Procedure

By default, IAD hearings today are held virtually, often via videoconference. While the format is less formal than a traditional courtroom, these hearings are quasi-judicial in nature, meaning the process follows structured IAD rules, though not as rigid as court proceedings.

It's important to keep in mind that some variation in procedure can occur depending on the Member (adjudicator) presiding over the hearing. However, the overall flow and expectations tend to remain consistent across cases.

Who Is Present at the Hearing?

• Member: The decision-maker presiding over the hearing, referred to as a Member of the IRB. This person is responsible for conducting the hearing and ultimately issuing the decision.
• Minister’s Counsel: A representative from the CBSA who presents the government’s position.
• Appellant: The individual who has filed the appeal. This is the person challenging the original immigration decision.
• Witness(es): Individuals called to provide supporting evidence during the hearing. These may include family members or community members.
• Interpreter: If requested in advance, a certified interpreter will be present to assist the appellant or any witness who is more comfortable communicating in a language other than English or French.
• Observers: As IAD hearings are generally open to the public, it's not uncommon for observers, such as law students or legal professionals, to attend.

How the Hearing Typically Proceeds

While IAD hearings may vary slightly depending on the Member presiding, the overall structure tends to be consistent. Here’s a general overview of how the process unfolds:

Opening the Hearing

• The Member begins with preliminary remarks, stating the time, date, and file number. They introduce themselves, the Minister’s counsel, and the appellant’s representative.
• The Member confirms that both parties have received each other’s disclosure packages. They often refer to the exact page count and the date the documents were sent to ensure everyone is working from the same material.
• Any preliminary issues are discussed, such as the Minister’s position on the appeal or any legal or procedural matters that need clarification at the outset.
• If there are concerns about a document, such as its relevance or whether it was properly disclosed, counsel may object to this stage. (Practical Tips to follow for more.)

Managing Documents and Exhibits

The Member identifies the key documents in the record. These are typically marked as exhibits.

Oaths and Swearing-In

• The appellant is sworn in to give testimony under oath.
• If an interpreter is present, they are also sworn in before the hearing proceeds.

Appellant’s Testimony

• The hearing typically begins with testimony from the appellant, led by their representative.
• The representative often begins with basic information, name, date of birth, nationality, and immigration history, then proceeds to address the specific facts of the case to provide evidence to address the concerns raised by the Minister.

Questioning by Minister’s Counsel

• Once the appellant’s direct testimony is complete, the Minister’s counsel asks questions to test the credibility of the evidence.
• The Member may also ask follow-up questions during or after this stage.

Redirect

• After the minister’s questioning, the appellant’s representative is given an opportunity to redirect. This is a chance to clarify or explain any issues that came up during the Minister’s questioning.

Witness Testimony (if applicable)

• If the appellant has called additional witnesses, the process is similar:
• Questioning by the appellant’s representative
• Questioning by the Minister’s counsel
• Questions from the Member (may or may not)
• Redirect by the appellant’s counsel

Submissions

After all testimony is complete, both parties make their final legal submissions.

•    The appellant’s counsel usually goes first, summarizing the key facts, legal principles, and jurisprudence in support of the appeal.
•        The Minister’s counsel responds with their submission, typically focusing on credibility concerns or deficiencies in the evidence.
•        The appellant’s counsel may make a brief response after the Minister’s submission to reinforce their position.

The Decision

·       The Member may deliver an oral decision at the end of the hearing, or they may reserve their decision, in which case written reasons will follow.

 

Disclaimer:
This article is intended for informational and educational purposes only and does not constitute legal advice. The views expressed are those of the author and are based on personal/ professional experience and publicly available sources at the time of writing. Readers should consult official IRB documentation or seek qualified legal counsel for case-specific guidance. The author assumes no liability for actions taken based on the content of this article.

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