Commentaries to the Immigration Division Rules

Commentaries

When a designated representative is required
A representative must be designated for any person who is the subject of an admissibility hearing or a detention review if this person is under the age of 18 years (a "minor") or is unable to appreciate the nature of the proceedings (an "incompetent person") (Immigration and Refugee Protection Act, subsection 167(2)).

"Unable to appreciate the nature of the proceedings"
means that the person cannot understand the reason for the hearing or why it is important or cannot give meaningful instructions to counsel about his or her case. An opinion regarding competency may be based on the person's own admission, the person's observable behaviour at the proceeding, or on expert opinion on the person's mental health or intellectual or physical faculties.

Member presiding at a proceeding determines who the representative will be
The member presiding at a proceeding will decide whether to designate a representative and who that representative will be. The member will usually, but not always, designate a parent, another relative, or legal guardian to be the representative, if that person meets the specified requirements.

Ending a designation
The member presiding at a proceeding may end a designation if the member decides that the representative is no longer suitable. A designation is ended automatically by operation of law when the person who is the subject of the admissibility hearing or detention review reaches 18 years of age. The Division will not delay a proceeding until the minor has reached 18 merely to avoid having to designate a representative.

Designated representative is not the same as counsel
The member presiding at a proceeding must designate a representative even when the minor or incompetent person has legal or other counsel. However, where appropriate, a designated representative may act as counsel.

Responsibilities of the designated representative
Before designating a person as a representative, the member presiding at a proceeding will inform that person of, and will assess that person's ability to, fulfill his or her responsibilities, including:

• retaining and instructing counsel or assisting the minor or incompetent person in instructing counsel;
• making other decisions regarding the case or assisting the minor or incompetent person to make those decisions;
• informing the minor or incompetent person about the various stages and procedures in the processing of his or her case;
• assisting in gathering evidence to support the minor or incompetent person's case and providing evidence and being a witness at the hearing if necessary;
• generally protecting the interests of the minor or incompetent person and putting forward the best possible case to the Division.

Role of the designated representative will vary
As much as possible, the designated representative should inform and consult the minor or incompetent person when making decisions about the case. However, the role of the designated representative will vary, depending on the level of understanding of the minor or incompetent person. Minors will vary in their ability to participate in making decisions, depending on the type of decision that has to be made, their age and their maturity. Incompetent persons may also have some ability to participate in making decisions, depending on the type of decision that has to be made and the nature and severity of their disorder or disability.

Commentaries

When the Minister makes an application for non-disclosure of information to the Immigration Division, he will inform the permanent resident or foreign national who is the subject of an admissibility hearing or detention review, and provide the latter with a copy of his application, as required under subsection 38(5) of the Rules.

Under paragraphs 3(n) and 8(l) of the Rules, the Minister will also indicate this in his request for an admissibility hearing or detention review.

Commentaries

In order to comply with the provisions set out in section 78 of the Act, the Immigration Division will ensure that the Minister agrees to the disclosure of the information contained in the summary of the evidence that is to be provided to the permanent resident or foreign national.

Commentaries

Admissibility hearings and detention reviews are conducted in public, unless the permanent resident or foreign national is a claimant, in which case the proceeding is conducted in private.

When an admissibility hearing or detention review is to be conducted in public, a person may apply to have the proceeding conducted in private or the Immigration Division may, on its own initiative, so order if it considers this appropriate, taking into account the factors set out in paragraphs 166(b)(i), (ii) and (iii) of the Act.

The Immigration Division may take any necessary measures to ensure the confidentiality of the proceeding, such as:

a) hearing in private the evidence concerning the factors to be taken into consideration;

b) ordering that the proceeding be conducted in private, in whole or in part.

Commentaries

Admissibility hearings and detention reviews are conducted in public, unless the permanent resident or foreign national is a claimant, in which case the proceeding is conducted in private.

When an admissibility hearing or detention review is to be held in private because it involves a claimant, a person may apply to have a proceeding conducted in public or the Immigration Division may, on its own initiative, so order if it considers this appropriate, taking into account the factors set out in paragraphs 166(b)(i), (ii) and (iii) of the Act.

Even if it allows the proceeding to be conducted in public, the Immigration Division may take any necessary measures to ensure the confidentiality of the proceeding, such as:

1. hearing in private the evidence concerning the factors to be taken into consideration;
2. ordering a ban on publication of the proceedings, in whole or in part.