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

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Refugee Appeal Division Rules

Statutory authority

Immigration and Refugee Protection Act

Sponsoring agency

Immigration and Refugee Board

REGULATORY IMPACT ANALYSIS STATEMENT

For the Regulatory Impact Analysis Statement, see Refugee Protection Division Rules.

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 Appeal 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 APPEAL DIVISION RULES

INTERPRETATION

Definitions

1. The following definitions apply in these Rules.

“Act”
« Loi »

“Act” means the Immigration and Refugee Protection Act.

“appellant”
« appelant »

“appellant” means a person who is the subject of an appeal, or the Minister, who makes an appeal to the Division from a decision of the Refugee Protection Division.

“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 person who is the subject of an appeal, 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 Appeal Division.

“interested person”
« personne intéressée »

“interested person” means a person whose application to participate in an appeal under rule 44 has been granted.

“party”
« partie »

“party” means,

  • (a) in the case of an appeal by a person who is the subject of an appeal, the person and, if the Minister intervenes in the appeal, the Minister; and

  • (b) in the case of an appeal by the Minister, the person who is the subject of the appeal and the Minister.

“proceeding”
« procédure »

“proceeding” includes a conference, an application, or an appeal that is decided with or without a hearing.

“Regulations”
« Règlement »

“Regulations” means the Immigration and Refugee Protection Regulations.

“respondent”
« intimé »

“respondent” means a person who is the subject of an appeal in the case of an appeal by the Minister.

“UNHCR”
« HCR »

“UNHCR” means the United Nations High Commissioner for Refugees.

“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.

PART 1

RULES APPLICABLE TO APPEALS MADE BY A PERSON WHO IS THE SUBJECT OF AN APPEAL

FILING AND PERFECTING AN APPEAL

Filing and perfecting appeal

2. (1) To file and perfect an appeal, the person who is the subject of the appeal must provide, first to the Minister — whether or not the Minister took part in the proceedings before the Refugee Protection Division — a written notice of appeal, together with the appellant’s record, and then to the Division, two copies of the written notice of appeal, together with one copy of the appellant’s record.

Content of notice of appeal

(2) In the notice of appeal, the appellant must indicate

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

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

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

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

  • (e) the language — English or French — chosen by them as the language of the appeal;

  • (f) the language and dialect, if any, to be interpreted, if the Division decides that a hearing is necessary and they need an interpreter;

  • (g) the representative’s contact information if the Refugee Protection Division has designated a representative for them in the proceedings relating to the decision being appealed, and any proposed change in representative;

  • (h) whether they are relying on any evidence referred to in subsection 110(4) of the Act; and

  • (i) whether they are requesting that a hearing be held under subsection 110(6) of the Act.

Content of appellant’s record

(3) The appellant’s record must contain the following documents, on consecutively numbered pages, in the following order:

  • (a) a memorandum that includes full and detailed submissions regarding
    • (i) the errors that are the grounds of the appeal,

    • (ii) where the errors are located in the record of the Refugee Protection Division’s proceedings,

    • (iii) how any documentary evidence referred to in paragraph (d) meets the requirements of subsection 110(4) of the Act and how that evidence relates to the appellant,

    • (iv) the decision the appellant wants the Division to make, and

    • (v) why the Division should hold a hearing under subsection 110(6) of the Act if the appellant is requesting that a hearing be held;

  • (b) all or part of the transcript of the Refugee Protection Division hearing if the appellant wants to rely on the transcript in the appeal, together with a declaration, signed by the transcriber, that includes the transcriber’s name and a statement that the transcript is accurate;

  • (c) any documents that the Refugee Protection Division refused to accept as evidence, during or after the hearing, if the appellant wants to rely on the documents in the appeal;

  • (d) any documentary evidence that the appellant wants to rely on in the appeal;

  • (e) any law, case law or other legal authority that the appellant wants to rely on in the appeal; and

  • (f) the notice of decision and written reasons for the Refugee Protection Division’s decision that the appellant is appealing.

Length of memorandum

(4) The memorandum referred to in paragraph (3)(a) must not be more than 30 pages long if typewritten on one side or 15 pages if typewritten on both sides.

Proof documents were provided

(5) The notice of appeal and the appellant’s record provided to the Division must be accompanied by a written statement indicating how and when the notice of appeal and the appellant’s record were provided to the Minister, together with proof that they were provided.

Time limit

(6) Documents provided under this rule must be received by the Division within the time limit for filing and perfecting an appeal set out in the Regulations.

INTERVENTION BY THE MINISTER

Notice of intervention

3. (1) To intervene in an appeal at any time before the Division makes a decision, the Minister must provide, first to the appellant and then to the Division, a notice of intervention, together with any documentary evidence that the Minister wants to rely on in the appeal.

Content of notice of intervention

(2) In the notice of intervention, the Minister must indicate

  • (a) counsel’s contact information;

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

  • (c) the appellant’s name, the Refugee Protection Division file number, the date of the notice of decision relating to the decision being appealed and the date that the Minister received the written reasons for the decision;

  • (d) whether the Minister is relying on any documentary evidence referred to in subsection 110(3) of the Act and the relevance of that evidence; and

  • (e) whether the Minister is requesting that a hearing be held under subsection 110(6) of the Act and why the Division should hold a hearing.

