By Erin C. Roth
As everyone is well-aware, COVID-19 has brought many legal processes to a near stand still. The Immigration and Refugee Board (IRB), is no different. Registry offices are closed to the public, most of the staff are not coming into the office, and Board Members are working from home. However, not all services have stopped and there are signs that the IRB is adjusting to accommodate the ‘new normal’ under COVID-19.
All scheduled hearings have been cancelled before all Divisions of the IRB. The only matters that continue to be heard are Detention Reviews, addressing the release of individuals still being held in immigration detention, and admissibility hearings for detained individuals. These are being heard by telephone or video-conference by Members of the Immigration Division (ID).
When the IRB is ready to resume Hearings, they will give at least 30-days notice of the new hearing date (for most cases) where the Hearing date was cancelled due to COVID-19.
If your Hearing was cancelled, all Divisions of the IRB will be prioritizing the re-scheduling of cancelled Hearings, before seeking to schedule new matters. As you may only be given 30 days notice of the new Hearing date, it is important to continue preparing and collecting evidence to support your case and file by the deadline. For example, a refugee claimant is to file evidence 10 days before the Hearing; a person before the IAD, is to file evidence 20 days before the Hearing. There is not likely to be time to prepare the evidence after being given the new Hearing date and disclosure deadlines will still apply, so preparing as much as possible in advance is advisable.
While there are very few Hearings taking place, Board Members are able to continue making decisions in some cases. For example, if the Hearing has already occurred or if there will not be a Hearing (as in refugee appeals), the Board Member may have access to an electronic copy of the file at home. The Board Member cannot go to the office to collect a physical file, but if the file is already in electronic form (i.e., because the parties submitted electronic materials or because IRB staff had already made a scanned copy of the file) the Member may be able to review evidence and make decisions from home.
Deadlines for filing documents to the various Divisions of the IRB have been extended, for example –
- Disclosure – evidence to be relied upon at a Hearing – is connected with the Hearing date. As the Hearing dates have been cancelled, the connected Disclosure packages are also no longer due to be submitted. However, once Hearings resume, the normal disclosure deadlines will apply; albeit, the IRB has indicated that they will be flexible when considering the reason why evidence is filed late.
- Basis of Claim form – a form filed by refugee claimants to the Refugee Protection Division (RPD) – was previously due to the RPD within 15 days of commencing a refugee claim on entry to Canada. For inland claimants, initiated with CBSA, the deadline was set by the CBSA officer. The new deadline will be 30 days after the RPD has given its “Resumption Notice” indicating that service returns to normal.
- Refugee Appeal, Notice of Appeal – normally, a refugee claimant has 15 days to file a Notice of Appeal to the Refugee Appeal Division (RAD), from receiving the written reasons from the RPD refusing a refugee claim. The refugee claimant had another 15 days to “perfect” the appeal by filing evidence and arguments in support of the appeal. The new deadlines will be 30 days after the RAD has given its “Resumption Notice” indicating that service returns to normal.
- Immigration Appeal, Notice of Appeal – normally, an individual with appeal rights to the Immigration Appeal Division (IAD) has either 30 or 60 days to file a Notice of Appeal, following receipt of a decision from an officer or the Immigration Division. The new deadline will be 30 days after the IAD has given its “Resumption Notice” indicating that service returns to normal.
As you can see, nearly everything will be due 30 days after the IRB resumes operations. What this means is, if you are working with counsel, that representative may have a lot of deadlines all on the same day. It is best to plan in advance, as documents can certainly be filed on day 10 or day 20 following the “Resumption Notice”. You can also expect that the Registry offices will be particularly busy around day 30, so filing early even without counsel is a good idea.