ARCHIVED — Vol. 146, No. 26 — December 19, 2012

Registration

SOR/2012-256 November 30, 2012

IMMIGRATION AND REFUGEE PROTECTION ACT

Refugee Protection Division Rules

P.C. 2012-1594 November 29, 2012

The Chairperson of the Immigration and Refugee Board, pursuant to subsection 161(1) of the Immigration and Refugee Protection Act (see footnote a), and subject to the approval of the Governor in Council, in consultation with the Deputy Chairpersons and the Director General of the Immigration Division, makes the annexed Refugee Protection Division Rules.

Ottawa, October 26, 2012

BRIAN P. GOODMAN
Chairperson of the Immigration and Refugee Board

His Excellency the Governor General in Council, on the recommendation of the Minister of Citizenship and Immigration, pursuant to subsection 161(1) of the Immigration and Refugee Protection Act (see footnote b), approves the annexed Refugee Protection Division Rules, made by the Chairperson of the Immigration and Refugee Board, in consultation with the Deputy Chairpersons and the Director General of the Immigration Division.

REFUGEE PROTECTION DIVISION RULES

INTERPRETATION

Definitions

1. The following definitions apply in these Rules.

  • “Act”
    « Loi »
  • “Act” means the Immigration and Refugee Protection Act.
  • “Basis of Claim Form”
    « Formulaire de fondement de la demande d’asile »
  • “Basis of Claim Form” means the form in which a claimant gives the information referred to in Schedule 1.
  • “contact information”
    « coordonnées »
  • “contact information” means, with respect to a person,
    • (a) the person’s name, postal address and telephone number, and their fax number and email address, if any; and

    • (b) in the case of counsel for a claimant or protected person, if the counsel is a person referred to in any of paragraphs 91(2)(a) to (c) of the Act, in addition to the information referred to in paragraph (a), the name of the body of which the counsel is a member and the membership identification number issued to the counsel.
  • “Division”
    « Section »
  • “Division” means the Refugee Protection Division.
  • “officer”
    « agent »
  • “officer” means a person designated as an officer by the Minister under subsection 6(1) of the Act.
  • “party”
    « partie »
  • “party” means,
    • (a) in the case of a claim for refugee protection, the claimant and, if the Minister intervenes in the claim, the Minister; and

    • (b) in the case of an application to vacate or to cease refugee protection, the protected person and the Minister.
  • “proceeding”
    « procédure »
  • “proceeding” includes a conference, an application or a hearing.
  • “registry office”
    « greffe »
  • “registry office” means a business office of the Division.
  • “Regulations”
    « Règlement »
  • “Regulations” means the Immigration and Refugee Protection Regulations.
  • “vulnerable person”
    « personne vulnérable »
  • “vulnerable person” means a person who has been identified as vulnerable under the Guideline on Procedures with Respect to Vulnerable Persons Appearing Before the IRB issued under paragraph 159(1)(h) of the Act.
  • “working day”
    « jour ouvrable »
  • “working day” does not include Saturdays, Sundays or other days on which the Board offices are closed.

COMMUNICATING WITH THE DIVISION

Communicating with Division

2. All communication with the Division must be directed to the registry office specified by the Division.

INFORMATION AND DOCUMENTS TO BE PROVIDED

CLAIMS FOR REFUGEE PROTECTION

Fixing date, time and location of hearing

3. (1) As soon as a claim for refugee protection is referred to the Division, or as soon as possible before it is deemed to be referred under subsection 100(3) of the Act, an officer must fix a date, time and location for the claimant to attend a hearing on the claim, within the time limits set out in the Regulations, from the dates, times and locations provided by the Division.

Date fixed by officer

(2) Subject to paragraph 3(b), the officer must select the date closest to the last day of the applicable time limit set out in the Regulations, unless the claimant agrees to an earlier date.

Factors

(3) In fixing the date, time and location for the hearing, the officer must consider

  • (a) the claimant’s preference of location; and

  • (b) counsel’s availability, if the claimant has retained counsel at the time of referral and the officer has been informed that counsel will be available to attend a hearing on one of the dates provided by the Division.

Providing information to claimant in writing

(4) The officer must

  • (a) notify the claimant in writing by way of a notice to appear
    • (i) of the date, time and location of the hearing of the claim; and

    • (ii) of the date, time and location of any special hearing on the abandonment of the claim under subrules 65(2) and (3);
  • (b) unless the claimant has provided a completed Basis of Claim Form to the officer in accordance with subsection 99(3.1) of the Act, provide to the claimant the Basis of Claim Form; and

  • (c) provide to the claimant information in writing
    • (i) explaining how and when to provide a Basis of Claim Form and other documents to the Division and to the Minister,

    • (ii) informing the claimant of the importance of obtaining relevant documentary evidence without delay,

    • (iii) explaining how the hearing will proceed,

    • (iv) informing the claimant of the obligation to notify the Division and the Minister of the claimant’s contact information and any changes to that information,

    • (v) informing the claimant that they may, at their own expense, be represented by legal or other counsel, and

    • (vi) informing the claimant that the claim may be declared abandoned without further notice if the claimant fails to provide the completed Basis of Claim Form or fails to appear at the hearing.

Providing information in writing and documents to Division

(5) After providing to the claimant the information set out in subrule (4), the officer must without delay provide to the Division

  • (a) a written statement indicating how and when the information set out in subrule (4) was provided to the claimant;

  • (b) the completed Basis of Claim Form for a claimant referred to in subsection 99(3.1) of the Act;

  • (c) a copy of each notice to appear provided to the claimant in accordance with paragraph (4)(a);

  • (d) the information set out in Schedule 2;

  • (e) a copy of any identity and travel documents of the claimant that have been seized by the officer;

  • (f) a copy of the notice of seizure of any seized documents referred to in paragraph (e); and

  • (g) a copy of any other relevant documents that are in the possession of the officer.

Providing copies to claimant

(6) The officer must provide to the claimant a copy of any documents or information that the officer has provided to the Division under paragraphs (5)(d) to (g).

Claimant’s contact information

4. (1) The claimant must provide their contact information in writing to the Division and to the Minister.

Time limit

(2) The claimant’s contact information must be received by the Division and the Minister no later than 10 days after the day on which the claimant receives the information provided by the officer under subrule 3(4).

Change to contact information

(3) If the claimant’s contact information changes, the claimant must without delay provide the changes in writing to the Division and to the Minister.

Information concerning claimant’s counsel

(4) A claimant who is represented by counsel must without delay, on retaining counsel, provide the counsel’s contact information in writing to the Division and to the Minister and notify them of any limitations on the counsel’s retainer. If that information changes, the claimant must without delay provide the changes in writing to the Division and to the Minister.

Declaration — counsel not representing or advising for consideration

5. If a claimant retains counsel who is not a person referred to in any of paragraphs 91(2)(a) to (c) of the Act, both the claimant and their counsel must without delay provide the information and declarations set out in Schedule 3 to the Division in writing.

BASIS OF CLAIM FORM

Claimant’s declarations

6. (1) The claimant must complete a Basis of Claim Form and sign and date the declaration set out in the form stating that

  • (a) the information given by the claimant is complete, true and correct; and

  • (b) the claimant understands that the declaration is of the same force and effect as if made under oath.

Form completed without interpreter

(2) If the claimant completes the Basis of Claim Form without an interpreter’s assistance, the claimant must sign and date the declaration set out in the form stating that they can read the language of the form and understand what information is requested.

Interpreter’s declaration

(3) If the claimant completes the Basis of Claim Form with an interpreter’s assistance, the interpreter must sign and date the declaration in the form stating that

  • (a) they are proficient in the language and dialect, if any, used, and were able to communicate effectively with the claimant;

  • (b) the completed Basis of Claim Form and all attached documents were interpreted to the claimant; and

  • (c) the claimant indicated that the claimant understood what was interpreted.

Providing Basis of Claim Form — inland claim

7. (1) A claimant referred to in subsection 99(3.1) of the Act must provide the original and a copy of the completed Basis of Claim Form to the officer referred to in rule 3.

Providing Basis of Claim Form — port of entry claim

(2) A claimant other than a claimant referred to in subsection 99(3.1) of the Act must provide the original and a copy of the completed Basis of Claim Form to the Division.

Documents to be attached

(3) The claimant must attach to the original and to the copy of the completed Basis of Claim Form a copy of their identity and travel documents, genuine or not, and a copy of any other relevant documents in their possession. The claimant does not have to attach a copy of a document that has been seized by an officer or provided to the Division by an officer.

Documents obtained after providing Basis of Claim Form

(4) If the claimant obtains an identity or travel document after the Division has received the completed Basis of Claim Form, they must provide two copies of the document to the Division without delay.

Providing Basis of Claim Form — port of entry claim

(5) The Basis of Claim Form provided under subrule (2) must be

  • (a) received by the Division within the time limit set out in the Regulations, and

  • (b) provided in any of the following ways:
    • (i) by hand,

    • (ii) by courier,

    • (iii) by fax if the document is no more than 20 pages long, unless the Division consents to receiving more than 20 pages, or

    • (iv) by email or other electronic means if the Division allows.

Original Basis of Claim Form

(6) A claimant who provides the Basis of Claim Form by fax must provide the original to the Division at the beginning of the hearing.

Application for extension of time

8. (1) A claimant who makes an application for an extension of time to provide the completed Basis of Claim Form must make the application in accordance with rule 50, but the claimant is not required to give evidence in an affidavit or statutory declaration.

Time limit

(2) The application must be received by the Division no later than three working days before the expiry of the time limit set out in the Regulations.

Application for medical reasons

(3) If a claimant makes the application for medical reasons, other than those related to their counsel, they must provide, together with the application, a legible, recently dated medical certificate signed by a qualified medical practitioner whose name and address are printed or stamped on the certificate. A claimant who has provided a copy of the certificate to the Division must provide the original document to the Division without delay.

Content of certificate

(4) The medical certificate must set out the particulars of the medical condition, without specifying the diagnosis, that prevent the claimant from providing the completed Basis of Claim Form in the time limit referred to in paragraph 7(5)(a).

Failure to provide medical certificate

(5) If a claimant fails to provide a medical certificate in accordance with subrules (3) and (4), the claimant must include in their application

  • (a) particulars of any efforts they made to obtain the required medical certificate, supported by corroborating evidence;

  • (b) particulars of the medical reasons for the application, supported by corroborating evidence; and

  • (c) an explanation of how the medical condition prevents them from providing the completed Basis of Claim Form in the time limit referred to in paragraph 7(5)(a).

Providing Basis of Claim Form after extension granted

(6) If an extension of time is granted, the claimant must provide the original and a copy of the completed Basis of Claim Form to the Division in accordance with subrules 7(2) and (3), no later than on the date indicated by the Division and by a means set out in paragraph 7(5)(b).

Changes or additions to Basis of Claim Form

9. (1) To make changes or add any information to the Basis of Claim Form, the claimant must

  • (a) provide to the Division the original and a copy of each page of the form to which changes or additions have been made;

  • (b) sign and date each new page and underline the changes or additions made; and

  • (c) sign and date a declaration stating that
    • (i) the information given by the claimant in the Basis of Claim Form, together with the changes and additions, is complete, true and correct, and

    • (ii) the claimant understands that the declaration is of the same force and effect as if made under oath.

Time limit

(2) The documents referred to in subrule (1) must be provided to the Division without delay and must be received by it no later than 10 days before the date fixed for the hearing.

CONDUCT OF A HEARING

Standard order of questioning

10. (1) In a hearing of a claim for refugee protection, if the Minister is not a party, any witness, including the claimant, will be questioned first by the Division and then by the claimant’s counsel.

Order of questioning — Minister’s intervention on exclusion issue

(2) In a hearing of a claim for refugee protection, if the Minister is a party and has intervened on an issue of exclusion under subrule 29(3), any witness, including the claimant, will be questioned first by the Minister’s counsel, then by the Division and then by the claimant’s counsel.

Order of questioning — Minister’s intervention not on exclusion issue

(3) In a hearing of a claim for refugee protection, if the Minister is a party but has not intervened on an issue of exclusion under subrule 29(3), any witness, including the claimant, will be questioned first by the Division, then by the Minister’s counsel and then by the claimant’s counsel.

Order of questioning — application to vacate or cease refugee protection

(4) In a hearing into an application to vacate or to cease refugee protection, any witness, including the protected person, is to be questioned first by the Minister’s counsel, then by the Division and then by the protected person’s counsel.

Variation of order of questioning

(5) The Division must not vary the order of questioning unless there are exceptional circumstances, including that the variation is required to accommodate a vulnerable person.

Limiting questioning of witnesses

(6) The Division may limit the questioning of witnesses, including a claimant or a protected person, taking into account the nature and complexity of the issues and the relevance of the questions.

Oral representations

(7) Representations must be made orally at the end of a hearing unless the Division orders otherwise.

Oral decision and reasons

(8) A Division member must render an oral decision and reasons for the decision at the hearing unless it is not practicable to do so.

DOCUMENTS ESTABLISHING IDENTITY AND OTHER ELEMENTS OF THE CLAIM

Documents

11. The claimant must provide acceptable documents establishing their identity and other elements of the claim. A claimant who does not provide acceptable documents must explain why they did not provide the documents and what steps they took to obtain them.

APPLICATION TO VACATE OR TO CEASE REFUGEE PROTECTION

Contact information

12. If an application to vacate or to cease refugee protection is made, the protected person must without delay notify the Division and the Minister in writing of

  • (a) any change in their contact information; and

  • (b) their counsel’s contact information and any limitations on the counsel’s retainer, if represented by counsel, and any changes to that information.

Declaration — counsel not representing or advising for consideration

13. If a protected person retains counsel who is not a person referred to in any of paragraphs 91(2)(a) to (c) of the Act, both the protected person and their counsel must without delay provide the information and declarations set out in Schedule 3 to the Division in writing.

COUNSEL OF RECORD

Becoming counsel of record

14. (1) Subject to subrule (2), as soon as counsel for a claimant or protected person agrees to a date for a proceeding, or as soon as a person becomes counsel after a date for a proceeding has been fixed, the counsel becomes counsel of record for the claimant or protected person.

Limitation on counsel’s retainer

(2) If a claimant or protected person has notified the Division of a limitation on their counsel’s retainer, counsel is counsel of record only to the extent of the services to be provided within the limited retainer. Counsel ceases to be counsel of record as soon as those services are completed.

Request to be removed as counsel of record

15. (1) To be removed as counsel of record, counsel for a claimant or protected person must first provide to the person represented and to the Minister, if the Minister is a party, a copy of a written request to be removed and then provide the written request to the Division, no later than three working days before the date fixed for the next proceeding.

Oral request

(2) If it is not possible for counsel to make the request in accordance with subrule (1), counsel must appear on the date fixed for the proceeding and make the request to be removed orally before the time fixed for the proceeding.

Division’s permission required

(3) Counsel remains counsel of record unless the request to be removed is granted.

Removing counsel of record

16. (1) To remove counsel as counsel of record, a claimant or protected person must first provide to counsel and to the Minister, if the Minister is a party, a copy of a written notice that counsel is no longer counsel for the claimant or protected person, as the case may be, and then provide the written notice to the Division.

Ceasing to be counsel of record

(2) Counsel ceases to be counsel of record as soon as the Division receives the notice.

LANGUAGE OF PROCEEDINGS

Choice of language — claim for refugee protection

17. (1) A claimant must choose English or French as the language of the proceedings at the time of the referral of their claim for refugee protection to the Division.

Changing language

(2) A claimant may change the language of the proceedings that they chose under subrule (1) by notifying the Division and the Minister in writing. The notice must be received by the Division and the Minister no later than 10 days before the date fixed for the next proceeding.

Choice of language — application to vacate or cease refugee protection

18. (1) The language that is chosen under rule 17 is to be the language of the proceedings in any application made by the Minister to vacate or to cease refugee protection with respect to that claim.

Changing language

(2) A protected person may change the language of the proceedings by notifying the Division and the Minister in writing. The notice must be received by the Division and the Minister no later than 10 days before the date fixed for the next proceeding.

INTERPRETERS

Need for interpreter — claimant

19. (1) If a claimant needs an interpreter for the proceedings, the claimant must notify an officer at the time of the referral of the claim to the Division and specify the language and dialect, if any, to be interpreted.

Changing language of interpretation

(2) A claimant may change the language and dialect, if any, that they specified under subrule (1), or if they had not indicated that an interpreter was needed, they may indicate that they need an interpreter, by notifying the Division in writing and indicating the language and dialect, if any, to be interpreted. The notice must be received by the Division no later than 10 days before the date fixed for the next proceeding.

Need for interpreter — protected person

(3) If a protected person needs an interpreter for the proceedings, the protected person must notify the Division in writing and specify the language and dialect, if any, to be interpreted. The notice must be received by the Division no later than 10 days before the date fixed for the next proceeding.

Need for interpreter — witness

(4) If any party’s witness needs an interpreter for the proceedings, the party must notify the Division in writing and specify the language and dialect, if any, to be interpreted. The notice must be received by the Division no later than 10 days before the date fixed for the next proceeding.