Minister’s intervention record

(3) In addition to the documents referred to in subrule (1), the Minister may provide, first to the appellant and then to the Division, the Minister’s intervention record containing the following documents, on consecutively numbered pages, in the following order:

  • (a) a memorandum that includes full and detailed submissions regarding
    • (i) the grounds on which the Minister contests the appeal, and

    • (ii) the decision the Minister wants the Division to make;
  • (b) all or part of the transcript of the Refugee Protection Division hearing if the Minister wants to rely on the transcript in the appeal and the transcript was not provided with the appellant’s record, together with a declaration, signed by the transcriber, that includes the transcriber’s name and a statement that the transcript is accurate; and

  • (c) any law, case law or other legal authority that the Minister wants to rely on in the appeal.

Length of memorandum

(4) The memorandum referred to in paragraph (3)(a) must not be more than 30 pages long if typewritten on one side or 15 pages if typewritten on both sides.

Additional documents

(5) If, at any time before the Division makes a decision, the Minister, in accordance with paragraph 171(a.5) of the Act, submits documentary evidence or makes written submissions in support of the Minister’s intervention that were not provided with the notice of intervention or the Minister’s intervention record, if any, the Minister must provide the documentary evidence or written submissions first to the appellant and then to the Division.

Proof documents were provided

(6) The documents provided to the Division under this rule must be accompanied by a written statement indicating how and when they were provided to the appellant, together with proof that they were provided.

REPLY

Reply to Minister’s intervention

4. (1) To reply to a Minister’s intervention, an appellant must provide, first to the Minister and then to the Division, a reply record.

Content of reply record

(2) The reply record must contain the following documents, on consecutively numbered pages, in the following order:

  • (a) a memorandum that includes full and detailed submissions regarding

    • (i) only the grounds raised by the Minister,

    • (ii) how any documentary evidence referred to in paragraph (c) meets the requirements of subsection 110(4) or (5) of the Act and how that evidence relates to the appellant, and

    • (iii) why the Division should hold a hearing under subsection 110(6) of the Act if the appellant is requesting that a hearing be held and they did not include such a request in the appellant’s record;

  • (b) all or part of the transcript of the Refugee Protection Division hearing if the appellant wants to rely on the transcript to support the reply and the transcript was not provided with the appellant’s record or by the Minister, together with a declaration, signed by the transcriber, that includes the transcriber’s name and a statement that the transcript is accurate;

  • (c) any documentary evidence that the appellant wants to rely on to support the reply and that was not provided with the appellant’s record or by the Minister; and

  • (d) any law, case law or other legal authority that the appellant wants to rely on to support the reply and that was not provided with the appellant’s record or by the Minister.

Length of memorandum

(3) The memorandum referred to in paragraph (2)(a) must not be more than 30 pages long if typewritten on one side or 15 pages if typewritten on both sides.

Proof document was provided

(4) The reply record provided to the Division must be accompanied by a written statement indicating how and when the reply record was provided to the Minister, together with proof that it was provided.

Time limit

(5) Documents provided under this rule must be received by the Division no later than 10 days after the day on which the appellant receives the Minister’s notice of intervention, Minister’s intervention record, or any additional documents provided by the Minister, as the case may be.

EXTENSION OF TIME

Application for extension of time to file and perfect

5. (1) A person who is the subject of an appeal who makes an application to the Division for an extension of the time to file and perfect an appeal under the Regulations must do so in accordance with rule 35. For the purpose of paragraph 35(5)(a), the Minister is considered to be a party whether or not the Minister takes part in the proceedings.

Content of application

(2) The person who is the subject of the appeal must include in an application under subrule (1)

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

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

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

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

Accompanying documents

(3) An application under subrule (1) must be accompanied by a notice of appeal and an appellant’s record.

Application for extension of time to reply

(4) A person who is the subject of an appeal may make an application to the Division for an extension of the time to reply to a Minister’s intervention in accordance with rule 35.

Factors — reply

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

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

  • (b) whether there is an arguable case;

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

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

Notification of decision on application

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

DISPOSITION OF AN APPEAL

Decision without further notice

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

  • (a) if a period of 15 days has passed since the day on which the Minister received the notice of appeal and the appellant’s record; or

  • (b) if the reply record has been provided, or the time to provide it has expired.

PART 2

RULES APPLICABLE TO APPEALS MADE BY THE MINISTER

FILING AND PERFECTING AN APPEAL

Filing and perfecting appeal

7. (1) To file and perfect an appeal in accordance with subsection 110(1.1) of the Act, the Minister must provide, first to the person who is the subject of the appeal, a written notice of appeal, together with any supporting documents that the Minister wants to rely on in the appeal, and then to the Division, two copies of the written notice of appeal, together with any supporting documents.

Content of notice of appeal

(2) In the notice of appeal, the Minister must indicate

  • (a) counsel’s contact information;

  • (b) the name of the person who is the subject of the appeal and the identification number given by the Department of Citizenship and Immigration to them;

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

  • (d) whether the Minister is relying on any documentary evidence referred to in subsection 110(3) of the Act and the relevance of that evidence; and

  • (e) whether the Minister is requesting that a hearing be held under subsection 110(6) of the Act and why the Division should hold a hearing.

