Refugee Appeal Division Rules (SOR/2012-257)

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.