ARCHIVED — Refugee Protection Division Rules

Warning This Web page has been archived on the Web.

Archived Content

Information identified as archived is provided for reference, research or recordkeeping purposes. It is not subject to the Government of Canada Web Standards and has not been altered or updated since it was archived. Please contact us to request a format other than those available.

Vol. 145, No. 27 — July 2, 2011

Statutory authority

Immigration and Refugee Protection Act

Sponsoring department and agency

Department of Citizenship and Immigration and Immigration and Refugee Board

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the rules.)

Executive summary


Issue: Canada’s refugee determination system is respected internationally for its high degree of fairness and the quality of its proceedings and decisions. However, the integrity and effectiveness of this system is being undermined by long wait times and a significant backlog of cases. Individuals who have made an in-Canada refugee protection claim wait on average approximately 22 months for an initial decision on their claim. Canada’s refugee determination system is further burdened by a backlog of cases which sat at 47 300 claims as of the end of April 2011. To address these challenges, the Minister of Citizenship and Immigration (the Minister) introduced Bill C-11, the Balanced Refugee Reform Act (BRRA). The BRRA, which received Royal Assent on June 29, 2010, includes legislative amendments to the Immigration and Refugee Protection Act (IRPA) that are intended to improve the efficiency of the refugee determination system in order to reduce the amount of time individuals wait to receive decisions on their claims. In order to realize the efficiencies and objectives of the BRRA, there is a need to revise the Immigration and Refugee Board (IRB) Rules (the IRB Rules). The IRB Rules provide clear and transparent direction on the practices and procedures of the IRB Divisions (or Tribunals) to parties (refugee claimants) and their counsel appearing before the IRB, the IRB staff who process cases and decision makers (or members) who render decisions on cases. Changes to the IRB Rules are necessary in order to implement the procedural changes in the refugee determination system under the BRRA. It is anticipated that the relevant provisions of the BRRA will come into force by the end of 2011.

Description: The following IRB Rules are being proposed:

  • New Refugee Protection Division Rules (RPD Rules) — the rules that govern the processes of the Refugee Protection Division (RPD);
  • New Refugee Appeal Division Rules (RAD Rules) — the rules that govern the processes of the Refugee Appeal Division (RAD); and
  • New Oath or Solemn Affirmation of Office Rules (Immigration and Refugee Board) — the rules that govern the oath or solemn affirmation of office taken by decision makers.

New RPD Rules, RAD Rules and Oath or Solemn Affirmation of Office Rules (Immigration and Refugee Board) are being proposed in order to implement the procedural changes to the refugee determination system under the BRRA and to address recommendations of the Standing Joint Committee for the Scrutiny of Regulations (SJCSR) and the Office of the Commissioner of Official Languages (OCOL).

Cost-benefit statement: Citizenship and Immigration Canada (CIC) indicated in their “Designated Country of Origin” Regulatory Impact Analysis Statement (RIAS), which was pre-published in the Canada Gazette, Part I, on March 19, 2011, that the broader legislative reforms linked to the BRRA will create the conditions for faster processing of refugee claimants. They have estimated that the overall benefits of a reformed refugee determination system will result in savings of $1.2B in present value terms (PV) [or $310M (PV) in net savings] over 10 years (2011–2020). All figures are in present value terms and are reflected in 2011 dollars. The overall benefits are largely as a result of failed claimants spending less time in Canada with access to welfare and social services, due to faster processing and faster removals. The new IRB Rules would benefit the Canadian public by improving the integrity and efficiency of IRB proceedings, and thus increase the overall efficiency of the refugee determination system.

Additional costs associated with the proposed new IRB Rules are estimated to be $38.8M (PV) over a 10-year study horizon (2011/12–2020/21) and are outlined below. All figures are in present value terms and are reflected in 2011 dollars. The additional costs are a result of process changes and new operational requirements resulting from the BRRA. All monetized costs would be absorbed by the IRB within existing resources and resources that the IRB has secured for the implementation of the BRRA reform package as a whole.

Business and consumer impacts: The proposed IRB Rules would have no economic impact or implications for business, consumers, competition, jobs or trade.

Domestic and international coordination and cooperation: These proposed IRB Rules would require changes to the existing procedures of CIC and the Canada Border Services Agency (CBSA). Therefore, in a manner which respects its status as an independent administrative tribunal, the IRB will continue to work closely with CIC and the CBSA to ensure that the IRB Rules support a fair and efficient refugee determination system. Both CIC and the CBSA have expressed their support for this regulatory proposal.

Performance measurement and evaluation plan: Three years after implementation of the new refugee determination system under the BRRA, a full review of the new system would be carried out, an effort which would be led by CIC. The IRB would participate in a manner which respects the IRB’s status as an independent administrative tribunal.


Issue

Canada’s refugee determination system is respected internationally for its high degree of fairness and the high quality of its proceedings and decisions. However, the integrity and effectiveness of this system is being undermined by long wait times and a significant backlog of cases. Individuals who have made an in-Canada refugee protection claim generally wait on average approximately 22 months for an initial decision on their claim. Canada’s refugee determination system is further burdened by a backlog of cases which sat at 47 300 as of the end of April 2011. Long wait times and a large backlog undermine the values of fairness and support for those in need.

To address these challenges, the Minister of Citizenship and Immigration (the Minister) introduced Bill C-11, the Balanced Refugee Reform Act (BRRA). The BRRA, which received Royal Assent on June 29, 2010, includes legislative amendments to the Immigration and Refugee Protection Act (IRPA) that are intended to improve the efficiency of the refugee determination system in order to reduce the amount of time individuals wait to receive decisions on their claims. In order to realize the efficiencies and objectives of the BRRA, there is a need to replace the current Immigration and Refugee Board (IRB) Rules (the IRB Rules) with updated and new IRB Rules. Each IRB Tribunal (also referred to as a Division) has its own rules to govern its tribunal process.

Subsection 161(1) of IRPA provides that, subject to the approval of the Governor in Council, the IRB Chairperson may make rules respecting the activities, practices and procedures of each Division. Rules are necessary for the proper functioning of the IRB, as they provide clear and transparent direction on the practices and procedures of the IRB to parties and their counsel appearing before the IRB, the IRB staff who process cases and members who render decisions on cases. This direction ensures that parties appear and present their cases before the IRB’s Divisions in a consistent manner, thereby facilitating the efficient administrative processing of cases. It also provides guidance to the Divisions to ensure that all cases are processed in a consistent manner that respects the principles of natural justice. Changes to the IRB Rules are necessary in order to implement the procedural changes in the refugee determination system under the BRRA. It is anticipated that the relevant provisions of the BRRA will come into force by the end of 2011.

Objectives

The objective of the updated and new IRB Rules, as described in this proposal, is to contribute to the implementation of the BRRA so that its intended objectives may be fully realized, by ensuring that the IRB Rules are consistent with the provisions of the BRRA.

The IRB, continued by the IRPA, is a quasi-judicial, independent, administrative tribunal comprised of three Divisions, each being a separate Tribunal with a unique statutory mandate. The IRB is responsible for resolving immigration and refugee matters, efficiently, fairly and in accordance with the law.

The Refugee Protection Division (RPD) decides claims for refugee protection made by persons already in Canada. The Immigration Division (ID) conducts hearings with respect to persons alleged to be inadmissible to Canada and holds detention reviews for those detained for immigration reasons. Finally, the Immigration Appeal Division (IAD) hears appeals from refusals of sponsored applications for permanent residence made by family members, appeals by permanent residents and protected persons who are subject to a removal order, appeals by permanent residents determined by an immigration officer abroad not to have fulfilled their residency obligation, and appeals by the Minister of certain decisions made by members of the ID. The IRPA also created a fourth Division, the Refugee Appeal Division (RAD), which considers appeals of certain RPD decisions. The provisions creating the RAD were not proclaimed in force when IRPA came into force on June 28, 2002. However, as indicated below, the BRRA will implement a new RAD at the IRB.

The BRRA, which received Royal Assent on June 29, 2010, will introduce the following changes to the IRB upon coming into force:

  • An information-gathering interview of refugee claimants conducted by officials of the IRB;
  • A first-level hearing of refugee claims at the RPD conducted by public servant decision makers at the IRB;
  • A new RAD at the IRB with Governor in Council (GIC) appointed decision-makers;
  • Provision for “Designated Countries of Origin” (DCO), for the purpose of requiring expedited scheduling of RPD hearings and determining of appeals at the RAD;
  • A provision allowing claims that are rejected at the first-level hearing to be determined by RPD decision makers as manifestly unfounded, also for the purpose of expediting appeals at the RAD;
  • Transfer of the Pre-Removal Risk Assessment (PRRA) function to the RPD (except applications where the applicant falls under subsection 112(3) of the IRPA, e.g. security grounds, serious criminality); and
  • Transitional provisions regarding the processing of claims for refugee protection made before the coming into force of the BRRA.

It is anticipated that the relevant provisions of the BRRA will come into force by the end of 2011. However, the transfer of the PRRA function from Citizenship and Immigration Canada (CIC) to the RPD will take place no later than one year after the other changes to the refugee determination system come into force.

In order to be consistent with the BRRA, new IRB Rules (RPD Rules, RAD Rules, and Oath or Solemn Affirmation of Office Rules) are required. These new rules must be in place in order to process claims in the new refugee determination system as set out in the BRRA.

The proposed IRB Rules are consistent with the overall objectives of the new legislation passed by Parliament as they relate to refugee reform, as follows:

  • Ensure that the determination of claims is accelerated, thereby enabling a response to sudden spikes in claims and helping prevent future backlogs, by revising timelines and providing for an information gathering interview and RPD hearing held by a public servant;
  • Ensure that processing is prioritized for claimants from designated countries, parts of countries or classes of nationals in countries, and for those whose claims are determined to be manifestly unfounded, for the purpose of helping to deter unfounded claims;
  • Provide all claimants with an opportunity to establish on appeal that the RPD decision was wrong in fact or law or both, allow for the introduction of new evidence that was not reasonably available at the time of the RPD decision and, in exceptional cases, allow for an oral hearing at the newly-created RAD; and
  • Localize risk-evaluation processes in one institution by transferring the PRRA function from CIC to the RPD.

In addition to the changes necessary to implement the BRRA, other proposed changes would also be made in response to recommendations of the Standing Joint Committee for the Scrutiny of Regulations (SJCSR) and the Office of the Commissioner of Official Languages (OCOL).

It is anticipated that in 2012–13 the RPD Rules would be further amended to introduce the changes required by the transfer of the PRRA function from CIC to the RPD as outlined in the BRRA. The transfer will come into force no later than one year after other changes to the refugee determination system come into force. These further changes to the RPD Rules would be made in time for this transfer.

The IRB also anticipates making consequential amendments to the ID Rules and to the IAD Rules in 2011–12 which are not related to the BRRA. These amendments would clarify and streamline IRB procedures, harmonize rules that are common to all of the IRB’s Divisions, and address recommendations of the SJCSR.

Description

Each Division (or Tribunal) is supported by its own rules. These rules provide clear and transparent direction on the practices and procedures of the Divisions to parties and their counsel appearing before the IRB, the IRB staff who process cases and members who render decisions on cases. This direction ensures that parties appear and present their cases before the IRB’s Divisions in a consistent manner, therefore facilitating the efficient administrative processing of cases. It also provides guidance to the Divisions to ensure that all cases are processed in a consistent manner that respects the principles of natural justice. The efficient administration of cases, facilitated by the use of rules, helps contribute to the overall objectives of the BRRA.

If new rules were not made prior to implementation of the new system, it would be impossible to properly give effect to the BRRA.

Accordingly, it is proposed that the following changes be made to the IRB Rules.

Refugee Protection Division Rules (RPD Rules)

The legislative amendments contained in the BRRA will impact the procedures at the RPD, which decides claims for refugee protection made in Canada. The legislative amendments contained in the BRRA provide that eligible refugee protection claimants will have to attend an interview with an official of the IRB no earlier than 15 days after their claim is referred to the IRB, unless the claimant consents to an earlier date. At the interview, information about the claim will be collected from the claimant and the IRB official will also schedule a hearing of the claim before a public servant decision maker. In accordance with the proposed rules in this submission, forms would be completed, and information about the process would be shared with the claimant during the interview.

