Refugee Appeal Division Rules (SOR/2012-257)

Extension of Time

Marginal note:Application for extension of time — Minister

• 12 (1) If the Minister makes an application to the Division for an extension of the time to file or to perfect an appeal under the Regulations, the Minister must do so in accordance with rule 37.

• Marginal note:Accompanying documents — filing

  (2) An application for an extension of the time to file an appeal under subrule (1) must be accompanied by two copies of a written notice of appeal.

• Marginal note:Accompanying documents — perfecting

  (3) An application for an extension of the time to perfect an appeal under subrule (1) must be accompanied by any supporting documents, and an appellant’s record, if any.

• Marginal note:Application for extension of time — person

  (4) A person who is the subject of an appeal may make an application to the Division for an extension of the time to respond to an appeal in accordance with rule 37.

• Marginal note:Content of application for extension of time to respond to appeal

  (5) The person who is the subject of the appeal must include in an application under subrule (4)

  • (a) their name and telephone number, and an address where documents can be provided to them;

  • (b) if represented by counsel, counsel’s contact information and any limitations on counsel’s retainer;

  • (c) the identification number given by the Department of Citizenship and Immigration to them; and

  • (d) the Refugee Protection Division file number, the date of the notice of decision relating to the decision being appealed and the date that they received the written reasons for the decision.

• Marginal note:Factors — respond

  (6) In deciding an application under subrule (4), the Division must consider any relevant factors, including

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

  • (b) whether there is an arguable case;

  • (c) prejudice to the Minister, if the application was granted; and

  • (d) the nature and complexity of the appeal.

• Marginal note:Notification of decision on application

  (7) The Division must without delay notify, in writing, both the person who is the subject of the appeal and the Minister of its decision with respect to an application under subrule (1) or (4).

Disposition of an Appeal

Marginal note:Decision without further notice

13 Unless a hearing is held under subsection 110(6) of the Act, the Division may, without further notice to the parties, decide an appeal on the basis of the materials provided

• (a) if a period of 15 days has passed since the day on which the Minister received the respondent’s record, or the time limit for providing it set out in subrule 10(6) has expired; or

• (b) if the Minister’s reply has been provided.

PART 3Rules Applicable to All Appeals

Communicating with the Division

Marginal note:Communicating with Division

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

Marginal note:Change to contact information

15 If the contact information of a person who is the subject of an appeal changes, the person must without delay provide the changes in writing to the Division and to the Minister.

Counsel

Marginal note:Retaining counsel after providing notice

• 16 (1) If a person who is the subject of an appeal retains counsel after providing a notice of appeal or a notice of intent to respond, as the case may be, the person must without delay provide the counsel’s contact information in writing to the Division and to the Minister.

• Marginal note:Change to counsel’s contact information — person

  (2) If the contact information of counsel for a person who is the subject of an appeal changes, the person must without delay provide the changes in writing to the Division and to the Minister.

• Marginal note:Change to counsel’s contact information — Minister

  (3) If the contact information of counsel for the Minister changes, the Minister must without delay provide the changes in writing to the Division and to the person who is the subject of the appeal.

Marginal note:Declaration — counsel not representing or advising for consideration

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

Marginal note:Becoming counsel of record

• 18 (1) Subject to subrule (2), as soon as counsel for a person who is the subject of an appeal provides on behalf of the person a notice of appeal or a notice of intent to respond, as the case may be, or as soon as a person becomes counsel after the person provided a notice, the counsel becomes counsel of record for the person.

• Marginal note:Limitation on counsel’s retainer

  (2) If a person who is the subject of an appeal 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

• 19 (1) To be removed as counsel of record, counsel for a person who is the subject of an appeal must first provide to the person and to the Minister a copy of a written request to be removed and then provide the written request to the Division.

• Marginal note:Proof request was provided

  (2) The request provided to the Division must be accompanied by proof that copies were provided to the person represented and to the Minister.

• Marginal note:Request — if date for proceeding fixed

  (3) If a date for a proceeding has been fixed and three working days or less remain before that date, counsel must make the request orally at the proceeding.

• Marginal note:Division’s permission required

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

Marginal note:Removing counsel of record

• 20 (1) To remove counsel as counsel of record, a person who is the subject of an appeal must first provide to counsel and to the Minister a copy of a written notice that counsel is no longer counsel for the person and then provide the written notice to the Division.

• Marginal note:Proof notice was provided

  (2) The notice provided to the Division must be accompanied by proof that copies were provided to counsel and to the Minister.

• Marginal note:Ceasing to be counsel of record

  (3) Counsel ceases to be counsel of record when the Division receives the notice.

Refugee Protection Division Record

Marginal note:Providing notice of appeal

• 21 (1) The Division must without delay provide a copy of the notice of appeal to the Refugee Protection Division after the appeal is perfected under rule 3 or 9, as the case may be.

• Marginal note:Preparing and providing record

  (2) The Refugee Protection Division must prepare a record and provide it to the Division no later than 10 days after the day on which the Refugee Protection Division receives the notice of appeal.

• Marginal note:Content of record

  (3) The Refugee Protection Division record must contain

  • (a) the notice of decision and written reasons for the decision that is being appealed;

  • (b) the Basis of Claim Form as defined in the Refugee Protection Division Rules and any changes or additions to it;

  • (c) all documentary evidence that the Refugee Protection Division accepted as evidence, during or after the hearing;

  • (d) any written representations made during or after the hearing but before the decision being appealed was made; and

  • (e) any audio or other electronic recording of the hearing.

• Marginal note:Providing record to absent Minister

  (4) If the Minister did not take part in the proceedings relating to the decision being appealed, the Division must provide a copy of the Refugee Protection Division record to the Minister as soon as the Division receives it.

Language of the Appeal

Marginal note:Choice of language

• 22 (1) A person who is the subject of an appeal must choose English or French as the language of the appeal. The person must indicate that choice in the notice of appeal if they are the appellant or in the notice of intent to respond if they are the respondent.

• Marginal note:Language — Minister’s appeals

  (2) If the appellant is the Minister, the language of the appeal is the language chosen by the person who is the subject of the appeal in the proceedings relating to the decision being appealed.

• Marginal note:Changing language

  (3) A person who is the subject of an appeal may change the language of the appeal that they chose under subrule (1) by notifying the Division and the Minister in writing without delay and, if a date for a proceeding has been fixed, the notice must be received by their recipients no later than 20 days before that date.

Designated Representatives

Marginal note:Continuation of designation

• 23 (1) If the Refugee Protection Division designated a representative for the person who is the subject of the appeal in the proceedings relating to the decision being appealed, the representative is deemed to have been designated by the Division, unless the Division orders otherwise.

• Marginal note:Duty of counsel to notify

  (2) If the Refugee Protection Division did not designate a representative for the person who is the subject of the appeal and counsel for a party believes that the Division should designate a representative for the person because the person is under 18 years of age or is unable to appreciate the nature of the proceedings, counsel must without delay notify the Division in writing.

• Marginal note:Exception

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

• Marginal note:Content of notice

  (4) The notice must include the following information:

  • (a) whether counsel 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 believes that a representative should be designated.

• Marginal note:Requirements for being designated

  (5) 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 person who is the subject of the appeal; and

  • (d) not have interests that conflict with those of the person who is the subject of the appeal.

• Marginal note:Factors

  (6) When determining whether a person who is the subject of an appeal 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 a division other than the Refugee Protection Division.

• Marginal note:Designation applies to all proceedings

  (7) 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

  (8) 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

  (9) 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

  (10) 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

  (11) 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 appeal 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; and

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