Content of appellant’s record

(3) In addition to the documents referred to in subrule (2), the Minister may provide, first to the person who is the subject of the appeal and then to the Division, the appellant’s record containing the following documents, on consecutively numbered pages, in the following order:

  • (a) a memorandum that includes full and detailed submissions regarding
    • (i) the errors that are the grounds of the appeal,

    • (ii) where the errors are located in the record of the Refugee Protection Division’s proceedings, and

    • (iii) the decision the Minister wants the Division to make;
  • (b) all or part of the transcript of the Refugee Protection Division hearing if the Minister wants to rely on the transcript in the appeal, together with a declaration, signed by the transcriber, that includes the transcriber’s name and a statement that the transcript is accurate;

  • (c) any documents that the Refugee Protection Division refused to accept as evidence, during or after the hearing, if the Minister wants to rely on the documents in the appeal;

  • (d) any law, case law or other legal authority that the Minister wants to rely on in the appeal; and

  • (e) the notice of decision and written reasons for the Refugee Protection Division’s decision that the Minister is appealing.

Length of memorandum

(4) The memorandum referred to in paragraph (3)(a) must not be more than 30 pages long if typewritten on one side or 15 pages if typewritten on both sides.

Proof documents were provided

(5) The notice of appeal and the appellant’s record, if any, provided to the Division must be accompanied by a written statement indicating how and when the notice of appeal and the appellant’s record were provided to the person who is the subject of the appeal, together with proof that they were provided.

Time limit

(6) Documents provided under this rule must be received by the Division within the time limit for filing and perfecting an appeal set out in the Regulations.

RESPONSE TO AN APPEAL

Response to appeal

8. (1) To respond to an appeal, a person who is the subject of the appeal must provide, first to the Minister and then to the Division, a notice of intent to respond, together with the respondent’s record.

Content of notice of intent to respond

(2) In the notice of intent to respond, the respondent must indicate

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

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

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

  • (d) the Refugee Protection Division file number and the date of the notice of decision relating to the decision being appealed;

  • (e) the language — English or French — chosen by them as the language of the appeal;

  • (f) the language and dialect, if any, to be interpreted, if the Division decides that a hearing is necessary and they need an interpreter; and

  • (g) the representative’s contact information if the Refugee Protection Division has designated a representative for them in the proceedings relating to the decision being appealed, and any proposed change in representative.

Content of respondent’s record

(3) The respondent’s record must contain the following documents, on consecutively numbered pages, in the following order:

  • (a) a memorandum that includes full and detailed submissions regarding
    • (i) the grounds on which the respondent contests the appeal,

    • (ii) the decision the respondent wants the Division to make, and

    • (iii) why the Division should hold a hearing under subsection 110(6) of the Act if the respondent is requesting that a hearing be held;
  • (b) all or part of the transcript of the Refugee Protection Division hearing if the respondent wants to rely on the transcript in the appeal and the transcript was not provided with the appellant’s record, together with a declaration, signed by the transcriber, that includes the transcriber’s name and a statement that the transcript is accurate;

  • (c) any documentary evidence that the respondent wants to rely on in the appeal; and

  • (d) any law, case law or other legal authority that the respondent wants to rely on in the appeal.

Length of memorandum

(4) The memorandum referred to in paragraph (3)(a) must not be more than 30 pages long if typewritten on one side or 15 pages if typewritten on both sides.

Proof documents were provided

(5) The notice of intent to respond and the respondent’s record provided to the Division must be accompanied by a written statement indicating how and when the notice of intent to respond and the respondent’s record were provided to the Minister, together with proof that they were provided.

Time limit

(6) Documents provided under this rule must be received by the Division no later than 15 days after

  • (a) the day on which the respondent receives the notice of appeal and the appellant’s record, if any; or

  • (b) if the Division allows an application for an extension of time to file and perfect the appeal under rule 10, the day on which the respondent is notified of the decision to allow the extension of time.

REPLY

Minister’s reply

9. (1) To reply to a response by the respondent, the Minister must provide, first to the respondent and then to the Division, any documentary evidence that the Minister wants to rely on to support the reply and that was not provided with the notice of appeal or the respondent’s record.

Reply record

(2) In addition to the documents referred to in subrule (1), the Minister may provide, first to the respondent and then to the Division, a reply record containing the following documents, on consecutively numbered pages, in the following order:

  • (a) a memorandum that includes full and detailed submissions regarding
    • (i) only the grounds raised by the respondent, and

    • (ii) why the Division should hold a hearing under subsection 110(6) of the Act if the Minister is requesting that a hearing be held and did not include such a request in the notice of appeal;
  • (b) all or part of the transcript of the Refugee Protection Division hearing if the Minister wants to rely on the transcript to support the reply and the transcript was not provided with the appellant’s record, if any, or the respondent’s record, together with a declaration, signed by the transcriber, that includes the transcriber’s name and a statement that the transcript is accurate; and

  • (c) any law, case law or other legal authority that the Minister wants to rely on to support the reply and that was not provided with the appellant’s record, if any, or the respondent’s record.

Length of memorandum

(3) The memorandum referred to in paragraph (2)(a) must not be more than 30 pages long if typewritten on one side or 15 pages if typewritten on both sides.

Proof document was provided

(4) The documents provided to the Division under this rule must be accompanied by a written statement indicating how and when they were provided to the respondent, together with proof that they were provided.

