ARCHIVED — Refugee Appeal Division Rules

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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

For the Regulatory Impact Analysis Statement, see the Refugee Protection Division Rules.

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 Appeal 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 APPEAL DIVISION RULES

DEFINITIONS

 1 Definitions

PART 1

RULES APPLICABLE TO ALL APPEALS

COMMUNICATING WITH THE DIVISION

 2 Communicating with the Division

 3 Change to contact information

COUNSEL

 4 Retaining counsel after providing notice

 5 Declaration — counsel not authorized representative

 6 Becoming counsel of record

 7 Request to be removed as counsel of record

 8 Removing counsel of record

FILING AND PERFECTING AN APPEAL

 9 Filing and perfecting appeal — person subject of appeal

REFUGEE PROTECTION DIVISION RECORD

10 Preparing and providing record

RESPONSE TO AN APPEAL

11 Response to appeal — person subject of the appeal

REPLY

12 Reply to response

DECISION ON APPEAL

13 Decision without further notice

LANGUAGE OF THE APPEAL

14 Choice of language

DESIGNATED REPRESENTATIVES

15 Continuation of designation in the Refugee Protection Division

SPECIALIZED KNOWLEDGE

16 Notice to parties

NOTICE OF CONSTITUTIONAL QUESTION

17 Notice of constitutional question

ASSIGNMENT OF THREE-MEMBER PANEL

18 Notice

CONFERENCES

19 Requirement to participate at conference

DOCUMENTS

Form and Language of Documents

20 Documents prepared by party

21 Language of documents — person subject of appeal

Documents not Previously Provided

22 Documents not previously provided

Providing a Document

23 General provision

24 Providing documents to Division

25 How to provide document

26 Application to Division — if unable to provide document

27 Proof that document provided

28 When document received by a division

APPLICATIONS

GENERAL

29 General provision

HOW TO MAKE AN APPLICATION

30 Form of application and time limit

HOW TO RESPOND TO A WRITTEN APPLICATION

31 Responding to written application

HOW TO REPLY TO A WRITTEN RESPONSE

32 Replying to written response

JOINING OR SEPARATING APPEALS

33 Appeals joined if claims or applications joined

34 Application to join

PROCEEDINGS CONDUCTED IN PUBLIC

35 Application

OBSERVERS

36 Observers

UNHCR AND INTERVENORS

37 Rules applicable to UNHCR and intervenors

38 Notice by UNHCR

39 Application by person for intervenor status

WITHDRAWAL

40 Abuse of process

REINSTATING A WITHDRAWN APPEAL

41 Application to reinstate withdrawn appeal

REOPENING AN APPEAL

42 Application to reopen appeal

DECISIONS

43 Notice of decision and reasons

44 When decision takes effect — single member

45 When decision takes effect — allowing application to withdraw

GENERAL PROVISIONS

46 No applicable rule

47 Powers of Division

48 Failing to follow rule

PART 2

RULES APPLICABLE TO APPEALS WHERE A HEARING IS HELD

FIXING A DATE FOR A HEARING

49 Conference to fix date for hearing

NOTICE TO APPEAR

50 Notice to appear

CONDUCT OF A HEARING

51 Standard order of questioning

52 Restriction of hearing

53 Limiting questioning of witnesses

54 Oral representations

55 Oral decision

PERSON WHO IS THE SUBJECT OF THE APPEAL IN CUSTODY

56 Custody

LANGUAGE OF INTERPRETATION

57 Hearing — need for interpreter

ADDITIONAL DOCUMENTS

58 Documents after hearing

WITNESSES

59 Providing witness information

60 Requesting summons

61 Cancelling summons

62 Arrest warrant

63 Excluded witness

CHANGING THE LOCATION OF A HEARING

64 Application to change location of hearing

CHANGING THE DATE OR TIME OF A HEARING

65 Application to change date or time of hearing

ABANDONMENT

66 Abandonment after hearing scheduled

COMING INTO FORCE

67 S.C. 2010, c. 8

SCHEDULE

DECLARATION THAT COUNSEL IS NOT CHARGING A FEE

REFUGEE APPEAL DIVISION RULES

DEFINITIONS

Definitions

1. The following definitions apply in these Rules.

“Act”
« Loi »

“Act” means the Immigration and Refugee Protection Act.

“appellant”
« appelant »

“appellant” means a person who is the subject of an appeal, or the Minister, who makes an appeal to the Division from a decision of the Refugee Protection Division.

“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 person who is the subject of the appeal, 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 Appeal Division.

“Division registry office”
« greffe de la Section »

“Division registry office” means the business office of the Division that is located in the same region as the business office of the Refugee Protection Division through which the notice of decision under appeal was provided.

“intervenor”
« intervenant »

“intervenor” means a person who has been granted intervenor status under rule 39.

“interview”
« entrevue »

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

“Interview Report”
« rapport d’entrevue »

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

“party”
« partie »

“party” means the appellant or respondent.

“proceeding”
« procédure »

“proceeding” includes a conference, an application, or an appeal that is decided with or without a hearing.

“respondent”
« intimé »

“respondent” means a person who is the subject of an appeal in the case of an appeal by the Minister, or in the case of an appeal by a person who is the subject of an appeal, the Minister if the Minister responds to an appeal in accordance with rule 11.

