ARCHIVED — Vol. 146, No. 32 — August 11, 2012

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Refugee Protection Division Rules

Statutory authority

Immigration and Refugee Protection Act

Sponsoring agency

Immigration and Refugee Board

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the rules.)

1. Executive summary

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

Description: The following IRB Rules are being proposed:

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

The new Oath or Solemn Affirmation of Office Rules (Immigration and Refugee Board), the rules that govern the oath or solemn affirmation of office taken by IRB decision makers, are not being amended from the version published in the Canada Gazette, Part Ⅰ, on July 2, 2011.

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

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

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

Business and consumer impacts: The proposed RPD Rules and RAD Rules would have no economic impact or implications for business, consumers, competition, jobs or trade.

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

Performance measurement and evaluation plan: Three years after implementation of the new refugee determination system under the BRRA and PCISA, a full review of the new system would be carried out, an effort which will be led by CIC. The IRB would participate in a manner which respects the IRB’s status as an independent administrative tribunal.

2. Background

Canada’s refugee determination system is respected internationally for its high degree of fairness and the quality of its proceedings and decisions. However, the system is being undermined by long wait times and a significant backlog of cases. Individuals who have made an in-Canada refugee protection claim currently wait on average approximately 18 months for an initial decision on their claim. Canada’s refugee determination system is further burdened by a backlog of cases which consisted of 39 400 claims as of the end of March 2012.

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

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

3. Issue

In order to implement the BRRA and the PCISA, there is a need to revise the RPD Rules and RAD Rules that were pre-published in the Canada Gazette, Part Ⅰ, on July 2, 2011. The RPD Rules and RAD Rules would govern the processes of the RPD and RAD respectively.

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

New RPD Rules and RAD Rules are necessary in order to implement the procedural changes in the refugee determination system under the BRRA and the PCISA. It is anticipated that the relevant provisions of the BRRA and the PCISA will come into force by the end of 2012.

4. Objectives

The objective of the new RPD Rules and RAD Rules, as described in this proposal, is to contribute to the implementation of the BRRA, as amended, and the PCISA, so that their intended objectives may be fully realized.

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

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

As a result of the BRRA, as amended by the PCISA, the following changes would be introduced at the IRB upon coming into force:

  • A first-level hearing of refugee claims at the RPD conducted by public servant decision makers at the IRB;
  • A new RAD at the IRB with Governor in Council (GIC) appointed decision makers;
  • Greater rights and flexibility for the Minister to intervene in RAD proceedings;
  • Limits on the jurisdiction of the RPD and the RAD to reopen previously decided claims and appeals;
  • Limits on the types of claims that would have access to an appeal to the RAD;
  • Provision for “Designated Countries of Origin” (DCO), for the purpose of requiring expedited scheduling of RPD hearings and barring access to an appeal to the RAD;
  • A provision allowing claims that are rejected at the first-level hearing to be determined by RPD decision makers as manifestly unfounded;
  • Transfer of the Pre-Removal Risk Assessment (PRRA) function to the RPD (except applications where the applicant falls under subsection 112(3) of the IRPA, e.g. security grounds, serious criminality); and
  • Transitional provisions regarding the processing of claims for refugee protection made before the coming into force of the BRRA and the PCISA.

It is anticipated that the relevant provisions of the BRRA and the PCISA will come into force by the end of 2012. However, the transfer of the PRRA function from CIC to the RPD is expected to take place two years after the other changes to the refugee determination system come into force.

Accordingly, it is anticipated that in 2013–14 the RPD Rules would be further amended to introduce the changes required by the transfer of the PRRA function from CIC to the RPD as outlined in the BRRA and the PCISA. The transfer will come into force two years after the system comes into force. These further changes to the RPD Rules would be made in time for this transfer.

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

Furthermore, later in 2012, the IRB would also be making new Oath or Solemn Affirmation of Office Rules (Immigration and Refugee Board), which are the rules that govern the oath or solemn affirmation of office taken by IRB decision makers. These proposed rules were also prepublished in the Canada Gazette, Part Ⅰ, on July 2, 2011.

The IRB also anticipates making amendments to the Immigration Division Rules and to the Immigration Appeal Division Rules in 2012–13. These amendments would clarify and streamline IRB procedures, harmonize rules that are common to all of the IRB’s Divisions, and address recommendations of the SJCSR.

5. Description

Each Division (or Tribunal) is supported by its own rules. These rules provide clear and transparent direction on the practices and procedures of the Divisions to parties and their counsel appearing before the IRB, the IRB staff who process cases and members who render decisions on cases. This direction ensures that parties appear and present their cases before the IRB’s Divisions in a consistent manner, therefore facilitating the fair and efficient administrative processing of cases. It also provides guidance to the Divisions to ensure that all cases are processed in a consistent manner that respects the principles of fairness and natural justice. The efficient and fair administration of cases, facilitated by the use of rules, helps contribute to the overall objectives of the BRRA and the PCISA. If new RPD Rules and RAD Rules were not made prior to implementation of the new system, it would be impossible to properly give effect to the BRRA and the PCISA. Accordingly, it is proposed that the following changes be made to the RPD Rules and RAD Rules.

Refugee Protection Division Rules (RPD Rules)

The RPD Rules were prepublished in the Canada Gazette, Part Ⅰ, on July 2, 2011, in order to implement the changes introduced under the BRRA. The legislative amendments contained in the BRRA and the PCISA would impact the procedures at the RPD, whose primary function is to decide claims for refugee protection made in Canada. The BRRA had set out a procedure whereby information regarding the claim would be gathered by the IRB through an interview no earlier than 15 days following referral of the claim. With the changes set out in the PCISA, refugee protection claimants instead have to provide information regarding the basis of their claim within the time limits that are set out in the Immigration and Refugee Protection Regulations (IRPR). The RPD Rules would require that this information be collected in the Basis of Claim Form. The Government has indicated that the timelines for submitting the Basis of Claim Form to the IRB would be 15 days following referral for claimants who make their claim at a Port of Entry. For claimants who make their claim inland, the PCISA stipulates that the documents and information required by the rules of the Board in respect of the basis of the claim are to be provided within the time limits provided for in the Regulations to the referring officer. Effectively, this means that an inland claimant would submit the Basis of Claim Form at the eligibility interview.

Under the BRRA, the date for the interview at the RPD was to be set by the referring officer in accordance with the rules of the Board. Under the PCISA, the interview no longer exists but the referring officer at CIC or the CBSA will schedule the hearing in accordance with the Regulations, the rules of the Board and any directions of the Chairperson of the Board. The Government has indicated that the timelines for these hearings, which are to be set out in the IRPR, would be as follows:

  • Within 30 days of referral for DCO claimants who have made their claim inland;
  • Within 45 days of referral for DCO claimants who have made their claim at a Port of Entry; and
  • Within 60 days of referral for all non-DCO claimants.

