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.

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:

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.

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/2002-229.
• “48-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.