It is not uncommon for the Canada Border Services Agency (“CBSA”) to consent to an Immigration Appeal Division (the “IAD”) appeal, and for the applicant and CBSA to make joint submissions.
On occassion, the IAD will not accept the joint submissions.
There are also occassions where the IAD may signal, either expressly or impliedly that a certain matter is not at issue, while it in fact may be or become an issue.
The jurisprudence on this is as follows.
In Velauthar v Canada (Minister of Employment and Immigration),  FCJ No 425 (CA), a panel advised counsel before submissions that the only issue was whether the persecution the claimant feared was based on a Convention ground. This implied that credibility was not in issue, so the parties did not address credibility in their submissions. The Federal Court of Appeal found it to be a “gross denial of natural justice” for the panel to then make an adverse determination on grounds of credibility.” The Federal Court of Canada has applied Velauthar in cases where a tribunal directly or by implication gave the misleading impression that a matter or issue was resolved.
At the same time, the Federal Court of Canada in Fong v Canada (Public Safety and Emergency Preparedness), 2010 FC 1134, ruled that the IAD is entitled to reject a joint submission so long as it provides reasons for so doing and if hte process was procedurally fair. However, the IAD must give serious consideration to the joint submission. Several Federal Court decisions have compared joint submissions at the IAD with joint submissions in criminal sentencing.Read more ›