Refugee Protection Division Rules (SOR/2012-256)

Documents Establishing Identity and Other Elements of the Claim

Marginal note:Documents

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

Application to Vacate or to Cease Refugee Protection

Marginal note:Contact information

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

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

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

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

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

Counsel of Record

Marginal note:Becoming counsel of record

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

• Marginal note:Limitation on counsel’s retainer

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

Marginal note:Request to be removed as counsel of record

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

• Marginal note:Oral request

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

• Marginal note:Division’s permission required

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

Marginal note:Removing counsel of record

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

• Marginal note:Ceasing to be counsel of record

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

Language of Proceedings

Marginal note:Choice of language — claim for refugee protection

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

• Marginal note:Changing language

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

Marginal note:Choice of language — application to vacate or cease refugee protection

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

• Marginal note:Changing language

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

Interpreters

Marginal note:Need for interpreter — claimant

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

• Marginal note:Changing language of interpretation

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

• Marginal note:Need for interpreter — protected person

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

• Marginal note:Need for interpreter — witness

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

• Marginal note:Interpreter’s oath

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

Designated Representatives

Marginal note:Duty of counsel or officer to notify

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

• Marginal note:Exception

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

• Marginal note:Content of notice

  (3) The notice must include the following information:

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

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

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

• Marginal note:Requirements for being designated

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

  • (a) be 18 years of age or older;

  • (b) understand the nature of the proceedings;

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

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

• Marginal note:Factors

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

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

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

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

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

• Marginal note:Designation applies to all proceedings

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

• Marginal note:End of designation — person reaches 18 years of age

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

• Marginal note:Termination of designation

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

• Marginal note:Designation criteria

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

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

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

• Marginal note:Responsibilities of representative

  (10) The responsibilities of a designated representative include

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

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

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

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

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

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

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

Disclosure of Personal Information

Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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

Marginal note: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

Marginal note: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

Marginal note: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.

• Marginal note:Information or documents

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

• Marginal note:Written record

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

Notice to Appear

Marginal note: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.

• Marginal note: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).

• Marginal note: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

Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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 from the Minister; or

  • (b) if the Minister does not respond to that notice, no earlier than 14 days after receipt of the notice by the Minister.