Interpreter’s oath

(5) The interpreter must take an oath or make a solemn affirmation to interpret accurately.

DESIGNATED REPRESENTATIVES

Duty of counsel or officer to notify

20. (1) If counsel for a party or if an officer believes that the Division should designate a representative for the claimant or protected person because the claimant or protected person is under 18 years of age or is unable to appreciate the nature of the proceedings, counsel or the officer must without delay notify the Division in writing.

Exception

(2) Subrule (1) does not apply in the case of a claimant under 18 years of age whose claim is joined with the claim of their parent or legal guardian if the parent or legal guardian is 18 years of age or older.

Content of notice

(3) The notice must include the following information:

  • (a) whether counsel or the officer is aware of a person in Canada who meets the requirements to be designated as a representative and, if so, the person’s contact information;

  • (b) a copy of any available supporting documents; and

  • (c) the reasons why counsel or the officer believes that a representative should be designated.

Requirements for being designated

(4) To be designated as a representative, a person must

  • (a) be 18 years of age or older;

  • (b) understand the nature of the proceedings;

  • (c) be willing and able to act in the best interests of the claimant or protected person; and

  • (d) not have interests that conflict with those of the claimant or protected person.

Factors

(5) When determining whether a claimant or protected person is unable to appreciate the nature of the proceedings, the Division must consider any relevant factors, including

  • (a) whether the person can understand the reason for the proceeding and can instruct counsel;

  • (b) the person’s statements and behaviour at the proceeding;

  • (c) expert evidence, if any, on the person’s intellectual or physical faculties, age or mental condition; and

  • (d) whether the person has had a representative designated for a proceeding in another division of the Board.

Designation applies to all proceedings

(6) The designation of a representative for a person who is under 18 years of age or who is unable to appreciate the nature of the proceedings applies to all subsequent proceedings in the Division with respect to that person unless the Division orders otherwise.

End of designation — person reaches 18 years of age

(7) The designation of a representative for a person who is under 18 years of age ends when the person reaches 18 years of age unless that representative has also been designated because the person is unable to appreciate the nature of the proceedings.

Termination of designation

(8) The Division may terminate a designation if the Division is of the opinion that the representative is no longer required or suitable and may designate a new representative if required.

Designation criteria

(9) Before designating a person as a representative, the Division must

  • (a) assess the person’s ability to fulfil the responsibilities of a designated representative; and

  • (b) ensure that the person has been informed of the responsibilities of a designated representative.

Responsibilities of representative

(10) The responsibilities of a designated representative include

  • (a) deciding whether to retain counsel and, if counsel is retained, instructing counsel or assisting the represented person in instructing counsel;

  • (b) making decisions regarding the claim or application or assisting the represented person in making those decisions;

  • (c) informing the represented person about the various stages and procedures in the processing of their case;

  • (d) assisting in gathering evidence to support the represented person’s case and in providing evidence and, if necessary, being a witness at the hearing;

  • (e) protecting the interests of the represented person and putting forward the best possible case to the Division;

  • (f) informing and consulting the represented person to the extent possible when making decisions about the case; and

  • (g) filing and perfecting an appeal to the Refugee Appeal Division, if required.

DISCLOSURE OF PERSONAL INFORMATION

Disclosure of information from another claim

21. (1) Subject to subrule (5), the Division may disclose to a claimant personal and other information that it wants to use from any other claim if the claims involve similar questions of fact or if the information is otherwise relevant to the determination of their claim.

Notice to another claimant

(2) If the personal or other information of another claimant has not been made public, the Division must make reasonable efforts to notify the other claimant in writing that

  • (a) it intends to disclose the information to a claimant; and

  • (b) the other claimant may object to that disclosure.

Request for disclosure

(3) In order to decide whether to object to the disclosure, the other claimant may make a written request to the Division for personal and other information relating to the claimant. Subject to subrule (5), the Division may disclose only information that is necessary to permit the other claimant to make an informed decision.

Notice to claimant

(4) If the personal or other information of the claimant has not been made public, the Division must make reasonable efforts to notify the claimant in writing that

  • (a) it intends to disclose the information to the other claimant; and

  • (b) the claimant may object to that disclosure.

Information not to be disclosed

(5) The Division must not disclose personal or other information unless it is satisfied that

  • (a) there is not a serious possibility that disclosing the information will endanger the life, liberty or security of any person; or

  • (b) disclosing the information is not likely to cause an injustice.

Information from joined claims

(6) Personal or other information from a joined claim is not subject to this rule. If claims were once joined but were later separated, only personal or other information that was provided before the separation is not subject to this rule.

SPECIALIZED KNOWLEDGE

Notice to parties

22. Before using any information or opinion that is within its specialized knowledge, the Division must notify the claimant or protected person and, if the Minister is present at the hearing, the Minister, and give them an opportunity to

  • (a) make representations on the reliability and use of the information or opinion; and

  • (b) provide evidence in support of their representations.

ALLOWING A CLAIM WITHOUT A HEARING

Claim allowed without hearing

23. For the purpose of paragraph 170(f) of the Act, the period during which the Minister must notify the Division of the Minister’s intention to intervene is no later than 10 days after the day on which the Minister receives the Basis of Claim Form.

CONFERENCES

Requirement to participate at conference

24. (1) The Division may require the parties to participate at a conference to fix a date for a proceeding or to discuss issues, relevant facts and any other matter to make the proceedings fairer and more efficient.

Information or documents

(2) The Division may require the parties to give any information or provide any document, at or before the conference.

Written record

(3) The Division must make a written record of any decisions and agreements made at the conference.

NOTICE TO APPEAR

Notice to appear

25. (1) The Division must notify the claimant or protected person and the Minister in writing of the date, time and location of the proceeding.

Notice to appear for hearing

(2) In the case of a hearing on a refugee claim, the notice may be provided by an officer under paragraph 3(4)(a).

Date fixed for hearing

(3) The date fixed for a hearing of a claim or an application to vacate or to cease refugee protection must not be earlier than 20 days after the day on which the parties receive the notice referred to in subrule (1) or (2) unless

  • (a) the hearing has been adjourned or postponed from an earlier date; or

  • (b) the parties consent to an earlier date.

EXCLUSION, INTEGRITY ISSUES, INADMISSIBILITY AND INELIGIBILITY

Notice to Minister of possible exclusion before hearing

26. (1) If the Division believes, before a hearing begins, that there is a possibility that section E or F of Article 1 of the Refugee Convention applies to the claim, the Division must without delay notify the Minister in writing and provide any relevant information to the Minister.

Notice to Minister of possible exclusion during hearing

(2) If the Division believes, after a hearing begins, that there is a possibility that section E or F of Article 1 of the Refugee Convention applies to the claim and the Division is of the opinion that the Minister’s participation may help in the full and proper hearing of the claim, the Division must adjourn the hearing and without delay notify the Minister in writing and provide any relevant information to the Minister.

Disclosure to claimant

(3) The Division must provide to the claimant a copy of any notice or information that the Division provides to the Minister.

Resumption of hearing

(4) The Division must fix a date for the resumption of the hearing that is as soon as practicable,

  • (a) if the Minister responds to the notice referred to in subrule (2), after receipt of the response from the Minister; or

  • (b) if the Minister does not respond to that notice, no earlier than 14 days after receipt of the notice by the Minister.

Notice to Minister of possible integrity issues before hearing

27. (1) If the Division believes, before a hearing begins, that there is a possibility that issues relating to the integrity of the Canadian refugee protection system may arise from the claim and the Division is of the opinion that the Minister’s participation may help in the full and proper hearing of the claim, the Division must without delay notify the Minister in writing and provide any relevant information to the Minister.

Notice to Minister of possible integrity issues during hearing

(2) If the Division believes, after a hearing begins, that there is a possibility that issues relating to the integrity of the Canadian refugee protection system may arise from the claim and the Division is of the opinion that the Minister’s participation may help in the full and proper hearing of the claim, the Division must adjourn the hearing and without delay notify the Minister in writing and provide any relevant information to the Minister.

Integrity issues

(3) For the purpose of this rule, claims in which the possibility that issues relating to the integrity of the Canadian refugee protection system may arise include those in which there is

  • (a) information that the claim may have been made under a false identity in whole or in part;

  • (b) a substantial change to the basis of the claim from that indicated in the Basis of Claim Form first provided to the Division;

  • (c) information that, in support of the claim, the claimant submitted documents that may be fraudulent; or

  • (d) other information that the claimant may be directly or indirectly misrepresenting or withholding material facts relating to a relevant matter.

Disclosure to claimant

(4) The Division must provide to the claimant a copy of any notice or information that the Division provides to the Minister.

Resumption of hearing

(5) The Division must fix a date for the resumption of the hearing that is as soon as practicable,

  • (a) if the Minister responds to the notice referred to in subrule (2), after receipt of the response from the Minister; or

  • (b) if the Minister does not respond to that notice, no earlier than 14 days after receipt of the notice by the Minister.

Notice of possible inadmissibility or ineligibility

28. (1) The Division must without delay notify the Minister in writing and provide the Minister with any relevant information if the Division believes that

  • (a) a claimant may be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality;

  • (b) there is an outstanding charge against the claimant for an offence under an Act of Parliament that is punishable by a maximum term of imprisonment of at least 10 years; or

  • (c) the claimant’s claim may be ineligible to be referred under section 101 or paragraph 104(1)(c) or (d) of the Act.

Disclosure to claimant

(2) The Division must provide to the claimant a copy of any notice or information that the Division provides to the Minister.

Continuation of proceeding

(3) If, within 20 days after receipt of the notice referred to in subrule (1), the Minister does not notify the Division that the proceedings are suspended under paragraph 103(1)(a) or (b) of the Act or that the pending proceedings respecting the claim are terminated under section 104 of the Act, the Division may continue with the proceedings.

INTERVENTION BY THE MINISTER

Notice of intention to intervene

29. (1) To intervene in a claim, the Minister must provide

  • (a) to the claimant, a copy of a notice of the Minister’s intention to intervene; and

  • (b) to the Division, the original of the notice, together with a written statement indicating how and when a copy was provided to the claimant.

Contents of notice

(2) In the notice, the Minister must state

  • (a) the purpose for which the Minister will intervene;

  • (b) whether the Minister will intervene in writing only, in person, or both; and

  • (c) the Minister’s counsel’s contact information.

Intervention — exclusion clauses

(3) If the Minister believes that section E or F of Article 1 of the Refugee Convention may apply to the claim, the Minister must also state in the notice the facts and law on which the Minister relies.

Time limit

(4) Documents provided under this rule must be received by their recipients no later than 10 days before the date fixed for a hearing.

CLAIMANT OR PROTECTED PERSON IN CUSTODY

Custody

30. The Division may order a person who holds a claimant or protected person in custody to bring the claimant or protected person to a proceeding at a location specified by the Division.

DOCUMENTS

FORM AND LANGUAGE OF DOCUMENTS

Documents prepared by party

31. (1) A document prepared for use by a party in a proceeding must be typewritten, in a type not smaller than 12 point, on one or both sides of 216 mm by 279 mm (8 1/2 inches x 11 inches) paper.

Photocopies

(2) Any photocopy provided by a party must be a clear copy of the document photocopied and be on one or both sides of 216 mm by 279 mm (8 1/2 inches x 11 inches) paper.

List of documents

(3) If more than one document is provided, the party must provide a list identifying each of the documents.

Consecutively numbered pages

(4) A party must consecutively number each page of all the documents provided as if they were one document.

Language of documents — claimant or protected person

32. (1) All documents used by a claimant or protected person in a proceeding must be in English or French or, if in another language, be provided together with an English or French translation and a declaration signed by the translator.

Language of Minister’s documents

(2) All documents used by the Minister in a proceeding must be in the language of the proceeding or be provided together with a translation in the language of the proceeding and a declaration signed by the translator.

Translator’s declaration

(3) A translator’s declaration must include translator’s name, the language and dialect, if any, translated and a statement that the translation is accurate.

DISCLOSURE AND USE OF DOCUMENTS

Disclosure of documents by Division

33. (1) Subject to subrule (2), if the Division wants to use a document in a hearing, the Division must provide a copy of the document to each party.

Disclosure of country documentation by Division

(2) The Division may disclose country documentation by providing to the parties a list of those documents or providing information as to where a list of those documents can be found on the Board’s website.

Disclosure of documents by party

34. (1) If a party wants to use a document in a hearing, the party must provide a copy of the document to the other party, if any, and to the Division.

Proof that document was provided

(2) The copy of the document provided to the Division must be accompanied by a written statement indicating how and when a copy of that document was provided to the other party, if any.

Time limit

(3) Documents provided under this rule must be received by their recipients no later than

  • (a) 10 days before the date fixed for the hearing; or

  • (b) five days before the date fixed for the hearing if the document is provided to respond to another document provided by a party or the Division.

Documents relevant and not duplicate

35. Each document provided by a party for use at a proceeding must

  • (a) be relevant to the particular proceeding; and

  • (b) not duplicate other documents provided by a party or by the Division.

Use of undisclosed documents

36. A party who does not provide a document in accordance with rule 34 must not use the document at the hearing unless allowed to do so by the Division. In deciding whether to allow its use, the Division must consider any relevant factors, including

  • (a) the document’s relevance and probative value;

  • (b) any new evidence the document brings to the hearing; and

  • (c) whether the party, with reasonable effort, could have provided the document as required by rule 34.

PROVIDING A DOCUMENT

General provision

37. Rules 38 to 41 apply to any document, including a notice or request in writing.

Providing documents to Division

38. (1) A document to be provided to the Division must be provided to the registry office specified by the Division.

Providing documents to Minister

(2) A document to be provided to the Minister must be provided to the Minister’s counsel.

Providing documents to person other than Minister

(3) A document to be provided to a person other than the Minister must be provided to the person’s counsel if the person has counsel of record. If the person does not have counsel of record, the document must be provided to the person.

How to provide document

39. Unless these Rules provide otherwise, a document may be provided in any of the following ways:

  • (a) by hand;

  • (b) by regular mail or registered mail;

  • (c) by courier;

  • (d) by fax if the recipient has a fax number and the document is no more than 20 pages long, unless the recipient consents to receiving more than 20 pages; and

  • (e) by email or other electronic means if the Division allows.

Application if unable to provide document

40. (1) If a party is unable to provide a document in a way required by rule 39, the party may make an application to the Division to be allowed to provide the document in another way or to be excused from providing the document.

Form of application

(2) The application must be made in accordance with rule 50.

Allowing application

(3) The Division must not allow the application unless the party has made reasonable efforts to provide the document to the person to whom the document must be provided.

When document received by Division

41. (1) A document provided to the Division is considered to be received by the Division on the day on which the document is date-stamped by the Division.

When document received by recipient other than Division

(2) A document provided by regular mail other than to the Division is considered to be received seven days after the day on which it was mailed. If the seventh day is not a working day, the document is considered to be received on the next working day.

Extension of time limit — next working day

(3) When the time limit for providing a document ends on a day that is not a working day, the time limit is extended to the next working day.

ORIGINAL DOCUMENTS

Original documents

42. (1) A party who has provided a copy of a document to the Division must provide the original document to the Division

  • (a) without delay, on the written request of the Division; or

  • (b) if the Division does not make a request, no later than at the beginning of the proceeding at which the document will be used.

Documents referred to in paragraph 3(5)(e) or (g)

(2) On the written request of the Division, the Minister must without delay provide to the Division the original of any document referred to in paragraph 3(5)(e) or (g) that is in the possession of an officer.

ADDITIONAL DOCUMENTS

Documents after hearing

43. (1) A party who wants to provide a document as evidence after a hearing but before a decision takes effect must make an application to the Division.

Application

(2) The party must attach a copy of the document to the application that must be made in accordance with rule 50, but the party is not required to give evidence in an affidavit or statutory declaration.

Factors

(3) In deciding the application, the Division must consider any relevant factors, including

  • (a) the document’s relevance and probative value;

  • (b) any new evidence the document brings to the proceedings; and

  • (c) whether the party, with reasonable effort, could have provided the document as required by rule 34.

WITNESSES

Providing witness information

44. (1) If a party wants to call a witness, the party must provide the following witness information in writing to the other party, if any, and to the Division:

  • (a) the witness’s contact information;

  • (b) a brief statement of the purpose and substance of the witness’s testimony or, in the case of an expert witness, the expert witness’s brief signed summary of the testimony to be given;

  • (c) the time needed for the witness’s testimony;

  • (d) the party’s relationship to the witness;

  • (e) in the case of an expert witness, a description of the expert witness’s qualifications; and

  • (f) whether the party wants the witness to testify by means of live telecommunication.

Proof witness information provided

(2) The witness information provided to the Division must be accompanied by a written statement indicating how and when it was provided to the other party, if any.

Time limit

(3) Documents provided under this rule must be received by their recipients no later than 10 days before the date fixed for the hearing.

Failure to provide witness information

(4) If a party does not provide the witness information, the witness must not testify at the hearing unless the Division allows them to testify.

Factors

(5) In deciding whether to allow a witness to testify, the Division must consider any relevant factors, including

  • (a) the relevance and probative value of the proposed testimony; and

  • (b) the reason why the witness information was not provided.

