Rule 12(2) of the Federal Courts Immigration and Refugee Protection Rules, SOR/2002-232 (FCIRPR), provides that cross-examination on affidavits filed in connection with an application for leave and for judicial review may be conducted only after leave to proceed with the application for judicial review is granted, absent special reasons.
Where leave is granted, the Federal Court Order will include the time limits within which cross-examinations, if any, on affidavits are to be completed. The option to cross examine an officer on his or her affidavit is exercised quite infrequently by immigration counsel. However, in the appropriate circumstances, an effective cross examination can be the decisive factor in succeeding on a judicial review application.
In the immigration context, we are often cross-examining persons over the telephone. Cross-examination on affidavit is best reserved for cases in which the affiant attests to information which is not supported by any documentary evidence. This may be the case where the affiant attests to having taken certain steps towards processing an application for which no evidence exists, or where the affiant attests to having personal knowledge of a particular aspect of processing based on his or her own experience. Where a client’s budget is limited a cross examination in writing, although not as effective, is a viable option and better than no cross examination at all on certain files.