Refugee Appeal Division Rules (SOR/2012-257)

Interpretation

Marginal note:Definitions

1 The following definitions apply in these Rules.

Act

Act means the Immigration and Refugee Protection Act. (Loi)

appellant

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. (appelant)

contact information

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. (coordonnées)

Division

Division means the Refugee Appeal Division. (Section)

interested person

interested person means a person whose application to participate in an appeal under rule 46 has been granted. (personne intéressée)

party

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. (partie)

proceeding

proceeding includes a conference, an application, or an appeal that is decided with or without a hearing. (procédure)

registry office

registry office means a business office of the Division. (greffe)

Regulations

Regulations means the Immigration and Refugee Protection Regulations. (Règlement)

respondent

respondent means a person who is the subject of an appeal in the case of an appeal by the Minister. (intimé)

UNHCR

UNHCR means the United Nations High Commissioner for Refugees and includes its representative or agent. (HCR)

vulnerable person

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. (personne vulnérable)

working day

working day does not include Saturdays, Sundays or other days on which the Board offices are closed. (jour ouvrable)

PART 1Rules Applicable to Appeals Made by a Person Who Is the Subject of an Appeal

Filing and Perfecting an Appeal

Marginal note:Filing appeal

• 2 (1) To file an appeal, the person who is the subject of the appeal must provide to the Division three copies of a written notice of appeal.

• Marginal note:Copy provided to Minister

  (2) The Division must provide a copy of the notice of appeal to the Minister without delay.

• Marginal note:Content of notice of appeal

  (3) 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; and

  • (f) 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.

• Marginal note:Time limit

  (4) The notice of appeal provided under this rule must be received by the Division within the time limit for filing an appeal set out in the Regulations.

Marginal note:Perfecting appeal

• 3 (1) To perfect an appeal, the person who is the subject of the appeal must provide to the Division two copies of the appellant’s record.

• Marginal note:Copy provided to Minister

  (2) The Division must provide a copy of the appellant’s record to the Minister without delay.

• Marginal note:Content of appellant’s record

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

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

  • (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) a written statement indicating

    • (i) whether the appellant is relying on any evidence referred to in subsection 110(4) of the Act,

    • (ii) whether the appellant is requesting that a hearing be held under subsection 110(6) of the Act, and if they are requesting a hearing, whether they are making an application under rule 66 to change the location of the hearing, and

    • (iii) the language and dialect, if any, to be interpreted, if the Division decides that a hearing is necessary and the appellant needs an interpreter;

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

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

  • (g) 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 written reasons for the Refugee Protection Division’s decision that the appellant is appealing or in the transcript or in any audio or other electronic recording of the Refugee Protection Division hearing,

    • (iii) how any documentary evidence referred to in paragraph (e) 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.

• Marginal note:Length of memorandum

  (4) The memorandum referred to in paragraph (3)(g) 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

  (5) The appellant’s record provided under this rule must be received by the Division within the time limit for perfecting an appeal set out in the Regulations.

Intervention by the Minister

Marginal note:Notice of intervention

• 4 (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 written notice of intervention, together with any documentary evidence that the Minister wants to rely on in the appeal.

• Marginal note: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 if the Minister is requesting a hearing, why the Division should hold a hearing and whether the Minister is making an application under rule 66 to change the location of the hearing.

• Marginal note: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) 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;

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

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

    • (i) the grounds on which the Minister is contesting the appeal, and

    • (ii) the decision the Minister wants the Division to make.

• Marginal note:Length of memorandum

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

• Marginal note:Proof documents were provided

  (5) The documents provided to the Division under this rule must be accompanied by proof that they were provided to the appellant.

Reply

Marginal note:Reply to Minister’s intervention

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

• Marginal note:Content of reply record

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

  • (a) 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;

  • (b) 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;

  • (c) 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; and

  • (d) 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 (b) 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, and if the appellant is requesting a hearing, whether they are making an application under rule 66 to change the location of the hearing.