“RPD registry office”
« greffe de la SPR »

“RPD registry office” means the business office of the Refugee Protection Division through which the notice of decision under appeal was provided.

“UNHCR”
« HCR »

“UNHCR” means the United Nations High Commissioner for Refugees.

“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.

PART 1

RULES APPLICABLE TO ALL APPEALS

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.

Change to contact information

3. If the contact information of the person who is the subject of an appeal changes, the person must without delay provide the changes in writing to the Division and the Minister.

COUNSEL

Retaining counsel after providing notice

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

Change to counsel’s contact information

(2) If the contact information of a party’s counsel changes, the party must without delay provide the changes in writing to the Division and the other party.

Declaration — counsel not authorized representative

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

Becoming counsel of record

6. (1) As soon as counsel for a person who is the subject of an appeal provides on behalf of that person a notice of appeal or notice of intent to respond, or becomes counsel after the person provided a notice, the counsel becomes counsel of record for that person.

Limitation on counsel’s retainer

(2) If the person who is the subject of an appeal has notified the Division of a limitation on their counsel’s retainer, counsel is counsel of record only to the extent of 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

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

Written statement

(2) The request provided to the Division must be accompanied by a written statement indicating how and when counsel provided the copy to the person represented and to the Minister, together with proof that it was provided.

Request — if proceeding scheduled

(3) If a proceeding has been scheduled and two working days or less remain before the date of the proceeding, counsel must make the request orally at the proceeding.

Division’s permission required

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

Removing counsel of record

8. (1) To remove counsel as counsel of record, the person who is the subject of an appeal must first provide a copy of a written notice that counsel is no longer counsel for the person, to counsel and to the Minister and then provide written notice to the Division.

Written statement

(2) The notice provided to the Division must be accompanied by a written statement indicating how and when the person provided the copy to counsel and to the Minister, together with proof that it was provided.

Ceasing to be counsel of record

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

FILING AND PERFECTING AN APPEAL

Filing and perfecting appeal — person subject of appeal

9. (1) To file and perfect an appeal, the person who is the subject of the appeal must provide first to the Minister — whether or not the Minister took part in the proceedings before the Refugee Protection Division — and then to the Division, a written notice of appeal, together with the appellant’s record.

Filing and perfecting appeal — Minister

(2) To file and perfect an appeal, the Minister must provide, first to the person who is the subject of the appeal and then to the Division, a written notice of appeal, together with the appellant’s record.

Notice of intervention — Minister

(3) For the purposes of paragraph 171(a.4) of the Act, filing and perfecting an appeal under subrule (2) constitutes giving notice of intervention.

Content of notice of appeal

(4) In the notice of appeal, the appellant must indicate

  • (a) their name and telephone number, and an address where documents can be provided to them;
  • (b) if represented by counsel, counsel’s contact information and any limitations on their retainer;
  • (c) in the case where the appellant is the subject of the appeal,
    • (i) the language — English or French — chosen by them as the language of the appeal,
    • (ii) the language and dialect, if any, to be interpreted, if the Division decides that a hearing is necessary and if the appellant needs an interpreter, and
    • (iii) the representative’s contact information, if the Refugee Protection Division has designated a representative for the appellant in the proceedings relating to the decision being appealed, and any proposed change in representative;
  • (d) the identification number given by the Department of Citizenship and Immigration to the person who is the subject of the appeal; and
  • (e) the Refugee Protection Division file number, the date of decision and the date that the Refugee Protection Division provided the written reasons for the decision.

Content of appellant’s record

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

  • (a) a memorandum that includes detailed submissions regarding
    • (i) the errors that are the grounds of the appeal,
    • (ii) where the errors are found in the record of the Refugee Protection Division’s proceedings,
    • (iii) in the case where the appellant is the subject of the appeal, how any documentary evidence referred to in paragraph (d) meets the requirements of subsection 110(4) of the Act and how that evidence relates to the appellant,
    • (iv) what decision the appellant wants the Division to make, and
    • (v) if the appellant is requesting that a hearing be held, why the Division should hold a hearing under subsection 110(6) of the Act;
  • (b) the full transcript of the Refugee Protection Division hearing, if the appellant wants to rely on the transcript in the appeal;
  • (c) any documents that the Refugee Protection Division refused to accept as evidence, during or after the hearing, if the appellant wants to rely on the documents in the appeal;
  • (d) any documentary evidence that the appellant wants to rely on in the appeal;
  • (e) any law, case law or other legal authority that the appellant wants to rely on in the appeal; and
  • (f) the notice of decision and written reasons for the decision of the Refugee Protection Division that the appellant is appealing.

Length of memorandum

(6) The memorandum referred to in paragraph (5)(a) must not be more than 30 pages long if typewritten on one side or 15 pages if typewritten on both sides.

Proof that documents were provided

(7) The notice of appeal and the appellant’s record provided to the Division must be accompanied by a written statement indicating how and when the notice of appeal and the appellant’s record were provided to the person who is the subject of the appeal or the Minister, as the case may be, together with proof that they were provided.

Time limit

(8) Documents provided under this rule must be received by the Division within the time limits for filing and perfecting an appeal set out in the Immigration and Refugee Protection Regulations. The Division must provide the notice of appeal to the Refugee Protection Division without delay.