EXTENSION OF TIME

Application for extension of time — Minister

10. (1) If the Minister makes an application to the Division for an extension of the time to file and perfect an appeal under the Regulations, the Minister must do so in accordance with rule 35.

Accompanying documents

(2) An application under subrule (1) must be accompanied by a notice of appeal, together with any supporting documents, and an appellant’s record, if any.

Application for extension of time — person

(3) A person who is the subject of an appeal may make an application to the Division for an extension of the time to respond to an appeal in accordance with rule 35.

Content of application for extension of time to respond to appeal

(4) The person who is the subject of the appeal must include in an application under subrule (3)

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

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

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

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

Factors — respond

(5) In deciding an application under subrule (3), the Division must consider any relevant factors, including

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

  • (b) whether there is an arguable case;

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

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

Notification of decision on application

(6) The Division must without delay notify both the person who is the subject of the appeal and the Minister in writing of its decision with respect to an application under subrule (1) or (3).

DISPOSITION OF AN APPEAL

Decision without further notice

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

  • (a) if a period of 15 days has passed since the day on which the Minister received the response record, or the time to provide it has expired; or

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

PART 3

RULES APPLICABLE TO ALL APPEALS

COMMUNICATING WITH THE DIVISION

Communicating with Division

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

Change to contact information

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

COUNSEL

Retaining counsel after providing notice

14. (1) If a person who is the subject of an appeal retains counsel after providing a notice of appeal, the person must without delay provide the counsel’s contact information in writing to the Division and to the Minister.

Change to counsel’s contact information — person

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

Change to counsel’s contact information — Minister

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

Declaration — counsel not representing or advising for consideration

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

Becoming counsel of record

16. (1) Subject to subrule (2), as soon as counsel for a person who is the subject of an appeal provides on behalf of the person a notice of appeal, or as soon as a person becomes counsel after the person provided a notice, the counsel becomes counsel of record for the person.

Limitation on counsel’s retainer

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

Request to be removed as counsel of record

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

Written statement

(2) The request provided to the Division must be accompanied by a written statement indicating how and when the copies were provided to the person represented and to the Minister, together with proof that they were provided.

Request — if date for proceeding fixed

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

Division’s permission required

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

Removing counsel of record

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

Written statement

(2) The notice provided to the Division must be accompanied by a written statement indicating how and when the copies were provided to counsel and to the Minister, together with proof that they were provided.

Ceasing to be counsel of record

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

REFUGEE PROTECTION DIVISION RECORD

Providing notice of appeal

19. (1) The Division must without delay provide the notice of appeal to the Refugee Protection Division after the appeal is filed and perfected under rule 2 or 7, as the case may be.

Preparing and providing record

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

Content of record

(3) The Refugee Protection Division record must contain

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

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

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

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

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

Providing record to absent Minister

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

LANGUAGE OF THE APPEAL

Choice of language

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

Language — Minister’s appeals

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

Changing language

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

DESIGNATED REPRESENTATIVES

Continuation of designation

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

Duty of counsel to notify

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

Exception

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

Content of notice

(4) The notice must include the following information:

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

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

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

Requirements for being designated

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

  • (a) be 18 years of age or older;

  • (b) understand the nature of the proceedings;

  • (c) be willing and able to act in the best interests of the person who is the subject of the appeal; and

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

Factors

(6) When determining whether a person who is the subject of an appeal is unable to appreciate the nature of the proceedings, the Division must consider any relevant factors, including

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

  • (b) the person’s statements and behaviour at the proceeding;

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

  • (d) whether the person has had a representative designated for a proceeding in a division other than the Refugee Protection Division.

Designation applies to all proceedings

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

End of designation — person reaches 18 years of age

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

Termination of designation

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

Designation criteria

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

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

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

Responsibilities of representative

(11) The responsibilities of a designated representative include

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

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

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

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

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

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

SPECIALIZED KNOWLEDGE

Notice to parties

22. (1) Before using any information or opinion that is within its specialized knowledge, the Division must notify the parties and give them an opportunity to,

  • (a) if a date for a hearing has not been fixed, make written representations on the reliability and use of the information or opinion and provide written evidence in support of their representations; and

  • (b) if a date for a hearing has been fixed, make oral or written representations on the reliability and use of the information or opinion and provide evidence in support of their representations.

Providing written representations and evidence

(2) A party must provide its written representations and evidence first to any other party and then to the Division.

Proof of written representations and evidence were provided

(3) The written representations and evidence provided to the Division must be accompanied by a written statement indicating how and when they were provided to any other party, together with proof that they were provided.

NOTICE OF CONSTITUTIONAL QUESTION

Notice of constitutional question

23. (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 specific legislative provision that is being challenged;

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

  • (e) 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 even if the Minister has not yet intervened in the appeal;

  • (c) a copy of the notice to the UNHCR, if the UNHCR has provided notice of its intention to provide written submissions, and to any interested person; 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 at the same time as the Division receives the notice of appeal or the reply.

Deciding of constitutional question

(5) The Division must not make a decision on the constitutional question until at least 10 days after the day on which it receives the notice of constitutional question and written statement.

CONFERENCES

Requirement to participate at conference

24. (1) The Division may require the parties to participate at a conference to discuss issues, relevant facts and any other matter in order to make the appeal 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.