• Marginal note:Length of memorandum

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

• Marginal note:Proof document was provided

  (4) The reply record provided to the Division must be accompanied by proof that it was provided to the Minister.

• Marginal note:Time limit

  (5) Documents provided under this rule must be received by the Division no later than 15 days after the day on which the appellant receives the Minister’s notice of intervention, the Minister’s intervention record, or any additional documents provided by the Minister, as the case may be.

Extension of Time

Marginal note:Application for extension of time to file or perfect

• 6 (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 or to perfect an appeal under the Regulations must do so in accordance with rule 37, except that the person must provide to the Division the original and a copy of the application.

• Marginal note:Copy provided to Minister

  (2) The Division must provide a copy of an application under subrule (1) to the Minister without delay.

• Marginal note:Content of application

  (3) 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.

• Marginal note:Accompanying documents — filing

  (4) An application for an extension of the time to file an appeal under subrule (1) must be accompanied by three copies of a written notice of appeal.

• Marginal note:Accompanying documents — perfecting

  (5) An application for an extension of the time to perfect an appeal under subrule (1) must be accompanied by two copies of the appellant’s record.

• Marginal note:Application for extension of time to reply

  (6) 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 37.

• Marginal note:Factors — reply

  (7) In deciding an application under subrule (6), 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.

• Marginal note:Notification of decision on application

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

Disposition of an Appeal

Marginal note:Decision without further notice

7 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 appellant’s record, or the time limit for perfecting the appeal set out in the Regulations has expired; or

• (b) if the reply record has been provided, or the time limit for providing it has expired.

PART 2Rules Applicable to Appeals Made by the Minister

Filing and Perfecting an Appeal

Marginal note:Filing appeal

• 8 (1) To file 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, and then to the Division, two copies of the written notice of appeal.

• Marginal note: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; and

  • (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.

• Marginal note:Proof document was provided

  (3) The notice of appeal provided to the Division must be accompanied by proof that it was provided to the person who is the subject of the appeal.

• Marginal note:Time limit

  (4) The notice of appeal provided under this rule must be received by the Division within the time limit for filing an appeal set out in the Regulations.

Marginal note:Perfecting appeal

• 9 (1) To 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 and then to the Division, any supporting documents that the Minister wants to rely on in the appeal.

• Marginal note:Content of appellant’s record

  (2) In addition to the documents referred to in subrule (1), 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) the notice of decision and written reasons for the Refugee Protection Division’s decision that the Minister is appealing;

  • (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) a written statement indicating

    • (i) 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

    • (ii) whether the Minister is requesting that a hearing be held under subsection 110(6) of the Act, and if the Minister is requesting a hearing, why the Division should hold a hearing and whether the Minister is making an application under rule 66 to change the location of the hearing;

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

  • (f) 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 written reasons for the Refugee Protection Division’s decision that the Minister is appealing or in the transcript or in any audio or other electronic recording of the Refugee Protection Division hearing, and

    • (iii) the decision the Minister wants the Division to make.

• Marginal note:Length of memorandum

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

• Marginal note:Proof documents were provided

  (4) Any supporting documents and the appellant’s record, if any, provided to the Division must be accompanied by proof that they were provided to the person who is the subject of the appeal.

• Marginal note:Time limit

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

Response to an Appeal

Marginal note:Response to appeal

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

• Marginal note: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; and

  • (f) 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.

• Marginal note:Content of respondent’s record

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

  • (a) 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;

  • (b) a written statement indicating

    • (i) whether the respondent is requesting that a hearing be held under subsection 110(6) of the Act, and if they are requesting a hearing, whether they are making an application under rule 66 to change the location of the hearing, and

    • (ii) the language and dialect, if any, to be interpreted, if the Division decides that a hearing is necessary and the respondent needs an interpreter;

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

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

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

    • (i) the grounds on which the respondent is contesting 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.

• Marginal note:Length of memorandum

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

• Marginal note:Proof documents were provided

  (5) The notice of intent to respond and the respondent’s record provided to the Division must be accompanied by proof that they were provided to the Minister.