The following new RPD Rules would be required under the BRRA and the PCISA for the Basis of Claim Form and the first level hearing. These rules were not part of the RPD Rules which were prepublished in the Canada Gazette, Part Ⅰ, on July 2, 2011:

  • The content of the Basis of Claim Form and the way in which it must be provided to the IRB;
  • Procedures for claimants to request an extension of time to provide the Basis of Claim Form;
  • Abandonment procedures should claimants fail to provide the Basis of Claim Form within the regulated timelines; and
  • Setting of the date for the RPD hearing with an IRB public servant decision maker.

The RPD Rules would also include the following provisions, which were prepublished in the Canada Gazette, Part Ⅰ, on July 2, 2011:

  • The conduct of a hearing;
  • Changes incorporating procedures currently contained in Chairperson’s Guidelines and IRB policies, for example regarding designating a representative, changing the location of a proceeding, and postponing or adjourning a proceeding;
  • Changes requested by the Standing Joint Committee for the Scrutiny of Regulations (SJCSR), including some substantive changes, such as a clarification that before a division of the IRB acts on its own initiative, it will give prior notice to the parties and give them an opportunity to object, as well as corrections to technical errors and/or inconsistencies between the English and French versions of the RPD Rules and RAD Rules;
  • Changes requested by the Office of the Commissioner of Official Languages (OCOL) regarding the language of RPD proceedings; and
  • Changes requested by stakeholders regarding vulnerable persons appearing before the RPD.

Changes would also be made to the RPD Rules that were pre-published in the Canada Gazette, Part Ⅰ, on July 2, 2011. Some changes were made as a result of comments received, while others were made to respond to the new processes under the PCISA. These changes would include the following:

  • Changes in order for the RPD to be able to comply with the time limits for the holding of hearings that would be set out in the IRPR. The time limits set out in the RPD Rules would cover such matters as the disclosure of documents, changing the language of the proceedings, changing the language of interpretation, allowing a claim without a hearing, applications, responses and replies, and applications for changing the date and time of hearings;
  • In order to expedite the Division’s appointment of a designated representative, the officer, or counsel, would be required to notify the Division if they believe that the RPD should designate a representative. The change clarifies that their duty to notify the RPD does not apply in the case of a minor claimant whose claim is joined with the claim of their parent or legal guardian, if the parent or legal guardian is 18 years of age or older;
  • The disclosure of country documentation by the Division would be done by providing a list of those documents or information as to where a list could be found on the Board’s Web site;
  • If a time limit under the RPD Rules ends on a day that is not a working day, it would be extended to end on the next day that is a working day;
  • Amended abandonment procedures should a claimant fail to provide the Basis of Claim Form in time or fail to attend a hearing. The rules would specify that for these defaults, officers at the time of referral will provide claimants with notices to appear for a special hearing at which they would have the opportunity to explain why the claim should not be abandoned. The rule would also specify when the proceeding must start or continue if the Division decides not to declare the claim abandoned;
  • Clarification that if a party provides more than one document at a time, a list of those documents would have to be provided and the pages within the package of documents would have to be consecutively numbered;
  • Unless an application to change the date and time of a proceeding is received by the Division no later than three working days before the proceeding, the party making the application would be required to appear and make the application orally on the day of the proceeding, before the time the proceeding is scheduled to start. Also, the rules would provide for a process for an application to change the date and time of a proceeding for situations where counsel was retained or the availability of counsel was provided after the hearing date was fixed;
  • For the purpose of an application to have a proceeding conducted in public, the Minister would be considered to be a party whether or not the Minister takes part in the proceedings; and
  • Two factors included in the prepublished rules as relevant considerations for the Division deciding an application to reopen have been deleted, namely whether an appeal to the RAD or an application for judicial review by the Federal Court had previously been denied. These considerations are precluded by the PCISA amendment to the IRPA that takes away the RPD’s jurisdiction to reopen once the RAD has made a final determination of an appeal or the Federal Court has made a final determination on an application for judicial review.

Another change that would be made to the RPD Rules that were prepublished in the Canada Gazette, Part Ⅰ, on July 2, 2011, is a direct result of the changes in the IRPA which came into force on June 30, 2011. Previously, the IRPR, not the IRPA, defined who was allowed to represent, advise or consult with persons who were the subjects of Board proceedings. Since June 30, 2011, it is the IRPA that sets out who may represent or advise for consideration. References in the prepublished rules to regulations governing counsel have been amended to refer to the IRPA.

Refugee Appeal Division Rules (RAD Rules)

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

New rules for the RAD are required in order to establish the practice and procedure before the RAD. The following provisions which were prepublished in the Canada Gazette, Part Ⅰ, on July 2, 2011, would be included in this proposal:

  • Time limits enabling the RAD to be able to comply with the time limits for decisions on appeals that would be set out in the IRPR. These time limits would cover such matters as responding to appeals, the preparation of the RPD record, and the date that a decision can be made without further notice to the parties;
  • Practices and procedures before the RAD including becoming counsel of record, choosing the language of the appeal, designating a representative, using specialized knowledge, providing a notice of constitutional question, holding conferences, providing documents, making applications, joining or separating appeals, conducting proceedings in public, dealing with the UNHCR and interested persons, making applications for withdrawal, reinstatement and reopening, and rendering decisions; and
  • Provisions applicable to appeals where a hearing would be held. This would apply to a variety of elements related to hearings, including notice of hearing; restriction of the hearing; the calling of witnesses; changing the location of a hearing; applications for postponements and adjournments of a hearing; and abandonment procedures.

Changes would also be made to the RAD Rules that were pre-published in the Canada Gazette, Part Ⅰ, on July 2, 2011. Some changes were made as a result of comments received, while others were made to respond to the changes brought about by the PCISA. These changes would include the following:

  • Different practices and procedures for appeals made by the refugee claimant (where the Minister may intervene in the appeal) and appeals made by the Minister (for example, there are different requirements for the claimant and the Minister respecting the manner in which an appeal is filed and perfected);
  • Rules regarding applications for extensions of time to file and perfect an appeal by both the claimant and the Minister, respond to a Minister’s appeal, or reply to a Minister’s intervention or claimant’s response (the factors for deciding applications for extensions of time to file and perfect an appeal are not set out in the RAD Rules as the legislation provides that time limits, including the extension of those time limits, are to be set out in the IRPR; therefore, guidance on these factors may be provided in another IRB policy instrument);
  • The RPD record would only be requested by the RAD once an appeal has been perfected;
  • If a time limit under the RAD Rules ends on a day that is not a working day, it would be extended to end on the next day that is a working day;
  • Clarification that if a party provides more than one document at a time, a list of those documents would have to be provided and the pages within the package of documents would have to be consecutively numbered;
  • A hearing could be requested by a party at the reply stage if it was not previously requested;
  • A clarification of when the person who is the subject of the appeal would be required to provide an explanation in their submissions of how any of the documentary evidence they are relying on meets the requirements of subsection 110(4) of the IRPA;
  • A change that a party may provide either a full or partial transcript of the RPD hearing, if they are relying on it in the appeal;
  • A change that the United Nations High Commissioner for Refugees may only give notice of its intention to participate in an appeal conducted by a panel of three members;
  • Counsel’s contact information would have to be included in an application to reinstate or to reopen an appeal, if the applicant is the person who is the subject of the appeal;
  • Simplification of abandonment proceedings: Appellants explaining why their appeal should not be declared abandoned would not have to provide a written explanation and then attend a special abandonment hearing. Instead, they would simply have to attend a special abandonment hearing; and
  • The rule regarding applications to reopen appeals now reflects the amendment to the IRPA set out in the PCISA removing the RAD’s jurisdiction to reopen an appeal if the Federal Court has made a final determination on an application for judicial review in the case.