DOCUMENTS

Form and Language of Documents

Documents prepared by party

25. (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 — person

26. (1) All documents used by a person who is the subject of an appeal in an appeal 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 an appeal must be in the language of the appeal or be provided together with a translation in the language of the appeal and a declaration signed by the translator.

Translator’s declaration

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

Documents Not Previously Provided

Documents not previously provided — person

27. (1) A person who is the subject of an appeal who does not provide a document with the appellant’s record, respondent’s record or reply record must not use the document in the appeal unless allowed to do so by the Division.

Application to Division

(2) If a person who is the subject of an appeal wants to use a document that was not previously provided, the person must make an application to the Division in accordance with rule 35.

Factors

(3) In deciding whether to allow an 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 appeal; and

  • (c) whether the person who is the subject of the appeal, with reasonable effort, could have provided the document with the appellant’s record, respondent’s record or reply record.

Documents not previously provided — Minister

(4) If the Minister provides a document that was not previously provided with the notice of appeal, notice of intervention, Minister’s intervention record, if any, or Minister’s reply, the person who is the subject of the appeal may reply to the additional document in accordance with rule 4 with any modifications that the circumstances require.

Providing a Document

General provision

28. Rules 29 to 33 apply to any document, including a notice or request in writing.

Providing documents to Division

29. (1) A document to be provided to the Division must be provided to the Division’s registry office that is located in the same region as the Refugee Protection Division’s registry office through which the notice of decision under appeal was provided.

Providing documents to Refugee Protection Division

(2) A document to be provided to the Refugee Protection Division must be provided to the Refugee Protection Division’s registry office through which the notice of decision under appeal was provided.

Providing documents to Minister

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

Providing documents to person other than Minister

(4) 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

30. 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

31. (1) If a party is unable to provide a document in a way required by rule 30, 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 35.

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.

Proof document was provided

32. Proof that a document was provided must be established by

  • (a) an acknowledgment of receipt signed by the recipient if the document was provided by hand;

  • (b) a confirmation of receipt if the document was provided by registered mail, courier, fax or email or other electronic means; or

  • (c) a statement of service if the document was provided by regular mail.

When document received by Division

33. (1) A document provided to the Division or to the Refugee Protection Division is considered to be received on the day on which the document is date-stamped by that division.

When document received by recipient other than Division

(2) A document provided by regular mail other than to the Division or to the Refugee Protection 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.

APPLICATIONS

General

General provision

34. 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 35;

  • (b) a party who wants to respond to the application must respond in accordance with rule 36; and

  • (c) a party who wants to reply to a response must reply in accordance with rule 37.

How to Make an Application

Form of application and time limit

35. (1) Unless these Rules provide otherwise, an application must be made in writing and without delay.

Oral application

(2) If a date for a hearing has been fixed, the Division must not allow a party to make an application orally at the hearing unless the party, with reasonable effort, could not have made a written application before that date.

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 the application to other party and Division

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

  • (a) to any other party, 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 any other party and proof that it was provided.

How to Respond to a Written Application

Responding to written application

36. (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 and proof that it was provided.

Time limit

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

How to Reply to a Written Response

Replying to written response

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

Evidence in the 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 and proof that it was provided.

Time limit

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

JOINING OR SEPARATING APPEALS

Appeals automatically joined

38. The Division must join any appeals of decisions on claims that were joined at the time that the Refugee Protection Division decided the claims.

Application to join

39. (1) A party may make an application to the Division to join appeals.

Application to separate

(2) A party may make an application to the Division to separate appeals that are joined.

Form of application and providing application

(3) A party who makes an application to join or separate appeals must do so in accordance with rule 35, 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,

  • (a) if the person who is the subject of the appeal is the applicant, at the same time as the Division receives the person’s notice of appeal, notice of intent to respond or reply record; or

  • (b) if the Minister is the applicant, at the same time as the Division receives the Minister’s notice of appeal, notice of intervention, or reply.

Factors

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

  • (a) the appeals involve similar questions of fact or law;

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

  • (c) allowing the application would likely cause an injustice.

PROCEEDINGS CONDUCTED IN PUBLIC

Minister considered party

40. (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 35.

Oral application

(3) If a date for a hearing has been fixed, the Division must not allow a person to make an application orally at the hearing unless the person, with reasonable effort, could not have made a written application before that date.

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; and

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

Providing application

(5) The person must provide the original application and 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; and

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

Minister’s notice

(7) If the Minister responds to a written application, the response must be accompanied by a notice of intervention in accordance with subrule 3(2), if one was not previously provided.

Providing response

(8) 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 they provided the copy to the other party and proof that it was provided.

Providing response to applicant

(9) The Division must provide to the applicant either a copy of the response or a summary of the response referred to in paragraph (13)(a).

Reply to response

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

Providing reply

(11) 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

(12) 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

(13) 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 appeal and 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

(14) If the Division provides a summary of the response under paragraph (13)(a), or excludes the applicant and their counsel from a hearing in respect of the application under subparagraph (13)(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

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

ASSIGNMENT OF THREE-MEMBER PANEL

Notice of order

41. (1) If the Chairperson of the Board orders a proceeding to be conducted by three Division members, the Division must without delay notify the parties — including the Minister even if the Minister has not yet intervened in the appeal — and the UNHCR in writing of the order.