• Marginal note: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 any supporting documents; or

  • (b) if the Division allows an application for an extension of time to perfect the appeal under rule 12, the day on which the respondent is notified of the decision to allow the extension of time.

Reply

Marginal note:Minister’s reply

• 11 (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 at the time that the appeal was perfected or with the respondent’s record.

• Marginal note: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) 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;

  • (b) 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; and

  • (c) 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 the Minister did not include such a request in the appellant’s record, if any, and if the Minister is requesting a hearing, whether the Minister is making an application under rule 66 to change the location of the hearing.

• Marginal note:Length of memorandum

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

• Marginal note:Proof documents were provided

  (4) Any documentary evidence and the reply record, if any, provided to the Division under this rule must be accompanied by proof that they were provided to the respondent.

Extension of Time

Marginal note:Application for extension of time — Minister

• 12 (1) If the Minister makes an application to the Division for an extension of the time to file or to perfect an appeal under the Regulations, the Minister must do so in accordance with rule 37.

• Marginal note:Accompanying documents — filing

  (2) An application for an extension of the time to file an appeal under subrule (1) must be accompanied by two copies of a written notice of appeal.

• Marginal note:Accompanying documents — perfecting

  (3) An application for an extension of the time to perfect an appeal under subrule (1) must be accompanied by any supporting documents, and an appellant’s record, if any.

• Marginal note:Application for extension of time — person

  (4) 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 37.

• Marginal note:Content of application for extension of time to respond to appeal

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

  • (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.

• Marginal note:Factors — respond

  (6) 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.

• Marginal note:Notification of decision on application

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

Disposition of an Appeal

Marginal note:Decision without further notice

13 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 respondent’s record, or the time limit for providing it set out in subrule 10(6) has expired; or

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

PART 3Rules Applicable to All Appeals

Communicating with the Division

Marginal note:Communicating with Division

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

Marginal note:Change to contact information

15 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

Marginal note:Retaining counsel after providing notice

• 16 (1) If a person who is the subject of an appeal retains counsel after providing a notice of appeal or a notice of intent to respond, as the case may be, the person must without delay provide the counsel’s contact information in writing to the Division and to the Minister.

• Marginal note: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.

• Marginal note: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.

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

17 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.

Marginal note:Becoming counsel of record

• 18 (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 a notice of intent to respond, as the case may be, or as soon as a person becomes counsel after the person provided a notice, the counsel becomes counsel of record for the person.

• Marginal note: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.

Marginal note:Request to be removed as counsel of record

• 19 (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.

• Marginal note:Proof request was provided

  (2) The request provided to the Division must be accompanied by proof that copies were provided to the person represented and to the Minister.

• Marginal note: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.

• Marginal note:Division’s permission required

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

Marginal note:Removing counsel of record

• 20 (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.

• Marginal note:Proof notice was provided

  (2) The notice provided to the Division must be accompanied by proof that copies were provided to counsel and to the Minister.

• Marginal note:Ceasing to be counsel of record

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

Refugee Protection Division Record

Marginal note:Providing notice of appeal

• 21 (1) The Division must without delay provide a copy of the notice of appeal to the Refugee Protection Division after the appeal is perfected under rule 3 or 9, as the case may be.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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

Marginal note:Choice of language

• 22 (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.

• Marginal note: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.

• Marginal note: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

Marginal note:Continuation of designation

• 23 (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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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 that representative has also been designated because the person is unable to appreciate the nature of the proceedings.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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

Marginal note:Notice to parties

• 24 (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.

• Marginal note: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.

• Marginal note:Proof written representations and evidence were provided

  (3) The written representations and evidence provided to the Division must be accompanied by proof that they were provided to any other party.

Notice of Constitutional Question

Marginal note:Notice of constitutional question

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

• Marginal note: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.

• Marginal note: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 proof that copies were provided under paragraphs (a) to (c).

• Marginal note:Time limit

  (4) Documents provided under this rule must be received by their recipients at the same time as the Division receives the appellant’s record, respondent’s record or the reply record, as the case may be.

