Refugee Appeal Division Rules (SOR/2012-257)

Assignment of Three-member Panel

Marginal note:Notice of order

• 43 (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.

• Marginal note: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; and

  • (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.

• Marginal note: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 45(1) of its intention to provide written submissions.

• Marginal note: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

Marginal note:Rules applicable to UNHCR and interested persons

44 These Rules, with the exception of rules 25 (notice of constitutional question) and 47 to 49 (withdrawal, reinstatement, reopening), apply to the UNHCR and interested persons with any modifications that the circumstances require.

Marginal note:Notice to Division

• 45 (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.

• Marginal note:Notice to person and Minister

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

• Marginal note: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.

• Marginal note:Limitation — written submissions

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

• Marginal note: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.

• Marginal note: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.

• Marginal note:Response

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

• Marginal note:Limitation — response

  (8) A response must not raise new issues.

• Marginal note: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.

• Marginal note: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.

• Marginal note:Proof response provided

  (11) The response provided to the Division must be accompanied by proof that it was provided to the person who is the subject of the appeal or to the Minister, as the case may be.

• Marginal note: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.

Marginal note:Application by person to participate

• 46 (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.

• Marginal note: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.

• Marginal note: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.

• Marginal note:Response

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

• Marginal note:Limitation — response

  (5) A response must not raise new issues.

• Marginal note:Length of response

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

• Marginal note:Time limit

  (7) 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.

• Marginal note:Notification of decision on application

  (8) 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.

• Marginal note:Providing documents

  (9) 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.

• Marginal note:Limitation — written submissions

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

• Marginal note:Length of written submissions

  (11) 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.

• Marginal note:Providing written submissions

  (12) 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.

• Marginal note:Proof written submissions provided

  (13) The written submissions provided to the Division must be accompanied by proof that they were provided to the person who is the subject of the appeal and to the Minister.

• Marginal note:Response

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

• Marginal note:Limitation — response

  (15) A response must not raise new issues.

• Marginal note:Length of response

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

• Marginal note:Providing response

  (17) 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.

• Marginal note:Proof response provided

  (18) The response provided to the Division must be accompanied by proof that it was 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.

• Marginal note:Time limit

  (19) Documents provided under subrules (17) and (18) 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

Marginal note:Abuse of process

• 47 (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 7 or 13, 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.

• Marginal note:Withdrawal on notice

  (2) If the requirements set out in rule 7 or 13, 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.

• Marginal note:Application to withdraw

  (3) If the requirements set out in rule 7 or 13, 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 37.

Reinstating a Withdrawn Appeal

Marginal note:Application to reinstate withdrawn appeal

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

• Marginal note:Form and content of application

  (2) The appellant must make the application in accordance with rule 37. If a person who is the subject of an appeal makes the application, they must provide to the Division the original and a copy of the application and include in the application their contact information and, if represented by counsel, their counsel’s contact information and any limitations on counsel’s retainer.

• Marginal note:Documents provided to Minister

  (3) The Division must provide to the Minister, without delay, a copy of an application made by a person who is the subject of an appeal.

• Marginal note:Factors

  (4) 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.

• Marginal note:Factors

  (5) 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.

• Marginal note:Subsequent application

  (6) 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

Marginal note:Application to reopen appeal

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

• Marginal note:Form and content of application

  (2) The application must be made in accordance with rule 37. If a person who is the subject of an appeal makes the application, they must provide to the Division the original and a copy of the application and include in the application their contact information and, if represented by counsel, their counsel’s contact information and any limitations on counsel’s retainer.

• Marginal note:Documents provided to Minister

  (3) The Division must provide to the Minister, without delay, a copy of an application made by a person who is the subject of an appeal .

• Marginal note: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 and a copy of the application to the Division, and

  • (b) the application provided to the Division must be accompanied by proof that a copy was provided to the counsel.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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

Marginal note:Notice of decision

• 50 (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.

• Marginal note: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.

• Marginal note: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.

Marginal note:When decision of single member takes effect

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

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

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

• Marginal note: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.