Providing documents to UNHCR

(2) The Division must provide the UNHCR with a copy of the following documents at the same time that it provides notice of the order:

  • (a) the Refugee Protection Division record;

  • (b) the notice of appeal, appellant’s record, notice of intent to respond, respondent’s record, reply record, Minister’s notice of intervention, Minister’s intervention record, if any, Minister’s reply, and Minister’s reply record, if any; and

  • (c) the written submissions of any interested person.

UNHCR’s notice to Division

(3) If the UNHCR receives notice of an order, the UNHCR may provide notice to the Division in accordance with subrule 43(1) of its intention to provide written submissions.

Time limit

(4) The Division may, without further notice to the parties and to the UNHCR, decide the appeal on the basis of the materials provided if a period of 15 days has passed since the day on which the Minister and the UNHCR receive notice of the order.

UNHCR AND INTERESTED PERSONS

Rules applicable to UNHCR and interested persons

42. These Rules, with the exception of rules 23 (notice of constitutional question) and 45 to 47 (withdrawal, reinstatement, reopening), apply to the UNHCR and interested persons with any modifications that the circumstances require.

Notice to Division

43. (1) The UNHCR must notify the Division in writing of its intention to provide written submissions in an appeal conducted by a three-member panel, and include its contact information and that of its counsel, if any.

Notice to person and Minister

(2) The Division must without delay provide a copy of the UNHCR’s notice to the person who is subject of the appeal and to the Minister.

Providing written submissions to Division

(3) The UNHCR’s written submissions must be received by the Division no later than 10 days after the day on which the UNHCR provided the notice.

Limitation — written submissions

(4) The UNHCR’s written submissions must not raise new issues.

Length of written submissions

(5) The UNHCR’s written submissions must not be more than 30 pages long if typewritten on one side or 15 pages if typewritten on both sides.

Providing written submissions

(6) The Division must without delay provide a copy of the UNHCR’s written submissions to the person who is the subject of the appeal and to the Minister.

Response

(7) The person who is the subject of the appeal or the Minister may respond to the UNHCR’s submissions in writing.

Limitation — response

(8) A response must not raise new issues.

Length of response

(9) A response must not be more than 30 pages long if typewritten on one side or 15 pages if typewritten on both sides.

Providing response

(10) The response must first be provided to the person who is the subject of the appeal or to the Minister, as the case may be, and then to the Division.

Proof response provided

(11) The response provided to the Division must be accompanied by a written statement indicating how and when the response was provided to the person who is the subject of the appeal or to the Minister, as the case may be, together with proof that it was provided.

Time limit

(12) Documents provided under subrules (10) and (11) must be received by their recipients no later than seven days after the day on which the person who is the subject of the appeal or the Minister, as the case may be, receives the UNHCR’s submissions.

Application by person to participate

44. (1) Any person, other than the UNHCR, may make an application to the Division to be allowed to participate in an appeal conducted by a three-member panel. The person must make the application without delay and in accordance with this rule.

Form and content of application

(2) The application must be in writing and include

  • (a) the applicant’s name;

  • (b) an explanation of why the applicant wants to participate;

  • (c) the submissions the applicant wants to put forward and an explanation of how they are relevant to the appeal;

  • (d) an explanation of the differences between the applicant’s submissions and those of the person who is the subject of the appeal and the Minister;

  • (e) an explanation of how the applicant’s submissions may help the Division decide the appeal; and

  • (f) the contact information of the applicant and their counsel, if any.

Providing application

(3) The Division must provide a copy of the application to the person who is the subject of the appeal and to the Minister.

Response

(4) The person who is the subject of the appeal or the Minister may respond to the application in writing.

Time limit

(5) A response must be received by the Division no later than 10 days after the day on which the person who is the subject of the appeal or the Minister, as the case may be, receives the application.

Notification of decision on application

(6) The Division must without delay notify the applicant, the person who is the subject of the appeal and the Minister in writing of its decision on the application.

Providing documents

(7) If the Division allows the application, it must without delay provide the interested person with a copy of the following documents as soon as they are available:

  • (a) the Refugee Protection Division record;

  • (b) the notice of appeal, appellant’s record, notice of intent to respond, respondent’s record, reply record, Minister’s notice of intervention, Minister’s intervention record, if any, Minister’s reply, and Minister’s reply record, if any; and

  • (c) the written submissions of any other interested person and the UNHCR.

Limitation — written submissions

(8) The interested person’s written submissions must not raise new issues.

Length of written submissions

(9) The interested person’s written submissions must not be more than 30 pages long if typewritten on one side or 15 pages if typewritten on both sides.

Providing written submissions

(10) The interested person’s written submissions must first be provided to the person who is the subject of the appeal and to the Minister and then to the Division.

Proof written submissions provided

(11) The written submissions provided to the Division must be accompanied by a written statement indicating how and when the submissions were provided to the person who is the subject of the appeal and to the Minister, together with proof that they were provided.

Response

(12) The person who is the subject of the appeal or the Minister may respond to the written submissions in writing.

Limitation — response

(13) A response must not raise new issues.

Length of response

(14) A response must not be more than 30 pages long if typewritten on one side or 15 pages if typewritten on both sides.

Providing response

(15) The response must first be provided to the interested person, then to the person who is the subject of the appeal or to the Minister, as the case may be, and then to the Division.

Proof response provided

(16) The response provided to the Division must be accompanied by a written statement indicating how and when the responses were provided to the interested person, and to the person who is the subject of the appeal or to the Minister, as the case may be, together with proof that they were provided.