• Marginal note: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.

Conferences

Marginal note:Requirement to participate at conference

• 26 (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.

• 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.

Documents

Form and Language of Documents

Marginal note:Documents prepared by party

• 27 (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 ½ inches x 11 inches) paper.

• Marginal note: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 ½ inches x 11 inches) paper.

• Marginal note:List of documents

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

• Marginal note:Consecutively numbered pages

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

Marginal note:Language of documents — person

• 28 (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.

• Marginal note: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.

• Marginal note: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 or Written Submissions not Previously Provided

Marginal note:Documents or written submissions not previously provided — person

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

• Marginal note:Application

  (2) If a person who is the subject of an appeal wants to use a document or provide written submissions that were not previously provided, the person must make an application to the Division in accordance with rule 37.

• Marginal note:Documents — new evidence

  (3) The person who is the subject of the appeal must include in an application to use a document that was not previously provided an explanation of how the document meets the requirements of subsection 110(4) of the Act and how that evidence relates to the person, unless the document is being presented in response to evidence presented by the Minister.

• Marginal note:Factors

  (4) 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 or written submissions with the appellant’s record, respondent’s record or reply record.

• Marginal note:Documents or written submissions not previously provided — Minister

  (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 written submissions in support of the Minister’s appeal or intervention that were not previously provided, the Minister must provide the documentary evidence or written submissions first to the person who is the subject of the appeal and then to the Division.

• Marginal note:Proof documents or written submissions provided

  (6) The additional documents or written submissions provided to the Division under subrule (5) must be accompanied by proof that they were provided to the person who is the subject of the appeal.

• Marginal note:Reply to Minister’s documents or written submissions

  (7) The person who is the subject of the appeal may reply to the additional documents or written submissions in accordance with rule 5 with any modifications that the circumstances require.

Providing a Document

Marginal note:General provision

30 Rules 31 to 35 apply to any document, including a notice or request in writing.

Marginal note:Providing documents to Division

• 31 (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.

• Marginal note: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.

• Marginal note:Providing documents to Minister

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

• Marginal note: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.

Marginal note:How to provide document

32 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.

Marginal note:Application if unable to provide document

• 33 (1) If a party is unable to provide a document in a way required by rule 32, 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.

• Marginal note:Form of application

  (2) The application must be made in accordance with rule 37.

• Marginal note: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.

Marginal note:Proof document was provided

• 34 (1) Proof that a document was provided must be established by

  • (a) an acknowledgment of receipt signed by the recipient or a statement of service, 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.

• Marginal note:Statement of service

  (2) For the purpose of paragraph (1)(a) or (c), a statement of service consists of a written statement, signed by the person who provided the document, that includes the person’s name and a statement of how and when the document was provided.

• Marginal note:Statement – unable to provide proof

  (3) If a party is unable to provide proof that a document was provided in a way required by paragraph (1)(a) to (c), the party must provide a written statement, signed by the party, that includes an explanation of why they are unable to provide proof.

Marginal note:When document received by division

• 35 (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.

• Marginal note: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.

• Marginal note: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

Marginal note:General provision

36 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 37;

• (b) a party who wants to respond to the application must respond in accordance with rule 38; and

• (c) a party who wants to reply to a response must reply in accordance with rule 39.

How to Make an Application

Marginal note:Form of application and time limit

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

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note:Providing 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 proof that a copy was provided to any other party.

How to Respond to a Written Application

Marginal note:Responding to written application

• 38 (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.

• Marginal note: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.

• Marginal note: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 proof that a copy was provided to the other party.

• Marginal note: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

Marginal note:Replying to written response

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

• Marginal note:Evidence in reply

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

• Marginal note: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 proof that a copy was provided to the other party.

• Marginal note: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

Marginal note:Appeals automatically joined

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

Marginal note:Application to join

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

• Marginal note:Application to separate

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

• Marginal note: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 37, 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 proof that the party provided the copy of the application to any affected person.

• Marginal note: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.