Extension of time

(9) A request for an extension of the time to file and perfect an appeal made after the time limit set out in the Immigration and Refugee Protection Regulations must be accompanied by a notice of appeal and an appellant’s record.

Response to request

(10) The person who is the subject of the appeal or the Minister, as the case may be, may respond to the request for an extension of time in writing. The response must be provided first to the appellant and then to the Division.

Proof response provided

(11) The response provided to the Division must be accompanied by a written statement indicating how and when the response was provided to the appellant, together with proof that it was provided.

Time limit

(12) Documents provided under subrules (10) and (11) must be received by their recipients no later than five days after the person who is the subject of the appeal or the Minister, as the case may be, receives the request for an extension of time.

Notification of decision on request

(13) The Division must without delay notify the person who is the subject of the appeal and the Minister in writing of its decision with respect to the request for an extension of time.

REFUGEE PROTECTION DIVISION RECORD

Preparing and providing record

10. (1) The Refugee Protection Division must prepare a record and provide it to the Division no later than 10 days after the Refugee Protection Division receives the notice of appeal.

Content of record

(2) The Refugee Protection Division record must contain

  • (a) the notice of decision and written reasons for the decision that is being appealed;
  • (b) the Interview Report;
  • (c) any audio or other electronic recording of the interview, if that recording was before the Refugee Protection Division;
  • (d) all documentary evidence that the Refugee Protection Division accepted as evidence, during or after the hearing;
  • (e) any written representations made during or after the hearing but before the decision being appealed was made; and
  • (f) any audio or other electronic recording of the hearing.

Providing record to absent person subject of the appeal

(3) If the person who is the subject of the appeal was not present at the hearing relating to the decision being appealed, the Division must provide the Refugee Protection Division record to that person as soon as it receives it.

Providing record to absent Minister

(4) If the Minister was not present at the hearing relating to the decision being appealed, the Division must provide the Refugee Protection Division record to the Minister as soon as it receives it.

RESPONSE TO AN APPEAL

Response to appeal — person subject of the appeal

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

Response to an appeal — Minister

(2) If the Minister wants to respond to an appeal, the Minister must provide, first to the person who is the subject of the appeal, and then to the Division, a notice of intent to respond, together with the respondent’s record.

Notice of intervention — Minister

(3) For the purposes of paragraph 171(a.4) of the Act, a response to an appeal under subrule (2) constitutes giving notice of intervention.

Content of notice of intent to respond

(4) In the notice of intent to respond, the respondent must indicate

  • (a) their name and telephone number, and an address where documents can be provided to them;
  • (b) if represented by counsel, counsel’s contact information and any limitations on their retainer;
  • (c) in the case where the respondent is the subject of the appeal,
    • (i) the language — English or French — chosen by them as the language of the appeal,
    • (ii) the language and dialect, if any, to be interpreted, if the Division decides that a hearing is necessary and if the respondent needs an interpreter, and
    • (iii) the representative’s contact information, if the Refugee Protection Division has designated a representative for the respondent in the proceedings relating to the decision being appealed, and any proposed change in representative;
  • (d) the identification number given by the Department of Citizenship and Immigration to the person who is the subject of the appeal; and
  • (e) the Refugee Protection Division file number and date of decision.

Content of respondent’s record

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

  • (a) a memorandum that includes submissions regarding
    • (i) the grounds on which the respondent contests the appeal,
    • (ii) what decision the respondent wants the Division to make, and
    • (iii) if the respondent is requesting that a hearing be held, why the Division should hold a hearing under subsection 110(6) of the Act;
  • (b) the full transcript of the Refugee Protection Division hearing, if the respondent wants to rely on the transcript in the appeal;
  • (c) any documentary evidence that the respondent wants to rely on in the appeal; and
  • (d) any law, case law or other legal authority that the respondent wants to rely on in the appeal.

Length of memorandum

(6) The memorandum referred to in paragraph (5)(a) must not be more than 30 pages long if typewritten on one side or 15 pages if typewritten on both sides.

Proof that documents were provided

(7) The notice of intent to respond and the respondent’s record provided to the Division must be accompanied by a written statement indicating how and when the notice of intent to respond and the respondent’s record were provided to the appellant, together with proof that they were provided.

Time limit

(8) Documents provided under this rule must be received by the Division no later than 15 days after the later of

  • (a) the date that the respondent receives the notice of appeal and the appellant’s record; and
  • (b) if the Division allows a request for an extension of time to file and perfect the appeal under rule 9, the date that the respondent is notified of the decision to allow the extension of time.

Extension of time

(9) A request for an extension of time to respond to an appeal that is made after the time limit set out in subrule (8) must be accompanied by a notice of intent to respond and a respondent’s record.

Response to request

(10) The appellant may respond to the request for an extension of time in writing. The response must be provided first to the respondent and then to the Division.

Proof that response was provided

(11) The response provided to the Division must be accompanied by a written statement indicating how and when the response was provided to the respondent, together with proof that it was provided.

Time limit

(12) Documents provided under subrules (10) and (11) must be received by their recipients no later than five days after the appellant receives the request for an extension of time.

Notification of decision on request

(13) The Division must without delay notify the person who is the subject of the appeal and the Minister in writing of its decision with respect to the request for an extension of time.