Another change that would be made to the RAD Rules that were prepublished in the Canada Gazette, Part Ⅰ, on July 2, 2011, is a direct result of the changes in IRPA which came into force on June 30, 2011. The provisions regarding “authorized representatives” set out in the IRPR were replaced by new provisions in the IRPA regarding who may represent or advise for consideration.

6. Regulatory and non-regulatory options considered

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

Consideration was given to establishing instructions on the practices and procedures of the IRB’s Divisions through the use of other instruments such as Chairperson’s guidelines, policies, policy notes, or Chairperson’s instructions. (see footnote 1) However, it was determined that enshrining these practices and procedures in rules, the most authoritative instrument at the disposal of the IRB, would provide for more robust and transparent identification of the basic practices and procedures of the IRB. In addition, for persons appearing before an IRB Division, one comprehensive instrument is more readily accessible and easier to use than a series of instruments.

7. Benefits and costs

Overall benefits associated with a reformed refugee determination system

The RPD Rules and RAD Rules, as outlined in this proposal, would contribute to the systemic savings that will result from faster processing under the BRRA and the PCISA. Overall, it has been estimated by CIC that the BRRA and the PCISA will result in savings of $1.4 billion in present value (PV) terms [or $310 million (PV) in net savings] over 10 years due to faster processing and faster removals, largely as a result of failed claimants spending less time in Canada with access to welfare and social services.

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

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

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

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

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

Cost-benefit statement

2012–13 (Base Year)

2016–17

2021–22 (Final Year)

Total Present Value

Average Annual Value

A. Quantified impacts in thousands of dollars

Benefits

Affected stakeholder

 

Savings

Canadian public, federal government, provinces and territories

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

Costs

           

New forms, documents, policies and case management manuals

IRB

$376.6

--

--

$376.6

$37.6

Record of RPD proceeding

IRB

$32.4

$95.2

$64.8

$842.2

$84.2

Interpretation for RAD hearing

IRB

$2.3

$69.7

$47.4

$595.2

$59.5

Written reasons for RPD positive decisions

IRB

$466.6

$342.9

$233.4

$3,381.6

$338.2

Designated representative for RAD hearing

IRB

$4.3

$12.7

$8.6

$112.3

$11.2

Total present value cost(see footnote *)

$882.4

$520.8

$354.4

$5,308.2

$530.8

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

C. Qualitative impacts

Benefits

Affected stakeholder

 

Fairness, integrity, and efficiency

Canadian public, federal government, parties before the IRB

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

Costs

   

Medical certificates

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

By requiring a person to obtain a note signed by a medical practitioner when requesting a postponement of a proceeding or in abandonment proceedings, this proposal would place additional pressures on provincial health authorities in instances where a person’s illness would prevent them from being able to attend a proceeding, but not so serious as to require them to visit a medical practitioner under normal circumstances. Costs would be incurred by the parties in instances where medical practitioners charge a fee for the issuance of a medical certificate.

Conferences

Federal government, provinces and territories, parties before the IRB

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

Transcripts

Refugee claimants and CIC/CBSA appearing before the RAD

The proposed RAD Rules would require the parties, should they choose to rely on the transcript of the RPD hearing at the RAD appeal, to submit a full or partial transcript of the hearing to the RAD. It is not expected that the parties would require a transcript in every appeal. Although parties could produce the transcript at no cost by producing the transcript themselves, or relying on friends, family, or community volunteers to create the transcript, costs would be incurred should they choose a service provider, such as a professional transcription company, to complete the transcript. A review of billing schedules by service providers indicates that transcription companies charge on average $300 to transcribe a complete RPD hearing.

Summons

Refugee claimants and CIC/CBSA appearing before the RAD

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

Provision of key documents

Refugee claimants

The new RPD Rules in certain circumstances require claimants to provide a copy of their Basis of Claim Form, any amendments to their Basis of Claim Form, identity and travel documents, and any other relevant documents in their possession to both the IRB and the Minister. Placing the onus on the claimant to serve both the IRB and the Minister represents a change as currently it is the IRB Registry that shares documentation with the Minister. This additional cost will be borne by the claimant. Documents may be provided by hand, mail in some cases, fax in some cases, and courier.

Benefits associated directly with the proposed RPD Rules and RAD Rules

The proposed RPD Rules and RAD Rules outlined in this proposal would contribute directly to the integrity and efficiency of IRB proceedings while maintaining fairness, thus increasing the overall fairness and efficiency of the refugee determination system.

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

Benefits — Medical certificates

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

  • a reduction in the number of cases that are rescheduled by deterring persons who are the subject of proceedings from making frivolous applications that are not supported by objective evidence;
  • where explanations include medical reasons, those reasons would be supported by appropriate objective medical evidence: the objective evidence would allow the decision maker to make an informed decision according to the circumstances of each application;
  • the IRB could schedule its proceedings efficiently and effectively by knowing if the proceeding could be conducted by other means than in person and knowing in advance when a person would be able to participate in a proceeding; and
  • the RPD Rules and RAD Rules would be consistent with the proposed common rules of the other Divisions.

Costs associated directly with the proposed RPD Rules and RAD Rules

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

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

Operational and process requirements

  • The proposed RPD Rules and RAD Rules would require a number of new forms, documents, policies and case management manuals to be developed, and in some cases, translated into multiple languages. These materials would contribute to fair and efficient processes in the RPD and the RAD. Examples of material that would be needed include basic process information to be shared with claimants, notices to appear for various proceedings, notices of decision for the RAD, and forms for various RAD processes. The one-time cost for the development of these materials would not exceed $376 600 (PV).
  • Once an appeal to the RAD has been filed, the RPD would have to prepare a record (a document that contains all of the information the decision maker relied upon at the hearing) to share with all parties to the appeal. The creation of the RAD and the stipulation in the proposed RAD Rules that the RPD must supply the record of the RPD proceeding represent an additional expense for the IRB. Based on the previously identified processing volume of RPD and RAD cases, the annual average cost for preparing the RPD record for the RAD would be $84 200 (PV) over a 10-year period.
  • In keeping with principles of fairness and natural justice that govern proceedings before the IRB, the proposed RAD Rules would provide for interpretation at the oral RAD hearing, if one is held. While the RPD requires interpreters currently, the additional demand on interpreters as a result of the RAD hearing will create additional costs for the IRB. Additional interpreters would have to be recruited and certified to meet the demand, and the number of interpreter hours at the IRB would increase due to the new requirement for an interpreter at the RAD oral hearings. Based on the previously identified processing volume of RAD cases, the annual average costs associated with an increased requirement for interpretation would be $59 500 (PV) over a 10-year period.