The following additions to the RPD Rules would be required under the BRRA for the information-gathering interview and the first level hearing:

  • Setting of the date for, and the conduct of, the interview of the claimant with an official of the IRB, including the information to be provided by the claimant at the interview; and
  • The conduct of a hearing before a public servant decision maker.

The following changes to the RPD Rules would also be made:

  • Changes to time limits in order for the RPD to be able to comply with the time limits for the holding of hearings that would be set out in the Immigration and Refugee Protection Regulations (IRPR). The time limits set out in the RPD Rules would cover such matters as the disclosure of documents and requests for postponements and adjournments of interviews and hearings;
  • Changes in order to incorporate procedures currently contained in Chairperson’s Guidelines and IRB policies, for example, regarding designating a representative, changing the location of a proceeding, postponing and adjourning a proceeding, and providing information concerning “authorized representatives” as defined in the IRPR;
  • Changes requested by the SJCSR, including some substantive changes, such as a clarification that the current IRB practice is that, before a Division of the IRB acts on its own initiative, it will give prior notice to the parties and give them an opportunity to object, as well as corrections to technical errors and/or inconsistencies between the English and French versions of the IRB Rules;
  • Changes requested by the OCOL regarding the language of RPD proceedings; and
  • Changes requested by stakeholders regarding vulnerable persons appearing before the RPD.

Refugee Appeal Division Rules (RAD Rules)

The BRRA also amends and will bring into force the unproclaimed provisions of IRPA regarding the RAD. With the establishment of the RAD, both the claimant and the Minister will have the right to appeal a decision by the RPD either rejecting or allowing a claim. The appeal may be made on a question of law, fact, or mixed law and fact.

New rules for the RAD are required in order to establish the practice and procedure before the RAD. These rules would include the following:

  • Time limits enabling the RAD to be able to comply with the time limits for decisions on appeals that would be set out in the IRPR. These time limits would cover such matters as responding to appeals, the preparation of the RPD record, and the date that a decision can be made without further notice to the parties;
  • Practices and procedures before the RAD, such as becoming counsel of record, providing information concerning an “authorized representative” as defined in the IRPR, choosing the language of the appeal, designating a representative, using specialized knowledge, providing a notice of constitutional question, holding conferences, providing documents, making applications, joining or separating appeals, conducting proceedings in public, dealing with the UNHCR and interveners, making withdrawal, reinstatement and reopening applications, and rendering decisions; and
  • Provisions applicable to appeals where a hearing would be held. This would apply to a variety of elements related to hearings, including notice of hearing, restriction of the hearing, calling of witnesses, changing the location of a hearing, and applications for postponements and adjournments of a hearing.

Oath or Solemn Affirmation of Office Rules (Immigration and Refugee Board)

The legislative amendments contained in the BRRA provide that RPD decision makers will be public servants rather than GIC appointees as they are currently. The BRRA will require that all IRB members, whether they are appointed by the GIC (as is the case for IAD members, and will be the case for RAD members) or are public servants (as is the case for ID members, and will be the case for RPD members), swear the oath or give the solemn affirmation of office set out in the IRB Rules.

In addition, this proposal would clarify that members are required to comply with the Code of Conduct for Members of the Immigration and Refugee Board of Canada, as amended or replaced from time to time.

Regulatory and non-regulatory options considered

Under subsection 161(1) of the IRPA, the IRB Chairperson, subject to the approval of the Governor in Council, may make rules respecting the activities, practices and procedures of each Division of the IRB.

Consideration was given to establishing instructions on the practices and procedures of the IRB’s Divisions through the use of other instruments such as Chairperson’s guidelines, policies, policy notes, or Chairperson’s instructions.(see footnote 1) However, it was determined that enshrining these practices and procedures in rules, the most authoritative instrument at the disposal of the IRB, would provide for more robust and transparent identification of the basic practices and procedures of the IRB. In addition, for persons appearing before an IRB Division, one comprehensive instrument is more readily accessible and easier to use than a series of instruments.

Benefits and costs

Overall benefits associated with a Reformed Refugee Determination System

The IRB Rules, as outlined in this proposal, would contribute to the systemic savings that will result from faster processing under the BRRA. Overall, it has been estimated by CIC that the BRRA will result in savings estimated at $1.2B in present value terms (PV) [or $310M (PV) in net savings] over 10 years due to faster processing and faster removals largely as a result of failed claimants spending less time in Canada with access to welfare and social services. The proposed IRB Rules would contribute to the BRRA objective of creating a faster and fairer refugee determination system.

The IRB Rules would contribute to the overall objectives of the BRRA by supporting the integrity and efficiency of IRB proceedings, and thus, increase the overall efficiency of the refugee determination system. As stated by CIC, the following legislative and regulatory reforms, which are not part of this proposal, would create potential benefits to Canada due to faster processing of refugee claimants:

  • (1) The introduction in the BRRA of the information-gathering interview at the IRB, which will allow for faster scheduling of hearings at the RPD;
  • (2) The BRRA’s replacement of GIC-appointed IRB members with public servant IRB members at the RPD, ensuring continuity of RPD decision makers and eliminating the risk of significant vacancies at the RPD, which has been a significant contributor to the development of claim backlogs in the past;
  • (3) A necessary implication of the Transition Rules, which do not apply the processing timeframes to the vast majority of backlog files (files in the RPD inventory at the time the BRRA comes into force), is that new files will be processed first and backlog files will be processed only as resources permit;
  • (4) The bar on access to the PRRA, also in the BRRA, which will provide a one-year window for the removal of failed claimants, in which they will be unable to access PRRA as an additional recourse;
  • (5) Faster removals by the Canada Border Services Agency (CBSA), which would contribute to ensuring that failed claimants can be quickly removed; and
  • (6) The processing time limits proposed for inclusion in the IRPR, under a separate regulatory proposal put forth by CIC, would support these reforms and help to achieve the objective of fast decisions at the IRB, by clearly setting out the processing time standards that must be met for new claims, including the expedited processing of claimants from designated countries of origin DCOs.

As a result of these changes, the average processing time for a claim to be heard at the IRB is expected to drop from an average of approximately 22 months to less than 6 months for those found to be a Convention refugee or a person in need of protection. Processing times for failed claimants would also drop significantly. Failed DCO claimants and those whose claims are determined to be manifestly unfounded would be subject to an expedited appeal process. A shorter time in Canada for failed claimants in an expedited process would mean less time with access to social services and health and welfare benefits, thus resulting in lowered costs. This would result in cost savings for provincial and territorial governments, as well as for the federal government, as a result of forgone expenditures for social services and social assistances.

There would also be benefit to the Canadian public. In addition to ensuring a more efficient use of tax dollars, the reforms are expected to discourage non-genuine refugee claims and generate increased confidence in the integrity of Canada’s refugee determination system among Canadians.

Finally, an incidental benefit would also exist for refugee claimants found to be Convention refugees or persons in need of protection as they would receive decisions on their claims from the IRB in a timely manner, allowing them to integrate into Canadian society and apply for citizenship sooner.

Benefits and costs associated directly with the proposed IRB Rules

The following sections, as summarized in Table 1, identify in quantitative and qualitative terms, the costs and benefits associated directly with the proposed IRB Rules.

All costs and benefits were assessed in terms of incremental changes resulting from the proposed IRB Rules — that is, in relation to the Canadian refugee determination system as it would exist with the changes resulting from the BRRA but in the absence of the proposed IRB Rules. Costs that could be quantified were forecasted over a period of 10 years, from fiscal years 2011-12 to 2020-21, expressed in present value (PV) terms, and were discounted at a rate of 8% and are based on current program costs. Program costs were calculated understanding that the IRB will be funded to process and finalize a volume of 23 500 RPD cases and 10 700 RAD cases in fiscal year 2012-13. In fiscal year 2013-14 and in ongoing years, the IRB will be funded to process and finalize 21 500 RPD cases and 9 800 RAD cases. Costs and benefits which could not be estimated reliably in monetary terms due to data limitations were addressed qualitatively.

Table 1: Cost-Benefit Statement of the Proposed IRB Rules

Cost-Benefit Statement

2011–12(Base Year)

2014–15

2020–21

Total Present Value

Average Annual Value

A. Quantified impacts in thousands of $

Benefits

Canadian public, federal government, provinces and territories

The proposed IRB Rules would contribute to the savings that will result from faster processing under the BRRA. The benefits of the proposed IRB Rules have been estimated as part of CIC’s estimated $1.2B (PV) benefits derived from the broader package of reforms under the BRRA.

Costs

Interview report and recording*

IRB

$189.8

$604.9

$83.8

$1,979

$197.9

Video-conference facilities

IRB

$697.5

$244.3

$153.9

$2,830.5

$283

New forms, documents, policies and case management manuals

IRB

$319.5

$319.5

$31.9

Record of RPD hearing

IRB

$77.2

$171.5

$108.0

$1,441.5

$144.1

Interpretation for interview and RAD hearing

IRB

$539.2

$1,171.1

$738.0

$9,888.8

$988.8

RPD transcript

IRB

$1,208.4

$2,637.4

$1,662.0

$22,243.5

$2,224.3

Designated representative for interview and RAD hearing

IRB

$9.0

$21.4

$13.5

$177.9

$17.7

Total Present Value Cost**

 

$3,040.9

$4,850.8

$2,759.4

$38,880.1

$3,888.0

B. Qualitative impacts

Benefits

Canadian public, federal government, parties before the IRB

The proposed IRB Rules would contribute to the savings that will result from faster processing under the BRRA by contributing to the integrity and efficiency of IRB proceedings, and thus increasing the overall efficiency of the refugee determination system.

Costs

Federal government, provinces and territories, parties before the IRB

As is the case in the current RPD Rules, the proposed RAD Rules would stipulate that the RAD may require the parties to participate in a pre-hearing conference to discuss issues, relevant facts, and any other matter in order to make the proceedings fairer and more efficient. Parties may incur costs in order to participate in conferences as they may choose to be represented by counsel at their own expense. Should the parties obtain representation through provincial or territorial legal aid services, costs would be borne by these organizations.

Parties before the IRB

The proposed RPD Rules would allow the parties, should they choose, to rely on the recording of the RPD interview at the RPD hearing, by submitting, at their own cost, a transcript of the interview. Although parties could produce the transcript at no cost by relying on friends, family, or community volunteers to create the transcript, costs would be incurred should they choose a service provider, such as a professional transcription company, to complete the transcript.

* In fiscal year 2010–11, and in anticipation of operational preparedness for the coming into force of the BRRA, the IRB made an initial investment of $534,000 to secure equipment related to the interview report and recording.

** Totals may not add due to rounding.

Benefits associated directly with the proposed IRB Rules

The proposed IRB Rules outlined in this proposal would contribute directly to the integrity and efficiency of IRB proceedings, thus increasing the overall efficiency of the refugee determination system.

The IRB Rules provide clear and transparent direction on the practices and procedures of the Divisions to parties and their counsel appearing before the IRB, the IRB staff who process cases and members who render decisions on cases. This direction ensures that parties appear and present their cases before the IRB’s Divisions in a consistent manner, therefore facilitating the efficient administrative processing of cases. It also provides guidance to the Divisions to ensure that all cases are processed in a consistent manner that respects the principles of natural justice.

Costs associated directly with the proposed IRB Rules

While the new IRB Rules would generally be cost neutral, there are specific costs, captured in Table 1 and outlined below, associated with process changes and new operational requirements related to the information-gathering interview and the RAD.

Any quantified costs associated with new rules would be absorbed with existing resources and resources that the IRB has secured for the implementation of the BRRA reform package as a whole.