REPLY

Reply to response

12. (1) If an appellant wants to reply to a response, the appellant must provide, first to the respondent and then to the Division, a reply record that contains the following, on consecutively numbered pages, in the following order:

  • (a) a memorandum that includes submissions regarding only the grounds raised by the respondent;
  • (b) the full transcript of the Refugee Protection Division hearing, if the appellant wants to rely on the transcript to support the reply and the transcript was not provided with the appellant’s record or the respondent’s record;
  • (c) any documentary evidence that the appellant wants to rely on to support the reply and that was not provided with the appellant’s record or the respondent’s record; and
  • (d) any law, case law or other legal authority that the appellant wants to rely on to support the reply and that was not provided with the appellant’s record or the respondent’s record.

Length of memorandum

(2) The memorandum referred to in paragraph (1)(a) must not be more than 30 pages long if typewritten on one side or 15 pages if typewritten on both sides.

Proof that document was provided(3) The reply record provided to the Division must be accompanied by a written statement indicating how and when the reply record was provided to the respondent, together with proof that it was provided.

Time limit

(4) Documents provided under this rule must be received by the Division no later than five days after the later of

  • (a) the date that the appellant receives the respondent’s record; and
  • (b) if the Division allows a request for an extension of time to respond to the appeal under rule 11, the date that the appellant is notified of the decision to allow the extension of time.

Extension of time

(5) A request for an extension of time to reply to a response that is made after the time limit set out in subrule (4) must be accompanied by a reply record.

Response to request

(6) The respondent may respond to the request for an extension of time in writing. The response must be provided first to the appellant and then to the Division.

Proof that response was provided

(7) The response provided to the Division must be accompanied by a written statement indicating how and when the response was provided to the appellant, together with proof that it was provided.

Time limit

(8) Documents provided under subrules (6) and (7) must be received by their recipients no later than five days after the respondent receives the request for an extension of time.

Notification of decision on request

(9) The Division must without delay notify the person who is the subject of the appeal and the Minister in writing of its decision with respect to the request for an extension of time.

DECISION ON APPEAL

Decision without further notice

13. Unless a hearing is held under subsection 110(6) of the Act, the Division may, without further notice to the parties, decide the appeal on the basis of the materials provided if

  • (a) any party has failed to provide any document required by these Rules within the time fixed, or
  • (b) the appellant’s reply record has been provided, or the time for providing it has expired.

LANGUAGE OF THE APPEAL

Choice of language

14. (1) The person who is the subject of the appeal must choose English or French as the language of the appeal. The person must indicate that choice in the notice of appeal or the notice of intent to respond, depending on whether they are the appellant or respondent.

Language — Minister’s appeals

(2) If the appellant is the Minister, the language of the appeal is the language chosen by the person who is the subject of the appeal in the proceedings relating to the decision being appealed.

Changing language

(3) The person who is the subject of the appeal may change the language of the appeal by notifying the Division and the Minister in writing as soon as possible and, if a date has been scheduled for a proceeding, the notice must be received no later than 20 days before that date.

DESIGNATED REPRESENTATIVES

Continuation of designation in the Refugee Protection Division

15. (1) If the Refugee Protection Division designated a representative for the person who is the subject of the appeal in the proceedings relating to the decision being appealed, the Division is deemed to have designated that person to represent the person, unless the Division orders otherwise.

Duty of counsel to notify

(2) If the Refugee Protection Division did not designate a representative for the person who is the subject of the appeal and counsel for a party believes that the Division should designate a representative for the person because the person is under 18 years of age or unable to appreciate the nature of the proceedings, counsel must without delay notify the Division in writing.

Exception

(3) Subrule (2) does not apply in the case of a person under 18 years of age who is the subject of an appeal that is joined with the appeal of a decision in which the subject of the appeal is 18 years of age or older.

Content of notice

(4) The notice must include the following information:

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

Requirements for being designated

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

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

Factors

(6) When determining whether a person who is the subject of an appeal is unable to appreciate the nature of the proceedings, the Division must consider any relevant factors, including

  • (a) whether the person can understand the reason for the proceeding and 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 had a representative designated for a proceeding in a division other than the Refugee Protection Division.

Designation by member

(7) Any member of the Division may designate a representative for a person who is the subject of an appeal before a proceeding begins.

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 the Division orders otherwise.

End of designation — person reaches 18 years of age

(9) The designation of a representative for a person who is under 18 years of age ends when the person reaches 18 years of age, unless 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, except under subrule (1), 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 appeal 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; and
  • (f) informing and consulting the represented person to the extent possible when making decisions about the case.

SPECIALIZED KNOWLEDGE

Notice to parties

16. (1) Before using any information or opinion that is within its specialized knowledge to decide an appeal, the Division must notify the parties and give them an opportunity to,

  • (a) if a hearing has not been scheduled, make written representations on the reliability and use of the information or opinion and provide written evidence in support of their representations; and
  • (b) if a hearing has been scheduled, make oral or written representations on the reliability and use of the information or opinion and provide evidence in support of their representations.

Providing representations and evidence

(2) A party must provide its written representations and evidence first to the other party and then to the Division.

