Immigration and Refugee Protection Act (S.C. 2001, c. 27)

Marginal note:Protection of information on appeal

84 Section 83 — other than the obligation to provide a summary — and sections 85.1 to 85.5 apply in respect of an appeal under section 79, 79.1, 82.3 or 82.31 and in respect of any further appeal, with any necessary modifications.

Special Advocate

Marginal note:List of persons who may act as special advocates

• 85 (1) The Minister of Justice shall establish a list of persons who may act as special advocates and shall publish the list in a manner that the Minister of Justice considers appropriate to facilitate public access to it.

• Marginal note:Statutory Instruments Act

  (2) The Statutory Instruments Act does not apply to the list.

• Marginal note:Administrative support and resources

  (3) The Minister of Justice shall ensure that special advocates are provided with adequate administrative support and resources.

Marginal note:Special advocate’s role

• 85.1 (1) A special advocate’s role is to protect the interests of the permanent resident or foreign national in a proceeding under any of sections 78 and 82 to 82.2 when information or other evidence is heard in the absence of the public and of the permanent resident or foreign national and their counsel.

• Marginal note:Responsibilities

  (2) A special advocate may challenge

  • (a) the Minister’s claim that the disclosure of information or other evidence would be injurious to national security or endanger the safety of any person; and

  • (b) the relevance, reliability and sufficiency of information or other evidence that is provided by the Minister and is not disclosed to the permanent resident or foreign national and their counsel, and the weight to be given to it.

• Marginal note:For greater certainty

  (3) For greater certainty, the special advocate is not a party to the proceeding and the relationship between the special advocate and the permanent resident or foreign national is not that of solicitor and client.

• Marginal note:Protection of communications with special advocate

  (4) However, a communication between the permanent resident or foreign national or their counsel and the special advocate that would be subject to solicitor-client privilege if the relationship were one of solicitor and client is deemed to be subject to solicitor-client privilege. For greater certainty, in respect of that communication, the special advocate is not a compellable witness in any proceeding.

Marginal note:Powers

85.2 A special advocate may

• (a) make oral and written submissions with respect to the information and other evidence that is provided by the Minister and is not disclosed to the permanent resident or foreign national and their counsel;

• (b) participate in, and cross-examine witnesses who testify during, any part of the proceeding that is held in the absence of the public and of the permanent resident or foreign national and their counsel; and

• (c) exercise, with the judge’s authorization, any other powers that are necessary to protect the interests of the permanent resident or foreign national.

Marginal note:Immunity

85.3 A special advocate is not personally liable for anything they do or omit to do in good faith under this Division.

Marginal note:Obligation to provide information

• 85.4 (1) Subject to paragraph 83(1)(c.1), the Minister shall, within a period set by the judge,

  • (a) provide the special advocate with a copy of the information and other evidence that is relevant to the case made by the Minister in a proceeding under any of sections 78 and 82 to 82.2, on which the certificate or warrant is based and that has been filed with the Federal Court, but that is not disclosed to the permanent resident or foreign national and their counsel; and

  • (b) provide the special advocate with a copy of any other information that is in the Minister’s possession and that is relevant to the case made by the Minister in a proceeding under any of sections 78 and 82 to 82.2, but on which the certificate or warrant is not based and that has not been filed with the Federal Court.

• Marginal note:Restrictions on communications — special advocate

  (2) After that information or other evidence is received by the special advocate, the special advocate may, during the remainder of the proceeding, communicate with another person about the proceeding only with the judge’s authorization and subject to any conditions that the judge considers appropriate.

• Marginal note:Restrictions on communications — other persons

  (3) If the special advocate is authorized to communicate with a person, the judge may prohibit that person from communicating with anyone else about the proceeding during the remainder of the proceeding or may impose conditions with respect to such a communication during that period.