Requesting summons

45. (1) A party who wants the Division to order a person to testify at a hearing must make a request to the Division for a summons, either orally at a proceeding or in writing.

Factors

(2) In deciding whether to issue a summons, the Division must consider any relevant factors, including

  • (a) the necessity of the testimony to a full and proper hearing;

  • (b) the person’s ability to give that testimony; and

  • (c) whether the person has agreed to be summoned as a witness.

Using summons

(3) If a party wants to use a summons, the party must

  • (a) provide the summons to the person by hand;

  • (b) provide a copy of the summons to the Division, together with a written statement indicating the name of the person who provided the summons and the date, time and place that it was provided by hand; and

  • (c) pay or offer to pay the person the applicable witness fees and travel expenses set out in Tariff A of the Federal Courts Rules.

Cancelling summons

46. (1) If a person who is summoned to appear as a witness wants the summons cancelled, the person must make an application in writing to the Division.

Application

(2) The person must make the application in accordance with rule 50, but is not required to give evidence in an affidavit or statutory declaration.

Arrest warrant

47. (1) If a person does not obey a summons to appear as a witness, the party who requested the summons may make a request to the Division orally at the hearing, or in writing, to issue a warrant for the person’s arrest.

Written request

(2) A party who makes a written request for a warrant must provide supporting evidence by affidavit or statutory declaration.

Requirements for issue of arrest warrant

(3) The Division must not issue a warrant unless

  • (a) the person was provided the summons by hand or the person is avoiding being provided the summons;

  • (b) the person was paid or offered the applicable witness fees and travel expenses set out in Tariff A of the Federal Courts Rules;

  • (c) the person did not appear at the hearing as required by the summons; and

  • (d) the person’s testimony is still needed for a full and proper hearing.

Content of warrant

(4) A warrant issued by the Division for the arrest of a person must include directions concerning detention or release.

Excluded witness

48. If the Division excludes a witness from a hearing room, no person may communicate to the witness any evidence given while the witness was excluded unless allowed to do so by the Division or until the witness has finished testifying.

APPLICATIONS

GENERAL

General provision

49. Unless these Rules provide otherwise,

  • (a) a party who wants the Division to make a decision on any matter in a proceeding, including the procedure to be followed, must make an application to the Division in accordance with rule 50;

  • (b) a party who wants to respond to the application must respond in accordance with rule 51; and

  • (c) a party who wants to reply to a response must reply in accordance with rule 52.

HOW TO MAKE AN APPLICATION

Written application and time limit

50. (1) Unless these Rules provide otherwise, an application must be made in writing, without delay, and must be received by the Division no later than 10 days before the date fixed for the next proceeding.

Oral application

(2) The Division must not allow a party to make an application orally at a proceeding unless the party, with reasonable effort, could not have made a written application before the proceeding.

Content of application

(3) Unless these Rules provide otherwise, in a written application, the party must

  • (a) state the decision the party wants the Division to make;

  • (b) give reasons why the Division should make that decision; and

  • (c) if there is another party and the views of that party are known, state whether the other party agrees to the application.

Affidavit or statutory declaration

(4) Unless these Rules provide otherwise, any evidence that the party wants the Division to consider with a written application must be given in an affidavit or statutory declaration that accompanies the application.

Providing application to other party and Division

(5) A party who makes a written application must provide

  • (a) to the other party, if any, a copy of the application and a copy of any affidavit or statutory declaration; and

  • (b) to the Division, the original application and the original of any affidavit or statutory declaration, together with a written statement indicating how and when the party provided a copy to the other party, if any.

HOW TO RESPOND TO A WRITTEN APPLICATION

Responding to written application

51. (1) A response to a written application must be in writing and

  • (a) state the decision the party wants the Division to make; and

  • (b) give reasons why the Division should make that decision.

Evidence in written response

(2) Any evidence that the party wants the Division to consider with the written response must be given in an affidavit or statutory declaration that accompanies the response. Unless the Division requires it, an affidavit or statutory declaration is not required if the party who made the application was not required to give evidence in an affidavit or statutory declaration, together with the application.

Providing response

(3) A party who responds to a written application must provide

  • (a) to the other party, a copy of the response and a copy of any affidavit or statutory declaration; and

  • (b) to the Division, the original response and the original of any affidavit or statutory declaration, together with a written statement indicating how and when the party provided a copy to the other party.

Time limit

(4) Documents provided under subrule (3) must be received by their recipients no later than five days after the date on which the party receives the copy of the application.

HOW TO REPLY TO A WRITTEN RESPONSE

Replying to written response

52. (1) A reply to a written response must be in writing.

Evidence in reply

(2) Any evidence that the party wants the Division to consider with the written reply must be given in an affidavit or statutory declaration that accompanies the reply. Unless the Division requires it, an affidavit or statutory declaration is not required if the party was not required to give evidence in an affidavit or statutory declaration, together with the application.

Providing reply

(3) A party who replies to a written response must provide

  • (a) to the other party, a copy of the reply and a copy of any affidavit or statutory declaration; and

  • (b) to the Division, the original reply and the original of any affidavit or statutory declaration, together with a written statement indicating how and when the party provided a copy to the other party.

Time limit

(4) Documents provided under subrule (3) must be received by their recipients no later than three days after the date on which the party receives the copy of the response.

CHANGING THE LOCATION OF A PROCEEDING

Application to change location

53. (1) A party may make an application to the Division to change the location of a proceeding.

Form and content of application

(2) The party must make the application in accordance with rule 50, but is not required to give evidence in an affidavit or statutory declaration.

Time limit

(3) Documents provided under this rule must be received by their recipients no later than 20 days before the date fixed for the proceeding.

Factors

(4) In deciding the application, the Division must consider any relevant factors, including

  • (a) whether the party is residing in the location where the party wants the proceeding to be held;

  • (b) whether a change of location would allow the proceeding to be full and proper;

  • (c) whether a change of location would likely delay the proceeding;

  • (d) how a change of location would affect the Division’s operation;

  • (e) how a change of location would affect the parties;

  • (f) whether a change of location is necessary to accommodate a vulnerable person; and

  • (g) whether a hearing may be conducted by a means of live telecommunication with the claimant or protected person.

Duty to appear

(5) Unless a party receives a decision from the Division allowing the application, the party must appear for the proceeding at the location fixed and be ready to start or continue the proceeding.

CHANGING THE DATE OR TIME OF A PROCEEDING

Application in writing

54. (1) Subject to subrule (5), an application to change the date or time of a proceeding must be made in accordance with rule 50, but the party is not required to give evidence in an affidavit or statutory declaration.

Time limit and content of application

(2) The application must

  • (a) be made without delay;

  • (b) be received by the Division no later than three working days before the date fixed for the proceeding, unless the application is made for medical reasons or other emergencies; and

  • (c) include at least three dates and times, which are no later than 10 working days after the date originally fixed for the proceeding, on which the party is available to start or continue the proceeding.

Oral application

(3) If it is not possible for the party to make the application in accordance with paragraph (2)(b), the party must appear on the date fixed for the proceeding and make the application orally before the time fixed for the proceeding.

Factors

(4) Subject to subrule (5), the Division must not allow the application unless there are exceptional circumstances, such as

  • (a) the change is required to accommodate a vulnerable person; or

  • (b) an emergency or other development outside the party’s control and the party has acted diligently.

Counsel retained or availability of counsel provided after hearing date fixed

(5) If, at the time the officer fixed the hearing date under subrule 3(1), a claimant did not have counsel or was unable to provide the dates when their counsel would be available to attend a hearing, the claimant may make an application to change the date or time of the hearing. Subject to operational limitations, the Division must allow the application if

  • (a) the claimant retains counsel no later than five working days after the day on which the hearing date was fixed by the officer;

  • (b) the counsel retained is not available on the date fixed for the hearing;

  • (c) the application is made in writing;

  • (d) the application is made without delay and no later than five working days after the day on which the hearing date was fixed by the officer; and

  • (e) the claimant provides at least three dates and times when counsel is available, which are within the time limits set out in the Regulations for the hearing of the claim.

Application for medical reasons

(6) If a claimant or protected person makes the application for medical reasons, other than those related to their counsel, they must provide, together with the application, a legible, recently dated medical certificate signed by a qualified medical practitioner whose name and address are printed or stamped on the certificate. A claimant or protected person who has provided a copy of the certificate to the Division must provide the original document to the Division without delay.

Content of certificate

(7) The medical certificate must set out

  • (a) the particulars of the medical condition, without specifying the diagnosis, that prevent the claimant or protected person from participating in the proceeding on the date fixed for the proceeding; and

  • (b) the date on which the claimant or protected person is expected to be able to participate in the proceeding.

Failure to provide medical certificate

(8) If a claimant or protected person fails to provide a medical certificate in accordance with subrules (6) and (7), they must include in their application

  • (a) particulars of any efforts they made to obtain the required medical certificate, supported by corroborating evidence;

  • (b) particulars of the medical reasons for the application, supported by corroborating evidence; and

  • (c) an explanation of how the medical condition prevents them from participating in the proceeding on the date fixed for the proceeding.

Subsequent application

(9) If the party made a previous application that was denied, the Division must consider the reasons for the denial and must not allow the subsequent application unless there are exceptional circumstances supported by new evidence.

Duty to appear

(10) Unless a party receives a decision from the Division allowing the application, the party must appear for the proceeding at the date and time fixed and be ready to start or continue the proceeding.

New date

(11) If an application for a change to the date or time of a proceeding is allowed, the new date fixed by the Division must be no later than 10 working days after the date originally fixed for the proceeding or as soon as possible after that date.

JOINING OR SEPARATING CLAIMS OR APPLICATIONS

Claims automatically joined

55. (1) The Division must join the claim of a claimant to a claim made by the claimant’s spouse or common-law partner, child, parent, legal guardian, brother, sister, grandchild or grandparent, unless it is not practicable to do so.

Applications joined if claims joined

(2) Applications to vacate or to cease refugee protection are joined if the claims of the protected persons were joined.

Application to join

56. (1) A party may make an application to the Division to join claims or applications to vacate or to cease refugee protection.

Application to separate

(2) A party may make an application to the Division to separate claims or applications to vacate or to cease refugee protection that are joined.

Form of application and providing application

(3) A party who makes an application to join or separate claims or applications to vacate or to cease refugee protection must do so in accordance with rule 50, but the party is not required to give evidence in an affidavit or statutory declaration. The party must also

  • (a) provide a copy of the application to any person who will be affected by the Division’s decision on the application; and

  • (b) provide to the Division a written statement indicating how and when the copy of the application was provided to any affected person, together with proof that the party provided the copy to that person.

Time limit

(4) Documents provided under this rule must be received by their recipients no later than 20 days before the date fixed for the hearing.

Factors

(5) In deciding the application to join or separate, the Division must consider any relevant factors, including whether

  • (a) the claims or applications to vacate or to cease refugee protection involve similar questions of fact or law;

  • (b) allowing the application to join or separate would promote the efficient administration of the Division’s work; and

  • (c) allowing the application to join or separate would likely cause an injustice.

PROCEEDINGS CONDUCTED IN PUBLIC

Minister considered party

57. (1) For the purpose of this rule, the Minister is considered to be a party whether or not the Minister takes part in the proceedings.

Application

(2) A person who makes an application to the Division to have a proceeding conducted in public must do so in writing and in accordance with this rule rather than rule 50.

Oral application

(3) The Division must not allow a person to make an application orally at a proceeding unless the person, with reasonable effort, could not have made a written application before the proceeding.

Content of application

(4) In the application, the person must

  • (a) state the decision they want the Division to make;

  • (b) give reasons why the Division should make that decision;

  • (c) state whether they want the Division to consider the application in public or in the absence of the public;

  • (d) give reasons why the Division should consider the application in public or in the absence of the public;

  • (e) if they want the Division to hear the application orally, give reasons why the Division should do so; and

  • (f) include any evidence that they want the Division to consider in deciding the application.

Providing application

(5) The person must provide the original application together with two copies to the Division. The Division must provide a copy of the application to the parties.

Response to application

(6) A party may respond to a written application. The response must

  • (a) state the decision they want the Division to make;

  • (b) give reasons why the Division should make that decision;

  • (c) state whether they want the Division to consider the application in public or in the absence of the public;

  • (d) give reasons why the Division should consider the application in public or in the absence of the public;

  • (e) if they want the Division to hear the application orally, give reasons why the Division should do so; and

  • (f) include any evidence that they want the Division to consider in deciding the application.

Providing response

(7) The party must provide a copy of the response to the other party and provide the original response and a copy to the Division, together with a written statement indicating how and when the party provided the copy to the other party.

Providing response to applicant

(8) The Division must provide to the applicant either a copy of the response or a summary of the response referred to in paragraph (12)(a).

Reply to response

(9) An applicant or a party may reply in writing to a written response or a summary of a response.

Providing reply

(10) An applicant or a party who replies to a written response or a summary of a response must provide the original reply and two copies to the Division. The Division must provide a copy of the reply to the parties.

Time limit

(11) An application made under this rule must be received by the Division without delay. The Division must specify the time limit within which a response or reply, if any, is to be provided.

Confidentiality

(12) The Division may take any measures it considers necessary to ensure the confidentiality of the proceeding in respect of the application, including

  • (a) providing a summary of the response to the applicant instead of a copy; and

  • (b) if the Division holds a hearing in respect of the application,
    • (i) excluding the applicant or the applicant and their counsel from the hearing while the party responding to the application provides evidence and makes representations, or

    • (ii) allowing the presence of the applicant’s counsel at the hearing while the party responding to the application provides evidence and makes representations, upon receipt of a written undertaking by counsel not to disclose any evidence or information adduced until a decision is made to hold the hearing in public.

Summary of response

(13) If the Division provides a summary of the response under paragraph (12)(a), or excludes the applicant and their counsel from a hearing in respect of the application under subparagraph (12)(b)(i), the Division must provide a summary of the representations and evidence, if any, that is sufficient to enable the applicant to reply, while ensuring the confidentiality of the proceeding having regard to the factors set out in paragraph 166(b) of the Act.

Notification of decision on application

(14) The Division must notify the applicant and the parties of its decision on the application and provide reasons for the decision.

OBSERVERS

Observers

58. (1) An application under rule 57 is not necessary if an observer is a member of the staff of the Board or a representative or agent of the United Nations High Commissioner for Refugees or if the claimant or protected person consents to or requests the presence of an observer other than a representative of the press or other media of communication at the proceeding.

Observers — factor

(2) The Division must allow the attendance of an observer unless, in the opinion of the Division, the observer’s attendance is likely to impede the proceeding.

Observers — confidentiality of proceeding

(3) The Division may take any measures that it considers necessary to ensure the confidentiality of the proceeding despite the presence of an observer.

WITHDRAWAL

Abuse of process

59. (1) For the purpose of subsection 168(2) of the Act, withdrawal of a claim or of an application to vacate or to cease refugee protection is an abuse of process if withdrawal would likely have a negative effect on the Division’s integrity. If no substantive evidence has been accepted in the hearing, withdrawal is not an abuse of process.

Withdrawal if no substantive evidence accepted

(2) If no substantive evidence has been accepted in the hearing, a party may withdraw the party’s claim or the application to vacate or to cease refugee protection by notifying the Division orally at a proceeding or in writing.

Withdrawal if substantive evidence accepted

(3) If substantive evidence has been accepted in the hearing, a party who wants to withdraw the party’s claim or the application to vacate or to cease refugee protection must make an application to the Division in accordance with rule 50.

REINSTATING A WITHDRAWN CLAIM OR APPLICATION

Application to reinstate withdrawn claim

60. (1) A person may make an application to the Division to reinstate a claim that was made by the person and was withdrawn.

Form and content of application

(2) The person must make the application in accordance with rule 50, include in the application their contact information and, if represented by counsel, their counsel’s contact information and any limitations on counsel’s retainer, and provide a copy of the application to the Minister.

Factors

(3) The Division must not allow the application unless it is established that there was a failure to observe a principle of natural justice or it is otherwise in the interests of justice to allow the application.

Factors

(4) In deciding the application, the Division must consider any relevant factors, including whether the application was made in a timely manner and the justification for any delay.

Subsequent application

(5) If the person made a previous application to reinstate that was denied, the Division must consider the reasons for the denial and must not allow the subsequent application unless there are exceptional circumstances supported by new evidence.

Application to reinstate withdrawn application to vacate or to cease refugee protection

61. (1) The Minister may make an application to the Division to reinstate an application to vacate or to cease refugee protection that was withdrawn.

Form of application

(2) The Minister must make the application in accordance with rule 50.

Factors

(3) The Division must not allow the application unless it is established that there was a failure to observe a principle of natural justice or it is otherwise in the interests of justice to allow the application.

Factors

(4) In deciding the application, the Division must consider any relevant factors, including whether the application was made in a timely manner and the justification for any delay.

Subsequent application

(5) If the Minister made a previous application to reinstate that was denied, the Division must consider the reasons for the denial and must not allow the subsequent application unless there are exceptional circumstances supported by new evidence.