Proof that representations and evidence were provided

(3) The written representations and evidence provided to the Division must be accompanied by a written statement indicating how and when they were provided to the other party, together with proof that they were provided.

NOTICE OF CONSTITUTIONAL QUESTION

Notice of constitutional question

17. (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 specific legislative provision that is being challenged;
  • (d) the material facts relied on to support the constitutional challenge; and
  • (e) a summary of the legal argument to be made in support of the constitutional challenge.

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, even if the Minister has not yet responded to the appeal;
  • (c) a copy of the notice to the UNHCR, if it has provided notice of its intention to provide written submissions, and any intervenor; 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

  • (a) if the party is appealing, at the same time as the Division receives the notice of appeal or the reply; or
  • (b) if the party is responding, at the same time as the Division receives the response.

Deciding of constitutional question

(5) The Division must not make a decision on the constitutional question until at least 10 days after receiving the notice of constitutional question and written statement.

ASSIGNMENT OF THREE-MEMBER PANEL

Notice

18. (1) If the Chairperson orders a proceeding to be conducted by three Division members, the Division must without delay notify the parties — including the Minister, even if the Minister has not yet responded to the appeal — and the UNHCR in writing of the order.

Transmission of respondent’s record

(2) If the Minister receives notice of an order for a three-member panel and the Minister has not responded to the appeal under rule 11, the Minister may provide a notice of intent to respond and the respondent’s record first to the appellant and then to the Division.

Proof that documents were provided

(3) The notice of intent to respond and the respondent’s record provided to the Division must be accompanied by a written statement indicating how and when the notice of intent to respond and the respondent’s record were provided to the appellant, together with proof that they were provided.

Time limit

(4) If the Minister provides a response, the documents must be received by their recipients no later than 10 days after the Minister receives notice of the order or in the time frame set out in subrule 11(8), whichever is later.

Reply to Minister’s response

(5) The appellant may reply to the Minister’s response in accordance with rule 12.

Providing documents to UNHCR

(6) If the Division has not provided the UNHCR with the documents referred to in subrule 38(2), it must do so at the same time that it provides notice of the order.

Written submissions of UNHCR

(7) Despite subrule 38(4), if the UNHCR receives notice of an order, the UNHCR may provide written submissions to the Division no later than 10 days after the UNHCR receives notice of the order.

UNHCR’s written submissions provided to person and Minister

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

Response to UNHCR

(9) The person who is the subject of the appeal or the Minister may respond to the UNHCR’s submissions under rule 38.

CONFERENCES

Requirement to participate at conference

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

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.

DOCUMENTS

Form and Language of Documents

Documents prepared by party

20. (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 — person subject of appeal

21. (1) All documents used in an appeal by a person who is the subject of the appeal 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 in an appeal must be in the language of the appeal or be provided together with a translation in the language of the appeal and a translator’s declaration.

Translator’s declaration

(3) The 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.

Documents Not Previously Provided

Documents not previously provided

22. (1) A party who does not provide a document with the appellant’s record, respondent’s record or reply record, must not use the document in the appeal unless allowed by the Division.

Application to Division

(2) If a party wants to use a document that was not previously provided, the party must make an application to the Division in accordance with rule 30.

Factors

(3) In deciding whether to allow an application, the Division must consider any relevant factors, including

  • (a) the document’s relevance and probative value;
  • (b) any new evidence it brings to the appeal; and
  • (c) whether the party, with reasonable effort, could have provided the document with the appellant’s record, respondent’s record or reply record.

Providing a Document

General provision

23. Rules 24 to 28 apply to any document, including a notice or request in writing.

Providing documents to Division

24. (1) A document to be provided to the Division must be provided to the Division registry office.

Providing documents to Refugee Protection Division

(2) A document to be provided to the Refugee Protection Division must be provided to the RPD registry office.

Providing documents to Minister

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

Providing documents to a person other than Minister(4)

A document to be provided to a person other than the Minister must be provided to the person’s counsel, if the person has a counsel of record. If the person does not have counsel of record, the document must be provided to the person.

How to provide document

25. 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

26. (1) If a party is unable to provide a document in a way required by rule 25, 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 30.

Allowing application

(3) The Division must not allow the application unless the person has made reasonable efforts to provide the document to the person to whom the document must be provided.

Proof that document provided

27. Proof that a document was provided must be established by

  • (a) an acknowledgment of receipt signed by the recipient person if the document was provided by hand;
  • (b) a confirmation of receipt, if the document was provided by registered mail, courier, fax or email; or
  • (c) a statement of service if the document was provided by regular mail.

When document received by a division

28. (1) A document provided to the Division or the Refugee Protection Division is considered to be received on the day the document is date stamped by that division.

When document received by person subject of the appeal or Minister

(2) A document provided by regular mail to the person who is the subject of the appeal or the Minister 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.

APPLICATIONS

GENERAL

General provision

29. Unless these Rules provide otherwise,

  • (a) a party who wants the Division to make a decision on any matter in the proceeding, including the procedure to be followed, must make an application to the Division under rule 30;
  • (b) a party who wants to respond to an application must respond under rule 31; and
  • (c) a party who wants to reply to a response must reply under rule 32.

HOW TO MAKE AN APPLICATION

Form of application and time limit

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

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 the 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 the copy to any other party and proof that it was provided.

