Summary: The author attended an Alternative Dispute Resolution (ADR) meeting to determine if a negative residency determination for their client, a septuagenarian, could be overturned without a full hearing. The ADR process is driven by a Minister's counsel, with a Dispute Resolution Officer serving as a facilitator. The MC asks the bulk of the questions and will consider factors such as non-compliance with the residency obligation, ties to Canada, hardship if relief is not granted, and the Best Interests of Children. In this particular case, the MC was experienced and found that the appeal would likely be granted if it proceeded to a full hearing, but after considering credible and corroborative documents and a short discussion with the client's family member, the MC gave his consent and the client was able to avoid a full hearing.
I've discussed the ADR process in the past.
Last week I attended at an ADR. The purpose of the meeting was to see whether a negative residency determination could be determined in my client's favour without need for a full hearing.
My client, a septuagenarian, was unable to comply with the residency obligation set out in s.28 of the IRPA -essentially -other than a couple of exceptions -a PR needs to be in Canada for 730 days (non consecutive) in a five year period.
This is a Minister's counsel driven process. The Minister's counsel asks the bulk of the questions. The DRO -Dispute Resolution Officer (from the IAD) is simply a facilitator. Thus the identity -and experience level of the MC matters (more than it should, in my opinion).
It is an informal process and likely less unnerving to the sponsor/appellant than a full hearing.
It is, essentially, another kick at the can. If the MC indicates that he or she is satisfied the appeal will likely be allowed without need for a hearing. If the MC is not satisfied (let's face it, some Officer's will never be satisfied) or simply needs more time or needs to see more then the sponsor/appellant still has recourse to a full hearing.
The DRO will introduce himself/herself and explain their role. He or she will also discuss the roles of the others involved (MC and the sponsor/appellant's counsel). The sponsor/appellant's counsel has a limited role -those responsibilities were essentially discharged with the preparation of the sponsor/appellant and the provision of appropriate disclosure/evidence.
What kind of questions will the MC ask? It depends on the type of case. In this case, the issue was the non compliance with the residency obligation. Here the questions will centre around the extent of the non-compliance and the reason why the PR couldn't be in Canada for the requisite days. Some circumstances are more worthy of consideration than others -a small shortfall of days (relatively speaking) and a legitimate reason for the absence. Questions in these types of cases will also canvass the family/ties to Canada vs "back home". The MC will also want to canvass the potential hardship or challenges if relief is not granted. The Best Interests of any Children (BIOC) affected will also be canvassed.
Thankfully the MC was experienced and quite rightly realized that if this matter proceeded to a full hearing that the appeal would be granted. Credible and corroborative documents were submitted and before him regarding the factors outlined above. The PR himself provided information in a forthright fashion. The MC also asked whether he could have a short discussion with my client's family member (waiting outside). She came in and provided information consistent with that of the appellant.
The MC indicated his consent after a short time and I'm glad my client was able to avoid the additional delay involved with scheduling a full hearing.