• Marginal note: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

Marginal note:Minister considered party

• 42 (1) For the purpose of this rule, the Minister is considered to be a party even if the Minister has not yet intervened in the appeal.

• 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 37.

• Marginal note: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.

• 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; and

  • (e) 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 and 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; and

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

• Marginal note: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 4(2), if one was not previously provided.

• Marginal note:Providing response

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

• Marginal note: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).

• Marginal note:Reply to response

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

• Marginal note: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.

• Marginal note: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.

• Marginal note: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, on 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

  (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.

• Marginal note: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

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.

General Provisions

Marginal note:No applicable rule

52 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.

Marginal note:Powers of Division

53 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.

Marginal note:Failure to follow rules

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

PART 4Rules Applicable to an Appeal for Which a Hearing Is Held

Fixing a Date for a Hearing

Marginal note:Conference to fix date for hearing

55 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

Marginal note:Notice to appear

• 56 (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 to 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.

• Marginal note: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

Marginal note:Restriction of hearing

• 57 (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.

• Marginal note:Standard order of questioning

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

• Marginal note:Limiting questioning of witnesses

  (3) 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.

• Marginal note:Oral representations

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

• Marginal note:Limits on representations

  (5) 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

Marginal note:Custody

58 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

Marginal note:Need for interpreter — person

• 59 (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 appellant’s record if they are the appellant or in the respondent’s record if they are the respondent.

• Marginal note: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.

• Marginal note: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.

• Marginal note:Interpreter’s oath

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

Observers

Marginal note:Observers

• 60 (1) An application under rule 42 is not necessary if an observer is the UNHCR or a member of the staff of the Board or if the person who is the subject of the appeal 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 it considers necessary to ensure the confidentiality of the proceeding despite the presence of an observer.

Witnesses

Marginal note: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.

• Marginal note:Proof witness information provided

  (2) The witness information provided to the Division must be accompanied by proof that it was provided to any other party.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

Marginal note: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.

• Marginal note: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.

• Marginal note: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 proof that it was provided to the person by hand; 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.

Marginal note: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.

• Marginal note:Application

  (2) The person must make the application in accordance with rule 37, but is not required to give evidence in an affidavit or statutory declaration.

Marginal note: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.

• Marginal note:Written request

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

• Marginal note: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.

• Marginal note:Content of warrant

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

Marginal note: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

Marginal note:Application to change location

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

• Marginal note:Form and content of application

  (2) The party must make the application in accordance with rule 37, but is not required to give evidence in an affidavit or statutory declaration.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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

Marginal note: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.

• Marginal note:Form and content of application

  (2) The party must

  • (a) make the application in accordance with rule 37, 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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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; and

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

• Marginal note:Failure to provide medical certificate

  (9) If a person who is the subject of an appeal fails to provide a medical certificate in accordance with subrules (7) and (8), the person must include in their application

  • (a) particulars of any efforts they made to obtain the required medical certificate, supported by corroborating evidence;

  • (b) particulars of the medical reasons for the application, supported by corroborating evidence; and

  • (c) an explanation of how the medical condition prevents them from participating in the hearing on the date fixed for the hearing.

• Marginal note:Duty to appear

  (10) 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

Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note:Failure to provide medical certificate

  (5) If a person who is the subject of an appeal fails to provide a medical certificate in accordance with subrules (3) and (4), the person must include in their explanation

  • (a) particulars of any efforts they made to obtain the required medical certificate, supported by corroborating evidence;

  • (b) particulars of the medical reasons included in the explanation, supported by corroborating evidence; and

  • (c) an explanation of how the medical condition prevented them from pursuing their appeal.

• Marginal note:Start or continue proceedings

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

Coming into Force

Marginal note:S.C. 2001, c. 27

Footnote ^*69 These Rules come into force on the day on which section 110 of the Immigration and Refugee Protection Act comes into force, but if they are registered after that day, they come into force on the day on which they are registered.

• Return to footnote ^*[Note: Rules in force December 15, 2012, see SI/2012-94.]