HOW TO RESPOND TO A WRITTEN APPLICATION

Responding to written application

31. (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 the copy to the other party and proof that it was provided.

Time limit

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

HOW TO REPLY TO A WRITTEN RESPONSE

Replying to written response

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

Evidence in the 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 the copy to the other party and proof that it was provided.

Time limit

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

JOINING OR SEPARATING APPEALS

Appeals joined if claims or applications joined

33. If the Refugee Protection Division has joined two or more claims for refugee protection, or two or more applications to vacate or to cease refugee protection, the Division must join any appeals of the decisions on those claims or applications.

Application to join

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

Application to separate

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

Form of application and providing application

(3) A party who makes an application to join or separate appeals must do so in accordance with rule 30, 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) Documents provided under this rule must be received by their recipients,

  • (a) if the party is appealing, at the same time as the Division receives the notice of appeal or the reply; or
  • (b) if the party is responding, at the same time as the Division receives the response.

Factors

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

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

PROCEEDINGS CONDUCTED IN PUBLIC

Application

35. (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 30.

Oral application

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

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

Providing application

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

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; and
  • (e) 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 with one copy to the Division, together with a written statement indicating how and when the party provided the copy to the other party and proof that it was provided.

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 limit

(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 in respect of the appeal and 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

36. (1) If a hearing has been scheduled, an application under rule 35 is not necessary if the person who is the subject of the appeal 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 it considers necessary to ensure the confidentiality of the proceeding despite the presence of the observer.

UNHCR AND INTERVENORS

Rules applicable to UNHCR and intervenors

37. These Rules, with the exception of rules 17 and 40 to 42, apply to the UNHCR and intervenors with any modifications that the circumstances require.

Notice by UNHCR

38. (1) The UNHCR must notify the Division in writing of its intention to provide written submissions, and include its contact information and that of its counsel, if any.

Providing documents

(2) After receipt of the notice, the Division must provide the UNHCR with a copy of the following documents as soon as they are available:

  • (a) the Refugee Protection Division record;
  • (b) the notice of appeal, appellant’s record, notice of intent to respond, respondent’s record and reply record; and
  • (c) the written submissions of any intervenor.

Notice to person and Minister

(3) The Division must without delay notify the person who is the subject of the appeal and the Minister of the UNHCR’s notice.

Providing written submissions to the Division

(4) The UNHCR’s written submissions must be received by the Division no later than 10 days after the UNHCR provided the notice.

Conditions — written submissions

(5) The UNHCR’s written submissions must not be more than 30 pages long if typewritten on one side or 15 pages if typewritten on both sides, or raise new issues.

Providing written submissions

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

Response

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

Conditions — response

(8) A response must not be more than 30 pages long if typewritten on one side or 15 pages if typewritten on both sides, or raise new issues.

Providing response provided

(9) The response must first be provided to the person who is the subject of the appeal or the Minister, as the case may be, and then to the Division.

Proof response provided

(10) The response provided to the Division must be accompanied by a written statement indicating how and when the response was provided to the person who is the subject of the appeal or the Minister, as the case may be, together with proof that it was provided.

Time limit

(11) Documents provided under subrules (9) and (10) must be received by their recipients no later than seven days after the person who is the subject of the appeal or the Minister, as the case may be, receives the UNHCR’s submissions.

Application by person for intervenor status

39. (1) Any person, other than the UNHCR, may make an application to the Division to be allowed to intervene in an appeal conducted by a three-member panel. The person must make the application without delay and in accordance with this rule.

Form and content of application

(2) The application must be in writing and include

  • (a) the name of the applicant;
  • (b) an explanation of why the applicant wants to intervene;
  • (c) the submissions the applicant wants to put forward and an explanation of how they are relevant to the appeal;
  • (d) an explanation of the differences between the applicant’s submissions and those of the person who is the subject of the appeal and the Minister;
  • (e) an explanation of how the applicant’s submissions may help the Division decide the appeal; and
  • (f) the contact information of the applicant and their counsel, if any.

Providing application

(3) The Division must provide the application to the person who is the subject of the appeal and the Minister.

Response

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

Time limit

(5) A response must be received by the Division no later than 10 days after the person who is the subject of the appeal or the Minister, as the case may be, receives the application.

Notification of decision on application

(6) The Division must without delay notify in writing the applicant, the person who is the subject of the appeal and the Minister of its decision on the application.

Conditions — written submissions

(7) The intervenor’s written submissions must not be more than 30 pages long if typewritten on one side or 15 pages if typewritten on both sides, or raise new issues.

Providing of documents

(8) If the Division allows the application, it must without delay provide the intervenor with a copy of the following documents as soon as they are available:

  • (a) the Refugee Protection Division record;
  • (b) the notice of appeal, appellant’s record, notice of intent to respond, respondent’s record and reply record; and
  • (c) the written submissions of any other intervenor and the UNHCR.

Providing written submissions

(9) The intervenor’s written submissions must first be provided to the person who is the subject of the appeal and the Minister and then to the Division.

Proof written submissions provided

(10) The written submissions provided to the Division must be accompanied by a written statement indicating how and when the submissions were provided to the person who is the subject of the appeal and the Minister, together with proof that they were provided.

