Refugee Protection Division Rules (SOR/2012-256)

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.