Operational and process requirements

  • The proposed RPD Rules specify that an electronic recording of the interview would be provided to the claimant, and if the Minister requests it, to the Minister. They also specify that a report of the interview would be provided to the claimant and the Minister. This would result in direct additional costs for the IRB as additional digital recording equipment, computers, printers, and DVDs would have to be purchased for creating the report and recording the interview. The anticipated annual average present value costs of providing the recording of the interview and the report would be $197.9K (PV) over a 10-year period.
  • As is currently the case, the IRB provides services at the IRB’s offices in six cities across Canada: Montréal, Ottawa, Toronto, Niagara Falls, Calgary and Vancouver. In order to facilitate the conduct of the interview in a timely fashion (i.e. in a period close to the minimum of 15 days) where claimants are located in more remote or distant locations, the proposed RPD Rules state that the interview could be conducted via live telecommunication. If live telecommunications methods are to be used, the IRB would have to ensure that adequate video-conference facilities are available in cities other than where it currently has regional offices. The IRB may also have to lease space in the facilities of other federal agencies and departments or commercial conference facilities to facilitate the conduct of interviews in remote locations. The anticipated annual average present value costs of increased videoconferencing capacity and securing adequate office space would be $283K (PV) over a 10-year period.
    The IRB would experience a relatively higher volume of claimants requiring an interview conducted via video-conference in its Western Region (Manitoba, Saskatchewan, Alberta) than in its Eastern Region (Newfoundland and Labrador, Nova Scotia, Prince Edward Island, New Brunswick and Quebec).
  • In the Eastern Region, the annual average present value costs of conducting videoconferences in remote locations would be $132.9K (PV) over a 10-year period.
  • In the Western Region, the annual average present value costs of conducting videoconferences in remote locations would be $150.1K (PV) over a 10-year period.
  • The proposed IRB Rules would require a number of new forms, documents, policies and case management manuals to be developed, and in some cases, translated into multiple languages. These materials would ensure efficient processes in the RPD and RAD. Examples of documents that would be needed include basic interview and hearing information to be shared with claimants, notices to appear for various proceedings, notices of decision for the RAD, and forms for various RAD processes. The one-time cost for the development of these documents would not exceed $319.5K (PV).
  • Once an appeal to the RAD has been filed, the RPD would have to prepare a record (a document that contains all of the information the decision-maker relied upon at the hearing) to share with all parties to the appeal. The creation of the RAD and the stipulation in the proposed RAD Rules that the RPD must supply the record of the RPD hearing represents an additional expense for the IRB. Based on the previously identified processing volume of RPD and RAD cases, the annual average present value cost for preparing the RPD record for the RAD would be $144.1K (PV) over a 10-year period.
  • In keeping with principles of natural justice that govern proceedings before the IRB, the proposed RPD and RAD Rules would provide for interpretation at both the interview and, where applicable, the oral RAD hearing respectively. While the RPD requires interpreters currently, the additional demand on interpreters as a result of the new interview function and the RAD will create additional costs for the IRB. Additional interpreters would have to be recruited and certified to meet the demand, as well as the number of interpreter hours at the IRB would increase due to the new requirement for an interpreter at the interview and at RAD oral hearings. Based on the previously identified processing volume of RPD and RAD cases, the annual average present value costs associated with an increased requirement for interpretation would be $988.8K (PV) over a 10-year period.
  • The IRB would, as a practice, provide parties with a transcript of the RPD proceeding, as the proposed RAD Rules would stipulate that a party must file with the RAD a transcript of the RPD hearing, if the party wishes to rely on the transcript in the appeal. The annual average present value costs associated with the production of transcripts would be $2,224.3K (PV) over a 10-year period. This is based on previously identified processing volumes, the costs of producing transcripts by private corporations (outsourced), and the costs of having staff send transcription requests as well as receive and review completed transcripts.

It is important to note that the final costs of providing the transcript depend on CIC’s final Regulations on the processing timelines at the RPD and the RAD as well as the result of an ongoing pilot project at the IRB to determine if savings or efficiencies could be gained by producing transcripts in-house. The IRB will further refine these costs with the final publication of this regulatory proposal in the Canada Gazette, Part II, once the pilot project has concluded and CIC’s Regulations have been finalized.

Designated representatives

  • A representative is designated when the person concerned is under 18 years of age or, in the opinion of a Division, is unable to appreciate the nature of the proceedings. In certain circumstances, the IRB pays an honorarium to the individual acting as the designated representative. Designated representatives are currently required for RPD hearings; under the new procedures, designated representatives would also be required at the interview and throughout the appeal process at the RAD. Based on previously identified processing volumes and the number of representatives designated in 2008–09 and 2009–10 at the RPD, the average annual present value costs to the IRB associated with this requirement would be $17.7K (PV) over a 10-year period.

Conferences at the RAD

  • In accordance with the current RPD Rules, the RPD may require the parties to participate in a pre-hearing conference to discuss issues, relevant facts, and any other matter in order to make the proceedings fairer and more efficient. Conferences are not called in all proceedings, and are generally required to organize cases that are lengthier in nature, or to address procedural issues that require resolution prior to the actual hearing. Parties may incur costs to participate in conferences as they may choose to be represented by counsel at their own expense. Despite this, the RPD’s experience with conferences has underscored the fact that they are cost-effective instruments as they make proceedings more fair and efficient. As a result of this positive experience, the proposed RAD Rules make similar provisions for conferences to make the appeal more fair and efficient. As is the case in the RPD, parties may incur costs when participating in conferences at the RAD should they choose to be represented by counsel at their own expense. Should the parties obtain representation through provincial or territorial legal aid services, costs would be borne by these organizations. Although the RAD is a new process, the IRB currently estimates that approximately 2.5% of all RAD appeals will require conferences. The costs associated to this new process have not been quantified given that the number of parties who will choose to be represented by counsel at these conferences is unknown and that conferences increase the overall fairness and efficiency of proceedings.

Transcripts of the RPD interview

  • The proposed RPD Rules would allow the parties, should they choose, to rely on the recording of the RPD interview at the RPD hearing, by submitting, at their own cost, a transcript of the interview. The proposed RPD Rules would not stipulate how a party is to obtain a transcript, or who is to create the transcript. They would simply state that the transcript must be complete and accompanied by a transcriber’s declaration. As was previously stated, an electronic recording of the interview would be provided to the claimant and, if the Minister requests it, to the Minister. It would therefore be for the parties to decide how they would obtain a transcript. Parties could obtain the transcript at no cost by transcribing the interview themselves, or with the help of family members, friends, or community volunteers. The parties would incur monetized costs should they choose a service provider, such as a professional transcription company, to complete the transcript. The costs associated with this new process have not been quantified given that it is unknown how many parties will choose to rely on the transcript of the RPD interview, or how the parties will go about obtaining transcripts.

Rationale

As stated above, the proposed IRB Rules would make an important contribution to the overall objectives of the BRRA which are to ensure the faster processing of claims, faster removals for failed claimants, and the deterrence of non-genuine claims.

More specifically, the proposed IRB Rules would be consistent with the legislative amendments in the BRRA. The objective of proposing new IRB Rules is to ensure harmony and clarity between the IRB Rules and the IRPA as it will be modified by the BRRA.

Furthermore, the IRB Rules provide clear and transparent direction on the practices and procedures of the Divisions to parties and their counsel appearing before the IRB, the IRB staff who process cases and members who render decisions on cases. This direction ensures that parties appear and present their cases before the IRB’s Divisions in a consistent manner, therefore facilitating the efficient administrative processing of cases. It also provides guidance to the Divisions to ensure that all cases are processed in a consistent manner that respects the principles of natural justice. The efficient administration of cases, facilitated by the use of rules, help contribute to the overall objective of the BRRA.

As previously stated, if the IRB Rules are not changed or new IRB Rules are not made prior to implementation of the new system, it would be impossible to properly give effect to the BRRA.

Consultation

The proposed IRB Rules were preceded by information sessions for stakeholders in Montréal, Toronto and Vancouver, as well as a period of written consultations during which portfolio partners within the federal public service and stakeholders were provided with draft copies of the proposed IRB Rules and asked to submit written comments. Comments were solicited from CIC, CBSA, selected academics, and national stakeholders such as the Canadian Council for Refugees, The Canadian Bar Association (Citizenship and Immigration Law Section), the Ontario Bar Association, the Quebec Immigration Lawyers Association, the Refugee Lawyers’ Association of Ontario, the Programme régional d’accueil et d’intégration des demandeurs d’asile, the Canadian Association of Professional Immigration Consultants, and the United Nations High Commissioner for Refugees. Regional stakeholders, such as provincial legal aid organizations, as well as local non-governmental organizations (advocacy groups and settlement organizations) were also included in this period of written consultations.

The draft IRB Rules, which were circulated to stakeholders and portfolio partners, were received with a mixed level of support and opposition. While stakeholders were pleased that the draft IRB Rules incorporated changes that had been requested in the past, and portfolio partners were satisfied that the draft IRB Rules were consistent with the intent of the BRRA, a number of concerns were expressed. These concerns were reviewed and have been addressed to the extent possible at this stage of the consultative process. This proposal reflects the following changes made as a result of stakeholder and portfolio partner comments:

  • In an Application to Vacate Refugee Protection or an Application to Cease Refugee Protection, it would no longer be necessary for the Minister to send a copy of the application, in addition to the original application, to the RPD.
  • Lawyers’ organizations expressed concerns about the apparent restricted role of counsel in the interview as outlined in the draft IRB Rules. The RPD Rules which are the subject of this proposal provide for a more positive description of the role for counsel.
  • The information kit that CBSA and CIC officers would provide to referred claimants satisfies the suggestion that pre-hearing information be made available.
  • The recording of the interview would be provided to claimants.
  • The proposed IRB Rules clearly set out the information and documents an appellant would be required to file with the RAD in order to perfect the appeal within the mandatory time limits that would be set out in the IRPR.
  • The IRB would provide, at no cost to the parties, a transcript of the RPD hearing for the purposes of pursuing an appeal at the RAD. This would be the practice of the IRB as the rules do not specify that the parties must provide the transcript at their own cost.
  • The proposed IRB Rules incorporate detailed procedures for the designation of representatives that are currently contained in IRB policies.

Implementation, enforcement and service standards

The implementation of the proposed IRB Rules would include activities related to the development of new processes, forms, documents, policies and case management manuals to support the rules, as well as training for the staff affected by the IRB Rules.

All of these activities are being pursued as a part of the overall implementation strategy for the BRRA.

Performance measurement and evaluation

The proposed IRB Rules would allow the practices of the IRB to be consistent with the BRRA. If the IRB Rules are not changed, or new IRB Rules are not made prior to the implementation of the new system, it would be impossible to give effect properly to the BRRA.

Three years after the implementation of the new refugee determination system under the BRRA, an evaluation of the new system would be carried out by CIC. The evaluation would be coordinated by CIC and would involve all partners involved in implementing the BRRA. The IRB would participate in a manner which respects the IRB’s status as an independent administrative tribunal.

Contact

Sylvia Cox-Duquette
Senior General Counsel
Immigration and Refugee Board of Canada
344 Slater Street
Ottawa, Ontario
K1A 0K1
Email: reform-reforme@irb-cisr.gc.ca
Fax: 613-995-2355

PROPOSED REGULATORY TEXT

Notice is hereby given that the Chairperson of the Immigration and Refugee Board, pursuant to subsection 161(1) of the Immigration and Refugee Protection Act (see footnote a), and subject to the approval of the Governor in Council, in consultation with the Deputy Chairpersons and the Director General of the Immigration Division, proposes to make the annexed Refugee Protection Division Rules.

Interested persons may make representations concerning the proposed Rules within 30 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part I, and the date of publication of this notice, and be addressed to Sylvia Cox-Duquette, Senior General Counsel, Immigration and Refugee Board, 344 Slater Street, Ottawa, Ontario K1A 0K1 (Fax: 613-995-2355; email: reform-reforme@irb-cisr.gc.ca).

Ottawa, June 23, 2011

JURICA ČAPKUN
Assistant Clerk of the Privy Council

TABLE OF CONTENTS
(This table is not part of the Rules.)

