withdrawn. At this stage, the Minister is not obliged to justify the withdrawal, which may not be refused. Of course, withdrawing a case may inconvenience the Division, especially if the member has read through a substantial body of documentary evidence in order to prepare the file. However, such a situation does not give rise to an abuse of process. Rule 5 refers to substantive evidence that has been “accepted”, which means that the documentary evidence has been accepted by the member at the hearing and placed in the record.

In practice, the Minister does not request that a case be withdrawn when it has been heard in part as this could give rise to a finding of abuse of process. If it becomes apparent during the hearing that the allegations in the report are unfounded, the Minister's counsel will usually let the hearing run its course and will make comments in favour of the person's position or will refrain from comment.

However, the possibility cannot be ruled out that there are circumstances that may lead the Minister to seek to withdraw a case that he has referred to the Division where substantive evidence has already been received. The panel should then ask that the Minister to justify the application to withdraw. After evaluating the merits of the application, the panel may allow or refuse the withdrawal.

If the panel allows the withdrawal, Rule 6 allows the Minister to apply, subsequently, to reinstate the request for a hearing. The request for a hearing will be reinstated only if a principle of natural justice has been infringed or if it is in the interests of justice.

If the panel refuses to allow the withdrawal, the hearing continues and should end in a decision under section 45 of the Act. A refusal to grant a withdrawal does not necessarily lead to a finding of abuse of process. To determine whether there has been an abuse of process, the member hearing the case must determine whether the withdrawal will have a negative effect on the integrity of the Division (Rule 5(1)). This unspecific test has not yet been defined by the superior courts. However, in terms of abuse of process, an important principle emerges from the decision of the Supreme Court of Canada in Blencoe. 19 Abuse of process should be argued only in “the clearest of cases” and they are “extremely rare”.

14.4  DETENTION REVIEW HEARING

14.4.1  Generally

There may be a request for a detention review hearing before the Division, but the hearing does not take place. The circumstances that justify cancelling the hearing are: (1) the release of the person by an officer before the forty-eight-hour detention review under section 56 of the Act; and (2) the removal of a detainee with a view to his removal before the date fixed for the hearing. There is no provision in the Rules that governs the first situation. In practice, it is rare because the Minister does not provide a notice to the Division for a forty-eight-hour detention review until he or she has considered whether the person could be released under section 56 of the Act. The second situation is more common. Rule 10 provides that the Minister must inform the Division as soon as the detainee has been removed.

If one of these two situations occurs, CIC generally informs the Division registry office. If the file has already been provided to the member, the registry office takes it back. Sometimes, by inadvertence, the Division is not informed. Where the Minister's counsel and the detainee are not present in the hearing room, the member should contact the registry office which will check with the CIC to find out the reasons for their absence.

14.4.2  Decision under section 58 of the Act

Unlike an admissibility hearing, a detention review hearing does not offer many different possibilities with respect to its conclusion. The member must render a decision under section 58 of the Act, that is, he or she must order either that the detention be maintained or that the person be released with or without the conditions that the member considers are indicated. Section 168 of the Act does not apply to a detention review hearing [for more details, see section 14.3.3 – Decision under section 168 of the Act].

Rule 11 sets out the requirements for decisions in detention review hearings and specifies the circumstances in which they take effect. After conducting a detention review hearing, the member must make his or her decision as soon as possible and inform the parties of it in accordance with Rule 11(1). According to Rule 11(2), he or she should date and sign a detention or a release order and provide a copy to the parties.

As provided for in paragraph 169(b) of the Act, reasons for the decision must be given [see also section 14.2.1 – Duty to give reasons]. In general, the reasons for decision are given orally at the time the decision is rendered. Rule 11(4) allows written reasons to be provided at the request of a party. If the detainee is released, the reasons for decision are not transcribed unless this is requested under Rule 11(4). However, if the detention is continued, the reasons are transcribed and kept in the Division file. A member who conducts a seven-day or a thirty-day review gives the parties, before beginning the hearing, a copy of the written reasons for the decision rendered at the preceding hearing.

Although paragraph 169(c) of the Act provides that a decision may be rendered in writing, decisions with reasons rendered orally after a suspension of the hearing, if any, are the norm. Adjourning a hearing to render a decision is justified only in exceptional circumstances 20 and the adjournment should be short (24 hours or so) [see also Chapter 10 – Change of the date or time of a hearing, section 10.5.1 – Detention review hearing].

There is no specific provision in the Act, the Regulations or the Rules requiring that the hearing be concluded the same day. This approach is nonetheless justified for the following reasons:

  • Section 57 of the Act imposes specific time limits for detention review hearings. In all fairness, the detainee is entitled to a decision that is rendered within the time limits;
  • When a detention review hearing is adjourned without a decision, the practical result is that the person will remain in detention until the hearing resumes;
  • For obvious reasons of efficiency, the hearing date for a detention review hearing is often fixed at the end of the time limits imposed by section 57, which rarely leaves room to adjourn the hearing and stay within the forty-eight-hour, seven-day or thirty-day time limits.

Sometimes, the member may know what decision he or she will make in a case but needs some time to structure the reasons clearly. Whenever practicable, the member should refrain from making a decision if he or she is not prepared to provide reasons with it. However, if the circumstances require, the decision can be rendered orally without the reasons for it being stated at the same time. The member should then sign the order for detention or release and send it to the parties. The member must provide reasons for his or her decision later in order to comply with the requirements of paragraph 169(b) of the Act. The member must at the close of the hearing briefly explain why he or she is not giving reasons for the decision and must fix, in consultation with the parties, a brief delay to prepare the reasons and inform them that the written reasons will be sent to them by the date that has been fixed.