Written reasons for RPD positive decisions

The new RPD Rules require RPD decision makers in most cases to provide written reasons for positive decisions on claims for refugee protection. This new requirement represents an additional cost to the IRB, as written reasons for positive decisions are not currently provided on a routine basis. The overall cost includes the cost of the transcription of the relevant portion of the proceedings if the decision and reasons are delivered orally, as well as the cost of the time required of members and their support staff when drafting and editing reserved decisions and reasons (i.e. those not delivered orally at the hearing). The average annual costs to the IRB associated with this requirement would be $358 500 (PV) over a 10-year period.

Designated representatives

A representative is designated when the person concerned is less than 18 years of age or, in the opinion of a Division, is unable to appreciate the nature of the proceedings. In certain circumstances, the IRB pays an honorarium to the individual acting as the designated representative. Designated representatives are currently required for RPD claims; under the new procedures, designated representatives would also be required throughout the appeal process at the RAD. Based on previously identified processing volumes and the number of representatives designated in 2008–09 and 2009–10 at the RPD, the average annual costs to the IRB associated with this requirement would be $11 200 (PV) over a 10-year period.

Conferences at the RAD

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

Medical certificates

To fulfill its legislated mandate and meet the regulatory timelines for RPD hearings, the IRB must schedule its proceedings so that cases before its various divisions are finalized as quickly as possible. Proceedings that are postponed and then rescheduled to a later date negatively impact this objective. Moreover, significant costs are incurred by the IRB when a proceeding must be rescheduled. In the RPD, if a hearing is postponed on the day it was scheduled to proceed, the direct salary costs incurred by the IRB are $251. In the RAD, the costs are $289. (see footnote 2)

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

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

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

The rules would specify that the certificate must include information regarding

  • the particulars of the medical condition, without specifying the diagnosis, that prevents the party from participating in the hearing or completing their Basis of Claim Form on the date fixed;
  • whether the party could participate in the proceeding if it were conducted in writing or by means of live telecommunication; and
  • the date on which the party is expected to be able to participate in the proceeding (or pursue their appeal for explanations regarding abandonment of an appeal).

Cost — Medical certificate to support extension of time to file a Basis of Claim Form or abandonment or to support postponement of a hearing

Costs would be incurred by persons who are the subject of proceedings in instances where medical practitioners charge a fee for the issuance of a medical certificate. Following a review of medical fees in various jurisdictions and based on the current legislation, it is estimated that a person would pay on average $20 to obtain the required medical certificate.

It is expected that in most circumstances, persons whose explanations include medical reasons would seek medical assistance; therefore, they would obtain a medical certificate regardless of the requirement set out in this proposal. However, it is anticipated that this may place pressures on social services in instances where a person’s illness might prevent them from attending a hearing, but is not sufficiently serious to justify a visit to a medical practitioner. It is expected that postponement requests of this nature would be made on the day of the hearing.

Table 2 sets out the gross direct payments made by provincial health authorities to physicians who provide a “major assessment” (see footnote 3)to a patient. For purposes of comparing costs to social services and costs to the IRB to reschedule a proceeding, the “major assessment” category was determined to be the most likely medical service provided to a person whose illness would prevent them from attending a proceeding, but not so serious as to require them to visit a medical practitioner under normal circumstances.

Table 2: Family medicine — Cost per service by national grouping system strata and province or territory, 2008–09 in dollars

N.L.

P.E.I.

N.S.

N.B.

Que.

Ont.

Major assessments

49.72

NR

49.89

48.53

69.26

58.51


Man.

Sask.

Alta.

B.C.

Y.T.

Total

Major assessments

59.79

65.68

78.10

72.31

NR

65.57

Notes:

NR: Not reported
Prince Edward Island data is excluded due to a data quality review of data quality issues with service utilization information.
Based on gross domestic payments. Reciprocal billing payments not included.
Alternative forms of reimbursement, such as salary and capitation, are not included.
Source: Canadian Institute for Health Information (CIHI), National Physician Database, 2008–2009 — Data Release (Ottawa, Ont.: CIHI, 2010).

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

Transcripts

The proposed RAD Rules would require the parties, should they choose to rely on the transcript of the RPD hearing at the RAD appeal, to submit a full or partial transcript of the hearing to the RAD. It is not expected that the parties would require a transcript in every appeal. Unlike what was indicated in the Regulatory Impact Analysis Statement (RIAS) accompanying the RPD Rules and RAD Rules which were prepublished in the Canada Gazette, Part Ⅰ, on July 2, 2011, the IRB would not, as a practice, provide parties with a transcript of the RPD proceeding for the purposes of filing an appeal at the RAD. The RAD Rules would stipulate that a party must file with the RAD a full or partial transcript of the RPD hearing, if the party wishes to rely on the transcript in the appeal. The proposed RAD Rules would not stipulate how a party is to obtain a transcript, or who is to create the transcript. They would state that the transcript must be full or partial and accompanied by a transcriber’s declaration. As is the case currently, an electronic recording of the RPD hearing would be made available to claimants and the Minister. It would therefore be for the parties to decide how they would obtain a transcript. Parties could obtain the transcript at no cost by transcribing it themselves, or with the help of family members, friends, or community volunteers. The parties would incur monetized costs should they choose a service provider, such as a professional transcription company, to complete the transcript. A review of billing schedules by service providers indicates that transcription companies charge on average $300 to transcribe a complete RPD hearing. The total costs associated with this new process have not been quantified given that it is unknown how many parties will choose to rely on the transcript of the RPD hearing, or how the parties will go about obtaining transcripts.

Summons

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

Provision of key documents

The new RPD Rules in certain circumstances require claimants to provide a copy of their Basis of Claim Form, including any amendments to their Basis of Claim Form, identity and travel documents, and any other relevant documents in their possession to both the IRB and the Minister. Placing the onus on the claimant to serve both the IRB and the Minister represents a change, as currently it is the IRB Registry that shares documentation with the Minister. This additional cost will be borne by the claimant. Documents may be provided by hand, mail in some cases, fax in some cases, and courier.

8. Small business lens

This proposal will not impose any level of compliance costs and/or administrative costs on small business.

9. Consultation

Balanced Refugee Reform Act (BRRA)

Information sessions and written consultations

The proposed RPD Rules and RAD Rules, prepublished in July 2011, were originally drafted to ensure consistency with the BRRA. As part of their development, the IRB conducted information sessions in the fall of 2010 for stakeholders in Montréal, Toronto and Vancouver, as well as a period of written consultations during which portfolio partners within the federal public service and stakeholders were provided with draft copies of the proposed RPD Rules and RAD Rules and asked to submit written comments. Comments were solicited from CIC, CBSA, selected academics, and national stakeholders such as the Canadian Council for Refugees, the Canadian Bar Association (Citizenship and Immigration Law Section), the Ontario Bar Association, the Quebec Immigration Lawyers Association, the Refugee Lawyers’ Association of Ontario, the Programme régional d’accueil et d’intégration des demandeurs d’asile, the Canadian Association of Professional Immigration Consultants, and the United Nations High Commissioner for Refugees. Regional stakeholders, such as provincial legal aid organizations, as well as local non-governmental organizations (advocacy groups and settlement organizations) were also included in this period of written consultations.