REFUGEE PROTECTION DIVISION RULES

INTERPRETATION

 1 Definitions

COMMUNICATING WITH THE DIVISION

 2 Communicating with the Division

INFORMATION AND DOCUMENTS TO BE PROVIDED

CLAIMS FOR REFUGEE PROTECTION

 3 Fixing location, date and time of interview

 4 Claimant’s contact information

 5 Declaration — counsel not authorized representative

INTERVIEW

 6 Conduct of interview

 7 Interview Report

AFTER THE INTERVIEW

 8 Documents obtained after interview

 9 Corrections to Interview Report

CONDUCT OF A HEARING

10 Standard order of questioning

DOCUMENTS ESTABLISHING IDENTITY AND OTHER ELEMENTS OF THE CLAIM

11 Documents

DOCUMENTS PROVIDED BY PARTIES IN PROCEEDINGS

12 Documents relevant and not duplicate

APPLICATIONS TO VACATE OR TO CEASE REFUGEE PROTECTION

13 Contact information

14 Declaration — counsel not authorized representative

COUNSEL OF RECORD

15 Becoming counsel of record

16 Request to be removed as counsel of record

17 Removing counsel of record

LANGUAGE OF PROCEEDINGS

18 Choice of language — claim for refugee protection

19 Choice of language — application to vacate or cease refugee protection

20 Need for interpreter — claimant

DESIGNATED REPRESENTATIVES

21 Duty of counsel or officer to notify

DISCLOSURE OF PERSONAL INFORMATION

22 Disclosure of information from another claim

SPECIALIZED KNOWLEDGE

23 Notice to the parties

ALLOWING A CLAIM WITHOUT A HEARING

24 Claim allowed without a hearing

CONFERENCES

25 Requirement to participate at conference

26 Conference to fix date for proceeding

NOTICE TO APPEAR

27 Notice to appear

EXCLUSION, INTEGRITY ISSUES, INADMISSIBILITY AND INELIGIBILITY

28 Notice to the Minister of possible exclusion before hearing

29 Notice to the Minister of possible integrity issues before hearing

30 Notice of possible inadmissibility or ineligibility

INTERVENTION BY THE MINISTER

31 Notice of intention to intervene

CLAIMANT OR PROTECTED PERSON IN CUSTODY

32 Custody

DOCUMENTS

FORM AND LANGUAGE OF DOCUMENTS

33 Documents prepared by party

34 Language of documents — claimant or protected person

DISCLOSURE OF DOCUMENTS

35 Disclosure of documents by party

36 Relying on recording of interview

37 Use of undisclosed documents

PROVIDING A DOCUMENT

38 General provision

39 Providing documents to Division

40 How to provide document

41 Application to Division — if unable to provide document

42 When document received by Division

ORIGINAL DOCUMENTS

43 Original documents

ADDITIONAL DOCUMENTS

44 Documents after hearing

WITNESSES

45 Providing witness information

46 Requesting summons

47 Cancelling summons

48 Arrest warrant

49 Excluded witness

APPLICATIONS

GENERAL

50 General provision

HOW TO MAKE AN APPLICATION

51 Form of application and time limit

HOW TO RESPOND TO A WRITTEN APPLICATION

52 Responding to written application

HOW TO REPLY TO A WRITTEN RESPONSE

53 Replying to written response

CHANGING THE LOCATION OF A PROCEEDING

54 Application to change location of proceeding

CHANGING THE DATE OR TIME OF A PROCEEDING

55 Application to change date or time of proceeding

JOINING OR SEPARATING CLAIMS OR APPLICATIONS

56 Claims automatically joined

57 Application to join

PROCEEDINGS CONDUCTED IN PUBLIC

58 Application

OBSERVERS

59 Observers

WITHDRAWAL

60 Abuse of process

REINSTATING A WITHDRAWN CLAIM OR APPLICATION

61 Withdrawn claim

62 Application to vacate or to cease refugee protection

REOPENING A CLAIM OR APPLICATION

63 Application to reopen claim

64 Application to vacate or to cease refugee protection

APPLICATIONS TO VACATE OR TO CEASE REFUGEE PROTECTION

65 Form of Application

ABANDONMENT

66 Failure to attend interview

67 Opportunity to explain

NOTICE OF CONSTITUTIONAL QUESTION

68 Notice of constitutional question

DECISIONS

69 Notice of decision and reasons

70 When decision takes effect — Decision on claim

71 When decision takes effect — Application to vacate or cease refugee protection

72 When decision takes effect — Decision on abandonment

73 When decision takes effect — Allowing application to withdraw

GENERAL PROVISIONS

74 No applicable rule

75 Powers of Division

76 Failing to follow rule

REPEALS

77 Repeal

COMING INTO FORCE

78 S.C. 2010, c. 8

 

SCHEDULE 1

INFORMATION TO BE PROVIDED ABOUT THE CLAIMANT BY AN OFFICER

SCHEDULE 2

PERSONAL INFORMATION ABOUT THE CLAIMANT AND INFORMATION ABOUT THE REFUGEE CLAIM

SCHEDULE 3

DECLARATION THAT COUNSEL IS NOT CHARGING A FEE

REFUGEE PROTECTION DIVISION RULES

INTERPRETATION

Definitions

1. The following definitions apply in these Rules.

“Act”
« Loi »

“Act” means the Immigration and Refugee Protection Act.

“contact information”
« coordonnées »

“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 the claimant or protected person, if the counsel is an authorized representative as defined in section 2 of the Immigration and Refugee Protection Regulations, in addition to the information referred to in paragraph (a), the name of the organization of which the counsel is a member and the membership identification number issued to the counsel.

“Division”
« Section »

“Division” means the Refugee Protection Division.

“interview”
« entrevue »

“interview” means the interview of the claimant held under subsection 100(4) of the Act.

“interviewer”
« agent chargé de l’entrevue »

“interviewer” means the official of the Board who conducts the interview.

“Interview Report”
« rapport d’entrevue »

“Interview Report” means the report of the interview that is prepared under rule 7.

“officer”
« agent »

“officer” means a person designated as an officer by the Minister under subsection 6(1) of the Act.

“party”
« partie »

“party” means,

  • (a) in the case of a claim for refugee protection, the claimant and, if the Minister intervenes in the claim, the Minister; and
  • (b) in the case of an application to vacate or to cease refugee protection, the protected person and the Minister.

“proceeding”
« procédure »

“proceeding” includes a conference, an application, a hearing and an interview held under subsection 100(4) of the Act.

“registry office”
« greffe »

“registry office” means a business office of the Division.

“vulnerable person”
« personne vulnérable »

“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.

COMMUNICATING WITH THE DIVISION

Communicating with the Division

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

INFORMATION AND DOCUMENTS TO BE PROVIDED

CLAIMS FOR REFUGEE PROTECTION

Fixing location, date and time of interview

3. (1) As soon as a claim for refugee protection is referred to the Division, or as soon as possible after it is deemed to be referred, an officer must fix a date for the claimant to attend an interview at one of the locations, dates and times provided to the officer by the Division.

Factors

(2) In fixing the location, date, and time for the interview, the officer must consider:

  • (a) the claimant’s preference of location;
  • (b) counsel’s availability, if the claimant has retained counsel at the time of referral and the officer has been informed that counsel will be available to attend an interview on one of the dates provided by the Division; and
  • (c) if the Division has provided interview dates when designated representatives, interpreters for the relevant languages and dialects, if any, or particular accommodations are available, whether
    • (i) a designated representative may be required,
    • (ii) an interpreter may be required, and
    • (iii) accommodations at the interview may be required by the claimant, including one who may be identified by the Division as a vulnerable person.

Providing information to claimant in writing

(3) The officer must

  • (a) notify the claimant in writing by way of a notice to appear of the location, date and time of the interview; and
  • (b) provide to the claimant information in writing
    • (i) explaining how the interview will proceed,
    • (ii) identifying the subject areas about which the claimant will be asked to provide information at the interview,
    • (iii) informing the claimant of the obligation to notify the Division and the Minister of the claimant’s contact information and any changes to that information,
    • (iv) explaining that the claimant may, at their own expense, be represented by legal or other counsel; and
    • (v) putting the claimant on notice that the claim may be declared abandoned if the claimant fails to appear at the interview.

Providing information in writing and documents to Division

(4) After providing to the claimant the information set out in subrule (3), the officer must without delay provide to the Division

  • (a) a written statement indicating how and when the information set out in subrule (3) was provided to the claimant;
  • (b) the information set out in Schedule 1;
  • (c) a copy of any identity or travel documents of the claimant that are seized by the officer;
  • (d) a copy of the notice of seizure of any seized documents referred to in paragraph (c);
  • (e) a copy of any other relevant documents that are in the possession of the officer; and
  • (f) a notice of the accommodations required at the interview by the claimant, including one who may be identified by the Division as a vulnerable person.

Providing copies to claimant

(5) The officer must provide to the claimant a copy of any documents or information that the officer provided to the Division under paragraphs (4)(b) to (f).

Claimant’s contact information

4. (1) The claimant must provide their contact information in writing to the Division and the Minister.

Time limit

(2) The claimant’s contact information must be received by their recipients no later than 10 days after the claimant receives the information under subrule 3(3).

Change to contact information

(3) If the claimant’s contact information changes, they must without delay provide the changes in writing to the Division and the Minister.

Information concerning claimant’s counsel

(4) A claimant who is represented by counsel must without delay, on retaining counsel, provide the counsel’s contact information in writing to the Division and the Minister and notify them of any limitations on the counsel’s retainer. If that information changes, the claimant must without delay provide the changes in writing to the Division and the Minister.

Declaration — counsel not authorized representative

5. If a claimant retains counsel who is not an authorized representative as defined in section 2 of the Immigration and Refugee Protection Regulations, both the claimant and their counsel must without delay provide to the Division the information set out in Schedule 3 in writing.

INTERVIEW

Conduct of interview

6. (1) The interview is conducted orally by the interviewer who must ask all questions necessary to obtain the information required by Schedule 2.

Interview conducted by live telecommunication

(2) At the discretion of the Division, the interview may be conducted in person or by means of live telecommunication with the claimant.

Documents to bring to interview

(3) The claimant must attend an interview on the date fixed and must bring the original and a copy of all identity documents in their possession.

Joined claimants may be interviewed separately at interview

(4) At the discretion of the Division, claimants may be interviewed separately, even if their claims are joined, if it is not feasible to interview them together or at the same time.

Recording interview

(5) The interview must be recorded electronically and the Division must provide a copy of any recording made to the claimant and, if the Minister requests it, to the Minister.

Notice concerning information provided

(6) The interviewer must inform the claimant that information provided by them during the interview will be used as evidence at a hearing to determine their claim for refugee protection.

Oath or affirmation

(7) At the beginning of the interview, the claimant must take an oath or make a solemn affirmation to tell the truth and to answer to the best of their ability all questions asked at the interview.

Role of counsel at interview

(8) The claimant may be assisted by counsel for the purpose of understanding the interviewer’s questions.

Role of counsel — clarifications and questions

(9) In order to assist the interviewer in obtaining the information required by Schedule 2, counsel may, with the interviewer’s permission,

  • (a) raise matters that need clarification; and
  • (b) ask the claimant additional questions.

Interview Report

7. (1) The interviewer must

  • (a) prepare an Interview Report which includes the information required under subrule 6(1);
  • (b) if there is no interpreter, review the completed Interview Report with the claimant;
  • (c) if there is an interpreter, ensure that the interpreter reads the Interview Report to the claimant in the presence of the interviewer; and
  • (d) sign and date the declaration at the end of the Interview Report stating that the claimant was advised that the information provided would be used in a hearing to decide their claim for refugee protection and that an oath or solemn affirmation was administered to the claimant.

Interview conducted without interpreter

(2) If the interview is conducted without the assistance of an interpreter, the claimant must sign and date the declaration at the end of the Interview Report that states that they understand the language in which the interview was conducted and understand what information was requested.

Interpreter’s declaration

(3) If the interview is conducted with the assistance of an interpreter, the interpreter must sign and date the declaration at the end of the Interview Report that states

  • (a) they are proficient in the languages and dialects, if any, used, and were able to communicate effectively with the claimant;
  • (b) the interview and the completed Interview Report were interpreted to the claimant; and
  • (c) the claimant assured them that the claimant understood what was interpreted.

Claimant’s declaration

(4) The claimant must sign the declaration at the end of the Interview Report acknowledging having reviewed and received a copy of the Interview Report.

Interview Report

(5) The interviewer must provide a copy of the signed Interview Report to the claimant at the end of the interview and to the Minister without delay.