REOPENING A CLAIM OR APPLICATION

Application to reopen claim

62. (1) At any time before the Refugee Appeal Division or the Federal Court has made a final determination in respect of a claim for refugee protection that has been decided or declared abandoned, the claimant or the Minister may make an application to the Division to reopen the claim.

Form of application

(2) The application must be made in accordance with rule 50 and, for the purpose of paragraph 50(5)(a), the Minister is considered to be a party whether or not the Minister took part in the proceedings.

Contact information

(3) If a claimant makes the application, they must include in the application their contact information and, if represented by counsel, their counsel’s contact information and any limitations on counsel’s retainer.

Allegations against counsel

(4) If it is alleged in the application that the claimant’s counsel in the proceedings that are the subject of the application provided inadequate representation,

  • (a) the claimant must first provide a copy of the application to the counsel and then provide the original application to the Division, and

  • (b) the application provided to the Division must be accompanied by a written statement indicating how and when the copy of the application was provided to the counsel.

Copy of notice of appeal or pending application

(5) The application must be accompanied by a copy of any notice of pending appeal or any pending application for leave to apply for judicial review or any pending application for judicial review.

Factor

(6) The Division must not allow the application unless it is established that there was a failure to observe a principle of natural justice.

Factors

(7) In deciding the application, the Division must consider any relevant factors, including

  • (a) whether the application was made in a timely manner and the justification for any delay; and

  • (b) the reasons why
    • (i) a party who had the right of appeal to the Refugee Appeal Division did not appeal, or

    • (ii) a party did not make an application for leave to apply for judicial review or an application for judicial review.

Subsequent application

(8) If the party made a previous application to reopen that was denied, the Division must consider the reasons for the denial and must not allow the subsequent application unless there are exceptional circumstances supported by new evidence.

Other remedies

(9) If there is a pending appeal to the Refugee Appeal Division or a pending application for leave to apply for judicial review or a pending application for judicial review on the same or similar grounds, the Division must, as soon as is practicable, allow the application to reopen if it is necessary for the timely and efficient processing of a claim, or dismiss the application.

Application to reopen application to vacate or to cease refugee protection

63. (1) At any time before the Federal Court has made a final determination in respect of an application to vacate or to cease refugee protection that has been decided or declared abandoned, the Minister or the protected person may make an application to the Division to reopen the application.

Form of application

(2) The application must be made in accordance with rule 50.

Contact information

(3) If a protected person makes the application, they must include in the application their contact information and, if represented by counsel, their counsel’s contact information and any limitations on counsel’s retainer, and they must provide a copy of the application to the Minister.

Allegations against counsel

(4) If it is alleged in the application that the protected person’s counsel in the proceedings that are the subject of the application to reopen provided inadequate representation,

  • (a) the protected person must first provide a copy of the application to the counsel and then provide the original application to the Division, and

  • (b) the application provided to the Division must be accompanied by a written statement indicating how and when the copy of the application was provided to the counsel.

Copy of pending application

(5) The application must be accompanied by a copy of any pending application for leave to apply for judicial review or any pending application for judicial review in respect of the application to vacate or to cease refugee protection.

Factor

(6) The Division must not allow the application unless it is established that there was a failure to observe a principle of natural justice.

Factors

(7) In deciding the application, the Division must consider any relevant factors, including

  • (a) whether the application was made in a timely manner and the justification for any delay; and

  • (b) if a party did not make an application for leave to apply for judicial review or an application for judicial review, the reasons why an application was not made.

Subsequent application

(8) If the party made a previous application to reopen that was denied, the Division must consider the reasons for the denial and must not allow the subsequent application unless there are exceptional circumstances supported by new evidence.

Other remedies

(9) If there is a pending application for leave to apply for judicial review or a pending application for judicial review on the same or similar grounds, the Division must, as soon as is practicable, allow the application to reopen if it is necessary for the timely and efficient processing of a claim, or dismiss the application.

APPLICATIONS TO VACATE OR TO CEASE REFUGEE PROTECTION

Form of application

64. (1) An application to vacate or to cease refugee protection made by the Minister must be in writing and made in accordance with this rule.

Content of application

(2) In the application, the Minister must include

  • (a) the contact information of the protected person and of their counsel, if any;

  • (b) the identification number given by the Department of Citizenship and Immigration to the protected person;

  • (c) the date and file number of any Division decision with respect to the protected person;

  • (d) in the case of a person whose application for protection was allowed abroad, the person’s file number, a copy of the decision and the location of the office;

  • (e) the decision that the Minister wants the Division to make; and

  • (f) the reasons why the Division should make that decision.

Providing application to protected person and Division

(3) The Minister must provide

  • (a) a copy of the application to the protected person; and

  • (b) the original of the application to the registry office that provided the notice of decision in the claim or to a registry office specified by the Division, together with a written statement indicating how and when a copy was provided to the protected person.

ABANDONMENT

Opportunity to explain

65. (1) In determining whether a claim has been abandoned under subsection 168(1) of the Act, the Division must give the claimant an opportunity to explain why the claim should not be declared abandoned,

  • (a) immediately, if the claimant is present at the proceeding and the Division considers that it is fair to do so; or

  • (b) in any other case, by way of a special hearing.

Special hearing — Basis of Claim Form

(2) The special hearing on the abandonment of the claim for the failure to provide a completed Basis of Claim Form in accordance with paragraph 7(5)(a) must be held no later than five working days after the day on which the completed Basis of Claim Form was due. At the special hearing, the claimant must provide their completed Basis of Claim Form, unless the form has already been provided to the Division.

Special hearing — failure to appear

(3) The special hearing on the abandonment of the claim for the failure to appear for the hearing of the claim must be held no later than five working days after the day originally fixed for the hearing of the claim.

Factors to consider

(4) The Division must consider, in deciding if the claim should be declared abandoned, the explanation given by the claimant and any other relevant factors, including the fact that the claimant is ready to start or continue the proceedings.

Medical reasons

(5) If the claimant’s explanation includes medical reasons, other than those related to their counsel, they must provide, together with the explanation, the original of a legible, recently dated medical certificate signed by a qualified medical practitioner whose name and address are printed or stamped on the certificate.

Content of certificate

(6) The medical certificate must set out

  • (a) the particulars of the medical condition, without specifying the diagnosis, that prevented the claimant from providing the completed Basis of Claim Form on the due date, appearing for the hearing of the claim, or otherwise pursuing their claim, as the case may be; and

  • (b) the date on which the claimant is expected to be able to pursue their claim.

Failure to provide medical certificate

(7) If a claimant fails to provide a medical certificate in accordance with subrules (5) and (6), the claimant must include in their explanation

  • (a) particulars of any efforts they made to obtain the required medical certificate, supported by corroborating evidence;

  • (b) particulars of the medical reasons included in the explanation, supported by corroborating evidence; and

  • (c) an explanation of how the medical condition prevented them from providing the completed Basis of Claim Form on the due date, appearing for the hearing of the claim or otherwise pursuing their claim, as the case may be.

Start or continue proceedings

(8) If the Division decides not to declare the claim abandoned, other than under subrule (2), it must start or continue the proceedings on the day the decision is made or as soon as possible after that day.

NOTICE OF CONSTITUTIONAL QUESTION

Notice of constitutional question

66. (1) A party who wants to challenge the constitutional validity, applicability or operability of a legislative provision must complete a notice of constitutional question.

Form and content of notice

(2) The party must complete the notice as set out in Form 69 of the Federal Courts Rules or any other form that includes

  • (a) the party’s name;

  • (b) the Division file number;

  • (c) the date, time and location of the hearing;

  • (d) the specific legislative provision that is being challenged;

  • (e) the material facts relied on to support the constitutional challenge; and

  • (f) a summary of the legal argument to be made in support of the constitutional challenge.

Providing notice

(3) The party must provide

  • (a) a copy of the notice to the Attorney General of Canada and to the attorney general of each province of Canada, in accordance with section 57 of the Federal Courts Act;

  • (b) a copy of the notice to the Minister;

  • (c) a copy of the notice to the other party, if any; and

  • (d) the original notice to the Division, together with a written statement indicating how and when the copies of the notice were provided under paragraphs (a) to (c), and proof that they were provided.

Time limit

(4) Documents provided under this rule must be received by their recipients no later than 10 days before the day on which the constitutional argument is made.

DECISIONS

Notice of decision and reasons

67. (1) When the Division makes a decision, other than an interlocutory decision, it must provide in writing a notice of decision to the claimant or the protected person, as the case may be, and to the Minister.

Written reasons

(2) The Division must provide written reasons for the decision together with the notice of decision

  • (a) if written reasons must be provided under paragraph 169(1)(d) of the Act;

  • (b) if the Minister was not present when the Division rendered an oral decision and reasons allowing a claim for refugee protection; or

  • (c) when the Division makes a decision on an application to vacate or to cease refugee protection.

Request for written reasons

(3) A request under paragraph 169(1)(e) of the Act for written reasons for a decision must be made in writing.

When decision of single member takes effect

68. (1) A decision made by a single Division member allowing or rejecting a claim for refugee protection, on an application to vacate or to cease refugee protection, on the abandonment of a claim or of an application to vacate or to cease refugee protection, or allowing an application to withdraw a claim or to withdraw an application to vacate or to cease refugee protection takes effect

  • (a) if given orally at a hearing, when the member states the decision and gives the reasons; and

  • (b) if made in writing, when the member signs and dates the reasons for the decision.

When decision of three member panel takes effect

(2) A decision made by a panel of three Division members allowing or rejecting a claim for refugee protection, on an application to vacate or to cease refugee protection, on the abandonment of a claim or of an application to vacate or to cease refugee protection, or allowing an application to withdraw a claim or to withdraw an application to vacate or to cease refugee protection takes effect

  • (a) if given orally at a hearing, when all the members state their decision and give their reasons; and

  • (b) if made in writing, when all the members sign and date their reasons for the decision.

GENERAL PROVISIONS

No applicable rule

69. In the absence of a provision in these Rules dealing with a matter raised during the proceedings, the Division may do whatever is necessary to deal with the matter.

Powers of Division

70. The Division may, after giving the parties notice and an opportunity to object,

  • (a) act on its own initiative, without a party having to make an application or request to the Division;

  • (b) change a requirement of a rule;

  • (c) excuse a person from a requirement of a rule; and

  • (d) extend a time limit, before or after the time limit has expired, or shorten it if the time limit has not expired.

Failure to follow rule

71. Unless proceedings are declared invalid by the Division, a failure to follow any requirement of these Rules does not make the proceedings invalid.

REPEALS

Repeal

72. The Convention Refugee Determination Division Rules (see footnote 1) are repealed.

Repeal

73. The Refugee Protection Division Rules (see footnote 2) are repealed.

COMING INTO FORCE

S.C. 2010, c. 8

74. These Rules come into force on the day on which section 26 of the Balanced Refugee Reform Act comes into force, but if they are registered after that day, they come into force on the day on which they are registered.

SCHEDULE 1
(Rule 1)

CLAIMANT’S INFORMATION AND BASIS OF CLAIM

Item

Information

1.

Claimant’s name.

2.

Claimant’s date of birth.

3.

Claimant’s gender.

4.

Claimant’s nationality, ethnic or racial group, or tribe.

5.

Languages and dialects, if any, that the claimant speaks.

6.

Claimant’s religion and denomination or sect.

7.

Whether the claimant believes that they would experience harm, mistreatment or threats if they returned to their country today. If yes, description of what the claimant expects would happen, including who would harm, mistreat or threaten them and what the claimant believes would be the reasons for it.

8.

Whether the claimant or the claimant’s family have ever experienced harm, mistreatment or threats in the past. If yes, a description of the harm, mistreatment or threats, including when it occurred, who caused it, what the claimant believes are the reasons for it and whether similarly situated persons have experienced such harm, mistreatment or threats.

9.

Whether the claimant sought protection or help from any authority or organization in their country. If not, an explanation of why not. If yes, the authority or organization from which the claimant sought protection or help and a description of what the claimant did and what happened as a result.

10.

When the claimant left their country and the reasons for leaving at that time.

11.

Whether the claimant moved to another part of their country to seek safety. If not, an explanation of why not. If the claimant moved to another part of their country, the reasons for leaving it and an explanation why the claimant could not live there or in another part of their country today.

12.

Whether the claimant moved to another country to seek safety. If yes, details including the name of the country, when the claimant moved there, length of stay and whether the claimant claimed refugee protection there. If the claimant did not claim refugee protection there, an explanation of why not.

13.

Whether minors are claiming refugee protection with the claimant. If yes, whether the claimant is the minor’s parent and the other parent is in Canada, or whether the claimant is not the minor’s parent, or whether the claimant is the minor’s parent but the other parent is not in Canada. If the claimant is not the minor’s parent or if the claimant is the minor’s parent but the other parent is not in Canada, details of any legal documents or written consent allowing the claimant to take care of the minor or travel with the minor. If the claimant does not have such documents, an explanation of why not.

14.

If a child six years old or younger is claiming refugee protection with the claimant, an explanation of why the claimant believes the child would be at risk of being harmed, mistreated or threatened if returned to their country.

15.

Other details the claimant considers important for the refugee protection claim.

16.

Country or countries in which the claimant believes they are at risk of serious harm.

17.

The country or countries in which the claimant is or has been a citizen, including how and when citizenship was acquired and present status.

18.

Name, date of birth, citizenship and place and country of residence of relatives, living or dead, specifically the claimant’s spouse, common-law partner, children, parents, brothers and sisters.

19.

If the claimant or the claimant’s spouse, common-law partner, child, parent, brother or sister has claimed refugee protection or asylum in Canada or in any other country — including at a Canadian office abroad or from the United Nations High Commissioner for Refugees — the details of the claim including the name of the person who made the claim, and the date, location, result of the claim and IRB file number or CIC client ID number, if any.

20.

Whether the claimant applied for a visa to enter Canada. If yes, for what type of visa, the date of the application, at which Canadian office the application was made and whether or not it was accepted. If the visa was issued, the date of issue and the duration of the visa. If the application was refused, the date and reasons of refusal.

21.

Claimant’s contact information.

22.

Whether the claimant has counsel and if so, details concerning counsel — including what counsel has been retained to do and counsel’s contact information.

23.

Claimant’s choice of official language for communications with and proceedings before the Board.

24.

Whether the claimant needs an interpreter during any proceeding, and the language and dialect, if any, to be interpreted.

SCHEDULE 2
(Paragraph 3(5)(d))

INFORMATION TO BE PROVIDED ABOUT THE CLAIMANT BY AN OFFICER

Item

Information

1.

Name, gender and date of birth.

2.

Department of Citizenship and Immigration client identification number.

3.

If the claimant is detained, the name and address of the place of detention.

4.

Claimant’s contact information in Canada, if any.

5.

Contact information of any counsel for the claimant.

6.

Official language chosen by the claimant as the language of proceedings before the Board.

7.

Date the claim was referred or deemed to be referred to the Division.

8.

Section of the Act under which the claim is being referred.

9.

Officer’s decision about the claim’s eligibility under section 100 of the Act, if a decision has been made.

10.

The country or countries in which the claimant fears persecution, torture, a risk to their life or a risk of cruel and unusual treatment or punishment.

11.

Whether the claimant may need a designated representative and the contact information for any proposed designated representative.

12.

Whether the claimant needs an interpreter, including a sign language interpreter, during any proceeding, and the language and dialect, if any, to be interpreted.

13.

If a claim of the claimant’s spouse, common-law partner or any relative has been referred to the Division, the name and Department of Citizenship and Immigration client identification numbers of each of those persons.

14.

When and how the officer notified the claimant of the referral of the claim to the Division.

15.

Whether the claim was made at a port of entry or inside Canada other than at a port of entry.

16.

Any other information gathered by the officer about the claimant that is relevant to the claim.

SCHEDULE 3
(Rules 5 and 13)

INFORMATION AND DECLARATIONS — COUNSEL
NOT REPRESENTING OR ADVISING FOR CONSIDERATION

Item

Information

1.

IRB Division and file number with respect to the claimant or protected person.

2.

Name of counsel who is representing or advising the claimant or protected person and who is not receiving consideration for those services.

3.

Name of counsel’s firm or organization, if applicable, and counsel’s postal address, telephone number, fax number and email address, if any.

4.

If applicable, a declaration, signed by the interpreter, that includes the interpreter’s name, the language and dialect, if any, interpreted and a statement that the interpretation is accurate.

5.

Declaration signed by the claimant or protected person that the counsel who is representing or advising them is not receiving consideration and the information provided in the form is complete, true and correct.

6.

Declaration signed by counsel that they are not receiving consideration for representing or advising the claimant or protected person and that the information provided in the form is complete, true and correct.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the rules.)