Marginal note:Disclosure and communication prohibited

85.5 With the exception of communications authorized by a judge, no person shall

• (a) disclose information or other evidence that is disclosed to them under section 85.4 and that is treated as confidential by the judge presiding at the proceeding; or

• (b) communicate with another person about the content of any part of a proceeding under any of sections 78 and 82 to 82.2 that is heard in the absence of the public and of the permanent resident or foreign national and their counsel.

Marginal note:Rules

• 85.6 (1) The Chief Justice of the Federal Court of Appeal and the Chief Justice of the Federal Court may each establish a committee to make rules governing the practice and procedure in relation to the participation of special advocates in proceedings before the court over which they preside. The rules are binding despite any rule of practice that would otherwise apply.

• Marginal note:Composition of committees

  (2) Any committee established shall be composed of the Chief Justice of the Federal Court of Appeal or the Chief Justice of the Federal Court, as the case may be, the Attorney General of Canada or one or more representatives of the Attorney General of Canada, and one or more members of the bar of any province who have experience in a field of law relevant to those types of proceedings. The Chief Justices may also designate additional members of their respective committees.

• Marginal note:Chief Justices shall preside

  (3) The Chief Justice of the Federal Court of Appeal and the Chief Justice of the Federal Court — or a member designated by them — shall preside over their respective committees.

Other Proceedings

Marginal note:Application for non-disclosure

86 The Minister may, during an admissibility hearing, a detention review or an appeal before the Immigration Appeal Division, apply for the non-disclosure of information or other evidence. Sections 83 and 85.1 to 85.5 apply to the proceeding with any necessary modifications, including that a reference to “judge” be read as a reference to the applicable Division of the Board.

Marginal note:Judicial review

• 86.1 (1) The Minister may, at any stage of the proceeding, apply for judicial review of any decision made in a proceeding referred to in section 86 requiring the disclosure of information or other evidence if, in the Minister’s opinion, the disclosure would be injurious to national security or endanger the safety of any person. The application may be made without an application for leave.

• Marginal note:Effects of judicial review

  (2) The making of the application suspends the execution of the decision and, except in the case of a detention review, the proceeding referred to in section 86, until the application has been finally determined.

Marginal note:Application for non-disclosure — judicial review and appeal

87 The Minister may, during a judicial review, apply for the non-disclosure of information or other evidence. Section 83 — other than the obligations to appoint a special advocate and to provide a summary — applies in respect of the proceeding and in respect of any appeal of a decision made in the proceeding, with any necessary modifications.

Marginal note:Appeal by Minister

• 87.01 (1) The Minister may, without it being necessary for the judge to certify that a serious question of general importance is involved, appeal, at any stage of the proceeding, to the Federal Court of Appeal any decision made in a judicial review requiring the disclosure of information or other evidence if, in the Minister’s opinion, the disclosure would be injurious to national security or endanger the safety of any person.

• Marginal note:Effects of appeal

  (2) The appeal suspends the execution of the decision, as well as the judicial review, until the appeal has been finally determined.

Marginal note:Special advocate

87.1 If the judge during the judicial review, or a court on appeal from the judge’s decision, is of the opinion that considerations of fairness and natural justice require that a special advocate be appointed to protect the interests of the permanent resident or foreign national, the judge or court shall appoint a special advocate from the list referred to in subsection 85(1). Sections 85.1 to 85.5 apply to the proceeding with any necessary modifications.

Regulations

Marginal note:Regulations

• 87.2 (1) The regulations may provide for any matter relating to the application of this Division and may include provisions respecting

  • (a) the conditions that must be imposed under subsection 77.1(1) or 82(6); and

  • (b) the conditions and qualifications that persons must meet to be included in the list referred to in subsection 85(1) and the additional qualifications that are assets that may be taken into account for that purpose.

• Marginal note:Requirements

  (2) The regulations

  • (a) shall require that, to be included in the list, persons be members in good standing of the bar of a province, not be employed in the federal public administration, and not otherwise be associated with the federal public administration in such a way as to impair their ability to protect the interests of the permanent resident or foreign national; and

  • (b) may include provisions respecting those requirements.