Notice of hearing

(6) The interviewer must provide to the claimant and the Minister written notice of the date, time and location of the hearing after fixing the date under subsection 100(4.1) of the Act.

New identity documents

(7) If the claimant brings identity documents to the interview which were not previously provided to the Minister, the Division must provide a copy to the Minister without delay.

AFTER THE INTERVIEW

Documents obtained after interview

8. If the claimant obtains a passport, travel document, identity document or any other relevant document after the interview, they must without delay provide a copy of the document to the Division and the Minister and bring the original documents to the hearing.

Corrections to Interview Report

9. (1) If a claimant believes that the Interview Report does not accurately reflect the information that was provided at the interview,

  • (a) they must without delay provide a copy of each page of the Interview Report on which there is an error, indicating where on the page the error occurs and what information was provided at the interview, first to the Minister and then to the Division; and
  • (b) they must sign and date each corrected page.

Proof copies provided

(2) The copies of the pages of the Interview Report provided to the Division under paragraph (1)(a) must be accompanied by a written statement indicating how and when they were provided to the Minister.

Changes or additions to information provided at interview

(3) To make changes or add any information provided at the interview, the claimant must without delay and, in any event, at least 20 days before the hearing, provide a written statement of the changes or additions, together with a full explanation for the changes or additions, first to the Minister and then to the Division.

Proof documents provided

(4) The documents provided to the Division under subrule (3) must be accompanied by a written statement indicating how and when they were provided to the Minister.

CONDUCT OF A HEARING

Standard order of questioning

10. (1) In a hearing of a claim for refugee protection, if the Minister is not a party, any witness, including the claimant, will be questioned first by the Division and then by their counsel.

Order of questioning — Minister’s intervention on exclusion issue

(2) In a hearing of a claim for refugee protection, if the Minister is a party and has intervened on an issue of exclusion under subrule 31(3), any witness, including the claimant, will be questioned first by the Minister’s counsel, then by the Division and then by the claimant’s counsel.

Order of questioning — Minister’s intervention not on exclusion issue

(3) In a hearing of a claim for refugee protection, if the Minister is a party but has not intervened on an issue of exclusion under subrule 31(3), any witness, including the claimant, will be questioned first by the Division, then by the Minister’s counsel and then by the claimant’s counsel.

Order of questioning — application to vacate or cease refugee protection

(4) In a hearing into an application by the Minister to vacate or to cease refugee protection, any witness, including the protected person, will be questioned first by the Minister’s counsel, then by the Division and then by the protected person’s counsel.

Variation of order of questioning

(5) The Division may vary the order of questioning in exceptional circumstances, including to accommodate a vulnerable person.

Limiting questioning of witnesses

(6) The Division may limit questioning by the parties of witnesses, taking into account the nature and complexity of the issues and relevance of the questions.

Oral representations

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

Oral decision and reasons

(8) The Division member must render an oral decision and reasons at the hearing unless it is not practicable to do so.

DOCUMENTS ESTABLISHING IDENTITY AND OTHER ELEMENTS OF THE CLAIM

Documents

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

DOCUMENTS PROVIDED BY PARTIES IN PROCEEDINGS

Documents relevant and not duplicate

12. Each document provided by a party for use at a proceeding must

  • (a) be relevant to the particular proceeding; and
  • (b) not duplicate other documents provided by a party or by the Division.

APPLICATIONS TO VACATE OR TO CEASE REFUGEE PROTECTION

Contact information

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

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

Declaration — counsel not authorized representative

14. If a protected person retains counsel who is not an authorized representative as defined in section 2 of the Immigration and Refugee Protection Regulations, both the protected person and their counsel must without delay provide to the Division the information set out in Schedule 3 in writing.

COUNSEL OF RECORD

Becoming counsel of record

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

Limitation on counsel’s retainer

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

Request to be removed as counsel of record

16. (1) To be removed as counsel of record, counsel must first provide a copy of the request to the person represented and to the Minister, if the Minister is a party, and then make the request in writing to the Division.

Oral request

(2) If two working days or less remain before the date of a proceeding, counsel must make the request orally at the proceeding.

Division’s permission is required

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

Removing counsel of record

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

Ceasing to be counsel of record

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

LANGUAGE OF PROCEEDINGS

Choice of language — claim for refugee protection

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

Changing language

(2) The claimant may change the language of the proceedings chosen at the time of referral of the claim by notifying the Division and the Minister in writing. The notice must be received by the Division no later than

  • (a) five days before the interview; or
  • (b) 20 days before any other proceeding.

Choice of language — application to vacate or cease refugee protection

19. (1) The language chosen by the protected person in a claim for refugee protection is the language of the proceedings in any application made by the Minister to vacate or to cease refugee protection with respect to that claim.

Changing language

(2) The protected person may change the language of the proceedings by notifying the Division and the Minister in writing. The notice must be received by the Division no later than 20 days before the next proceeding.

Need for interpreter — claimant

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

Changing language of interpretation

(2) A claimant may change the language or dialect, if any, to be interpreted that was chosen at the time of the referral of the claim to the Division, or if they had not indicated that interpretation was required, indicate that interpretation is required, by notifying the Division in writing of the change requested and specifying the language and dialect, if any, to be interpreted. The notice must be received by the Division no later than

  • (a) five days before the interview; or
  • (b) 20 days before any other proceeding.

Need for interpreter — protected person or witness

(3) If a protected person or any party’s witness needs an interpreter for the proceeding, 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

  • (a) five days before the interview; or
  • (b) 20 days before any other proceeding.

Interpreter’s oath

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

DESIGNATED REPRESENTATIVES

Duty of counsel or officer to notify

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

Exception

(2) Subrule (1) does not apply in the case of a claimant under 18 years of age that is joined with the claim of a person who is 18 years of age or older.

Content of notice

(3) The notice must include the following information:

  • (a) whether counsel or the officer is aware of a person in Canada who meets the requirements to be designated as a representative and, if so, the person’s contact information;
  • (b) a copy of any available supporting documents; and
  • (c) a statement regarding the reasons why counsel or the officer believes that a representative should be designated.

Requirements for being designated

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

  • (a) be 18 years of age or older;
  • (b) understand the nature of the proceedings;
  • (c) be willing and able to act in the best interests of the claimant or protected person; and
  • (d) not have interests that conflict with those of the claimant or protected person.

Factors

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

  • (a) whether the person can understand the reason for the proceeding and instruct counsel;
  • (b) the person’s own statements and behaviour at the proceeding;
  • (c) expert evidence, if any, on the person’s mental health, intellectual or physical faculties, age or mental condition; and
  • (d) whether the person has been designated a representative in another division of the Board.

Designation by member

(6) Any member of the Division may designate a representative for a claimant or protected person before a proceeding begins.

Designation by the interviewer

(7) The interviewer may, at an interview, designate the parent or legal guardian of a claimant who is under 18 years of age as a representative if their claims have been joined under subrule 56(1) and the proposed person meets the requirements set out in subrule (4).

Designation applies to all proceedings

(8) 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 a member of the Division orders otherwise.

End of designation — person reaches 18 years of age

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

Termination of designation

(10) 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.

Designation criteria

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

  • (a) assess the proposed person’s ability to fulfil the responsibilities of a designated representative; and
  • (b) ensure that the proposed person has been informed of the responsibilities of a designated representative.

Responsibilities of representative

(12) The responsibilities of a designated representative include

  • (a) deciding whether to retain counsel and, if counsel is retained, instructing counsel or assisting the represented person in instructing counsel;
  • (b) making decisions regarding the claim or application or assisting the represented person to make 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 case of the represented person and providing evidence and, if necessary, being a witness at the hearing;
  • (e) protecting the interests of the represented person and putting forward the best possible case to the Division;
  • (f) informing and consulting the represented person to the extent possible when making decisions about the case; and
  • (g) filing and perfecting an appeal to the Refugee Appeal Division, if required.

DISCLOSURE OF PERSONAL INFORMATION

Disclosure of information from another claim

22. (1) Subject to subrule (5), the Division may disclose to a claimant personal and other information that it wants to use from any other claim if the claims involve similar questions of fact or if the information is otherwise relevant to the determination of their claim.

Notice to another claimant

(2) If the personal or other information of another claimant has not been made public, the Division must make reasonable efforts to notify this person in writing that

  • (a) it intends to disclose the information to a claimant; and
  • (b) the person may object to this disclosure.

Request for disclosure

(3) In order to decide whether to object to the disclosure, the person notified may make a written request to the Division for personal and other information relating to the claimant. Subject to subrule (5), the Division may disclose only information that is necessary to permit the person to make an informed decision.

Notice to claimant

(4) If the personal or other information of the claimant has not been made public, the Division must make reasonable efforts to notify the claimant in writing that

  • (a) it intends to disclose the information to the person notified; and
  • (b) the claimant may object to this disclosure.

Information that may not be disclosed

(5) The Division must not disclose personal or other information if

  • (a) there is a serious possibility that it will endanger the life, liberty or security of any person; or
  • (b) it is likely to cause an injustice.

Information from joined claims

(6) Personal or other information from a joined claim is not subject to this rule. If claims were once joined but were later separated, only personal or other information that was available to the joined claimants before the separation is not subject to this rule.

SPECIALIZED KNOWLEDGE

Notice to the parties

23. Before using any information or opinion that is within its specialized knowledge, the Division must notify the claimant or protected person, and the Minister if the Minister is present at the hearing, and give them an opportunity to

  • (a) make representations on the reliability and use of the information or opinion; and
  • (b) provide evidence in support of their representations.

ALLOWING A CLAIM WITHOUT A HEARING

Claim allowed without a hearing

24. The Division may allow a claim without a hearing unless the Minister has notified the Division, within 20 days after the Minister receives the Interview Report, of the Minister’s intention to intervene under rule 31.

CONFERENCES

Requirement to participate at conference

25. (1) The Division may require the parties to participate at a conference to discuss issues, relevant facts and any other matter to make the proceedings fairer and more efficient.

Information or documents

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

Written record

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

Conference to fix date for proceeding

26. 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 proceeding.

NOTICE TO APPEAR

Notice to appear

27. (1) The Division must notify the claimant or protected person and the Minister in writing of the date, time and location of the proceeding.

Notice to appear for interview

(2) In the case of an interview, the notice may be provided by an officer under paragraph 3(3)(a).

Date fixed for hearing

(3) The date fixed for the hearing of a claim or an application to vacate or to cease refugee protection must be at least 20 days after the date set out in the notice, unless

  • (a) the hearing has been adjourned or postponed from an earlier date; or
  • (b) the parties consent to an earlier date.

EXCLUSION, INTEGRITY ISSUES, INADMISSIBILITY AND INELIGIBILITY

Notice to the Minister of possible exclusion before hearing

28. (1) If the Division believes, before a hearing begins, that there is a possibility that section E or F of Article 1 of the Refugee Convention applies to the claim, the Division must without delay notify the Minister in writing and provide any relevant information to the Minister.

Notice to the Minister of possible exclusion during hearin

(2) If the Division believes, after a hearing begins, that there is a possibility that section E or F of Article 1 of the Refugee Convention applies to the claim, and the Division is of the opinion that the Minister’s participation may help in the full and proper hearing of the claim, the Division must adjourn the hearing and without delay notify the Minister in writing and provide any relevant information to the Minister.

Disclosure to claimant

(3) The Division must provide to the claimant a copy of any notice or information that the Division provides to the Minister.

Resumption of hearing

(4) The Division must fix a date for the resumption of the hearing that is as soon as practicable,

  • (a) if the Minister responds to the notice referred to in subrule (2), after receipt of the response; or
  • (b) otherwise, after a period of 14 days following the provision of notice to the Minister.

Notice to the Minister of possible integrity issues before hearing

29. (1) If the Division believes, before a hearing begins, that there is a possibility that issues relating to the integrity of the Canadian refugee protection system may arise from the claim, and the Division is of the opinion that the Minister’s participation may help in the full and proper hearing of the claim, the Division must without delay notify the Minister in writing and provide any relevant information to the Minister.