Executive summary

Issues: Canada’s refugee determination system is respected internationally for its high degree of fairness and the quality of its proceedings and decisions. However, to address long wait times and a significant backlog of cases, the Balanced Refugee Reform Act (BRRA), introduced by the Minister of Citizenship, Immigration and Multiculturalism, was passed by Parliament on June 29, 2010. The BRRA included legislative amendments to the Immigration and Refugee Protection Act (IRPA) that were intended to improve the efficiency of the refugee determination system in order to reduce the amount of time individuals wait to receive decisions on their claims. In order to further expedite the processing of refugee claims, the Protecting Canada’s Immigration System Act (PCISA), which includes legislative amendments to the BRRA and the IRPA, received Royal Assent on June 28, 2012. In order to realize the efficiencies and objectives of the BRRA and the PCISA, there is a need for new Refugee Protection Division Rules (RPD Rules) and Refugee Appeal Division Rules (RAD Rules). The RPD Rules and RAD Rules provide clear and transparent direction on the practices and procedures of the IRB Divisions (or Tribunals) to parties and their counsel appearing before the IRB, decision makers (members) who render decisions on cases and the IRB staff who support the decision-making process. If new RPD Rules and RAD Rules are not made prior to implementation of the new system, it will be impossible to properly implement and operationalize the legislative amendments assented to in the BRRA and the PCISA.

Description: The following IRB Rules are being made:

  • New Refugee Protection Division Rules (RPD Rules) — the rules that govern the processes of the Refugee Protection Division (RPD); and
  • New Refugee Appeal Division Rules (RAD Rules) — the rules that govern the processes of the Refugee Appeal Division (RAD).

New RPD Rules and RAD Rules will implement the procedural changes to the refugee determination system under the BRRA and the PCISA, and address recommendations of the Standing Joint Committee for the Scrutiny of Regulations (SJCSR) and the Office of the Commissioner of Official Languages (OCOL).

Cost-benefit statement: These RPD Rules and RAD Rules contribute to the systemic savings that will result from faster processing under the IRPA as amended by the BRRA and the PCISA. Overall, it has been estimated by Citizenship and Immigration Canada (CIC) that the PCISA will result in provincial savings estimated at $1.4 billion in present value (PV) terms over five years (2012/13–2016/17) due to faster processing and faster removals largely as a result of failed claimants spending less time in Canada with access to social services. The RPD Rules and RAD Rules contribute to the faster processing of claims while maintaining fairness.

Additional costs associated with the new RPD Rules and RAD Rules are estimated to be $1.9 million (PV) over a 10-year study horizon (2012/13–2021/22) and are outlined below. All figures are in present value terms and are reflected in 2012 dollars. The additional costs are a result of process changes and new operational requirements resulting from the BRRA and the PCISA. All monetized costs will be absorbed by the IRB within existing resources and resources that the IRB has secured for the implementation of the BRRA reform package as a whole.

“One-for-One” Rule and small business lens: The “One-for-One” Rule does not apply to these RPD Rules and RAD Rules, as there is no change in administrative costs to business. These rules will also not impose any level of compliance costs and/or administrative costs on small business.

Domestic and international coordination and cooperation: These RPD Rules and RAD Rules require changes to the existing procedures of CIC and the Canada Border Services Agency (CBSA). Therefore, the IRB will continue to work closely with CIC and the CBSA in a manner which respects its status as an independent administrative tribunal to ensure that the RPD Rules and RAD Rules support a fair and efficient refugee determination system. Both CIC and the CBSA have expressed their support for these rules.

Background

Canada’s refugee determination system is respected internationally for its high degree of fairness and the quality of its proceedings and decisions. However, as a result of high intake over a sustained period, among other factors, Canada’s refugee determination system has a backlog of cases, consisting of 34 000 claims at the end of August 2012. As a result, individuals who have made an in-Canada refugee protection claim currently wait an average of approximately 18 months for an initial decision on their claim.

To address these and other challenges, the Minister of Citizenship, Immigration, and Multiculturalism (the Minister) introduced Bill C-11, the Balanced Refugee Reform Act (BRRA). The BRRA, which received Royal Assent on June 29, 2010, included legislative amendments to the Immigration and Refugee Protection Act (IRPA) that were intended to improve the efficiency of the refugee determination system in order to reduce the amount of time individuals wait to receive decisions on their claims.

Thereafter, on February 16, 2012, the Minister introduced Bill C-31, the Protecting Canada’s Immigration System Act (PCISA). The PCISA, which received Royal Assent on June 28, 2012, included legislative amendments to the BRRA and the IRPA that were intended to further expedite the processing of refugee claims.

Issue

Subsection 161(1) of the IRPA provides that, subject to the approval of the Governor in Council, the IRB Chairperson of the Immigration and Refugee Board of Canada (IRB) may make rules respecting the activities, practices and procedures of each Division (also known as Tribunals). Each IRB Division has its own rules to govern its tribunal processes. Rules are necessary for the proper functioning of the IRB, as they provide clear and transparent direction on the practices and procedures of the IRB to parties and their counsel appearing before the IRB, the members who render decisions on cases and the IRB staff who support the decision-making process. This direction ensures that parties appear and present their cases before the IRB’s Divisions in a consistent manner, thereby facilitating the fair and efficient administrative processing of cases. It also provides guidance to the Divisions to ensure that all cases are processed in a consistent manner that respects the principles of fairness and natural justice.

In order to implement changes to the IRPA and the BRRA introduced by the PCISA, there was a need to revise the proposed Refugee Protection Division Rules (RPD Rules) and Refugee Appeal Division Rules (RAD Rules) that were prepublished in the Canada Gazette, Part Ⅰ, on July 2, 2011. As a result, new proposed RPD Rules and RAD Rules were prepublished in the Canada Gazette, Part Ⅰ, on August 11, 2012. The RPD Rules and RAD Rules govern the processes of the Refugee Protection Division (RPD) and Refugee Appeal Division (RAD) respectively.

New RPD Rules and RAD Rules are necessary in order to implement the procedural changes to the refugee determination system under the BRRA and the PCISA. The relevant provisions of the BRRA and the PCISA will come into force on a day to be fixed by order of the Governor in Council.

Objectives

The objective of the new RPD Rules and RAD Rules is to contribute to the changes to the IRPA introduced by both the BRRA and the PCISA.

The IRB is a quasi-judicial independent administrative tribunal currently composed of three Divisions, each being a separate Tribunal with a unique statutory mandate. The IRB is responsible for resolving immigration and refugee matters efficiently, fairly and in accordance with the law.

The primary function of the RPD is to decide claims for refugee protection made by persons already in Canada. The Immigration Division (ID) conducts hearings with respect to persons alleged to be inadmissible to Canada and holds detention reviews for those detained for immigration reasons. Finally, the Immigration Appeal Division (IAD) hears appeals from refusals of sponsored applications for permanent residence made by family members, appeals by permanent residents and protected persons who are subject to a removal order, appeals by permanent residents determined by an immigration officer abroad not to have fulfilled their residency obligation, and appeals by the Minister of certain decisions made by members of the ID. The IRPA also created a fourth Division, the Refugee Appeal Division (RAD), to consider appeals of RPD decisions. The provisions creating the RAD were not proclaimed in force when the IRPA came into force on June 28, 2002; however, the RAD provisions in the IRPA, with amendments, will be brought into force at the same time that the BRRA and the PCISA provisions establishing the new refugee determination system come into force.

As a result of the BRRA and the PCISA, the following changes will be introduced upon coming into force of the relevant legislative provisions:

  • A first-level hearing of refugee claims at the RPD conducted by public servant members at the IRB;
  • A new RAD at the IRB with Governor in Council (GIC) appointed members;
  • Greater rights and flexibility for the Minister to appeal and intervene in RAD proceedings;
  • Limits on the jurisdiction of the RPD and the RAD to reopen previously decided claims and appeals;
  • Limits on the types of claims that will have access to an appeal to the RAD;
  • Provision for “Designated Countries of Origin” (DCOs), for the purpose of requiring expedited scheduling of RPD hearings and barring access to an appeal to the RAD;
  • A provision requiring RPD members who reject a claim to state in their reasons that the claim is manifestly unfounded if they are of the opinion that the claim is clearly fraudulent;
  • Transfer of the Pre-Removal Risk Assessment (PRRA) function to the RPD (except applications where the applicant falls under subsection 112(3) of the IRPA, e.g. security grounds, serious criminality); and
  • Transitional provisions regarding the processing of claims for refugee protection made before the coming into force of the relevant provisions of the BRRA and the PCISA.

The transfer of the PRRA function from Citizenship and Immigration Canada (CIC) to the RPD is expected to take place two years after the other changes to the refugee determination system come into force.

Accordingly, it is anticipated that in 2013–14 or 2014–15, the RPD Rules will be further amended to introduce the changes required by the transfer of the PRRA function from CIC to the RPD as outlined in the BRRA and the PCISA. These further changes to the RPD Rules will be made in time for this transfer.

In addition to the changes necessary to implement the BRRA and the PCISA, other proposed changes from the current RPD Rules and RAD Rules have also been made in response to recommendations of the Standing Joint Committee for the Scrutiny of Regulations (SJCSR) and the Office of the Commissioner of Official Languages (OCOL).

Furthermore, the IRB is also making new Oath or Solemn Affirmation of Office Rules (Immigration and Refugee Board) [Oath Rules], which are the rules that govern the oath or solemn affirmation of office taken by IRB members. The new Oath Rules are expected to come into force at the same time as the new RPD Rules and RAD Rules. A separate Regulatory Impact Analysis Statement has been prepared for the Oath Rules.

The IRB also anticipates making amendments to the Immigration Division Rules and to the Immigration Appeal Division Rules in 2013–14. These amendments will clarify and streamline IRB procedures, harmonize rules that are common to all of the IRB’s Divisions, and address the SJCSR’s recommendations.

Description

Each Division (or Tribunal) is supported by its own rules. These rules provide clear and transparent direction on the practices and procedures of the Divisions to parties and their counsel appearing before the IRB, the members who render decisions on cases and the IRB staff who support the decision-making process. This direction ensures that parties appear and present their cases before the IRB’s Divisions in a consistent manner, thus facilitating the fair and efficient administrative processing of cases. It also provides guidance to the Divisions to ensure that all cases are processed in a consistent manner that respects the principles of fairness and natural justice. The efficient and fair administration of cases, facilitated by the use of rules, helps contribute to the overall objectives of the BRRA and the PCISA.

If new RPD Rules and RAD Rules are not made prior to implementation of the new system, it will be impossible to properly give effect to the BRRA and the PCISA. Accordingly, the following new RPD Rules and RAD Rules are being made.

Refugee Protection Division Rules (RPD Rules)

The legislative amendments contained in the BRRA and the PCISA will impact the procedures at the RPD, whose primary function is to decide claims for refugee protection made in Canada. There will be several key changes to the procedures at the RPD. Refugee protection claimants will have to provide information regarding the basis of their claim within the time limits that are set out in the Immigration and Refugee Protection Regulations (IRPR). The RPD Rules require that this information be collected in a Basis of Claim (BoC) Form. The Government has indicated that the time limit for submitting the BoC Form to the IRB, which will be set out in the IRPR, will be no later than 15 days following referral of the claim for claimants who make their claim at a port of entry. For claimants who make their claim inland, that is, inside Canada, other than at a port of entry, the PCISA stipulates that the documents and information required by the rules of the Board regarding the basis of the claim are to be provided to the referring officer within the time limits provided for in the IRPR. The IRPR indicate that the time limit for submitting the BoC Form to the officer will be no later than the day on which the officer determines the eligibility of the claim.

Another key provision concerns the scheduling of the first-level hearing at the RPD. Under the PCISA, a referring officer at CIC or the CBSA will schedule the hearing in accordance with the IRPR, the rules of the Board and any directions of the Chairperson of the Board. The Government has indicated that the time limits for these hearings, which will be set out in the IRPR, will be as follows:

  • Not later than 30 days after referral for DCO claimants who have made their claim inland;
  • Not later than 45 days after referral for DCO claimants who have made their claim at a port of entry; and
  • Not later than 60 days after referral for all non-DCO claimants.

The following RPD Rules have been made regarding the BoC Form and the first-level hearing:

  • The way in which the BoC Form must be provided to the IRB by port of entry claimants and to an officer by inland claimants;
  • Procedures for port of entry claimants to request an extension of time to provide the BoC Form;
  • Abandonment procedures should claimants fail to provide a BoC Form within the regulated time limits; and
  • How the referring officer fixes a date for the RPD hearing.

The RPD Rules also include the following provisions that are not included in the current RPD Rules (see footnote 3):

  • The conduct of a hearing;
  • Changes incorporating procedures currently contained in Chairperson’s Guidelines and IRB policies, for example, regarding designating a representative and changing the date and time of a proceeding;
  • Changes requested by the SJCSR, including some substantive changes, such as a clarification that before a Division of the IRB acts on its own initiative, it will give prior notice to the parties and give them an opportunity to object, as well as corrections to technical errors and/or inconsistencies between the English and French versions of the RPD Rules;
  • Changes requested by the OCOL regarding the language of RPD proceedings;
  • Changes requested by stakeholders regarding vulnerable persons appearing before the RPD;
  • Changes that shorten time limits for procedural matters in order to enable the RPD to comply with the time limits for the holding of hearings that will be set out in the IRPR. The time limits set out in the RPD Rules cover such matters as the disclosure of documents, changing the language of the proceedings, changing the language of interpretation, allowing a claim without a hearing, applications, responses and replies, and applications for changing the date and time of hearings;
  • Notice by the RPD to the Minister of possible integrity issues before or during a hearing;
  • In order to expedite the Division’s appointment of a designated representative, the RPD Rules require officers at CIC or the CBSA, as well as counsel for the claimant, to notify the Division without delay if they believe that the RPD should designate a representative. The change also clarifies that their duty to notify the RPD does not apply in the case of a minor claimant whose claim is joined with the claim of their parent or legal guardian;
  • The disclosure of country documentation by the Division may be done by providing a list of those documents or information as to where a list can be found on the Board’s Web site;
  • If a time limit under the RPD Rules ends on a day that is not a working day, it will be extended to end on the next day that is a working day;
  • Amended abandonment procedures should a claimant fail to provide the BoC Form in time or fail to attend a hearing. The Rules specify that for these defaults, officers at the time of referral will provide claimants with notices to appear for a special hearing at which they will have the opportunity to explain why the claim should not be abandoned. The rule also specifies when the proceeding must start or continue if the Division decides not to declare the claim abandoned;
  • Clarification that if a party provides more than one document at a time, a list of those documents will have to be provided and the pages within the package of documents will have to be consecutively numbered;
  • Unless an application to change the date and time of a proceeding is received by the Division no later than three working days before the proceeding, the party making the application must appear and make the application orally on the day of the proceeding, before the time the proceeding is scheduled to start;
  • A special process for an application to change the date and time of a proceeding in situations where counsel is retained and/or information about the availability of counsel is provided no later than five working days after the hearing date was fixed by the referring officer;
  • For the purpose of an application to have a proceeding conducted in public, the Minister will be considered to be a party whether or not the Minister takes part in the proceedings; and
  • Rules regarding applications to reopen claims or applications reflect the amendment to the IRPA set out in the PCISA removing the RPD’s jurisdiction to reopen a claim or application if the RAD or Federal Court has made a final determination on an appeal or application for judicial review, respectively.

The RPD Rules also incorporate other changes to the IRPA which came into force on June 30, 2011. The provisions regarding “authorized representatives” set out in the IRPR were replaced by new provisions in the IRPA regarding who may represent or advise a person for consideration — or offer to do so — in connection with a proceeding or application under the IRPA.

Refugee Appeal Division Rules (RAD Rules)

The BRRA and the PCISA also amend and will bring into force the unproclaimed provisions of the IRPA regarding the RAD. With the establishment of the RAD, certain claimants and the Minister will have the right to appeal certain decisions by the RPD. The appeal may be made on a question of law, fact, or mixed law and fact.