The draft RPD Rules and RAD Rules, which were circulated to stakeholders and portfolio partners, were received with a mixed level of support and opposition. While stakeholders were pleased that the draft RPD Rules and RAD Rules incorporated changes that had been requested in the past, and portfolio partners were satisfied that the draft RPD Rules and RAD Rules were consistent with the intent of the BRRA, a number of concerns were expressed. These concerns were reviewed and addressed to the extent possible in the RPD Rules and RAD Rules that were pre-published in the Canada Gazette, Part Ⅰ, on July 2, 2011. The pre-published proposal reflected the following changes made as a result of stakeholder and portfolio partner comments:

  • In an Application to Vacate Refugee Protection or an Application to Cease Refugee Protection, it would no longer be necessary for the Minister to send a copy of the application, in addition to the original application, to the RPD.
  • Lawyers’ organizations expressed concerns about the apparent restricted role of counsel in the interview as outlined in the draft RPD Rules and RAD Rules. The prepublished RPD Rules which are the subject of this proposal provided for a more positive description of the role for counsel.
  • The information kit that CBSA and CIC officers would provide to referred claimants satisfied the suggestion that prehearing information be made available.
  • The recording of the interview would be provided to claimants.
  • The proposed RPD Rules and RAD Rules clearly set out the information and documents an appellant would be required to file with the RAD in order to perfect the appeal within the mandatory time limits that would be set out in the IRPR.
  • The IRB would provide, at no cost to the parties, a transcript of the RPD hearing for the purposes of pursuing an appeal at the RAD. This would be the practice of the IRB as the rules do not specify that the parties must provide the transcript at their own cost.
  • The proposed RPD Rules and RAD Rules incorporate detailed procedures for the designation of representatives.

Prepublication comments

The proposed RPD Rules and RAD Rules were prepublished in the Canada Gazette, Part Ⅰ, on July 2, 2011, and open for public comment for a period of 30 days. Submissions were received from the Canadian Council for Refugees, the Legal Services Society of British Columbia, the Refugee Lawyers’ Association of Ontario, the United Nations High Commissioner for Refugees, and an academic. A total of 78 comments about specific RPD Rules and RAD Rules were received. Of the five respondents, one also provided comments on the Regulatory Impact Analysis Statement (RIAS) and two provided general comments on the proposed RPD Rules and RAD Rules. One respondent welcomed the detailing of the role of designated representatives in the RPD Rules and RAD Rules. A respondent also welcomed changes to Schedules 1 and 2 of the RPD Rules. No comments were received on the Oath or Solemn Affirmation of Office Rules (Immigration and Refugee Board), which were also prepublished on the same date. The comments were reviewed and given careful consideration to determine if changes to the text of the rules were required.

Changes to the RPD Rules and RAD Rules following pre-publication in the Canada Gazette, Part Ⅰ, are reported in the “Description” section above.

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

  • Two respondents were critical of the RPD Rules regarding the conduct of a hearing — in particular, the rules regarding the order of questioning at a hearing, and the rule requiring that an oral decision and reasons be rendered at the end of a hearing unless it is not practicable to do so.

 With regard to the order of questioning, one respondent suggested that refugee claimants will not be given a fair opportunity to prove their case as refugee claimants will be asked questions about their claim by an official of the Board at an interview and then by a member at the hearing. Refugee claimants will only have the opportunity to present their case once the member has finished asking questions at the hearing.

 With regard to oral decisions and reasons, one respondent suggested that the mandatory language of the rule could lead to breaches of natural justice in numerous circumstances.

Concerning rules regarding the order of questioning, no changes were made as the Federal Court of Appeal in Thamotharem (see footnote 4) held that the procedures regarding the order of questioning set out in Guideline 7: Concerning Preparation and Conduct of a Hearing in the Refugee Protection Division (see footnote 5) did not breach a claimant’s right to procedural fairness.

Concerning oral decisions, the IRB strives to achieve the objective of quality and timeliness in decision making, as well as a more responsive and accessible administration of justice. Oral decisions and reasons delivered at the conclusion of a hearing contribute to these objectives. This practice has been the norm for decision making in the Immigration and Refugee Board since 2000. (see footnote 6)

The IRB has therefore chosen to raise the procedures regarding oral decisions and the order of questioning to the RPD Rules, as enshrining these practices and procedures in rules, the most authoritative instrument at the disposal of the IRB, will provide for more robust and transparent identification of the basic practices and procedures of the IRB. However, the IRB recognizes that exceptional circumstances may arise where the order of questioning set out in the rules or the issuing of an oral decision and reasons at the conclusion of the hearing may not serve the principles of fairness and natural justice. Therefore, the RPD Rules allow for members to deviate from these procedures and processes as necessary.

  • Two respondents were critical of the RPD Rules which provide that if the RPD believes that there is a possibility that issues relating to the integrity of the Canadian refugee protection system may arise from the claim, and the RPD 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 (represented by the Canada Border Services Agency). Once the information is provided, the Minister may do with it as the Minister sees fit, including participating in the proceeding for the purposes of opposing the refugee claim.

While one respondent articulated that it was not clear why such a rule was required, another articulated that such a rule was problematic as “the integrity of the Canadian refugee protection system” is a vague concept that has no basis in law and is not defined in the rules. The respondent’s view was that this would lead to an inconsistent application of the Rule. Moreover, such a rule would threaten the non-adversarial nature of RPD proceedings.

The IRB has chosen to include this provision in the RPD Rules as such a procedure is consistent with the objectives and application of the IRPA. (see footnote 7) Furthermore, the Minister is responsible for the administration of the IRPA, including enforcement. It is therefore appropriate that the RPD Rules would set out procedures and parameters for when the RPD would notify the Minister when circumstances relating to the integrity of the Canadian refugee protection system may arise from a claim for refugee protection.

  • Respondents commented that the RPD Rules and RAD Rules should provide for further accommodations for claimants that are not represented by legal counsel.

The RPD Rules and RAD Rules set out clear and transparent direction on the practices and procedures of each Division. While each individual rule does not necessarily make specific accommodations for specific circumstances, including situations where claimants are not represented by legal counsel, both Divisions must enforce the rules in a manner that respects the principles of fairness and natural justice. This includes taking into consideration the circumstances of individual claimants. The rules also contemplate situations where a claimant may not be able to comply with a rule for valid reasons. As a result, the RPD Rules and RAD Rules include provisions to change the requirement of a rule, or excuse a person from a requirement of a rule.

  • One respondent was critical of the content and focus of the prepublished RIAS. The respondent argued that it presented the context and rationale for the changes to the RPD Rules and RAD Rules in a manner that was inappropriate for an independent tribunal by
  • emphasizing efficiency over fairness as an objective of the BRRA; and
  • concerning itself with the quick removal of claimants and presenting figures about the costs of failed refugee claimants.