DIVISION 10General Provisions

Instructions on Processing Applications and Requests

Marginal note:Application

• 87.3 (1) This section applies to applications for visas or other documents made under subsections 11(1) and (1.01), other than those made by persons referred to in subsection 99(2), to sponsorship applications made under subsection 13(1), to applications for permanent resident status under subsection 21(1) or temporary resident status under subsection 22(1) made by foreign nationals in Canada, to applications for work or study permits and to requests under subsection 25(1) made by foreign nationals outside Canada.

• Marginal note:Attainment of immigration goals

  (2) The processing of applications and requests is to be conducted in a manner that, in the opinion of the Minister, will best support the attainment of the immigration goals established by the Government of Canada.

• Marginal note:Instructions

  (3) For the purposes of subsection (2), the Minister may give instructions with respect to the processing of applications and requests, including instructions

  • (a) establishing categories of applications or requests to which the instructions apply;

  • (a.1) establishing conditions, by category or otherwise, that must be met before or during the processing of an application or request;

  • (b) establishing an order, by category or otherwise, for the processing of applications or requests;

  • (c) setting the number of applications or requests, by category or otherwise, to be processed in any year; and

  • (d) providing for the disposition of applications and requests, including those made subsequent to the first application or request.

• Marginal note:Application

  (3.1) An instruction may, if it so provides, apply in respect of pending applications or requests that are made before the day on which the instruction takes effect.

• Marginal note:Clarification

  (3.2) For greater certainty, an instruction given under paragraph (3)(c) may provide that the number of applications or requests, by category or otherwise, to be processed in any year be set at zero.

• Marginal note:Compliance with instructions

  (4) Officers and persons authorized to exercise the powers of the Minister under section 25 shall comply with any instructions before processing an application or request or when processing one. If an application or request is not processed, it may be retained, returned or otherwise disposed of in accordance with the instructions of the Minister.

• Marginal note:Clarification

  (5) The fact that an application or request is retained, returned or otherwise disposed of does not constitute a decision not to issue the visa or other document, or grant the status or exemption, in relation to which the application or request is made.

• Marginal note:Publication

  (6) Instructions shall be published in the Canada Gazette.

• Marginal note:Clarification

  (7) Nothing in this section in any way limits the power of the Minister to otherwise determine the most efficient manner in which to administer this Act.

Applications for Temporary Resident Visas, Work Permits and Study Permits

Marginal note:Order in council

• 87.31 (1) If the Governor in Council is of the opinion that the government of a foreign state or the competent authority of any other territory is unreasonably refusing to issue or unreasonably delaying the issuance of travel documents to citizens or nationals of that country or territory who are in Canada, the Governor in Council may make an order specifying one or more of the following:

  • (a) applications for temporary resident visas, work permits or study permits, or any combination of those types of applications, made by any citizen or national of that foreign state or territory are not to be accepted for processing if they are received during the period or periods set out in the order or, if a period is not set out, during the period that the order is in force;

  • (b) the processing of any of those types of applications, or any combination of them, made by any citizen or national of that foreign state or territory that are pending on the coming into force of the order or, if amended, the amendment, is to be suspended during the period or periods set out in the order or, if a period is not set out, during the period that the order is in force; or

  • (c) the processing of any of those types of applications, or any combination of them, made by any citizen or national of that foreign state or territory that are pending on the coming into force of the order or, if amended, the amendment, is to be terminated.

• Marginal note:Other elements of order

  (2) An order made under subsection (1) may

  • (a) restrict the application of the order to applications, citizens or nationals within a class of applications, citizens or nationals that is specified in the order;

  • (b) provide for the retention, return or other disposition of applications;

  • (c) if the processing of applications is terminated, provide for the repayment of fees paid in respect of those applications; and

  • (d) provide for any other matter arising out of or ancillary to the exercise of the power conferred under that subsection.

• Marginal note:Clarification

  (3) The fact that an application is retained, returned or otherwise disposed of does not constitute a decision not to issue the visa or permit in relation to which the application is made.