Refugee Protection Division Rules (SOR/2012-256)

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.