New rules for the RAD are required in order to establish practices and procedures before the RAD. The RAD Rules include the following provisions:

  • Time limits enabling the RAD to be able to comply with the time limits for decisions on appeals that will be set out in the IRPR. These time limits will cover such matters as responding to appeals, the preparation of the RPD record (a document that contains all of the information on the member relied upon at the hearing), and the date that a decision may be made without further notice to the parties;
  • Separate rules for filing an appeal and for perfecting an appeal, by both the person and the Minister, so that the process is separated into two distinct steps, in accordance with the revised time limits for filing and perfecting an appeal to be set out in the IRPR;
  • Practices and procedures before the RAD, including
  • becoming counsel of record;
  • choosing the language of the appeal;
  • designating a representative;
  • using specialized knowledge;
  • providing a notice of constitutional question;
  • holding conferences;
  • providing documents;
  • making applications; joining or separating appeals;
  • conducting proceedings in public;
  • dealing with the United Nations High Commissioner for Refugees (UNHCR) and interested persons;
  • making applications for withdrawal, reinstatement or reopening; and
  • rendering decisions.
  • Provisions applicable to appeals where a hearing will be held apply to a variety of elements related to hearings, including notice of hearing; restriction of the hearing; the calling of witnesses; changing the location of a hearing; applications for postponements and adjournments of a hearing; and abandonment procedures;
  • Different practices and procedures for appeals made by the person who is the subject of the appeal and appeals made by the Minister; for example, there are different requirements for the person and the Minister respecting the manner in which an appeal is filed and perfected;
  • Rules regarding applications for extensions of the time to file and perfect an appeal by both the person and the Minister, to respond to a Minister’s appeal, or to reply to a Minister’s intervention or person’s response (the factors for deciding applications for extensions of time to file and perfect an appeal are not set out in the RAD Rules as the legislation provides that those time limits, including the extension of those time limits, are to be set out in the IRPR; therefore, guidance on these factors may be provided in another IRB policy instrument);
  • The RPD record will only be requested by the RAD once an appeal has been perfected;
  • If a time limit under the RAD Rules ends on a day that is not a working day, it will be extended to end on the next day that is a working day;
  • If a party provides more than one document at a time, a list of those documents would have to be provided and the pages within the package of documents would have to be consecutively numbered;
  • A hearing can be requested by a party at the reply stage if it was not previously requested;
  • The person will be required to provide an explanation in their submissions of how any of the documentary evidence they are relying on meets the requirements of subsection 110(4) of the IRPA;
  • A party may provide either a full or partial transcript of the RPD hearing, if they are relying on it in the appeal;
  • The rule regarding the participation of the UNHCR reflects the amendment to the IRPA set out in the PCISA which provides that the UNHCR may only participate in an appeal conducted by a panel of three members;
  • Counsel’s contact information will have to be included in an application to reinstate or to reopen an appeal, if the applicant is the person who is the subject of the appeal;
  • Appellants explaining why their appeal should not be declared abandoned after a hearing date has been fixed will have to attend a special abandonment hearing; and
  • The rule regarding applications to reopen appeals reflects the amendment to the IRPA set out in the PCISA removing the RAD’s jurisdiction to reopen an appeal if the Federal Court has made a final determination on an application for judicial review.

The RAD Rules also incorporate other changes to the IRPA which came into force on June 30, 2011. The provisions regarding “authorized representatives” set out in the IRPR were replaced by new provisions in the IRPA regarding who may represent or advise a person for consideration — or offer to do so — in connection with a proceeding or application under the IRPA.

Regulatory and non-regulatory options considered

Under subsection 161(1) of the IRPA, the IRB Chairperson, subject to the approval of the Governor in Council, may make rules respecting the activities, practices and procedures of each Division of the IRB.

Consideration was given to establishing instructions on the practices and procedures of the IRB’s Divisions through the use of other instruments, such as Chairperson’s guidelines, policies, policy notes, or Chairperson’s instructions. (see footnote 4) However, it was determined that enshrining these practices and procedures in rules, the most authoritative instrument at the IRB’s disposal, will provide for more robust and transparent identification of the basic practices and procedures of the IRB. In addition, for persons appearing before an IRB Division, one comprehensive instrument is more readily accessible and easier to use than a series of instruments.

Benefits and costs

Overall benefits associated with a reformed refugee determination system

The RPD Rules and RAD Rules contribute to the systemic savings that will result from faster processing under the BRRA and the PCISA. Overall, it has been estimated by CIC that the BRRA and the PCISA will result in savings estimated at $1.4B in present value terms (PV) [or $310M (PV) in net savings] over five years due to faster processing and faster removals largely as a result of failed claimants spending less time in Canada with access to social services.

The RPD Rules and RAD Rules contribute to the overall objectives of the BRRA and the PCISA by supporting the fairness, integrity and efficiency of IRB proceedings, and thus increase the overall fairness and efficiency of the refugee determination system.

Benefits and costs associated directly with the RPD Rules and RAD Rules

The following sections, as summarized in Table 1, identify in quantitative and qualitative terms the costs and benefits associated directly with the RPD Rules and RAD Rules.

All costs and benefits were assessed in terms of incremental changes resulting from the RPD Rules and RAD Rules — these costs would not occur if not for these Rules. Costs that could be quantified were forecasted over a period of 10 years, from fiscal years 2012–13 to 2021–22, expressed in present value (PV) terms, and were discounted at a rate of 8% and based on current program costs. Program costs were calculated on the basis that the IRB will receive funding to process and finalize a volume of 24 500 RPD cases and 10 700 RAD cases in fiscal year 2012–13. In fiscal year 2013–14 and in ongoing years, the IRB will be funded to process and finalize 22 500 RPD cases and 9 800 RAD cases. Costs and benefits which could not be estimated reliably in monetary terms due to data limitations were addressed qualitatively.

Table 1: Cost-benefit statement of the RPD Rules and RAD Rules

Cost-benefit statement

2012–13 (Base Year)

2016–17

2021–22 (Final Year)

Total Present Value

Average Annual Value

A. Quantified impacts in thousands of dollars

Benefits

Affected stakeholder

Savings

Canadian public, federal government, provinces and territories

The RPD Rules and RAD Rules contribute to the savings that will result from faster processing under the BRRA and the PCISA. The benefits of the RPD Rules and RAD Rules have been estimated to contribute to part of CIC’s estimated $1.4B (PV) benefits over five years derived from the broader package of reforms under the BRRA and the PCISA.

Costs

New forms, documents, policies and case management manuals

IRB

$376.6

--

--

$376.6

$37.6

Record of RPD proceeding

IRB

$32.4

$95.2

$64.8

$842.2

$84.2

Interpretation for RAD hearing

IRB

$2.3

$69.7

$47.4

$595.2

$59.5

Written reasons for RPD positive decisions

IRB

$466.6

$342.9

$233.4

$3,381.6

$338.2

Designated representative for RAD hearing

IRB

$4.3

$12.7

$8.6

$112.3

$11.2

Total present value cost (see footnote 5)

$882.4

$520.8

$354.4

$5,308.2

$530.8

B. Quantified impacts in non-dollars (not applicable)

C. Qualitative impacts

Benefits

Affected stakeholder

Fairness, integrity, and efficiency

Canadian public, federal government, parties before the IRB

The RPD Rules and RAD Rules contribute to the savings that will result from faster processing under the BRRA and the PCISA by increasing the efficiency and integrity of IRB proceedings, and thus increasing the overall efficiency and integrity of the refugee determination system, while maintaining fairness in the proceedings.

Costs

Medical certificates

Federal government, provinces and territories, refugee claimants before the IRB

Requiring a person to obtain a certificate signed by a medical practitioner when requesting a postponement of a proceeding or in abandonment proceedings will place additional pressures on provincial health authorities in instances where a person’s illness would prevent them from being able to attend a proceeding, but not so serious as to require them to visit a medical practitioner. Costs would be incurred by the parties in instances where medical practitioners charge a fee for the issuance of a medical certificate. Under the Interim Federal Health Program (IFHP), asylum claimants from DCOs may also be required to pay the cost of the medical visit.

Conferences

Federal government, provinces and territories, parties before the IRB

As is the case in the current RPD Rules, the RAD Rules stipulate that the RAD may require the parties to participate in a pre-hearing conference to discuss issues, relevant facts, and any other matter in order to make the proceedings fairer and more efficient. Parties may incur costs in order to participate in conferences as they may choose to be represented by counsel at their own expense. Should the parties obtain representation through provincial or territorial legal aid services, costs would be borne by these organizations.

Transcripts

Refugee claimants and CIC/CBSA appearing before the RAD

The RAD Rules require the parties, should they choose to rely on the transcript of the RPD hearing at the RAD appeal, to submit a full or partial transcript of the hearing to the RAD. It is not expected that the parties would require a transcript in every appeal. Should parties choose a service provider, such as a professional transcription company, to complete the transcript, costs would be incurred. A review of billing schedules by service providers indicate that transcription companies charge on average $300 to transcribe a complete RPD hearing.

Summons

Refugee claimants and CIC/CBSA appearing before the RAD

As is the case in the current RPD Rules, the RAD Rules provide that if a party wants the Division to order a person to testify, they must request a summons from the Division. If the Division decides to issue a summons, the Rules would require that the party pay or offer to pay the summoned person the applicable witness fees and travel expenses set out in the Federal Court Rules. Should a party pay the summoned witness, the fees would range between $20 and $100 per case, where applicable, plus reasonable travel expenses, unless a party agrees to pay a greater amount.

Benefits associated directly with the RPD Rules and RAD Rules

These RPD Rules and RAD Rules contribute directly to the integrity and efficiency of IRB proceedings while maintaining fairness, thus increasing the overall fairness and efficiency of the refugee determination system.

The RPD Rules and RAD Rules provide clear and transparent direction on the practices and procedures of the Divisions to parties and their counsel appearing before the IRB, members who render decisions on cases, and the IRB staff who support the decision-making process. This direction ensures that parties appear and present their cases before the IRB’s Divisions in a consistent manner, thus facilitating the fair and efficient administrative processing of cases. It also provides guidance to the Divisions to ensure that all cases are processed in a consistent manner that respects the principles of fairness and natural justice.

Benefits — Medical certificates

The following qualitative benefits will be derived from the new medical certificate requirements:

  • a reduction in the number of cases that are rescheduled by deterring persons who are the subject of proceedings from making frivolous applications that are not supported by objective evidence;
  • where explanations include medical reasons, those reasons will be supported by appropriate objective medical evidence: the objective evidence will allow the member to make an informed decision according to the circumstances of each application; and
  • the IRB will schedule its proceedings efficiently and effectively by knowing in advance when a person would be able to participate in a proceeding.
Costs associated directly with the RPD Rules and RAD Rules

While the RPD Rules and RAD Rules are generally cost neutral, there are specific costs, captured in Table 1 and outlined below, associated with process changes and new operational requirements as a result of the BRRA and the PCISA.

Any quantified costs for the IRB associated with new rules will be absorbed within existing resources and resources that the IRB has secured for the implementation of the BRRA and the PCISA reform package as a whole.

Operational and process requirements

  • The RPD Rules and RAD Rules require a number of new forms, documents, policies and case management manuals to be developed, and, in some cases, translated into multiple languages. These materials will contribute to fair and efficient processes in the RPD and RAD. Examples of documents that will be needed include basic process information to be shared with claimants, notices to appear for various proceedings, notices of decision for the RAD, and forms for various RAD processes. The one-time cost for the development of these documents will not exceed $376.6K (PV).
  • Once an appeal to the RAD has been filed, the RPD will have to prepare a record and provide it to the RAD to share with all parties to the appeal. The creation of the RAD and the stipulation in the RAD Rules that the RPD must supply the record of the RPD proceeding represents an additional expense for the IRB. Based on the previously identified processing volume of RPD and RAD cases, the annual average present value cost for preparing the RPD record for the RAD will be $84.2K (PV) over a 10-year period.
  • In keeping with principles of fairness and natural justice that govern proceedings before the IRB, the RAD Rules provide for interpretation at the oral RAD hearing, if one is held. While the RPD requires interpreters currently, the additional demand on interpreters as a result of RAD hearings will create additional costs for the IRB. Additional interpreters will have to be recruited and certified to meet the demand, and the number of interpreter hours at the IRB will increase. Based on the previously identified processing volume of RAD cases, the annual average present value costs associated with an increased requirement for interpretation will be $59.5K (PV) over a 10-year period.

Written reasons for RPD positive decisions

The RPD Rules require RPD members in most cases to provide written reasons for positive decisions on claims for refugee protection. This new requirement represents an additional cost to the IRB, as written reasons for positive decisions are not currently provided on a routine basis. The overall cost includes the cost of the transcription of the relevant portion of the proceedings if the decision and reasons are delivered orally, as well as the cost of the time required of members and their support staff when drafting and editing reserved decisions and reasons (i.e. those not delivered orally at the hearing). The average annual present value costs to the IRB associated with this requirement will be $358.5K (PV) over a 10-year period.

Designated representatives

A representative is designated when the person concerned is less than 18 years of age or, in the opinion of a Division, is unable to appreciate the nature of the proceedings. In certain circumstances, the IRB pays an honorarium to the individual acting as the designated representative. In addition to the designated representatives currently required for RPD claims, designated representatives will also be required throughout the appeal process at the RAD. Based on previously identified processing volumes and the number of representatives designated in 2008–09 and 2009–10 at the RPD, the average annual present value costs to the IRB associated with this requirement will be $11.2K (PV) over a 10-year period.

Conferences at the RAD

In accordance with the current RPD Rules, the RPD may require the parties to participate in a pre-hearing conference to discuss issues, relevant facts, and any other matter in order to make the proceedings fairer and more efficient. Conferences are not called in all proceedings, and are generally required to organize cases that are lengthier in nature, or to address procedural issues that require resolution prior to the actual hearing. Parties may incur costs to participate in conferences as they may choose to be represented by counsel at their own expense. Despite this, the RPD’s experience with conferences has underscored the fact that they are cost-effective instruments as they make proceedings fairer and more efficient. As a result of this positive experience, the RAD Rules make similar provisions for conferences to make appeals fairer and more efficient. As is the case in the RPD, parties may incur costs when participating in conferences at the RAD should they choose to be represented by counsel at their own expense. Should the parties obtain representation through provincial or territorial legal aid services, costs would be borne by these organizations. Although the RAD is a new process, the IRB currently estimates that approximately 2.5% of all RAD appeals will require conferences. The costs associated with this new process have not been quantified given that the number of parties who will choose to be represented by counsel at these conferences is unknown.

Medical certificates

To fulfil its legislated mandate and meet the regulatory timelines for RPD hearings, the IRB must schedule its proceedings so that cases before its various Divisions are finalized as quickly as possible. Proceedings that are postponed and then rescheduled to a later date impact the IRB’s ability to meet this objective. Moreover, significant costs are incurred by the IRB when a proceeding must be rescheduled. When an RPD hearing is postponed on the day it was scheduled to proceed, the direct salary costs incurred by the IRB are $251. In the case of a RAD hearing, it is anticipated that these costs will amount to $289. (see footnote 6)

The IRB is taking various steps to minimize the number of proceedings that are unnecessarily postponed and rescheduled. To support these measures, the RPD Rules and RAD Rules provide that if a party, other than the Minister, appearing before the RPD or the RAD wishes to change the date or time of a proceeding for medical reasons (other than those related to counsel), they must provide a medical certificate signed by a qualified medical practitioner.

The rules also require that a claimant at the RPD, or an appellant who is the subject of an appeal at the RAD, must provide a medical certificate in instances where the claimant or the appellant is explaining why a claim or an appeal should not be declared abandoned and the explanation includes medical reasons (other than those related to counsel).

Finally, the rules require that a claimant at the RPD must provide a medical certificate in instances where the claimant is explaining why they should be granted an extension of time to complete their BoC Form and the explanation includes medical reasons (other than those related to counsel).

However, the IRB has provided a controlled relief from the requirement for a medical certificate in those situations where the person can show, with corroborating evidence, that he or she tried to obtain the required medical certificate but was unable to do so. The person must still provide particulars of the medical reasons for their application, supported by corroborating evidence, and an explanation of how their medical condition prevents them from participating in the hearing or prevented them from pursuing their appeal, as the case may be.

The rules specify that the certificate must include information regarding

  • the particulars of the medical condition, without specifying the diagnosis, that prevent(ed) the party from participating in the hearing or completing their BoC Form on the date fixed; and
  • the date on which the party is expected to be able to participate in the proceeding (or pursue their appeal for explanations regarding abandonment of an appeal).

Costs — Medical certificate to support extension of time to file a BoC Form, in support of an application for a change of date or time of a hearing or in the context of abandonment proceedings

Costs will be incurred by persons who are the subject of proceedings in instances where a person is applying for an extension of a filing deadline or for a change of date or time for their proceeding due to medical reasons and a cost is incurred on the part of the person to access a medical practitioner and/or obtain a medical certificate. Costs may vary according to the province and the type of visit and/or the reason for the visit.

Under the Interim Federal Health Program (IFHP), claimants from non-Designated Countries of Origin (DCOs) receive coverage for medical visits if of an urgent or essential nature; while claimants from DCOs receive coverage under the IFHP for the cost of the services of a doctor or registered nurse to diagnose, prevent or treat a disease posing a risk to public health or a condition of public safety concern. If the condition or disease that is the reason for the certificate does not meet these criteria, and depending on the jurisdiction in which the claimant is located, in addition to the cost of the certificate, asylum claimants from DCOs may also be required to pay the cost of the medical visit.

In circumstances where a person’s explanation includes medical reasons, it is reasonable to expect that they would seek medical assistance regardless of the requirement set out in the rules. However, it is anticipated that in instances where a person’s illness might prevent them from attending a hearing but is not sufficiently serious to warrant a visit to a medical practitioner, this requirement may place pressures on health care services and a cost burden on persons appearing before the RPD or the RAD.

Taking into account the cost of rescheduling a proceeding, it is estimated that the qualitative benefits will outweigh the costs to individuals appearing before the RPD or the RAD and provincial health authorities. The total annual monetized costs and benefits of this requirement have not been estimated as the benefits are qualitative, and it is impossible to reliably estimate the decrease in postponements that could be attributed to this requirement or the number of times a person would have to visit a medical practitioner, as the IRB does not maintain systematic data on the number of applications to postpone a proceeding for medical reasons nor does it maintain data on the number of times an explanation for why a case should not be abandoned includes medical reasons.