The RIAS, which accompanied the rules which were pre-published in the Canada Gazette, Part Ⅰ, on July 2, 2011, strikes the appropriate balance by accurately outlining the objectives and changes brought about by the BRRA. Moreover, it emphasizes that the rules are designed to ensure that cases are processed efficiently and in a manner which respects the principles of fairness and natural justice.

The Protecting Canada’s Immigration System Act (PCISA)

Following the prepublication of the proposed rules in the Canada Gazette, Part Ⅰ, on July 2, 2011, the Minister introduced Bill C-31, the Protecting Canada’s Immigration System Act (PCISA). The PCISA, which received Royal Assent on June 28, 2012, includes legislative amendments to the BRRA and the IRPA that are intended to further expedite the processing of refugee claims. As a result of these legislative amendments, the proposed RPD Rules and RAD Rules have been updated. The proposed updated rules will be shared with stakeholders, partners and staff, and the IRB will conduct consultations.

10. Rationale

As stated above, the proposed RPD Rules and RAD Rules would make an important contribution to the overall objectives of the BRRA and the PCISA, which are to ensure the faster processing of claims, faster removals of failed claimants, and the deterrence of non-genuine claims.

More specifically, the proposed RPD Rules and RAD Rules would be consistent with the legislative amendments in the BRRA and the PCISA. The objective of proposing new RPD Rules and RAD Rules is to ensure harmony and clarity among the RPD Rules and RAD Rules and the IRPA as it will be modified by the BRRA and the PCISA.

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

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

11. Implementation and enforcement

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

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

12. Performance measurement and evaluation

The proposed RPD Rules and RAD Rules would allow the practices of the IRB to be consistent with the BRRA and the PCISA. If new RPD Rules and RAD Rules are not made prior to the implementation of the new system, it would be impossible to give effect properly to the BRRA and the PCISA.

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

13. Contact

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

PROPOSED REGULATORY TEXT

Notice is hereby given that the Chairperson of the Immigration and Refugee Board, pursuant to subsection 161(1) of the Immigration and Refugee Protection Act (see footnote a), and subject to the approval of the Governor in Council, in consultation with the Deputy Chairpersons and the Director General of the Immigration Division, proposes to make the annexed Refugee Protection Division Rules.

Interested persons may make representations concerning the proposed Rules within 30 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part Ⅰ, and the date of publication of this notice, and be addressed to Sylvia Cox-Duquette, Senior General Counsel, Immigration and Refugee Board, 344 Slater Street, Ottawa, Ontario K1A 0K1 (fax: 613-995-2355; email: reform-reforme@irb-cisr.gc.ca).

Ottawa, July 25, 2012

JURICA ČAPKUN
Assistant Clerk of the Privy Council

REFUGEE PROTECTION DIVISION RULES

INTERPRETATION

Definitions

1. The following definitions apply in these Rules.

“Act”
« Loi »

“Act” means the Immigration and Refugee Protection Act.

“Basis of Claim Form”
« Formulaire de fondement de la demande »

“Basis of Claim Form” means the form in which a claimant gives the information referred to in Schedule 1.

“contact information”
« coordonnées »

“contact information” means, with respect to a person,

  • (a) the person’s name, postal address and telephone number, and their fax number and email address, if any; and

  • (b) in the case of counsel for a claimant or protected person, if the counsel is a person referred to in any of paragraphs 91(2)(a) to (c) of the Act, in addition to the information referred to in paragraph (a), the name of the body of which the counsel is a member and the membership identification number issued to the counsel.

“Division”
« Section »

“Division” means the Refugee Protection Division.

“officer”
« agent »

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

“party”
« partie »

“party” means,

  • (a) in the case of a claim for refugee protection, the claimant and, if the Minister intervenes in the claim, the Minister; and

  • (b) in the case of an application to vacate or to cease refugee protection, the protected person and the Minister.

“proceeding”
« procédure »

“proceeding” includes a conference, an application or a hearing.

“Regulations”
« Règlement »

“Regulations” means the Immigration and Refugee Protection Regulations.

“vulnerable person”
« personne vulnérable »

“vulnerable person” means a person who has been identified as vulnerable under the Guideline on Procedures with Respect to Vulnerable Persons Appearing Before the IRB issued under paragraph 159(1)(h) of the Act.

“working day”
« jour ouvrable »

“working day” does not include Saturdays, Sundays or other days on which the Board offices are closed.

COMMUNICATING WITH THE DIVISION

Communicating with Division

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

INFORMATION AND DOCUMENTS TO BE PROVIDED

CLAIMS FOR REFUGEE PROTECTION

Fixing date, time and location of hearing

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

Date fixed by officer

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

Factors

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

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

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

Providing information to claimant in writing

(4) The officer must

  • (a) notify the claimant in writing by way of a notice to appear

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

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

  • (c) provide to the claimant information in writing

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

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

    • (iii) explaining how the hearing will proceed,

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

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

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

Providing information in writing and documents to Division

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

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

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

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

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

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

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

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

Providing copies to claimant

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

Claimant’s contact information

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

Time limit

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

Change to contact information

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

Information concerning claimant’s counsel

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

Declaration — counsel not representing or advising for consideration

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

BASIS OF CLAIM FORM

Claimant’s declarations

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

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

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

Form completed without interpreter

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

Interpreter’s declaration

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

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

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

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

Providing Basis of Claim Form — inland claim

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

Providing Basis of Claim Form — port of entry claim

(2) A claimant other than a claimant referred to in subsection 99(3.1) of the Act must provide

  • (a) the original completed Basis of Claim Form to the Division; and

  • (b) one copy to the Minister.

Documents to be attached

(3) The claimant must attach to the original and 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 the copy of a document that has been seized by an officer or provided to the Division by an officer.

Documents obtained after providing Basis of Claim Form

(4) If the claimant obtains an identity or travel document after the Division and the Minister have received the completed Basis of Claim Form, they must provide a copy of the document to the Division and to the Minister without delay.

Providing Basis of Claim Form — port of entry claim

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

  • (a) received by the Division and the Minister 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 recipient consents to receiving more than 20 pages, or

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

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

Application for extension of time

8. (1) A claimant who makes an application for an extension of time to provide the completed Basis of Claim Form must make the application in accordance with rule 50 and no later than three working days before the expiry of the time limit set out in the Regulations.

Application for medical reasons

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

Content of certificate

(3) 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).

Providing Basis of Claim Form after extension granted

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

Changes or additions to Basis of Claim Form

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

  • (a) provide each page of the form to which changes or additions have been made, together with a full explanation for the changes or additions, first to the Minister and then to the Division; and

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

Time limit

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

Proof documents provided

(3) The documents provided to the Division under subrule (1) must be accompanied by a written statement indicating how and when they were provided to the Minister.