Time limit

(17) Documents provided under subrules (15) and (16) must be received by their recipients no later than seven days after the day on which the person who is the subject of the appeal or the Minister, as the case may be, receives the interested person’s written submissions.

WITHDRAWAL

Abuse of process

45. (1) For the purpose of subsection 168(2) of the Act, withdrawal of an appeal is an abuse of process if withdrawal would likely have a negative effect on the Division’s integrity. If the requirements set out in rule 6 or 11, as the case may be, for deciding an appeal on the basis of the materials provided have not been met, withdrawal is not an abuse of process.

Withdrawal on notice

(2) If the requirements set out in rule 6 or 11, as the case may be, for deciding an appeal have not been met, an appellant may withdraw an appeal by notifying the Division in writing.

Application to withdraw

(3) If the requirements set out in rule 6 or 11, as the case may be, for deciding an appeal have been met, an appellant who wants to withdraw an appeal must make an application to the Division in accordance with rule 35.

REINSTATING A WITHDRAWN APPEAL

Application to reinstate withdrawn appeal

46. (1) An appellant may apply to the Division to reinstate an appeal that was made by the appellant and was withdrawn.

Form and content of application

(2) The appellant must make the application in accordance with rule 35. If a person who is the subject of an appeal 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 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 appellant made a previous application to reinstate an appeal 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 AN APPEAL

Application to reopen appeal

47. (1) At any time before the Federal Court has made a final determination of an appeal that has been decided or declared abandoned, the appellant may make an application to the Division to reopen the appeal.

Form of application

(2) The application must be made in accordance with rule 35 and, for the purpose of paragraph 35(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 person who is the subject of an appeal 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 person who is the subject of the appeal’s counsel in the proceedings that are the subject of the application provided inadequate representation,

  • (a) the 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, together with proof that it was provided.

Copy of pending application

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

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 the appellant did not make an application for leave to apply for judicial review or an application for judicial review, the reasons why an application was not made.

Subsequent application

(8) If the appellant made a previous application to reopen an appeal 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 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 appeals or dismiss the application.

DECISIONS

Notice of decision

48. (1) When the Division makes a decision, other than an interlocutory decision, it must provide in writing a notice of decision to the person who is the subject of the appeal, to the Minister and to the Refugee Protection Division. The Division must also provide in writing a notice of decision to the UNHCR and to any interested person, if they provided written submissions in the appeal.

Written reasons

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

  • (a) was not held under subsection 110(6) of the Act; or

  • (b) was held under subsection 110(6) of the Act and the decision and reasons were not given orally at the hearing.

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 of single member takes effect

49. (1) A decision, other than an interlocutory decision, made by a single Division member takes effect

  • (a) if made in writing, when that member signs and dates the reasons for the decision; and

  • (b) if given orally at a hearing, when that member states the decision and gives the reasons.

When decision of three-member panel takes effect

(2) A decision, other than an interlocutory decision, made by a panel of three Division members takes effect

  • (a) if made in writing, when all the members sign and date their reasons for the decision; and

  • (b) if given orally at a hearing, when all the members state their decision and give their reasons.

When decision allowing application to withdraw takes effect

50. A decision allowing an application to withdraw an appeal takes effect

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

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

GENERAL PROVISIONS

No applicable rule

51. 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

52. 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 rules

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

PART 4

RULES APPLICABLE TO AN APPEAL FOR WHICH A HEARING IS HELD

FIXING A DATE FOR A HEARING

Conference to fix date for hearing

54. The Division may require the parties to participate in a scheduling conference or otherwise give information to help the Division fix a date for a hearing.

NOTICE TO APPEAR

Notice to appear

55. (1) When, in accordance with paragraph 171(a) of the Act, the Division gives notice to the person who is the subject of the appeal and the Minister of any hearing, it must notify them in writing of the date, time and location fixed for the hearing and the issues that will be raised at the hearing.

Date fixed for hearing

(2) The date fixed for the hearing of an appeal must not be earlier than 10 days after the day on which the person who is the subject of the appeal and the Minister receive the notice referred to in subrule (1), unless they consent to an earlier date.

CONDUCT OF A HEARING

Restriction of hearing

56. (1) A hearing is restricted to matters relating to the issues provided with the notice to appear unless the Division considers that other issues have been raised by statements made by the person who is the subject of the appeal or by a witness during the hearing.

Standard order of questioning

(2) Any witness, including the person who is the subject of the appeal, will be questioned first by the Division, then by the appellant and then by any other party.

Variation of order of questioning

(3) 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

(4) The Division may limit the questioning of witnesses, including the person who is the subject of the appeal, taking into account the nature and complexity of the issues and the relevance of the questions.

Oral representations

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

Limits on representations

(6) After all the evidence has been heard, the Division must

  • (a) set time limits for representations, taking into account the complexity of the issues and the amount of relevant evidence heard; and

  • (b) indicate what issues need to be addressed in the representations.

PERSON WHO IS THE SUBJECT OF AN APPEAL IN CUSTODY

Custody

57. The Division may order a person who holds a person who is the subject of an appeal in custody to bring the person to a proceeding at a location specified by the Division.

INTERPRETERS

Need for interpreter — person

58. (1) If a person who is the subject of an appeal needs an interpreter, the person must indicate the language and dialect, if any, to be interpreted in the notice of appeal if they are the appellant or in the notice of intent to respond if they are the respondent.