Notice to the Minister of possible integrity issues during hearing

(2) If the Division believes, after a hearing begins, that there is a possibility that issues relating to the integrity of the Canadian refugee protection system may arise from the claim, and the Division is of the opinion that the Minister’s participation may help in the full and proper hearing of the claim, the Division must adjourn the hearing and without delay notify the Minister in writing and provide any relevant information to the Minister.

Integrity issues

(3) For the purpose of this rule, claims in which the possibility that issues relating to the integrity of the Canadian refugee protection system may arise include those in which there is

  • (a) information that the claim may have been made under a false identity in whole or in part;
  • (b) a substantial change to the basis of the claim from that indicated in the Interview Report;
  • (c) information that, in support of the claim, the claimant submitted documents that may be fraudulent; or
  • (d) other information that the claimant may be directly or indirectly misrepresenting or withholding material facts relating to a relevant matter.

Disclosure to claimant

(4) The Division must provide to the claimant a copy of any notice or information provided to the Minister.

Resumption of hearing

(5) The Division must fix a date for the resumption of the hearing that is as soon as practicable,

  • (a) if the Minister responds to the notice referred to in subrule (2), after receipt of the response from the Minister,
  • (b) otherwise, after a period of 14 days following the provision of notice to the Minister.

Notice of possible inadmissibility or ineligibility

30. (1) The Division must without delay notify the Minister in writing, and provide the Minister with any relevant information, if the Division believes that

  • (a) a claimant may be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality;
  • (b) there is an outstanding charge against the claimant for an offence under an Act of Parliament that may be punished by a maximum term of imprisonment of at least 10 years; or
  • (c) the claimant’s claim may be ineligible to be referred under section 101 or paragraph 104(1)(c) or (d) of the Act.

Disclosure to claimant

(2) The Division must provide to the claimant a copy of any notice or information that the Division provides to the Minister.

Continuation of proceeding

(3) If the Minister does not notify the Division within 20 days that the proceedings are suspended under paragraph 103(1)(a) or (b) of the Act or that the pending proceedings respecting the claim are terminated under section 104 of the Act, the Division may continue with the proceedings.

INTERVENTION BY THE MINISTER

Notice of intention to intervene

31. (1) To intervene in a claim, the Minister must provide

  • (a) to the claimant, a copy of a notice of the Minister’s intention to intervene; and
  • (b) to the Division, the original of the notice, together with a written statement indicating how and when a copy was provided to the claimant.

Contents of notice

(2) In the notice, the Minister must state

  • (a) the purpose for which the Minister will intervene;
  • (b) whether the Minister will intervene in writing only, in person, or both; and
  • (c) the Minister’s counsel’s contact information.

Intervention — exclusion clauses

(3) If the Minister believes that section E or F of Article 1 of the Refugee Convention may apply to the claim, the Minister must also state in the notice the facts and law on which the Minister relies.

Time limit

(4) Documents provided under this rule must be received by their recipients no later than 20 days before the hearing.

CLAIMANT OR PROTECTED PERSON IN CUSTODY

Custody

32. The Division may order a person who holds a claimant or protected person in custody to bring the claimant or protected person to a proceeding at the location specified by the Division.

DOCUMENTS

FORM AND LANGUAGE OF DOCUMENTS

Documents prepared by party

33. (1) A document prepared for use by a party in a proceeding must be typewritten on one or both sides of 216 mm by 279 mm (8 1/2″ × 11″) paper and the pages must be numbered.

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 1/2″ × 11″) paper and the pages must be numbered.

Numbered documents

(3) A party must consecutively number each document provided by the party.

List of documents

(4) If more than one document is provided, the party must provide a list of the documents and their numbers.

Language of documents — claimant or protected person

34. (1) All documents used by a claimant or protected person at a proceeding must be in English or French or, if in another language, be provided together with an English or French translation and a translator’s declaration.

Language of Minister’s documents

(2) All documents used by the Minister at a proceeding must be in the language of the proceeding, or be provided together with a translation in the language of the proceeding and a translator’s declaration.

Translator’s declaration

(3) A translator’s declaration must include the translator’s name, the language and dialect, if any, translated and a statement signed by the translator that the translation is accurate.

DISCLOSURE OF DOCUMENTS

Disclosure of documents by party

35. (1) If a party wants to use a document at a hearing, the party must provide a copy to any other party and the Division.

Disclosure of documents by Division

(2) If the Division wants to use a document at a hearing, the Division must provide a copy to each party.

Proof that document was provided

(3) The copy of the document provided to the Division must be accompanied by a written statement indicating how and when a copy was provided to any other party.

Time limit

(4) Documents provided under this rule must be received by their recipients no later than

  • (a) 20 days before the hearing; or
  • (b) five days before the hearing if the document is provided to respond to another document provided by a party or the Division.

Relying on recording of interview

36. (1) If a party wants to rely on a recording of the interview, the party must under rule 35 provide

  • (a) at their own expense, a transcript of the interview indicating the specific lines of the transcript on which the party is relying together with a transcriber’s declaration, unless the Division orders otherwise; and
  • (b) a statement indicating why the party wants to rely on the recording of the interview.

Transcriber’s declaration

(2) The transcriber’s declaration must include the transcriber’s name and a statement signed by the transcriber that the transcript is accurate.

Use of undisclosed documents

37. A party who does not provide a document under rule 35 must not use the document at the hearing unless allowed by the Division. In deciding whether to allow its use, the Division must consider any relevant factors, including

  • (a) the document’s relevance and probative value;
  • (b) any new evidence it brings to the hearing; and
  • (c) whether the party, with reasonable effort, could have provided the document as required by rule 35.

PROVIDING A DOCUMENT

General provision

38. Rules 39 to 42 apply to any document, including a notice or request in writing.

Providing documents to Division

39. (1) A document to be provided to the Division must be provided to the registry office specified by the Division.

Providing documents to Minister

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

Providing documents to person other than Minister

(3) 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.

How to provide document

40. A document can 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 if the Division allows.

Application to Division — if unable to provide document

41. (1) If a party is unable to provide a document in a way required by rule 40, 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.

Form of application

(2) The application must be made in accordance with rule 51.

Allowing application

(3) The Division must not allow the application unless the party has made reasonable efforts to provide the document to the other party.

When document received by Division

42. (1) A document provided to the Division is considered to be received by the Division on the day the document is date stamped by the Division.

When document received by party

(2) A document provided by regular mail to a party is considered to be received seven days after the day it was mailed. If the seventh day is a Saturday, Sunday or other statutory holiday, the document is considered to be received on the next working day.

ORIGINAL DOCUMENTS

Original documents

43. (1) A party who has provided a copy of a document to the Division must provide the original document to the Division

  • (a) without delay, on the request of the interviewer at the interview or on the request in writing of the Division; or
  • (b) if the Division does not make a request, no later than the beginning of the proceeding at which the document will be used.

Documents referred to in paragraph 3(4)(c) or (e)

(2) On the request in writing of the Division, the Minister must without delay provide to the Division the original of any document referred to in paragraph 3(4)(c) or (e) that is in the possession of an officer.

ADDITIONAL DOCUMENTS

Documents after hearing

44. (1) A party who wants to provide a document as evidence after a hearing but before a decision takes effect must make an application to the Division.

Application

(2) The party must attach a copy of the document to the application which must be made in accordance with rule 51, but the party is not required to give evidence in an affidavit or statutory declaration.

Factors

(3) In deciding the application, the Division must consider any relevant factors, including

  • (a) the document’s relevance and probative value;
  • (b) any new evidence it brings to the proceedings; and
  • (c) whether the party, with reasonable effort, could have provided the document as required by rule 35.

WITNESSES

Providing witness information

45. (1) If a party wants to call a witness, the party must provide in writing to any other party and the Division the following witness information:

  • (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 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.

Proof witness information provided

(2) The witness information provided to the Division must be accompanied by a written statement indicating how and when it was provided to any other party.

Time limit

(3) Documents provided under this rule must be received by their recipients no later than 20 days before the hearing.

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.

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.

Requesting summons

46. (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.

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 ability of the person to give that testimony; and
  • (c) whether the person has agreed to be summoned as a witness.

Using summons

(3) If a party wants to use a summons, the party must

  • (a) provide the summons to the person by hand;
  • (b) provide a copy of the summons to the Division together with a written statement indicating the name of the person who provided the summons and the date, time and place that it was provided; 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.

Cancelling summons

47. (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.

Application

(2) The person must make the application in accordance with rule 51, but is not required to give evidence in an affidavit or statutory declaration.

Arrest warrant

48. (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 arrest of the person.

Written request

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

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.

Content of a warrant

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

Excluded witness

49. If the Division excludes a witness from a hearing room, no person may communicate to them any evidence given while they were excluded unless allowed by the Division or until they have finished testifying.

APPLICATIONS

GENERAL

General provision

50. 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 under rule 51;
  • (b) a party who wants to respond to the application must respond under rule 52; and
  • (c) a party who wants to reply to a response must reply under rule 53.

HOW TO MAKE AN APPLICATION

Form of application and time limit

51. (1) Unless these Rules provide otherwise, an application must be made in writing and without delay. The Division must not allow a party to make an application orally at a proceeding unless the party with reasonable effort could not have made a written application before the proceeding.

Content of application

(2) Unless these Rules provide otherwise, in a written application the party must

  • (a) state what 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.

Affidavit or statutory declaration

(3) 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.

Providing application to other party and Division

(4) A party who makes a written application must provide

  • (a) to any other party, a copy of the application and any affidavit or statutory declaration; and
  • (b) to the Division, the original application and any affidavit or statutory declaration, together with a written statement indicating how and when the party provided a copy to any other party.

HOW TO RESPOND TO A WRITTEN APPLICATION

Responding to written application

52. (1) A response to a written application must be in writing and

  • (a) state what decision the party wants the Division to make; and
  • (b) give reasons why the Division should make that decision.

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.

Providing response

(3) A party who responds to a written application must provide

  • (a) to the other party, a copy of the response and any affidavit or statutory declaration; and
  • (b) to the Division, the original response and any affidavit or statutory declaration, together with a written statement indicating how and when the party provided a copy to the other party.

Time limit

(4) Documents provided under subrule (3) must be received by their recipients no later than seven days after the party receives a copy of the application.

HOW TO REPLY TO A WRITTEN RESPONSE

Replying to written response

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

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.

Providing reply

(3) A party who replies to a written response must provide

  • (a) to the other party, a copy of the reply and any affidavit or statutory declaration; and
  • (b) to the Division, the original reply and any affidavit or statutory declaration, together with a written statement indicating how and when the party provided a copy to the other party.

Time limit

(4) Documents provided under this rule must be received by their recipients no later than five days after the party receives the copy of the response.

CHANGING THE LOCATION OF A PROCEEDING

Application to change location of proceeding

54. (1) A party may make an application to the Division to change the location of a proceeding.

Form and content of application

(2) The party must make the application in accordance with rule 51, but is not required to give evidence in an affidavit or statutory declaration.

Time limit

(3) Documents provided under this rule must be received by their recipients

  • (a) in the case of an interview, no later than five days before the interview; and
  • (b) in the case of all other proceedings, no later than 20 days before the proceeding.

Factors

(4) In deciding an application to change the location of a proceeding other than an interview, the Division must consider any relevant factors, including

  • (a) whether the party is residing in the location where the party wants the proceeding to be held;
  • (b) whether a change of location would allow the proceeding to be full and proper;
  • (c) whether a change of location would likely delay the proceeding;
  • (d) how a change of location would affect the operation of the Division;
  • (e) how a change of location would affect the parties;
  • (f) whether the change of location is necessary to accommodate a vulnerable person; and
  • (g) whether a hearing may be conducted by a means of live telecommunication with the claimant or protected person.

Application to change location of interview

(5) The Division must not allow an application to change the location of an interview unless there are exceptional circumstances including whether the change is required to accommodate a vulnerable person.

Duty to appear

(6) Unless a party receives a decision from the Division allowing the application, the party must appear for the proceeding at the location fixed and be ready to start or continue the proceeding.

CHANGING THE DATE OR TIME OF A PROCEEDING

Application to change date or time of proceeding

55. (1) A party may make an application to the Division to change the date or time of a proceeding.