CONDUCT OF A HEARING

Standard order of questioning

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

Order of questioning — Minister’s intervention on exclusion issue

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

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

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

Order of questioning — application to vacate or cease refugee protection

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

Variation of order of questioning

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

Limiting questioning of witnesses

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

Oral representations

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

Oral decision and reasons

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

DOCUMENTS ESTABLISHING IDENTITY AND OTHER ELEMENTS OF THE CLAIM

Documents

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

APPLICATION TO VACATE OR TO CEASE REFUGEE PROTECTION

Contact information

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

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

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

Declaration — counsel not representing or advising for consideration

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

COUNSEL OF RECORD

Becoming counsel of record

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

Limitation on counsel’s retainer

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

Request to be removed as counsel of record

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

Oral request

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

Division’s permission required

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

Removing counsel of record

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

Ceasing to be counsel of record

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

LANGUAGE OF PROCEEDINGS

Choice of language — claim for refugee protection

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

Changing language

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

Choice of language — application to vacate or cease refugee protection

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

Changing language

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

INTERPRETERS

Need for interpreter — claimant

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

Changing language of interpretation

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

Need for interpreter — protected person

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

Need for interpreter — witness

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

Interpreter’s oath

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

DESIGNATED REPRESENTATIVES

Duty of counsel or officer to notify

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

Exception

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

Content of notice

(3) The notice must include the following information:

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

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

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

Requirements for being designated

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

  • (a) be 18 years of age or older;

  • (b) understand the nature of the proceedings;

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

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

Factors

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

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

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

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

Designation applies to all proceedings

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

End of designation — person reaches 18 years of age

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

Termination of designation

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

Designation criteria

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

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

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

Responsibilities of representative

(10) The responsibilities of a designated representative include

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

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

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

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

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

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

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

DISCLOSURE OF PERSONAL INFORMATION

Disclosure of information from another claim

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

Notice to another claimant

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

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

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

Request for disclosure

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

Notice to claimant

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

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

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

Information not to be disclosed

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

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

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

Information from joined claims

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

SPECIALIZED KNOWLEDGE

Notice to parties

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

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

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

ALLOWING A CLAIM WITHOUT A HEARING

Claim allowed without hearing

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

CONFERENCES

Requirement to participate at conference

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

Information or documents

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

Written record

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

NOTICE TO APPEAR

Notice to appear

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

Notice to appear for hearing

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

Date fixed for hearing

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

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

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

EXCLUSION, INTEGRITY ISSUES, INADMISSIBILITY AND INELIGIBILITY

Notice to Minister of possible exclusion before hearing

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

Notice to Minister of possible exclusion during hearing

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

Disclosure to claimant

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

Resumption of hearing

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

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

  • (b) otherwise, no earlier than 14 days after the provision of notice to the Minister.

Notice to Minister of possible integrity issues before hearing

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

Notice to Minister of possible integrity issues during hearing

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

Integrity issues

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

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

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

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

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

Disclosure to claimant

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

Resumption of hearing

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

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

  • (b) otherwise, no earlier than 14 days after the provision of notice to the Minister.

Notice of possible inadmissibility or ineligibility

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

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

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

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

Disclosure to claimant

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

Continuation of proceeding

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

INTERVENTION BY THE MINISTER

Notice of intention to intervene

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

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

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

Contents of notice

(2) In the notice, the Minister must state

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

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

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

Intervention — exclusion clauses

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

Time limit

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

CLAIMANT OR PROTECTED PERSON IN CUSTODY

Custody

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

DOCUMENTS

FORM AND LANGUAGE OF DOCUMENTS

Documents prepared by party

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

Photocopies

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

List of documents

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

Consecutively numbered pages

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

Language of documents — claimant or protected person

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

Language of Minister’s documents

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

Translator’s declaration

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

DISCLOSURE AND USE OF DOCUMENTS

Disclosure of documents by Division

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

Disclosure of country documentation by Division

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

Disclosure of documents by party

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

Proof that document was provided

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

Time limit

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

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

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

Documents relevant and not duplicate

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

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

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

Use of undisclosed documents

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

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

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

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

PROVIDING A DOCUMENT

General provision

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

Providing documents to Division

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

Providing documents to Minister

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

Providing documents to person other than Minister

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

How to provide document

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

  • (a) by hand;

  • (b) by regular mail or registered mail;

  • (c) by courier;

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

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

Application if unable to provide document

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

Form of application

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

Allowing application

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

When document received by Division

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

When document received by recipient other than Division

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

Extension of time limit — next working day

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

ORIGINAL DOCUMENTS

Original documents

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

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

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

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

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

ADDITIONAL DOCUMENTS

Documents after hearing

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

Application

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

Factors

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

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

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

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

WITNESSES

Providing witness information

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

  • (a) the witness’s contact information;

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

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

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

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

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

Proof witness information provided

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

Time limit

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

Failure to provide witness information

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

Factors

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

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

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

Requesting summons

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

Factors

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

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

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

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

Using summons

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

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

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

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

Cancelling summons

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

Application

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

Arrest warrant

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

Written request

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

Requirements for issue of arrest warrant

(3) The Division must not issue a warrant unless

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

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

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

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

Content of warrant

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

Excluded witness

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

APPLICATIONS

GENERAL

General provision

49. Unless these Rules provide otherwise,

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

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

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

HOW TO MAKE AN APPLICATION

Written application and time limit

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

Oral application

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

Content of application

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

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

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

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

Affidavit or statutory declaration

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

Providing application to other party and Division

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

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

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

HOW TO RESPOND TO A WRITTEN APPLICATION

Responding to written application

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

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

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

Evidence in written response

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

Providing response

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

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

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

Time limit

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

HOW TO REPLY TO A WRITTEN RESPONSE

Replying to written response

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

Evidence in reply

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

Providing reply

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

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

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

Time limit

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

CHANGING THE LOCATION OF A PROCEEDING

Application to change location

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

Form and content of application

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

Time limit

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

Factors

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

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

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

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

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

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

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

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

Duty to appear

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

CHANGING THE DATE OR TIME OF A PROCEEDING

Application in writing

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

Submission 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 five working days after the date originally fixed for the proceeding, on which the party is available to start or continue the proceeding.

Oral application

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

Factors

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

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

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

Counsel retained or availability of counsel provided after hearing date fixed

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

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

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

  • (c) the application is made in writing;

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

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

Application for medical reasons

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

Content of certificate

(7) The medical certificate must set out

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

  • (b) whether the claimant or protected person could participate if the proceeding or any part of it were conducted in writing or by means of live telecommunication; and

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

Subsequent application

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

Duty to appear

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

New date

(10) 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 five working days after the date originally fixed for the proceeding or as soon as possible after that date.

JOINING OR SEPARATING CLAIMS OR APPLICATIONS

Claims automatically joined

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

Applications joined if claims joined

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

Application to join

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

Application to separate

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

Form of application and providing application

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

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

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

Time limit

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

Factors

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

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

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

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

PROCEEDINGS CONDUCTED IN PUBLIC

Minister considered party

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

Application

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

Oral application

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

Content of application

(4) In the application, the person must

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

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

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

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

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

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

Providing application

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

Response to application

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

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

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

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

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

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

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

Providing response

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

Providing response to applicant

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

Reply to response

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

Providing reply

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

Time limit

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

Confidentiality

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

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

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

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

Summary of response

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

Notification of decision on application

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

OBSERVERS

Observers

58. (1) An application under rule 57 is not necessary if an observer is a member of the staff of the Board, 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 the media at the proceeding.