Changing language of interpretation

(2) A person who is the subject of an appeal 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 20 days before the date fixed for the hearing.

Need for interpreter — witness

(3) If any party’s witness needs an interpreter for a hearing, 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 20 days before the date fixed for the hearing.

Interpreter’s oath

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

OBSERVERS

Observers

59. (1) An application under rule 40 is not necessary if an observer is a member of the staff of the Board, a representative or agent of the UNHCR or if the person who is the subject of the appeal 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 it considers necessary to ensure the confidentiality of the proceeding despite the presence of an observer.

ADDITIONAL DOCUMENTS

Documents after hearing — person

60. (1) A person who is the subject of an appeal 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 person who is the subject of the appeal must attach a copy of the document to the application that must be made in accordance with rule 35, but the person is not required to give evidence in an affidavit or statutory declaration.

New evidence

(3) The person who is the subject of the appeal must include in the application an explanation of how the document meets the requirements of subsection 110(4) of the Act, and how that evidence relates to the appellant, unless the document is being presented in response to evidence presented by the Minister.

Factors

(4) 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 person who is the subject of the appeal, with reasonable effort, could have provided the document with the appellant’s record, respondent’s record or reply record.

Documents after hearing — Minister

(5) If the Minister provides a document as evidence after a hearing but before a decision takes effect, the person who is the subject of the appeal may reply to the additional document in accordance with rule 4 with any modifications that the circumstances require.

WITNESSES

Providing witness information

61. (1) If a party wants to call a witness, the party must provide the following witness information in writing to any other party 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 any other party, together with proof that it was provided.

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 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

62. (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, they 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, the date, time and place that it was provided and proof 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

63. (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 35, but is not required to give evidence in an affidavit or statutory declaration.

Arrest warrant

64. (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

65. 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.

CHANGING THE LOCATION OF A HEARING

Application to change location

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

Form and content of application

(2) The party must make the application in accordance with rule 35, 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 30 days before the date fixed for the hearing.

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 hearing to be held;

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

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

  • (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 in order to accommodate a vulnerable person; and

  • (g) whether a hearing may be conducted by means of live telecommunication with the person who is the subject of the appeal.

Duty to appear

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

CHANGING THE DATE OR TIME OF A HEARING

Application to change date or time

67. (1) A party may make an application to the Division to change the date or time fixed for a hearing.

Form and content of application

(2) The party must

  • (a) make the application in accordance with rule 35, but is not required to give evidence in an affidavit or statutory declaration; and

  • (b) give at least six dates and times, within the period specified by the Division, on which the party is available to start or continue the hearing.

Notice of period specified by Division

(3) The Division must provide notice of the period referred to in paragraph (2)(b) in a manner that will allow public access to it.

Hearing two working days or less away

(4) If the party wants to make an application two working days or less before the date fixed for the hearing, the party must make the application orally on the date fixed for the hearing.

Factors

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

  • (a) in the case of a date and time that was fixed after the Division consulted or tried to consult the party, any exceptional circumstances for allowing the application;

  • (b) when the party made the application;

  • (c) the time the party has had to prepare for the hearing;

  • (d) the efforts made by the party to be ready to start or continue the hearing;

  • (e) in the case of a party who requests more time to obtain information in support of their arguments, the Division’s ability to proceed in the absence of that information without causing an injustice;

  • (f) whether the party has counsel;

  • (g) the knowledge and experience of any counsel who represents the party;

  • (h) any previous delays and the reasons for them;

  • (i) whether the date and time fixed were peremptory;

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

  • (k) whether allowing the application would unreasonably delay the hearing or likely cause an injustice; and

  • (l) the nature and complexity of the matter to be heard.

Subsequent application

(6) 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.

Application for medical reasons

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

(8) The medical certificate must set out

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

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

  • (c) the date on which the person is expected to be able to participate in the hearing.

Duty to appear

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

ABANDONMENT

Abandonment after hearing scheduled

68. (1) In determining whether an appeal has been abandoned under subsection 168(1) of the Act after a date for a hearing has been fixed, the Division must give the appellant an opportunity to explain why the appeal should not be declared abandoned,

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

  • (b) in any other case, by way of a special hearing, after notifying the appellant in writing.

Factors to consider

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

Medical reasons

(3) If the appellant is the person who is the subject of the appeal and the 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

(4) The medical certificate must set out

  • (a) the particulars of the medical condition, without specifying the diagnosis, that prevented the person from pursuing their appeal; and

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

Start or continue proceedings

(5) If the Division decides not to declare the appeal abandoned, it must start or continue the proceedings without delay.

COMING INTO FORCE

S.C. 2010, c. 8

69. 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
(Rule 15)

INFORMATION AND DECLARATIONS— COUNSEL NOT REPRESENTING
OR ADVISING FOR CONSIDERATION

Item

Information

1.

IRB Division and file number with respect to the person who is the subject of the appeal.

2.

Name of counsel who is representing or advising the person who is the subject of the appeal 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 and 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 person who is the subject of the appeal that the counsel who is representing or advising them is not receiving consideration and that 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 person who is the subject of the appeal and that the information provided in the form is complete, true and correct.

[32-1-o]

Footnote a
S.C. 2001, c. 27