Refugee Protection Division Rules (SOR/2012-256)

Proceedings Conducted in Public

Marginal note:Minister considered party

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

• Marginal note:Application

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

• Marginal note:Oral application

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

• Marginal note:Content of application

  (4) In the application, the person must

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

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

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

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

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

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

• Marginal note:Providing application

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

• Marginal note:Response to application

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

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

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

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

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

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

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

• Marginal note:Providing response

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

• Marginal note:Providing response to applicant

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

• Marginal note:Reply to response

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

• Marginal note:Providing reply

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

• Marginal note:Time limit

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

• Marginal note:Confidentiality

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

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

  • (b) if the Division holds a hearing in respect of the application,

    • (i) excluding the applicant or the applicant and their counsel from the hearing while the party responding to the application provides evidence and makes representations, or

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

• Marginal note:Summary of response

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

• Marginal note:Notification of decision on application

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

Observers

Marginal note:Observers

• 58 (1) An application under rule 57 is not necessary if an observer is a member of the staff of the Board or a representative or agent of the United Nations High Commissioner for Refugees or if the claimant or protected person consents to or requests the presence of an observer other than a representative of the press or other media of communication at the proceeding.

• Marginal note: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.

• Marginal note:Observers — confidentiality of proceeding

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

Withdrawal

Marginal note:Abuse of process

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

• Marginal note:Withdrawal if no substantive evidence accepted

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

• Marginal note:Withdrawal if substantive evidence accepted

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

Reinstating a Withdrawn Claim or Application

Marginal note:Application to reinstate withdrawn claim

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

• Marginal note:Form and content of application

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

• Marginal note: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.

• Marginal note: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.

• Marginal note:Subsequent application

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

Marginal note:Application to reinstate withdrawn application to vacate or to cease refugee protection

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

• Marginal note:Form of application

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

• Marginal note: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.

• Marginal note: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.

• Marginal note:Subsequent application

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

Reopening a Claim or Application

Marginal note:Application to reopen claim

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

• Marginal note:Form of application

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

• Marginal note:Contact information

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

• Marginal note:Allegations against counsel

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

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

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

• Marginal note:Copy of notice of appeal or pending application

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

• 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) the reasons why

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

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

• Marginal note:Subsequent application

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

• Marginal note:Other remedies

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

Marginal note:Application to reopen application to vacate or to cease refugee protection

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

• Marginal note:Form of application

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

• Marginal note:Contact information

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

• Marginal note:Allegations against counsel

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

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

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

• 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 in respect of the application to vacate or to cease refugee protection.

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

• 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 a claim, or dismiss the application.