Observers — factor

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

Observers — confidentiality of proceeding

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

WITHDRAWAL

Abuse of process

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

Withdrawal if no substantive evidence accepted

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

Withdrawal if substantive evidence accepted

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

REINSTATING A WITHDRAWN CLAIM OR APPLICATION

Application to reinstate withdrawn claim

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

Form and content of application

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

Factors

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

Factors

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

Subsequent application

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

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

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

Form of application

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

Factors

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

Factors

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

Subsequent application

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

REOPENING A CLAIM OR APPLICATION

Application to reopen claim

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

Form of application

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

Contact information

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

Allegations against counsel

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

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

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

Copy of notice of appeal or pending application

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

Factor

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

Factors

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

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

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

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

Subsequent application

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

Other remedies

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

Application to reopen application to vacate or to cease refugee protection

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

Form of application

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

Contact information

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

Allegations against counsel

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

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

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

Copy of pending application

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

Factor

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

Factors

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

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

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

Subsequent application

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

Other remedy

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

APPLICATIONS TO VACATE OR TO CEASE REFUGEE PROTECTION

Form of application

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

Content of application

(2) In the application, the Minister must include

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

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

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

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

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

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

Providing application to protected person and Division

(3) The Minister must provide

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

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

ABANDONMENT

Opportunity to explain

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

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

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

Special hearing — Basis of Claim Form

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

Special hearing — failure to appear

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

Factors to consider

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

Medical reasons

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

Content of certificate

(6) The medical certificate must set out

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

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

Start or continue proceedings

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

NOTICE OF CONSTITUTIONAL QUESTION

Notice of constitutional question

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

Form and content of notice

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

  • (a) the party’s name;

  • (b) the Division file number;

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

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

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

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

Providing notice

(3) The party must provide

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

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

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

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

Time limit

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

DECISIONS

Notice of decision and reasons

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

Written reasons

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

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

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

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

Request for written reasons

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

When decision takes effect — decision on claim

68. A decision allowing or rejecting a claim for refugee protection takes effect

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

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

When decision takes effect — application to vacate or cease refugee protection

69. A decision on an application to vacate or to cease refugee protection takes effect

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

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

When decision takes effect — decision on abandonment

70. A decision on the abandonment of a claim or of an application to vacate or to cease refugee protection takes effect

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

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

When decision takes effect — allowing application to withdraw

71. A decision 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 a Division member states the decision and gives the reasons; and

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

GENERAL PROVISIONS

No applicable rule

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

Powers of Division

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

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

  • (b) change a requirement of a rule;

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

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

Failure to follow rule

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

REPEALS

Repeal

75. The Convention Refugee Determination Division Rules (see footnote 8) are repealed.

Repeal

76. The Refugee Protection Division Rules (see footnote 9) are repealed.

COMING INTO FORCE

S.C. 2010, c. 8

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

SCHEDULE 1
(Rule 1)

CLAIMANT’S INFORMATION AND BASIS OF CLAIM

Item

Information

1.

Claimant’s name at birth and any other name used or known by.

2.

Claimant’s date and place of birth.

3.

Claimant’s gender.

4.

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

5.

Language and dialect, if any, that the claimant first learned to speak and the languages and dialects, if any, that the claimant speaks.

6.

Claimant’s religion and denomination or sect.

7.

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

8.

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

9.

Whether the claimant took any steps to obtain protection from any authority or organization in their country. If no steps were taken, an explanation of why they were not. If steps were taken, a description of what the claimant did and what happened as a result.

10.

When the claimant left their country, the reasons for leaving at that time and the claimant’s intentions.

11.

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

12.

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

13.

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

14.

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

15.

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

16.

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

17.

Grounds on which the claim is made.

18.

Name, date of birth, citizenship and place and country of residence of the claimant’s spouse, common-law partner — including same-sex partner — children, parents, brothers and sisters.

19.

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

20.

Details of the claimant’s travel to any countries within the last 10 years, including trips to Canada and any countries the claimant travelled to on the way to Canada. Details to include dates of arrival and departure, name of the country or countries, location in the country and purpose of travel.

21.

Details — including document number, country and date of issue, issuing person or authority and the current location — of the claimant’s travel, identity, medical, psychological or police documents, or any other document that support their claim, that the claimant has or can obtain before the hearing. If document has to be obtained, the expected date of receipt.

22.

Claimant’s contact information.

23.

Whether the claimant has counsel and if so, details concerning counsel — including counsel’s contact information.

24.

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

25.

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

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

INFORMATION TO BE PROVIDED ABOUT THE CLAIMANT BY AN OFFICER

Item

Information

1.

Name, gender and date of birth.

2.

Department of Citizenship and Immigration client identification number.

3.

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

4.

Claimant’s contact information in Canada, if any.

5.

Contact information of any counsel for the claimant.

6.

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

7.

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

8.

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

9.

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

10.

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

11.

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

12.

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

13.

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

14.

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

15.

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

16.

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

SCHEDULE 3
(Rules 5 and 13)

INFORMATION AND DECLARATIONS — COUNSEL NOT
REPRESENTING OR ADVISING FOR CONSIDERATION

Item

Information

1.

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

2.

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

3.

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

4.

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

5.

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

6.

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

[32-1-o]

Footnote 1
See www.irb-cisr.gc.ca/eng/brdcom/references/pol/Pages/index.aspx for a description of the policy process at the IRB, including governance of policy development and definitions of the seven policy instruments the IRB uses to promote consistency, fairness and transparency.

Footnote 2
It is estimated that if a proceeding is postponed more than 48 hours before it was scheduled to occur, the direct salary costs to the RPD for such a postponement are $137. At the RAD, the costs are $172.

Footnote 3
A “major assessment” is defined by the Canadian Institute for Health Information (CIHI) as “general and specific assessments, reassessments, initial visits with a complete exam, new condition seen for first time and including complete history and exam, complete specific exam depending upon the physician specialty, annual exams, newborn/premature care and special eye exams performed in any location where no special call is involved.” Source: Canadian Institute for Health Information, National Physician Database, 2008–2009 — Data Release (Ottawa, Ont.: CIHI, 2010).

Footnote 4
Thamotharem v. Canada (Minister of Citizenship and Immigration), [2008], 1 F.C.R. 385 (F.C.A.).

Footnote 5
The procedures regarding the conduct of a hearing, including the order of questioning, were originally set out by the IRB in Guideline 7: Concerning Preparation and Conduct of a Hearing in the Refugee Protection Division. Immigration and Refugee Board of Canada. Effective December 1, 2003.

Footnote 6
Policy on Oral Decisions and Oral Reasons. Immigration and Refugee Board of Canada. Effective July 1, 2000, and re-issued September 10, 2003.

Footnote 7
IRPA subsection 3(2): The objectives of this Act with respect to refugees are . . . (e) to establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system, while upholding Canada’s respect for the human rights and fundamental freedoms of all human beings . . . .

Footnote 8
SOR/93-45

Footnote 9
SOR/2002-228

Footnote a
S.C. 2001, c. 27

Footnote *
Totals may not add due to rounding.