Response

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

Response — conditions

(12) A response must not be more than 30 pages long if typewritten on one side or 15 pages if typewritten on both sides, or raise new issues.

Providing response

(13) The response must first be provided to the intervenor, then to the person who is the subject of the appeal or the Minister, as the case may be, and then to the Division.

Proof response provided

(14) The response provided to the Division must be accompanied by a written statement indicating how and when the response was provided to the intervenor, the person who is the subject of the appeal or the Minister, as the case may be, together with proof that they were provided.

Time limit

(15) Documents provided under subrules (13) and (14) must be received by their recipients no later than seven days after the person who is the subject of the appeal or the Minister, as the case may be, receives the intervenor’s written submissions.

WITHDRAWAL

Abuse of process

40. (1) Withdrawal of an appeal is an abuse of process if withdrawal would likely have a negative effect on the integrity of the Division. If the requirements under rule 13 for deciding an appeal on the basis of the materials provided have not been met, withdrawal is not an abuse of process.

Withdrawal on notice

(2) If the requirements set out in rule 13 for deciding an appeal have not been met, an appellant may withdraw an appeal by notifying the Division in writing.

Application to withdraw

(3) If the requirements set out in rule 13 have been met, an appellant who wants to withdraw an appeal must make an application to the Division in accordance with rule 30.

REINSTATING A WITHDRAWN APPEAL

Application to reinstate withdrawn appeal

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

Form and content of application

(2) The appellant must make the application in accordance with rule 30, include their contact information in the application, and if the appellant is the subject of the appeal, 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 appellant 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 AN APPEAL

Application to reopen appeal

42. (1) A party may make an application to the Division to reopen an appeal that has been decided or declared abandoned.

Form of application

(2) The application must be made in accordance with rule 30 and, for the purposes of paragraph 30(4)(a), the Minister is considered to be a party whether or not the Minister took part in the proceedings.

Application of person who is the subject of an appeal

(3) The person who is the subject of an appeal must include their contact information in the application.

Allegations against counsel

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

Proof that 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, together with proof that it was provided.

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 application for leave to apply for judicial review or an application for judicial review, and if not, why it was not made; and
  • (c) 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 an appeal that was denied, the Division must consider the reasons for the denial and must not allow the subsequent application unless there are exceptional circumstances based on new evidence.

Other remedies

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

DECISIONS

Notice of decision and reasons

43. 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 parties including the Minister even if the Minister did not respond to the appeal, and to the Refugee Protection Division.

When decision takes effect — single member

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

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

When decision takes effect — panel of three members

(2) A decision, other than an interlocutory decision, made by a panel of three Division members takes effect

  • (a) if made in writing, when all of the members sign and date their reasons for the decision; and
  • (b) if given orally at a hearing, when all of the members state their decision and give reasons.

When decision takes effect — allowing application to withdraw

45. A decision allowing an application to withdraw an appeal takes effect

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

GENERAL PROVISIONS

No applicable rule

46. 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

47. 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 rules

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

PART 2

RULES APPLICABLE TO APPEALS WHERE A HEARING IS HELD

FIXING A DATE FOR A HEARING

Conference to fix date for hearing

49. The Division may require the parties to participate in a scheduling conference or otherwise give information to help the Division fix a date for a hearing.

NOTICE TO APPEAR

Notice to appear

50. (1) If the Division decides that a hearing is necessary, the Division must notify the person who is the subject of the appeal and the Minister in writing of the date, time and location of the hearing and the issues of fact that will be raised at the hearing.

Date fixed for hearing

(2) The date fixed for a hearing must be at least 10 days after the date set out in the notice referred to in subrule (1), unless the parties consent to an earlier date.

Providing respondent’s record

(3) If the Minister receives a notice of hearing and the Minister has not responded to the appeal in accordance with rule 11, the Minister may provide a notice of intent to respond and the respondent’s record first to the appellant and then to the Division.

Proof that documents were provided

(4) The notice of intent to respond and the respondent’s record provided to the Division must be accompanied by a written statement indicating how and when the notice of intent to respond and the respondent’s record were provided to the appellant, together with proof that they were provided.

Time limit

(5) If the Minister provides a response, the documents must be received by their recipients no later than 10 days after the Minister receives a copy of the notice or in the time frame set out in subrule 11(8) whichever is later.

Reply to Minister’s response

(6) The appellant may reply to the Minister’s response in accordance with rule 12.

CONDUCT OF A HEARING

Standard order of questioning

51. (1) Any witness, including the person who is the subject of the appeal, will be questioned first by the Division, then by the appellant and then by the respondent.

Variation of order of questioning

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

Restriction of hearing

52. A hearing is restricted to matters relating to the issues of fact stated in the notice to appear, unless the Division considers that other issues of fact have been raised by statements made by the person who is the subject of the appeal or a witness during the hearing.

Limiting questioning of witnesses

53. The Division may limit the questioning by the parties of witnesses, including the person who is the subject of the appeal, taking into account the nature and complexity of the issues and the relevance of the questions.

Oral representations

54. (1) Representations made by a party must be made orally at the end of a hearing unless the Division orders otherwise.

Limits on representations

(2) After all the evidence has been heard, the Division must

  • (a) set time limits for representations, taking into account the complexity of the issues and the amount of relevant evidence heard; and
  • (b) indicate what issues need to be addressed in the representations.

