Approach to the finalization of reserved admissibility hearing decisions and resumption of scheduling of some non-detained admissibility hearings by teleconference
In light of the coronavirus pandemic, the Immigration and Refugee Board of Canada (IRB) closed its offices in mid-March 2020. The Immigration Division (ID) has continued to operate remotely, including conducting detention reviews and admissibility hearings involving detained persons.
On April 7, 2020 the IRB issued a Practice Notice for “Special measures due to COVID-19” in which it announced it was suspending all in-person hearings until further notice, except for detention reviews and some admissibility hearings involving detained persons.
The Practice Notice stated that where a Division has ordered that a document be provided to it, for example submissions or further evidence, and the time limit for providing that document expired on or after March 16, 2020, that time limit is extended until 30 days after the posting of a Resumption Notice. The Resumption Notice also provides for 30 days notice before in-person proceedings resume at the IRB.
The Board is actively planning for and working towards a return to productivity that is based on two strategies: (i) expanding remote hearings across all Divisions to ensure continuity of its services during these unusual times and (ii) implementing measures including health and safety protocols to allow it return to the workplace and resume in-person hearings later this summer, when it is safe for our employees and those who appear before the Board to do so, consistent with public health guidance. Over the coming weeks, we will work with stakeholders to inform the broader implementation of the Board’s plans. The approach outlined below is an important element of the IRB’s broader strategy and will support the ID’s efforts to finalize decisions.
Approach to the finalization of reserved admissibility hearing decisions
Immigration Division members have been asked to continue working on their reserved admissibility hearing decisions during the ongoing pandemic. However, before finalizing these decisions the Division is taking the following steps to ensure that all relevant submissions and evidence are on file:
- With respect to reserved admissibility hearing decisions which did not require written post-hearing submissions, the ID registry is reaching out to the parties to determine whether any additional submissions or evidence has been provided since the closing of IRB offices. If the ID receives confirmation that no additional documents were provided to the Division or if the ID does not receive a response within two weeks, the Division will proceed to issue a decision.
- With respect to reserved admissibility hearing decisions where the submission deadline for providing written post-hearing submissions expired prior to March 16, 2020, and where submissions have been provided to the ID, the registry of the ID will be reaching out to the parties to determine whether any additional submissions or evidence has been provided since the closing of the ID offices. Once it is confirmed that the registry has contacted the parties, if the ID receives confirmation that no additional documents were provided to the Division or if the ID does not receive a response within two weeks, the Division will proceed to issue a decision.
- With respect to reserved admissibility hearing decisions where the submission deadline for providing written post-hearing submissions expired on or after March 16, 2020, if the ID has not received written submissions, the ID registry will be reaching out to the parties to determine whether they are in a position to provide written submissions at this time. If they are not in a position to provide submissions, there will be no further follow up with the parties and the ID will only issue a decision in these cases in keeping with the April 7, 2020 Practice Notice. As indicated above, the time limit to provide the written submissions will be 30 days after the IRB posts the Resumption Notice. However, if written submissions are provided, the Division will proceed to issue a decision.
Once decisions are finalized, if the proceedings were held in public, the decision will be sent by email to the parties. If the proceedings were held in the absence of the public, the ID will contact the parties by telephone to advise that the decision will be sent by fax or to make other arrangements.
Approach to the resumption of scheduling of some non-detained admissibility hearings by teleconference
The Practice Notice of April 7, 2020 for “Special measures due to COVID-19” mentioned above indicates that the IRB will provide at least 30 days’ notice before proceeding with a previously scheduled in-person hearing or scheduling a new in-person hearing.
In addition to continuing to hold detention reviews and admissibility hearings involving detained persons, the ID is resuming the scheduling of certain other admissibility hearings by teleconference. In all cases, the ID will only schedule admissibility hearings for non-detained persons by teleconference with the consent of the parties.
The ID believes it is in the public interest to hold admissibility hearings in a timely manner where it is possible to do so by teleconference and where fairness and natural justice can be met.
In addition to the ID undertaking its own review of the admissibility hearing inventory and identifying cases that it believes can be conducted fairly by teleconference, the ID is open to receiving requests from parties who wish to proceed with their hearing.
In assessing whether or not to schedule an admissibility hearing to be heard by teleconference, the ID will consider the following non-exhaustive factors:
- Is the person represented by counsel?
- Is the person conceding the allegations in the s. 44 Report on inadmissibility?
- What is the level of complexity of the allegation and case?
- Are there reasons why it may not be appropriate to hear the case by teleconference (e.g. due to the vulnerability of the person concerned)?
For hearings where the person is not represented by counsel, the ID may consider scheduling hearings in such cases where it is confident that fairness and natural justice can be met and recognizing that in many such instances the first sitting of such a hearing provides an opportunity for the process to be explained to the individual, including the possibility of retaining counsel for subsequent sittings.
The Immigration and Refugee Board appreciates the patience and flexibility of all parties as we continue to adjust and adapt our processes in response to the coronavirus pandemic. We will continue to keep you apprised of key developments.
Immigration and Refugee Board of Canada