Form and content of application

(2) The party must

  • (a) make the application in accordance with rule 51, but is not required to give evidence in an affidavit or statutory declaration; and
  • (b) for a proceeding other than an interview, give at least six dates, within the period specified by the Division, on which the party is available to start or continue the proceeding.

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.

Proceeding two working days or less away

(4) If the party wants to make an application two working days or less before the proceeding, the party must appear at the proceeding and make the application orally.

Factors

(5) In deciding an application to change the time or date of a proceeding other than an interview, 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 proceeding;
  • (d) the efforts made by the party to be ready to start or continue the proceeding;
  • (e) in the case of a party who requests more time to obtain information in support of their arguments, the ability of the Division 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 proceedings or likely cause an injustice; and
  • (l) the nature and complexity of the matter to be heard.

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 based on new evidence.

Application for medical reasons

(7) If a claimant or protected person makes the application for medical reasons, other than those related to 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. If the claimant or protected person has provided a copy of the certificate to the Division, they must provide the original document to the Division without delay.

Content of certificate

(8) The medical certificate must set out

  • (a) particulars as to the medical condition, without specifying the diagnosis, which prevents the claimant or protected person from participating in the proceeding on the date fixed for the proceeding;
  • (b) whether the claimant or protected person can participate if the proceeding or any part of it were conducted in writing or by means of live telecommunication; and
  • (c) when it is expected that the claimant or protected person will be able to participate in the proceeding.

Application to change date or time of interview

(9) If the application is to change the date or time of an interview,

  • (a) the Division must not allow the application unless there are exceptional circumstances including whether the change is required to accommodate a vulnerable person; and
  • (b) if the claimant makes the application for medical reasons, other than those related to counsel, the claimant must provide, without delay, the original of a legible, recently dated medical certificate, setting out the particulars that are required by subrule (8), that is signed by a qualified medical practitioner whose name and address are printed or stamped on it.

New date for interview

(10) If an application for a change to the date or time of an interview is allowed, the new date fixed by the Division must be within three working days of the date originally fixed for the interview or as soon as possible after that date.

Duty to appear at the proceeding

(11) Unless a party receives a decision from the Division allowing the application, the party must appear for the proceeding at the date and time fixed and be ready to start or continue the proceeding.

JOINING OR SEPARATING CLAIMS OR APPLICATIONS

Claims automatically joined

56. (1) The Division must join the claim of a claimant to a claim made by the claimant’s spouse or common-law partner, child, parent, brother, sister, grandchild or grandparent.

Applications joined if claims joined

(2) Applications to vacate or to cease refugee protection are joined if the claims of the protected persons were joined.

Application to join

57. (1) A party may make an application to the Division to join claims or applications to vacate or to cease refugee protection.

Application to separate

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

Form of application and providing application

(3) A party who makes an application to join or separate claims or applications must do so in accordance with rule 51, 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 a decision of the Division on the application; and
  • (b) provide to the Division a written statement indicating how and when the copy of the application was provided to any affected person, together with proof that the party provided the copy to that person.

Time limit

(4) For a proceeding other than an interview, documents provided under this rule must be received by their recipients no later than 20 days before the hearing.

Factors

(5) In deciding the application, the Division must consider any relevant factors, including whether

  • (a) the claims or applications involve similar questions of fact or law;
  • (b) allowing the application would promote the efficient administration of the work of the Division; and
  • (c) allowing the application would likely cause an injustice.

PROCEEDINGS CONDUCTED IN PUBLIC

Application

58. (1) 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 51.

Oral application

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

Content of application

(3) In the application, the person must

  • (a) state what decision they want the Division to make;
  • (b) give reasons why the Division should make that decision;
  • (c) state whether or not they want the Division to consider the application in public;
  • (d) give reasons why the Division should consider the application in public or in the absence of the public;
  • (e) if they want the Division to hear the application orally, give reasons why the Division should do so; and
  • (f) include any evidence that they want the Division to consider in deciding the application.

Providing application

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

Response to application

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

  • (a) state what decision they want the Division to make;
  • (b) give reasons why the Division should make that decision;
  • (c) state whether or not they want the Division to consider the application in public;
  • (d) give reasons why the Division should consider the application in public or in the absence of the public;
  • (e) if the person wants the Division to hear the application orally, give reasons why the Division should do so; and
  • (f) include any evidence that they want the Division to consider in deciding the application.

Providing response

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

Providing response to applicant

(7) The Division must provide to the applicant either a copy of the response or a summary of the response referred to in paragraph (11)(a).

Reply to response

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

Providing reply

(9) 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.

Time limits

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

Confidentiality

(11) The Division may take any measures it considers necessary to ensure the confidentiality of the proceeding on 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 on the application,
    • (i) excluding the applicant or the applicant and their counsel 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 of the representations and evidence of the party responding to the application, upon receipt of a written undertaking by counsel not to disclose any evidence or information adduced, until a decision is made to hold the hearing in public.

Summary of response

(12) If the Division provides a summary of the response under paragraph (11)(a), or excludes the applicant and counsel from a hearing on the application under subparagraph (11)(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.

Notification of decision on application

(13) If an application is made under this rule, the Division must notify the applicant and the parties of its decision on the application and provide reasons for the decision.

OBSERVERS

Observers

59. (1) An application under rule 58 is not necessary if the claimant or protected person consents to or requests the presence of an observer other than the media at the proceeding, or if the observer is a member of the staff of the Board.

Observers — factor

(2) The Division must allow the attendance of the observer unless in the opinion of the Division the attendance of the observer is likely to impede the proceeding.

Observers — confidentiality of proceeding

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

WITHDRAWAL

Abuse of process

60. (1) Withdrawal of a claim, or of an application to vacate or to cease refugee protection, is an abuse of process if withdrawal would likely have a negative effect on the integrity of the Division. If no substantive evidence has been accepted in the hearing, withdrawal is not an abuse of process.

Withdrawal if no evidence accepted

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

Withdrawal if evidence accepted

(3) If substantive evidence has been accepted in the hearing, a party who wants to withdraw the party’s claim or the application to vacate or to cease refugee protection must make an application to the Division in accordance with rule 51.

REINSTATING A WITHDRAWN CLAIM OR APPLICATION

Withdrawn claim

61. (1) A person may apply to the Division to reinstate a claim that was made by that person and withdrawn.

Form and content of application

(2) The person must make the application in accordance with rule 51, include their contact information in the application and provide a copy of the application to the Minister.

Factors

(3) The Division must not allow the application unless it is established that there was a failure to observe a principle of natural justice or if it is otherwise in the interests of justice to allow the application.

Factors

(4) In deciding the application, the Division must consider any relevant factors including whether the application was made in a timely manner.

Subsequent application

(5) If the claimant 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 based on new evidence.

Application to vacate or to cease refugee protection

62. (1) The Minister may make an application to the Division to reinstate an application to vacate or to cease refugee protection.

Form of application

(2) The application must be made in accordance with rule 51.

Factors

(3) The Division must not allow the application unless it is established that there was a failure to observe a principle of natural justice or if it is otherwise in the interests of justice to allow the application.

Factors

(4) In deciding the application, the Division must consider any relevant factors including whether the application was made in a timely manner.

Subsequent application

(5) If the Minister 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 based on new evidence.

REOPENING A CLAIM OR APPLICATION

Application to reopen claim

63. (1) A claimant or the Minister may make an application to the Division to reopen a claim for refugee protection that has been decided or declared abandoned.

Form of application

(2) The application must be made in accordance with rule 51 and, for the purposes of paragraph 51(4)(a), the Minister is considered to be a party whether or not the Minister took part in the proceedings.

Claimant’s application

(3) A claimant must include their contact information in the application.

Allegations against counsel

(4) If the application alleges that the claimant’s counsel in the proceedings that are the subject of the application provided inadequate representation, the claimant must first provide a copy of the application to the counsel and then provide the original application to the Division.

Proof application provided

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

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.

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 a delay, if any;
  • (b) whether the party made an appeal to the Refugee Appeal Division and, if not, why was it not made;
  • (c) whether the party made an appeal to the Refugee Appeal Division on the same or similar grounds that was denied; and
  • (d) whether the party made an application for leave to apply for judicial review or an application for judicial review on the same or similar grounds that was denied.

Subsequent application

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

Other remedies

(9) If there is a pending appeal to the Refugee Appeal Division 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 claims, or dismiss the application.

Application to vacate or to cease refugee protection

64. (1) The Minister or a protected person may make an application to the Division to reopen an application to vacate or to cease refugee protection that has been decided or declared abandoned.

Form of application

(2) The application must be made in accordance with rule 51.

Application by protected person

(3) A protected person must include their contact information in the application.

Allegations against counsel

(4) If the application alleges that the protected person’s counsel in the proceedings that are the subject of the application provided inadequate representation, the protected person must first provide a copy of the application to the counsel and then provide the original application to the Division.

Proof application provided

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

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.

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 the delay, if any;
  • (b) whether the party made an appeal to the Refugee Appeal Division and, if not, why an appeal was not made;
  • (c) whether the party made an appeal to the Refugee Appeal Division on the same or similar grounds that was denied; and
  • (d) whether the party made an application for leave to apply for judicial review or an application for judicial review on the same or similar grounds that was denied.

Subsequent application

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

Other remedies

(9) If there is a pending appeal to the Refugee Appeal Division 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.

APPLICATIONS TO VACATE OR TO CEASE REFUGEE PROTECTION

Form of Application

65. (1) An application to vacate or to cease refugee protection made by the Minister must be in writing and made in accordance with this rule.

Content of application

(2) In the application, the Minister must include

  • (a) the contact information of the protected person and their counsel, if any;
  • (b) the identification number given by the Department of Citizenship and Immigration to the protected person;
  • (c) the date and file number of any Division decision with respect to the protected person;
  • (d) in the case of a person whose application for protection was allowed abroad, the person’s file number, a copy of the decision and the location of the office;
  • (e) what decision the Minister wants the Division to make; and
  • (f) the reasons why the Division should make that decision.

Providing application to protected person and Division

(3) The Minister must provide

  • (a) a copy of the application to the protected person; and
  • (b) the original of the application to the registry office that provided the notice of decision in the claim or to the registry office specified by the Division, together with a written statement indicating how and when a copy was provided to the protected person.

ABANDONMENT

Failure to attend interview

66. (1) If the claimant fails to attend the interview, the Division may declare the claim abandoned without further notice to them unless the Division receives an explanation that it considers satisfactory for their failure to attend.

Explanation

(2) The explanation provided must be

  • (a) in writing together with supporting documents, if any; and
  • (b) received by the Division within five days after the date of the interview.

Medical certificate

(3) If the claimant’s explanation includes medical reasons, other than those related to counsel, they must provide a legible, recently dated medical certificate signed by a qualified medical practitioner whose name and address are printed or stamped on the certificate. If a claimant has provided a copy of the certificate to the Division, they must provide the original document to the Division without delay.

Content of certificate

(4) The medical certificate must set out

  • (a) particulars as to the medical condition, without specifying the diagnosis, which prevented the claimant from attending the interview on the date fixed for the interview; and
  • (b) when it is expected that the claimant will be able to attend an interview.

Factors to consider

(5) The Division must consider, in deciding if the claim should be declared abandoned, the explanation given by the claimant and any other relevant information, including the fact that the claimant is ready to start or continue the proceedings.

New date for interview

(6) If the Division decides not to declare the claim abandoned, it must fix a new date for the interview without delay.

Opportunity to explain

67. (1) In any case of default in the proceedings, other than that set out in subrule 66(1), the Division must give the claimant an opportunity to explain why the claim should not be declared abandoned. The Division must give this opportunity

  • (a) immediately, if the claimant is present at the proceeding 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 claimant in writing.

Factors to consider

(2) The Division must consider, in deciding if the claim should be declared abandoned, the explanation given by the claimant and any other relevant information, including the fact that the claimant is ready to start or continue the proceedings.

Medical certificate

(3) If the claimant’s explanation includes medical reasons, other than those related to counsel, the claimant must provide a legible, original, recently dated medical certificate signed by a qualified medical practitioner whose name and address are printed or stamped on the certificate.