Transcripts

The RAD Rules require the parties, should they choose to rely on the transcript of the RPD hearing at the RAD appeal, to submit a full or partial transcript of the hearing to the RAD. It is not expected that the parties will require a transcript in every appeal. Unlike what was indicated in the RIAS accompanying the RPD Rules and RAD Rules which were prepublished in the Canada Gazette, Part Ⅰ, on July 2, 2011, the IRB will not, as a practice, provide parties with a transcript of the RPD proceeding for the purposes of filing an appeal at the RAD. The RAD Rules stipulate that a party must file with the RAD a full or partial transcript of the RPD hearing, if the party wishes to rely on the transcript in the appeal. The RAD Rules do not stipulate how a party is to obtain a transcript, or who is to create the transcript. They state that the transcript must be full or partial and accompanied by a transcriber’s declaration. An electronic recording of the RPD hearing will be made available to claimants and the Minister. It will therefore be for the parties to decide how they would obtain a transcript. The parties would incur monetized costs should they choose a service provider, such as a professional transcription company, to complete the transcript. A review of billing schedules by service providers indicates that transcription companies charge on average $300 to transcribe a complete RPD hearing. The total costs associated with this new process have not been quantified given that it is unknown how many parties will choose to rely on the transcript of the RPD hearing, or how the parties will go about obtaining transcripts.

Summons

As is the case in the current RPD Rules, the new RPD Rules and RAD Rules provide that if a party wants the Division to order a person to testify, they must make a request to the Division for a summons. If the Division decides to issue a summons, which in the past has occurred only in extremely rare circumstances, the rules require that the party pay or offer to pay the summoned person the applicable witness fees and travel expenses set out in the Federal Courts Rules. Should a party pay the summoned witness, the fees would be $20 per day plus reasonable travel expenses. The fees would be increased to $100 per day plus reasonable travel expenses if the witness is an expert witness. The parties will also be able to pay a witness a greater amount equal to the expense or any loss incurred by the witness in attending a proceeding. A party may also pay the expert witness a greater amount established by contract for his or her services in preparing to give evidence and giving evidence. The total costs associated with this new process have not been quantified given that it is unknown how many summons will be requested and granted, and how many parties will have to pay the summoned witness the fees described above.

“One-for-One” Rule

The “One-for-One” Rule does not apply to the RPD Rules and RAD Rules, as there is no change in administrative costs to business.

Small business lens

The RPD Rules and RAD Rules do not impose any level of compliance costs and/or administrative costs on small business.

Consultation

The Balanced Refugee Reform Act (BRRA)

The proposed RPD Rules and RAD Rules, prepublished in July 2011, were originally drafted to ensure consistency with the BRRA. As part of their development, the IRB held information sessions in the fall of 2010 for stakeholders in Montréal, Toronto and Vancouver, and conducted written consultations in which portfolio organizations within the federal public service and stakeholders were provided with draft copies of the proposed RPD Rules and RAD Rules and asked to submit written comments.

Those proposed RPD Rules and RAD Rules, which were circulated to stakeholders and portfolio organizations, were received with a mixed level of support and opposition. While stakeholders were pleased that the proposed RPD Rules and RAD Rules incorporated changes that had been requested in the past, and portfolio partners were satisfied that the proposed RPD Rules and RAD Rules were consistent with the intent of the BRRA, a number of concerns were expressed. These concerns were reviewed and addressed to the extent possible in the proposed RPD Rules and RAD Rules that were prepublished in the Canada Gazette, Part Ⅰ, on July 2, 2011. These proposed rules were open for public comment for a period of 30 days. The comments received were reviewed and given careful consideration to determine if changes to the text of the rules were required.

The Protecting Canada’s Immigration System Act (PCISA)

On February 16, 2012, the Minister introduced Bill C-31, the Protecting Canada’s Immigration System Act (PCISA). The PCISA, which received Royal Assent on June 28, 2012, includes legislative amendments to the BRRA and the IRPA that are intended to further expedite the processing of refugee claims. As a result of these legislative amendments and anticipated regulatory changes, the proposed RPD Rules and RAD Rules were updated.

The updated RPD Rules and RAD Rules were prepublished in the Canada Gazette, Part Ⅰ, on August 11, 2012, and open for public comment for a period of 30 days. As part of the consultation period, the IRB conducted information sessions for stakeholders in Montréal, Toronto, Vancouver, and Ottawa. Written submissions were received from the Canadian Council for Refugees, the Legal Services Society of British Columbia, the United Nations High Commissioner for Refugees, the Association Québécoise des avocats et avocates en Droit de l’Immigration, Canadian Association of Refugee Lawyers, Canadian Bar Association, Rainbow Refugee, Vancouver Association for Survivors of Torture, Refugee Forum, Mouvement contre le viol et l’inceste, an academic and a certified immigration consultant. A total of 216 comments from stakeholder groups were received regarding the RPD Rules and RAD Rules. The vast majority were about specific changes to the RPD Rules and RAD Rules. The comments were reviewed and given careful consideration to determine if changes to the text of the rules were required.

The IRB received some comments that were outside the IRB’s jurisdiction and/or authority to take into consideration, and thus the Board was unable to make an associated change to the rules. These comments largely related to new time limits for the first-level hearing of a refugee claim and the time limit for submission of the BoC Form to the IRB for those claims referred from a port of entry, which will be set forth in the IRPR. Other comments pertained to the discontinuation of the provision of transcripts of RPD proceedings, a decision taken by the Government as part of the federal deficit reduction action plan.

Several comments were also received on the language of the rules (choices of words/wording) which are primarily considerations for drafting. Where a comment related to wording and was significant to the meaning, application or underlying policy intent of the rule, the IRB considered the comment as a suggested rule change and deliberated on this appropriately.

The IRB also received submissions in which it appeared that there may be some confusion that the RAD will be an oral hearing tribunal. The RAD will primarily be a paper-based appeal with limited circumstances described in the IRPA when an oral hearing may be held. Furthermore, as a result of the fact that the IRPA uses the same test for an oral hearing at the RAD as is used for the PRRA, it appears that some confusion existed about the distinction between the RAD and PRRA. The RAD will consider appeals of an RPD decision based upon an error of law, fact, or mixed law and fact, whereas the PRRA process results in a new decision for protection based on new evidence since the date of the RPD decision; it is not an appeal of the RPD decision.

Comments on RPD and RAD Rules resulting in changes

The IRB made changes to the RPD Rules and RAD Rules following prepublication in the Canada Gazette, Part Ⅰ, on August 11, 2012, as a result of comments received. These changes include the following:

Changes to RPD Rules

Providing the Minister with the Basis of Claim Form, relevant identity and travel documents and amendments to the Basis of Claim Form

Six respondents noted that the requirements for the claimant and/or counsel to provide the Minister with the Basis of Claim (BoC) Form, relevant identity and travel documents and any amendments to the BoC Form were particularly onerous. Respondents expressed concern regarding the costs involved, how and where to provide the documents and regarding the requirement to provide proof of having submitted the documents. Respondents also expressed confusion as to which minister to provide the documents and under what circumstances.

In response to stakeholder concerns, changes were made to the RPD Rules to reflect that the RPD will provide the Minister with a copy of the relevant documents following receipt. To facilitate this change, claimants and counsel will be required to file two copies of each document with the IRB.

Application for extension of time to provide a Basis of Claim Form (port of entry)

Several respondents noted that the requirement to file a statutory declaration or affidavit when requesting an extension of time to file the BoC Form for those claims referred to the IRB from a port of entry is unnecessary and overly onerous.

In response to stakeholder comments, and anticipating that there might be an increase in unrepresented claimants before the RPD, the requirement to provide a statutory declaration or affidavit when requesting an extension to file the BoC Form has been removed.

Provision of medical certificates

The vast majority of respondents noted that the requirement to provide a medical certificate — in the context of the application for an extension of time to provide the BoC Form, applications for a change of date and time, and abandonment proceedings — was overly onerous. Many respondents referred to the recent changes to the Interim Federal Health Program and noted concerns about claimant’s ability to access medical practitioners and obtain medical certificates. Respondents felt that the Rules were overly prescriptive in terms of the content of the medical certificate required.

In response to these comments, and noting that certain claimants may face challenges with regard to accessing medical treatment and care and/or incur significant costs in doing so, the IRB has provided a controlled relief from this requirement in those situations where the claimant can prove, with corroborating evidence, that he or she tried to obtain the required medical certificate but was unable to do so. The claimant must still provide particulars of the medical reasons for their application, supported by corroborating evidence, and an explanation of how their medical condition prevents them from participating in the hearing or prevented them from pursuing their claim, as the case may be. The rules have been changed to reflect this approach. Further, the decision has been taken to remove that portion of the rule on applications to change the date or time of a hearing which required the medical practitioner to assess and state whether the claimant could participate if the proceeding or any part of it were conducted in writing or by means of live telecommunications.

Providing amendments to the Basis of Claim (BoC) Form

Respondents commented that the rule which addresses changes or additions to the BoC Form was overly complicated in its wording. Several respondents expressed confusion regarding how the requested explanations for any additions or deletions were to be provided. A respondent also suggested that the IRB ensure that claimants, when providing amendments to their BoC Form, be required to state that the changes are “true to the best of the claimant’s knowledge.”

In response to these comments, the IRB has (1) simplified the language in this rule; (2) removed the requirement for an explanation of changes; and (3) included an additional requirement that claimants provide a declaration which states that the information given by the claimant in the BoC Form, together with the changes and additions, is complete, true and correct, which is consistent with the declaration in the BoC Form that claimants must initially sign.

Timelines with regard to applications for changing the date or time of a proceeding

Several respondents expressed concern regarding the tight timelines in the rule pertaining to an application for a change of date or time of a proceeding. The rule required that the claimant, when requesting a change of date or time, provide three days on which they would be available to proceed which fall within five working days after the date originally fixed for the proceeding. Respondents felt that this was unrealistic, particularly given the anticipated busy schedules of counsel.

Noting this concern along with the overall scheme of the IRPA and the IRPR as well as the scheme of the RPD Rules, the IRB has changed the rule such that claimants provide three dates within a window of 10 working days. Similarly, the Rules state that the new date fixed by the Division must be no later than 10 working days, or as soon as possible thereafter.

Changes to RAD Rules

Providing the Minister with the notice of appeal and appellant’s record

One respondent commented that many persons may be unrepresented at the RAD and that for unrepresented persons it is unreasonable for the IRB to expect them to file their appeal with the Minister first and then provide proof to the RAD.

The IRB has changed this rule so that when the person is the appellant, they must provide the original and two copies of their written notice of appeal as well as the original and a copy of the appellant’s record to the IRB, and the IRB will provide these documents to the Minister. Furthermore, this approach has also been used for similar originating applications such as an application for an extension of the time to file and perfect, or an application to reopen an appeal. This rule change is also consistent with the scheme adopted for the RPD with respect to providing the BoC Form to the Minister.

Time to reply to Minister’s intervention

A comment was received that the time limit of 10 calendar days for the appellant to reply to a Minister’s intervention was inadequate. The IRB has changed the time limit to 15 calendar days, which will give appellants more time to consider and prepare their reply to the Minister and is also consistent with other time limits in the RAD Rules.

Application to change the location of a hearing

It was noted that there is an inconsistency in the time limits between the rule which provides the minimum notice of 10 days for a hearing and the rule which requires 30 days’ notice for an application to change the location of a hearing. The IRB has an expectation that an application to change the location of a hearing will be made at the same time that a party requests that a hearing be held, which would be contained in the appellant’s record, reply record or response record in the case of the person, and in the notice of intervention, appellant’s record, if any, or reply record in the case of the Minister. However, the IRB has changed the time limit to apply for a change of location of a hearing from 30 calendar days to 20 calendar days before a hearing.

Order of questioning at a hearing

Several comments were received on the conduct of the hearing including concerns raised about ensuring that the person has an adequate opportunity to question witnesses in an oral hearing. In response to these comments, the RAD Rules have been changed so that the standard order of questioning in a RAD hearing is that any witnesses, including the person, will be questioned first by the appellant, followed by any other party, followed by the appellant in reply, and the Division will question last. The RAD member who conducts the hearing will have discretion to change the order of questioning on a case-by-case basis.

Provision of medical certificates

The vast majority of respondents noted that the requirement to provide a medical certificate in the context of an application for a change of date or time of a hearing and in abandonment proceedings was overly onerous. Many respondents referred to the recent changes to the Interim Federal Health Program which may have negative impacts on the ability of persons to access medical practitioners and obtain medical certificates. Respondents felt that the Rules were overly prescriptive in terms of the content of the medical certificate required.

In response to these comments, and noting that certain persons may face challenges with regard to accessing medical treatment and care and/or incur significant costs in doing so, the IRB has provided a controlled relief from this requirement in those situations where the person can show, with corroborating evidence, that he or she tried to obtain the required medical certificate but was unable to do so. The person must still provide particulars of the medical reasons for their application, supported by corroborating evidence, and an explanation of how their medical condition prevents them from participating in the hearing or prevented them from pursuing their appeal, as the case may be. The Rules have been changed to reflect this approach. Further, the decision has been made to remove that portion of the rule on applications to change the date or time of a hearing which required the medical practitioner to assess and state whether the person could participate if the proceeding or any part of it were conducted in writing or by means of live telecommunication.

Comments on RPD Rules and RAD Rules not resulting in changes

In general, many respondents noted that unrepresented claimants, vulnerable claimants (including those unable to appreciate the nature of the proceedings), unaccompanied minors, and detained claimants may face specific challenges with regard to navigating the reformed refugee determination system due to tighter time limits found in the IRPR and throughout the rules. Respondents referred to challenges associated with making timely applications for extensions of time for providing the BoC form, the requirements of the general applications rule, the timeframes in which resumption dates are chosen and set, and time limits for disclosure, among others.

The IRB recognizes these challenge; however, except in those circumstances noted above, the IRB has not significantly revised its rules in response to these more general comments. Because considerations of natural justice and fairness are always paramount, the IRB member is always able to exempt a party, when appropriate, from the specific requirement of any rule, with proper notice to parties. Members will remain alert to the specific challenges faced by these persons and will use their discretion to ensure that all those who appear before the IRB are provided with a fair and just resolution of their case.

Comments on the RPD Rules

The following outlines key concerns raised by respondents that did not result in further changes to the RPD Rules.

Providing information to the claimant in writing

Several respondents made comments regarding those rules which specify what information must be provided to the claimant by the officer at the point of the eligibility interview and subsequent referral of the claim. One respondent suggested that additional material and information on legal aid be provided to the claimant as early as possible in the process. While this does not necessitate a change to the Rules, the IRB will endeavour to provide information on legal aid programs in its Claimant Kit, to be provided to the claimant at the inland office or port of entry.

Respondents also requested that the officer be required to clarify the concept of abandonment so that the claimant fully understands the impact of not providing the BoC Form in accordance with the time limits, or of not showing up to a hearing. As it falls outside the immediate mandate of the referring officer (CBSA and CIC), this comment has not resulted in a change to the Rules. Instead, IRB material provided to the claimant in the Claimant Kit will emphasize the importance of the time limits for submission of the BoC Form, the dates on the notice to appear and the implications of abandonment.

The BoC Form

Five respondents expressed concerns about rules related to the Basis of Claim (BoC) Form. Two respondents recommended that the BoC Form declaration should be changed to indicate that “the information is true and complete to the best of my knowledge,” rather than “complete, true and correct.” It was indicated in the written comments that without legal advice, claimants cannot properly understand what is being asked of them and therefore cannot know if the information is complete.

The IRB has chosen to maintain the prepublished wording in the BoC Form declaration as this language is consistent with the language used in the Personal Information Form under the current RPD Rules. It remains reasonable to request that the claimant state that the information is “complete, true and correct.” However, it should be noted that members will exercise necessary discretion as to any inferences they draw from omissions and whether or not such omissions affect credibility.

One respondent noted that illiterate claimants should be given flexibility in those situations in which the BoC Form is not filled out and signed as requested. As discretion rests with the member to provide an exemption from the requirements of a rule when necessary and after proper notice to parties, this comment did not necessitate a change in the Rules.

One respondent commented that the Rules were not clear in terms of what documents were to be attached to the BoC Form at the point of its submission to the IRB. The Rules refer to travel and identity documents and a copy of “any other relevant documents” in the possession of the claimant. The respondent requested that the Rules be drafted to clarify whether this means that all supporting documents be provided in support of the claim at this early stage. The IRB has not changed the Rules as its view is that, when read in conjunction with additional rules governing the disclosure of documents, the process is sufficiently clear.

Time limits

The vast majority of respondents were critical of new time limits outlined in the rules that will govern various RPD procedures. Specifically, respondents suggested that the IRB reduce or eliminate the three-day time restriction for filing an extension of time request for providing the BOC Form, reduce or eliminate the 10-day requirement for making amendments to the BOC Form, reduce or eliminate the 10-day disclosure period, and reduce the time limit for requesting a change of location.

The IRB has chosen not to change the rules noted above as the time limits are in keeping with the broader scheme of the RPD Rules and are necessary, from a strictly operational perspective, to ensure that files are ready to proceed to hearing when scheduled. Without time limits, the IRB would be poorly placed to ensure readiness for the hearing day with completed files, resulting in numerous last-minute postponements or adjournments.