Table of Cases

  1. Agranovski, Vladislav v.M.C.I. (F.C.T.D., IMM-2709-95), Tremblay-Lamer, June 28, 1996
  2. Angle v. Canada (Department of National Revenue) , [1975] 2 S.C.R. 248
  3. Arruda v. Canada (Minister of Citizenship and Immigration) (1995), 27 Imm. L.R. (2d) 54 (F.C.T.D.)
  4. Blencoe v. British Columbia (Human Rights Commission) , [2000] 2 S.C.R. 307
  5. Chandler v. Alberta Association of Architects , [1989] 2 S.C.R. 848
  6. Danyluk v. Ainsworth Technologies Inc., [2001] 2 S.C.R. 460
  7. McIntosh v. Canada (Minister of Citizenship and Immigration) (1996), 30 Imm. L.R. (2d) 314 (F.C.T.D.)
  8. Mehterian, Pierre Antoine v.M.E.I. (F.C.A., A-717-90), Hugessen, MacGuigan, Desjardins, June 17, 1992
  9. O'Brien v. Canada (Attorney General of Canada) (1993), 153 N.R. 313 (F.C.A.)
  10. Rabat v. Canada (Minister of Employment and Immigration) , [1986] 2 F.C. 46 (T.D.)
  11. Syed, Saqlain Mohyuddin v.M.E.I. (F.C.T.D., IMM-2080-93), Jerome, September 13

Endnotes

  1. Syed, Saqlain Mohyuddin v.M.E.I. (F.C.T.D., IMM-2080-93), Jerome, September 13, 1994. See also, infra, note 2;
  2. Mehterian, Pierre Antoine v.M.E.I. (F.C.A., A-717-90), Hugessen, MacGuigan, Desjardins, June 17, 1992.
  3. See, for example, McIntosh v. Canada (Minister of Citizenship and Immigration (1996), 30 Imm. L.R. (2d) 314 (F.C.T.D.); Agranovski, Vladislav v.M.C.I. (F.C.T.D., IMM-2709-95), Tremblay-Lamer, June 28, 1996; Arruda v. Canada (Minister of Citizenship and Immigration) (1995), 27 Imm. L.R. (2d) 54 (F.C.T.D.).
  4. An order may issue for the reopening of a hearing if there has been a failure to observe the principles of natural justice. See Chandler v. Alberta Association of Architects , [1989] 2 S.C.R. 848.
  5. The person who is the subject of the proceeding may occasionally refuse to sign the removal order. If this happens, a note should be placed in the section provided for the person's signature indicating that he has refused to sign.
  6. The time limit for providing a notice of appeal is no later than 30 days after the person receives the removal order (Rule 5(3) of the Immigration Appeal Division Rules, SOR/2002-230).
  7. For example, an admissibility hearing held in a detention institution may end at the institution's closing time, leaving the member without enough time to state the reasons for his decision. In this case, the member should sign the notice of decision or removal order and mail the written reasons for decision instead of fixing a time for the hearing to continue, which would mean getting every one together again.
  8. In these circumstances, it is not appropriate to hold a hearing because a report under subsection 44(1) of the Act is for a person who “is in Canada”. Where the absence of the person is not explained, the person may have left Canada.
  9. See, infra, notes 10, 11, 12 and 13.
  10. Before the Refugee Protection Division, the “applicant” [ intéressé] is the claimant. Before the Immigration Appeal Division, the person is generally the sponsor appealing against a refusal to issue a permanent resident visa (subsection 63(1) of the Act) or the person who is the subject of a removal order (subsections 63(2) and (3) of the Act). Sometimes, it is the Minister (subsection 63(5) of the Act).
  11. SOR/2002-227.
  12. See, for example, sections 244 to 247 of the Regulations.
  13. It must be stressed that there was no similar provision with respect to the Adjudication Division [Immigration Division] in the former Immigration Act. Therefore, despite the words “A Division …,” it can be argued that section 168 does not apply to admissibility hearings before the Immigration Division because the “applicant ” in question can only refer to the person who is the subject of the proceeding.
  14. Section 34 of the Immigration Act: “No decision given under this Act prevents the holding of a further inquiry by reason of the making of another report under paragraph 20(1)(a) or subsection 27(1) or (2) or by reason of arrest and detention for an inquiry pursuant to section 103.”
  15. O'Brien v. Canada (Attorney General of Canada) (1993), 153 N.R. 313 (F.C.A.).
  16. See, for example, Rabat v. Canada (Minister of Employment and Immigration) , [1986] 2 F.C. 46 (T.D.), affirmed by the Federal Court of Appeal (A-100-85), January 21, 1987, leave to appeal to the Supreme Court of Canada refused (1987), 80 N.R. 319n (S.C.C.).
  17. See Angle v. Canada (Department of National Revenue) , [1975] 2 S.C.R. 248.
  18. Danyluk v. Ainsworth Technologies Inc., [2001] 2 S.C.R. 460. In this case, the Supreme Court considered issue estoppel resulting from a previously decided question, which is a variant of res judicata.
  19. Blencoe v. British Columbia (Human Rights Commission) , [2000] 2 S.C.R. 307.
  20. For example, the detention review takes place in a detention institution and the institution's authorities, because of the lateness of the hour or some other reason, come to get the inmate before the member can render his decision, or the member needs a recess to study a very complex case that finished at the end of the day.
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