Oral decision

55. In the case of a hearing before a single Division member, the member must render an oral decision and reasons at the hearing if it is practicable to do so.

PERSON WHO IS THE SUBJECT OF THE APPEAL IN CUSTODY

Custody

56. The Division may order a person who holds a person who is the subject of an appeal in custody to bring the person who is the subject of an appeal to a proceeding at the location specified by the Division.

LANGUAGE OF INTERPRETATION

Hearing — need for interpreter

57. (1) The person who is the subject of the appeal must indicate the language and dialect, if any, to be interpreted, if the Division decides that a hearing is necessary and if the person needs an interpreter. The person must indicate that choice in the notice of appeal or the notice of intent to respond, depending on whether the person is the appellant or the respondent.

Changing language of interpretation

(2) If a hearing has been scheduled, the person who is the subject of the appeal may change the language and dialect, if any, to be interpreted, by notifying the Division in writing. The notice must be received by the Division no later than 20 days before the hearing.

Language of interpretation — witness

(3) If any party’s witness needs an interpreter for a hearing, the party must notify the Division in writing and specify the language and dialect, if any, to be interpreted. The notice must be received by the Division no later than 20 days before the hearing.

Interpreter’s oath

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

ADDITIONAL DOCUMENTS

Documents after hearing

58. (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 30, 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 with the appellant’s record, respondent’s record or reply record.

WITNESSES

Providing witness information

59. (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, together with proof that it was provided.

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

60. (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, they 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 proof 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

61. (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 30, but is not required to give evidence in an affidavit or statutory declaration.

Arrest warrant

62. (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 a 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

63. 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.

CHANGING THE LOCATION OF A HEARING

Application to change location of hearing

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

Form and content of application

(2) The party must make the application in accordance with rule 30, 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 no later than 30 days before the hearing.

Factors

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

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

Duty to appear at hearing

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

CHANGING THE DATE OR TIME OF A HEARING

Application to change date or time of hearing

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

Form and content of application

(2) The party must

  • (a) make the application in accordance with rule 30, but is not required to give evidence in an affidavit or statutory declaration; and
  • (b) give at least six dates, within the period specified by the Division, on which the party is available to start or continue the hearing.

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.

If hearing is two working days or less away

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

Factors

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

  • (a) in the case of a date and time that was fixed after the Division consulted or tried to consult the party, any exceptional circumstances for allowing the application;
  • (b) when the party made the application;
  • (c) the time the party has had to prepare for the hearing;
  • (d) the efforts made by the party to be ready to start or continue the hearing;
  • (e) in the case of a party who requests more time to obtain information in support of their arguments, the 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 hearing 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 the person who is the subject of the appeal 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. A person who has provided a copy of the certificate to the Division 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 person from participating in the hearing on the date fixed for the hearing;
  • (b) whether the person can participate if the hearing or any part of it were conducted in writing or by means of live telecommunication; and
  • (c) when it is expected that the person will be able to participate in the hearing.

Duty to appear at the hearing

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

ABANDONMENT

Abandonment after hearing scheduled

66. (1) In any case of default in the proceedings after a hearing has been scheduled, an appeal may be declared abandoned if the Division has given the appellant an opportunity to explain why the appeal should not be declared abandoned. The Division must give the appellant the opportunity

  • (a) immediately, if the appellant is present at the hearing and the Division considers that it is fair to do so; or
  • (b) in any other case, in writing, after notifying the appellant in writing.

Providing the written explanation

(2) An appellant must provide the written explanation under paragraph (1)(b) to the Division no later than five days after being notified of their opportunity to explain, together with the original of any supporting documents that the appellant wants the Division to consider.

Medical reasons

(3) If the appellant is the subject of the appeal and the explanation includes medical reasons, other than those related to counsel, they must provide, together with the explanation, a legible, recently dated medical certificate signed by a qualified medical practitioner whose name and address are printed or stamped on the certificate. An appellant who has provided a copy of the certificate to the Division 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 appellant from pursuing their appeal, including from participating in the hearing on the date fixed for the hearing; and
  • (b) when it is expected that the appellant will be able to pursue their appeal, including participating in the hearing.

Written explanation — decision or special hearing

(5) If the appellant has provided a written explanation under paragraph (1)(b), the Division may

  • (a) declare the appeal abandoned or not abandoned on the basis of that explanation; or
  • (b) if the Division considers it necessary to do so, require the appellant to attend a special hearing, after notifying the appellant in writing, during which the appellant will be given an opportunity to explain why the appeal should not be declared abandoned.

Factors to consider

(6) The Division must consider, in deciding if the appeal should be declared abandoned, the explanation given by the appellant at the hearing or in writing and any other relevant information, including the fact that the appellant is ready to start or continue the proceedings.

Start or continue the proceedings

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

COMING INTO FORCE

S.C. 2010, c. 8

67. 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
(Rule 5)

DECLARATION THAT COUNSEL IS NOT CHARGING A FEE

Item

Information

1.

IRB Division and file number with respect to the person who is the subject of an appeal.

2.

Name of counsel who is representing the person who is the subject of an appeal 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 and fax number and email address, if any.

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 person who is the subject of the appeal 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