Conduct of the hearing

Several respondents were critical of the RPD Rules which stipulate the order of questioning. One respondent suggested that RPD members be given the flexibility to determine an order of questioning that will best serve to bring forth all of the relevant evidence. The order of questioning will be retained as drafted. The rules are a codification of the RPD’s approach as articulated in Guideline 7, Concerning Preparation and Conduct of a Hearing in the Refugee Protection Division. This Guideline was upheld by the Federal Court of Appeal in Thamotharem, (see footnote 7) a decision in which the Court held that this approach to questioning did not breach a claimant’s right to procedural fairness. Furthermore, the order of questioning set out in the RPD Rules is compatible with an amendment to the IRPA from the BRRA, which provides that in any proceeding before it, the RPD may question the witnesses, including the person who is the subject of the proceeding.

Critical comments were also received regarding the limiting of questioning of witnesses. One respondent suggested that claimants or protected persons should not have their questioning limited if the questioning enhances the opportunity to substantiate their case, especially if they are unrepresented. A comment was also received that the Minister, counsel for the claimant and the Division should not be permitted by the Rules to cross-examine the claimant, protected person or other witnesses. However, a RPD hearing is an inquisitorial process and it is up to the member to control the nature and duration of questioning in order to ensure the proceeding is conducted fairly, efficiently and in accordance with the law. Therefore, no rule change is required.

Concerns were expressed that the issuance of an oral decision and reasons at the conclusion of the hearing may not serve the principles of fairness and natural justice. The RPD strives to achieve the objective of quality, fairness and timeliness in decision-making, as well as a more responsive and accessible administration of justice. Oral decisions and reasons delivered at the conclusion of a hearing contribute to these objectives and have been a policy of the IRB since 2000. (see footnote 8)

Overall, with respect to the conduct of a hearing, the IRB has chosen to raise the procedures regarding rendering an oral decision and reasons, limiting the questioning of witnesses, and the order of questioning witnesses to the RPD Rules. This serves to enshrine these practices and procedures in rules, the most authoritative instrument at the disposal of the IRB, which also provides for a more robust and transparent identification of the basic practices and procedures of the RPD to parties who appear before it.

However, the IRB recognizes that circumstances may arise where the order of questioning set out in the Rules may not serve the principles of fairness and natural justice. The IRB also recognizes that rendering an oral decision and reasons at the conclusion of the hearing may not always be practicable. The RPD Rules allow for members to deviate from these procedures and processes as required.

Documents establishing identity and other elements of the claim

Two respondents commented that the rule which requires claimants to provide acceptable documents establishing their identity and other elements of their claim was too vague and should be clarified to provide better guidance to claimants. The current RPD Rules contain the same requirement. As it is the claimant’s responsibility to establish their identity and prove the elements of their claim, it is reasonable to request that the claimant provide acceptable documents to this end. The rule was not changed as a result of these comments. The Claimant’s Kit will highlight the claimant’s responsibility to provide relevant documents and will help clarify what type of documents might be considered acceptable.

Counsel of record

Three respondents provided comments concerning the process to follow to be removed as counsel of record. Specifically, respondents requested that the rule which stipulates that counsel of record remain counsel of record until the request is granted be changed to state that counsel are released as of the Division’s receipt of the written notification. While the IRB is unlikely to require counsel of record to continue to represent a claimant if a request has been made to the Division in a timely manner, the IRB maintains that it has discretion to deny the request in appropriate circumstances, such as where allowing it would impede the timely progress of a proceeding and cause an injustice. With this in mind, the rule has not been changed.

Designated representatives

Several respondents made comments regarding the rules which pertain to designated representatives. For example, a respondent would prefer to see the rules amended so a representative can be designated by the officer at the eligibility interview rather than only the Division. While the IRB agrees that a designated representative should be designated as early as possible in the process, the IRB lacks the jurisdiction to designate a representative prior to the referral of the claim, and the officer lacks the authority to do so at the eligibility interview. Therefore, the rule remains unchanged. However, the RPD Rules do require the referring officer to inform the RPD whether the claimant may need a designated representative and to provide the contact information for any proposed designated representative.

Disclosure of personal information

A respondent commented on the revised rule regarding the disclosure of personal information from one claim to another, if the claims involve similar questions of fact or if the information is otherwise relevant to the determination of the claim. The respondent did not feel that the safeguards outlined in the rules as structured went far enough in protecting the privacy of the individuals involved. The rule was drafted to be consistent with Privacy Act requirements. Therefore, the rules were not changed in response to stakeholder comments.

Integrity issues

Several respondents had comments pertaining to the rules on exclusion, integrity issues, inadmissibility and ineligibility. Five respondents requested that the rule regarding the requirement that the IRB notify the Minister if, in the opinion of the RPD, there is a possibility that issues relating to the integrity of the Canadian refugee protection system may arise from the claim, be removed. Several respondents, commenting specifically on that portion of the rule which provides examples of circumstances in which this notification may arise, stated that changes to the basis of claim should not be sufficient grounds to advise the Minister of possible integrity issues, since changes from the original basis of claim may not be uncommon, as many BoC Forms will be prepared without the assistance of counsel.

The IRB has not removed the rule as it is consistent with one of the objectives of the IRPA, specifically, the one set out in paragraph 3(2)(e) which refers to “maintain[ing] the integrity of the Canadian refugee protection system, while upholding Canada’s respect for the human rights and fundamental freedoms of all human beings.” The rule exists to reflect how the IRB will contribute towards the fulfillment of this collective objective as outlined in the Act. The rule also exists to indicate in a transparent manner what may lead a member to notify the Minister of possible integrity issues. Finally, the rule limits its application by stipulating that the member must also believe that the Minister’s participation will aid in the full and proper hearing of the claim.

Respondents also requested that the Minister be obliged to provide the factual basis on which the ground of intervention is based. The IRB believes that a rule change is unnecessary as the Minister is already obliged to state the purpose for which the Minister will intervene and, in some circumstances, the Minister is obliged to state the facts and law on which the Minister will rely in their intervention.

Disclosure and use of documents

Five respondents commented on the rules governing the disclosure and use of documents; most were in relation to the time limits which are discussed above. One respondent stated that it was unrealistic to have only five days to respond to the Minister’s material, if there is an intervention. While the IRB recognizes the challenges associated with this requirement, the rule has not been changed as the time limits fit within the greater operational scheme of the Rules. Members will hear and decide on applications for exemptions from this requirement on a case-by-case basis.

Change of date and time

Four respondents were critical of the rules concerning applications for a change of date or time of a proceeding. Specifically, comments were received in relation to the time limits for applications for a change of date and time as well as the requirement for medical certificates in support of such an application. While the IRB has changed some requirements (specifically, time limits and certain elements of the requirement for medical certificates), there were other suggestions made by respondents which did not result in changes to the rules. For example, one respondent suggested that the rules be amended to state that the RPD must allow the application to change the date and time of the hearing when the application is reasonable, rather than in exceptional circumstances. A respondent also suggested that the rule be replaced by a simpler, more flexible scheme.

Because the tight but reasonable control of changes to date and time is central to the achievement of the time limits as stipulated in the IRPR, as well as the overall intent of the amended IRPA, the IRB has declined to remove the requirement for exceptional circumstances and has chosen to retain the overall structure of the rule as written.

Abandonment

Several respondents were critical of rules related to determining whether a claim will be declared abandoned. Comments included suggestions that the RPD show more flexibility in specific circumstances where claimants require more time to provide a completed BoC Form. As well, one comment suggested that the notice to appear for abandonment for failure to provide the BoC Form should not be included with the notice to appear for the hearing. It was also suggested that the language must be very explicit in the abandonment notice so that claimants have a clear understanding of the consequences.

With respect to flexibility, as noted earlier, members are always able to waive the requirement of a rule, with due notice to parties, in consideration of fairness and natural justice. Given the fact that there is already flexibility in the application of the Rules when warranted, the rules on abandonment were not amended in this regard.

With respect to the notice to appear for abandonment, it is IRB’s position that providing the claimant with this notice at the same time as their notice to appear for their hearing affords the claimant the maximum notification possible. Furthermore, the consequences of abandonment are clearly explained in the Claimant’s Kit, which the claimant will receive at the same time as their notice to appear.

Decisions

Comments were received suggesting that the RPD should require written reasons for all RPD decisions. The IRB may as a matter of practice issue written reasons for all decisions, but the IRPA does not provide the authority to make a rule in this regard. The IRPA requires the RPD to provide reasons (oral or written) for the final decision in all cases. The IRPA further requires written reasons to be provided if the RPD rejects a claim; if the RPD allows a claim, written reasons must be provided on request of the claimant or the Minister, or “in the circumstances set out in the rules of the Board.” The RPD Rules require written reasons to be provided in almost all circumstances.

There was a comment that there should be a rule stating that the audio recording of the RPD proceeding will be provided to the claimant at the conclusion of the hearing or at the time the decision is rendered. The IRB will establish a practice to ensure claimants requiring access to the audio recording for the purposes of an appeal will receive one in a timely manner following the hearing or decision. As not all claimants require an audio recording, it would be inappropriate to require in the RPD Rules that one be provided in all cases.

Comments on RAD Rules

The following outlines key concerns raised by respondents that did not result in further changes to the RAD Rules.

Filing and perfecting — extensions of time

Several respondents made comments related to rules on extensions of the time to file and perfect appeals at the RAD. For example, two respondents suggested that the rules should facilitate the granting of reasonable applications to extend the time in order to provide a transcript and evidence. Another suggested that the RAD Rules include a process for applying for an extension of time to file documents that are not currently available in support of an appeal. The factors governing the granting of extensions of the time to file and perfect an appeal are in the IRPR, namely, “reasons of fairness and natural justice.” The IRB will consider applications on a case-by-case basis, and apply the factors set out in the IRPR. Therefore, it is not necessary to include rules prescribing when an application to extend the time to file and perfect an appeal will be allowed.

Affidavit in place of transcript

A comment was also made that the RAD Rules should permit the submission of a detailed affidavit in place of a transcript. No rule change was required to address this comment since the RAD Rules do not require transcripts, nor do they prohibit the submission of affidavits, since they constitute documentary evidence.

Transcriber’s qualifications

Another comment was made that the RAD Rules should set out qualifications for transcribers so that members can feel more confident in relying on the accuracy of the transcription. Setting out such qualifications is seen by the IRB as imposing an onerous requirement on parties. Furthermore, the member will always have a copy of the recording of the RPD proceedings, and therefore would not have to rely solely on the declaration of the transcriber in order to verify its accuracy. This practice of not requiring a transcriber’s qualifications is also in keeping with the current practice of the IRB not to require the translator’s qualifications when parties submit translated documents.

Scope of evidence and issues to be considered by the RAD

A respondent suggested that a rule be added stipulating that if the RAD considers issues not identified by the person, all relevant evidence will be considered regardless of when it was available.

In this regard, the IRB’s vision is that the process at the RAD will primarily be a party-driven process and the RAD will determine issues identified by the parties. In the rare event that issues are considered which were not identified by a party, natural justice would require the parties to be informed. With respect to the issue of when certain evidence was available, this consideration will be governed by the relevant provisions of the IRPA, and in particular, section 110 of the IRPA which sets out what evidence the RAD may consider. We note, however, that new evidence is not a requirement to appeal to RAD.

Filing of RPD audio recording

Two respondents suggested that the rules should be amended to permit the filing of the audio recording of the RPD proceeding instead of a transcript and that this audio recording should be provided to the person at the conclusion of the RPD hearing.

The IRB maintains that there is no need to file the audio recording since the RAD Rules already provide for the audio recording to be part of the RPD record that the member will be referring to in making their decision. Nothing precludes a party from referring to a section(s) of the recording in their submissions.

Automatic joining of appeals

One respondent raised a concern about the automatic joining of appeals where the related claims had been joined at the time of the RPD decision and asked that there be an opportunity to object to the joining. The IRB considered this comment and determined that the RAD Rules already provide sufficient opportunity for any person to object to automatic joining of appeals via an application to separate the appeals.

Conduct of hearings at the RAD

In addition to the above comments pertaining to the conduct of RPD hearings, a respondent was also critical of the RAD’s ability to limit questioning of witnesses. The respondent contended that persons should not have their questioning limited if the questioning enhances the opportunity to substantiate their case, especially when they are unrepresented.

The rule regarding the ability to limit questioning of witnesses is well supported by jurisprudence and, in light of the fact that RAD hearings will be restricted in scope, and that the member will be the last to question witnesses, the IRB believes that it is particularly important to set out this ability in the RAD Rules.

Policy instruments, forms and operations at the RAD

One respondent suggested that the RAD provide forms that would help appellants with their proceedings before the RAD. Specifically, it was suggested that the process for appealing and requesting an extension could be facilitated with simple forms that could be filled out by unrepresented persons. It is the intention of the IRB to provide such forms and the Division has engaged in informal consultations with regard to these forms. However, since these forms are not part of the RAD Rules, no rule change was required.

One respondent commented that the RAD should publish information about upcoming cases before a three-member panel in a way that protects a person’s privacy so that potential interested persons can consider whether to bring an application to participate. The IRB intends to provide more details about the process for the assignment and conduct of appeals by three-member panels, including the application by a third party to participate in other policy instruments. Therefore, no change to the RAD Rules was required.

Vulnerable persons

Several respondents raised concerns around vulnerable persons. It was suggested that Guideline 8, Guideline on Procedures with Respect to Vulnerable Persons Appearing before the IRB, be observed at the RAD. As the IRB intends to review and update this Guideline so that it explicitly applies to the RAD, no RAD Rules change was required.

One respondent suggested that the Board use positive discretion for vulnerable persons regarding the use of documents, without requiring them to resort to the general applications rule as is the case for the Minister. Another respondent indicated that there should be greater flexibility for procedural requirements concerning the format and language of documents for unrepresented and detained persons.

The RAD will make accommodations for parties on a case-by-case basis. As with all procedural requirements, the Division will consider any such requests, taking into account the requirements of fairness and natural justice. Where accommodations are made proper notice will be provided to parties.

Rationale

As stated above, the RPD Rules and RAD Rules make an important contribution to the overall objectives of the BRRA and the PCISA and are consistent with the legislative amendments set out in them. The objective of new RPD Rules and RAD Rules is to ensure harmony and clarity between the RPD Rules and RAD Rules and the IRPA as modified by the BRRA and the PCISA.

Furthermore, the RPD Rules and RAD Rules provide clear and transparent direction on Division practices and procedures to parties and their counsel appearing before the IRB, members who render decisions on cases and the IRB staff who support the decision-making process. This direction ensures that parties appear and present their cases before the IRB’s Divisions in a consistent manner, therefore facilitating the efficient administrative processing of cases. It also provides guidance to the Divisions to ensure that all cases are processed in a consistent manner that respects the principles of fairness and natural justice. The efficient administration of cases, facilitated by the use of rules, helps contribute to the overall objective of the BRRA and the PCISA.

As previously stated, if new RPD Rules and RAD Rules are not made prior to implementation of the new system, it will be impossible to properly give effect to the BRRA and the PCISA.

Implementation, enforcement and service standards

The implementation of the RPD Rules and RAD Rules will include activities related to the development of new processes, forms, documents, policies and case management manuals to support the rules, as well as training for personnel affected by the RPD Rules and RAD Rules.

All of these activities are being pursued as a part of the overall implementation strategy for the BRRA and the PCISA.

Performance measurement and evaluation

Three years after the implementation of the new refugee determination system under the BRRA and the PCISA, an evaluation of the new system will be carried out by CIC. The evaluation will be coordinated by CIC and will involve all partners involved in implementing the BRRA and the PCISA. The IRB will participate in a manner which respects the IRB’s status as an independent administrative tribunal.

Contact

Sylvia Cox-Duquette
Senior General Counsel
Immigration and Refugee Board of Canada
344 Slater Street
Ottawa, Ontario
K1A 0K1
Fax: 613-995-2355
Email: reform-reforme@irb-cisr.gc.ca

  • Footnote 1
    SOR/93-45
  • Footnote 2
    SOR/2002-228
  • Footnote 3
    Refugee Protection Division Rules, SOR/2002-228.
  • Footnote 4
    See www.irb-cisr.gc.ca/eng/brdcom/references/pol/Pages/index.aspx for a description of the policy process at the IRB, including governance of policy development and definitions of the seven policy instruments the IRB uses to promote consistency, fairness and transparency.
  • Footnote 5
    Totals may not add up due to rounding.
  • Footnote 6
    It is estimated that if an RPD hearing is postponed more than 48 hours before it was scheduled to occur, the direct salary costs related to such a postponement are $137. In the case of a RAD hearing, it is estimated that these costs will be $172.
  • Footnote 7
    Thamotharem v. Canada (Minister of Citizenship and Immigration), [2008], 1 F.C.R. 385 (F.C.A.).
  • Footnote 8
    Policy on Oral Decisions and Oral Reasons. Immigration and Refugee Board of Canada. Effective July 1, 2000, and re-issued September 10, 2003.
  • Footnote a
    S.C. 2001, c. 27
  • Footnote b
    S.C. 2001, c. 27