Content of certificate

(4) The medical certificate must set out

  • (a) particulars as to the medical condition, without specifying the diagnosis, which prevented the claimant from pursuing their claim; and
  • (b) when it is expected that the claimant will be able to pursue their claim.

Start or continuation of proceedings

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

NOTICE OF CONSTITUTIONAL QUESTION

Notice of constitutional question

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

Form and content of notice

(2) The party must complete a notice as set out in Form 69 of the Federal Courts Rules, or any other form that includes

  • (a) the name of the party;
  • (b) the Division file number;
  • (c) the date, time and place of the hearing;
  • (d) the specific legislative provision that is being challenged;
  • (e) the material facts relied on to support the constitutional challenge; and
  • (f) a summary of the legal argument to be made in support of the constitutional challenge.

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 every province of Canada, under section 57 of the Federal Courts Act;
  • (b) a copy of the notice to the Minister;
  • (c) a copy of the notice to any other party; and
  • (d) the original notice to the Division, together with a written statement indicating how and when a copy of the notice was provided under paragraphs (a) to (c), and proof that it was provided.

Time limit

(4) Documents provided under this rule must be received by their recipients no later than 10 days before the day on which the constitutional argument is made.

DECISIONS

Notice of decision and reasons

69. When the Division makes a decision, other than an interlocutory decision, it must provide in writing a notice of decision, together with reasons, to the claimant or the protected person, as the case may be, and to the Minister.

When decision takes effect — Decision on claim

70. A decision allowing or rejecting a claim for refugee protection takes effect

  • (a) if given orally at a hearing, when a Division member states the decision and gives reasons; and
  • (b) if made in writing, when a Division member signs and dates the reasons for the decision.

When decision takes effect — Application to vacate or cease refugee protection

71. A decision on an application to vacate or to cease refugee protection takes effect

  • (a) if given orally at a hearing, when a Division member states the decision and gives reasons; and
  • (b) if made in writing, when a Division member signs and dates the reasons for the decision.

When decision takes effect — Decision on abandonment

72. A decision on the abandonment of a claim or of an application to vacate or to cease refugee protection takes effect

  • (a) if given orally at a hearing, when a Division member states the decision and gives reasons; and
  • (b) if made in writing, when a Division member signs and dates the reasons for the decision.

When decision takes effect — Allowing application to withdraw

73. A decision allowing an application to withdraw a claim or to withdraw an application to vacate or to cease refugee protection takes effect

  • (a) if given orally at a hearing, when a Division member states the decision and gives reasons; and
  • (b) if made in writing, when a Division member signs and dates the reasons for the decision.

GENERAL PROVISIONS

No applicable rule

74. 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.

Powers of Division

75. The Division may

  • (a) after giving the parties notice and an opportunity to object, 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, if the time limit has not expired, shorten it.

Failing to follow rule

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

REPEALS

Repeal

77. (1) The Convention Refugee Determination Division Rules (see footnote 2) are repealed.

Repeal

(2) The Refugee Protection Division Rules (see footnote 3) are repealed.

COMING INTO FORCE

S.C. 2010, c. 8

78. These Rules come into force on the day on which section 26 of the Balanced Refugee Reform Act comes into force, but if they are registered after that day, they come into force on the day on which they are registered.

SCHEDULE 1
(Paragraph 3(4)(b))

INFORMATION TO BE PROVIDED ABOUT THE CLAIMANT BY AN OFFICER

Item

Information

1.

Name, gender and date of birth.

2.

Department of Citizenship and Immigration client identification number.

3.

If the claimant is detained, the name and address of the place of detention.

4.

Claimant’s contact information in Canada, if any.

5.

Contact information of any counsel for the claimant.

6.

Official language chosen by the claimant as the language of proceedings before the Board.

7.

Date the claim was referred or deemed to be referred to the Division.

8.

Section of the Act under which the claim is being referred.

9.

Officer’s decision about the claim’s eligibility under section 100 of the Act, if a decision has been made.

10.

The country or countries in which the claimant fears persecution, torture, a risk to their life or a risk of cruel and unusual treatment or punishment.

11.

Whether the claimant may need a designated representative and the contact information for any proposed designated representative.

12.

Whether the claimant needs an interpreter, including a sign language interpreter, during any proceeding, and the language and dialect, if any, to be interpreted.

13.

If a claim of the claimant’s spouse, common-law partner or any relative has been referred to the Division, the names and Department of Citizenship and Immigration client identification numbers of those persons.

14.

When and how the officer notified the claimant of the referral of the claim to the Division.

SCHEDULE 2
(Subrules 6(1) and (9))

PERSONAL INFORMATION ABOUT THE CLAIMANT AND INFORMATION ABOUT THE REFUGEE CLAIM

PART A

INFORMATION ABOUT THE REFUGEE CLAIM THAT MAY BE OBTAINED BY AN INTERVIEWER

Item

Information

1.

Reasons why the claimant is making a claim for refugee protection and the facts that support the claim.

2.

A description of any medical or psychological treatment or evaluation, in Canada or elsewhere, for harm resulting from the events that caused the claimant to make a claim for refugee protection.

3.

A description of measures taken against the claimant or members of the claimant’s family or similarly-situated persons and by whom these measures were taken.

4.

A description of any steps taken by the claimant or on the claimant’s behalf or by similarly-situated persons to obtain protection from any authority in the claimant’s country of nationality. If no such steps were taken, an explanation of why they were not.

5.

Details of any attempts by the claimant or by any similarly-situated persons to move to another part of the claimant’s country in order to avoid harm. If no such attempts were made, an explanation of why they were not.

6.

The name and file number of any family member whose claim is related in any way to the claim of the claimant.

PART B

PERSONAL INFORMATION ABOUT THE CLAIMANT THAT MAY BE OBTAINED BY AN OFFICER OR BY AN INTERVIEWER

Item

Information

7.

Claimant’s name at birth and any other name used, including a nickname.

8.

Claimant’s gender.

9.

Claimant’s date and place of birth.

10.

Claimant’s country or countries of citizenship at birth.

11.

Claimant’s present country or countries of citizenship. If different from citizenship at birth, date of obtaining present citizenship.

12.

If stateless, the countries in which the claimant has resided since birth and the claimant’s status in each country.

13.

Claimant’s ethnic group, tribe or race.

14.

Claimant’s religion.

15.

The language and dialect that the claimant first learnt and still speaks, and any other languages or dialects spoken and understood by the claimant.

16.

Whether the claimant is single, married, separated, divorced, widowed or is a common-law partner; the date of marriage, separation, divorce, of the commencement of common-law partnership or of becoming a widow or widower; and the name of any spouse, common-law partner or former spouse.

17.

The date of birth, citizenship and address of the claimant’s spouse or common-law partner, and the names, dates of birth, citizenship and place and country of residence of the claimant’s children, parents, brothers and sisters.

18.

If a relative of the claimant has requested refugee protection or asylum in Canada or any other country, at a Canadian office abroad or from the United Nations High Commissioner for Refugees, the details of the request including the name and date of birth of the relative and the date, location and result of the request.

19.

The country or countries in which the claimant fears persecution, torture, a risk to their life or a risk of cruel and unusual treatment or punishment, and the date the claimant left that country or those countries. If the claimant has returned since making a claim for refugee protection in Canada, the country and place of return, the dates of return and departure, and why the claimant returned to that country.

20.

Claimant’s addresses within the last 10 years and their status in the country of address.

21.

The details of the claimant’s travel to any countries within the last 10 years, including the dates and purpose of travel to those countries.

22.

The details of how the claimant travelled to Canada from the country or countries where the claimant fears persecution, torture, a risk to their life or a risk of cruel and unusual treatment or punishment, including the claimant’s arrival and departure dates and locations as well as the type of transportation the claimant used.

23.

The details of all passports or travel documents that have been issued to the claimant.

24.

If the claimant has not obtained a passport or travel document, the reason why the claimant has not done so.

25.

The details of any passports or travel documents, genuine or not and whether or not properly obtained, used by the claimant to travel to Canada, including their current location. If a passport or travel document has been lost, destroyed or disposed of, details of the loss, destruction or disposal.

26.

If the claimant required an exit visa or permission to leave their country of citizenship or last residence, the details of any visa or permission obtained by the claimant or, if not obtained, the reason why the claimant did not do so.

27.

The details of any application made by the claimant for a visa to enter Canada, including the date and result of the application. If the claimant did not apply for a visa to enter Canada, the reason why the claimant did not do so.

28.

If the claimant has been refused an entry visa by any country or ordered to leave any country, the name of the country, date and reason.

29.

If the claimant had a visa to enter the United States, the place and date of issue of the visa.

30.

If the claimant renewed a passport or travel document since making the present claim for refugee protection, the details of the document renewed including the date of renewal.

31.

Details — including current location — of the claimant’s other identity documents, including documents that the claimant can obtain and the expected date of receipt.

32.

Details of all claims for refugee protection made by the claimant in Canada or at a Canadian office abroad, including the date, location and result.

33.

Details of all claims for refugee protection or asylum made by the claimant in any other country, including the country, date and result of the claim and any document issued.

34.

If the United Nations High Commissioner for Refugees has recognized the claimant as a refugee, the date and place of recognition and the number, date of issue and current location of any document issued.

35.

The details of the claimant’s formal education or professional training, including the number of years of education or training, the name and location of the schools or institutions attended, the dates of attendance and the level, degree, diploma or certificate obtained.

36.

The details of the claimant’s work history for the last 10 years, including the dates of employment, the name of the employer, the place of employment and the claimant’s occupation and title.

37.

Details of the claimant’s membership in, connection to or support — financial or otherwise — of any organization, including the relevant dates, the name and location of the organization, the type of the organization and the activities performed and position held by the claimant.

38.

Details of any service by the claimant in the armed forces of any country, including

  • (a) the country served, the dates of service and the rank obtained;
  • (b) whether the claimant volunteered for military service;
  • (c) if the claimant did not complete their service, the reasons why;
  • (d) if military service is compulsory, at what age;
  • (e) if the claimant received a call-up notice but did not serve, the date of the notice and the reasons why the claimant did not serve;
  • (f) whether the claimant participated in any combat; and
  • (g) if the claimant received any paramilitary or security training that was not part of regular military service, the dates and type of training received.

39.

Details of any crime or offence that the claimant has committed, including the date, place and type of crime or offence. If the claimant has been charged, acquitted or convicted of any crime or offence, the details of the proceedings including dates, the verdict and any sentence imposed.

40.

If the claimant has been arrested or is wanted by the police or military or any other authorities in any country, including Canada, the reason why the claimant was arrested or is wanted and the relevant dates and places.

41.

If the claimant has committed or has otherwise been involved in a war crime or a crime against humanity, the details including the dates and places.

42.

If the claimant has planned, advocated or resorted to armed struggle or violence to reach political, religious or social objectives, the details including the dates and places.

43.

If the claimant has participated in the smuggling or trafficking of people, money laundering or organized crime, the details including the dates and places.

44.

The claimant’s contact information, and the contact information of any counsel for the claimant.

45.

The reasons for any objection that the claimant has to the disclosure to another claimant of personal information that was recorded in the Interview Report.

SCHEDULE 3
(Rules 5 and 14)

DECLARATION THAT COUNSEL IS NOT CHARGING A FEE

Item

Information

1.

IRB Division and file number with respect to the claimant or protected person.

2.

Name of counsel who is representing the claimant or protected person and who is not charging a fee for doing so.

3.

Name of counsel’s firm or organization, if applicable, and counsel’s postal address, telephone number, fax number and email address.

4.

Interpreter’s declaration, if applicable, consisting of the interpreter’s name, the language and dialect, if any, interpreted and a statement signed by the interpreter that the interpretation was accurate.

5.

Declaration signed by the claimant or protected person that the information provided in the form is complete, true and correct.

6.

Declaration signed by counsel that the information provided in the form is complete, true and correct.

[27-1-o]

Footnote a
S.C. 2001, c. 27

Footnote 1
See www.irb-cisr.gc.ca/eng/brdcom/references/pol/Pages/index.aspx for a description of the policy process at the IRB, including governance of policy development and definitions of the seven policy instruments the IRB uses to promote consistency, fairness and transparency.

Footnote 2
SOR/93-45

Footnote 3
SOR/2002-228