Refugee Protection Division Rules (SOR/2012-256)

Interpretation

Marginal note:Definitions

1 The following definitions apply in these Rules.

Act

Act means the Immigration and Refugee Protection Act. (Loi)

Basis of Claim Form

Basis of Claim Form means the form in which a claimant gives the information referred to in Schedule 1. (Formulaire de fondement de la demande d’asile)

contact information

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. (coordonnées)

Division

Division means the Refugee Protection Division. (Section)

officer

officer means a person designated as an officer by the Minister under subsection 6(1) of the Act. (agent)

party

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. (partie)

proceeding

proceeding includes a conference, an application or a hearing. (procédure)

registry office

registry office means a business office of the Division. (greffe)

Regulations

Regulations means the Immigration and Refugee Protection Regulations. (Règlement)

vulnerable person

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. (personne vulnérable)

working day

working day does not include Saturdays, Sundays or other days on which the Board offices are closed. (jour ouvrable)

Communicating with the Division

Marginal note: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

Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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).

Marginal note:Claimant’s contact information

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

• Marginal note: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).

• Marginal note: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.

• Marginal note: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.

Marginal note: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

Marginal note: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.

• Marginal note: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.

• Marginal note: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.

Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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).

• Marginal note: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).

• Marginal note: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).

Marginal note: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.

• Marginal note: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

Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note:Oral representations

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

• Marginal note: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

Marginal note: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

Marginal note: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.

Marginal note: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

Marginal note: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.

• Marginal note: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.

Marginal note: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.

• Marginal note: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.

• Marginal note:Division’s permission required

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

Marginal note: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.

• Marginal note: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

Marginal note: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.

• Marginal note: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.

Marginal note: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.

• Marginal note: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

Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note:Interpreter’s oath

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

Designated Representatives

Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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

Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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

Marginal note: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

Marginal note: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

Marginal note: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.

• Marginal note:Information or documents

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

• Marginal note:Written record

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

Notice to Appear

Marginal note: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.

• Marginal note: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).

• Marginal note: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

Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

Marginal note: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.

• Marginal note: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.

• Marginal note: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

Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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

Marginal note: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

Marginal note: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 ½ inches x 11 inches) paper.

• Marginal note: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 ½ inches x 11 inches) paper.

• Marginal note:List of documents

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

• Marginal note:Consecutively numbered pages

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

Marginal note: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.

• Marginal note: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.

• Marginal note: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

Marginal note: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.

• Marginal note: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.

Marginal note: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.

• Marginal note: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.

• Marginal note: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.

Marginal note: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.

Marginal note: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

Marginal note:General provision

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

Marginal note: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.

• Marginal note:Providing documents to Minister

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

• Marginal note: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.

Marginal note: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.

Marginal note: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.

• Marginal note:Form of application

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

• Marginal note: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.

Marginal note: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.

• Marginal note: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.

• Marginal note: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

Marginal note: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.

• Marginal note: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

Marginal note: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.

• Marginal note: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.

• Marginal note: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

Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

Marginal note: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.

• Marginal note: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.

• Marginal note: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.

Marginal note: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.

• Marginal note: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.

Marginal note: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.

• Marginal note:Written request

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

• Marginal note: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.

• Marginal note:Content of warrant

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

Marginal note: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

Marginal note: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

Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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

Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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

Marginal note:Replying to written response

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

• Marginal note: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.

• Marginal note: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.

• Marginal note: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

Marginal note:Application to change location

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

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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

Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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

Marginal note: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.

• Marginal note: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.

Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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

Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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).

• Marginal note:Reply to response

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

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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

Marginal note: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.

• Marginal note: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.

• Marginal note: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

Marginal note: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.

• Marginal note: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.

• Marginal note: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

Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

Marginal note: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.

• Marginal note:Form of application

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

• Marginal note: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.

• Marginal note: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.

• Marginal note: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

Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

Marginal note: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.

• Marginal note:Form of application

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

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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

Marginal note: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.

• Marginal note: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.

• Marginal note: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

Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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

Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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

Marginal note: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.

• Marginal note: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.

• Marginal note: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.

Marginal note: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.

• Marginal note: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

Marginal note: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.

Marginal note: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.

Marginal note: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

72 [Repeal]

73 [Repeal]

Coming into Force

Marginal note:S.C. 2010, c. 8

Footnote ^*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.

• Return to footnote ^*[Note: Rules in force December 15, 2012, see SI/2012-96.]