The Chairperson of the Immigration and Refugee Board, pursuant to subsection 161(1) of the Immigration and Refugee Protection Act 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, makes the annexed Refugee Appeal Division Rules.
Ottawa, October 26, 2012 BRIAN P. GOODMAN Chairperson of the Immigration and Refugee Board
His Excellency the Governor General in Council, on the recommendation of the Minister of Citizenship and Immigration, pursuant to subsection 161(1) of the Immigration and Refugee Protection Act a, approves the annexed Refugee Appeal Division Rules, made by the Chairperson of the Immigration and Refugee Board, in consultation with the Deputy Chairpersons and the Director General of the Immigration Division.
Interpretation
The following definitions apply in these Rules.
Act means the Immigration and Refugee Protection Act. (Loi)
appellant means a person who is the subject of an appeal, or the Minister, who makes an appeal to the Division from a decision of the Refugee Protection Division. (appelant)
contact information means, with respect to a person,
the person’s name, postal address and telephone number, and their fax number and email address, if any; and
in the case of counsel for a person who is the subject of an appeal, if the counsel is a person referred to in any of paragraphs 91(2)(a) to (c) of the Act, in addition to the information referred to in paragraph (a), the name of the body of which the counsel is a member and the membership identification number issued to the counsel. (coordonnées)
Division means the Refugee Appeal Division. (Section)
interested person means a person whose application to participate in an appeal under rule 46 has been granted. (personne intéressée)
party means,
in the case of an appeal by a person who is the subject of an appeal, the person and, if the Minister intervenes in the appeal, the Minister; and
in the case of an appeal by the Minister, the person who is the subject of the appeal and the Minister. (partie)
proceeding includes a conference, an application, or an appeal that is decided with or without a hearing. (procédure)
registry office means a business office of the Division. (greffe)
Regulations means the Immigration and Refugee Protection Regulations. (Règlement)
respondent means a person who is the subject of an appeal in the case of an appeal by the Minister. (intimé)
UNHCR means the United Nations High Commissioner for Refugees and includes its representative or agent. (HCR)
vulnerable person means a person who has been identified as vulnerable under the Guideline on Procedures with Respect to Vulnerable Persons Appearing Before the IRB issued under paragraph 159(1)(h) of the Act. (personne vulnérable)
working day does not include Saturdays, Sundays or other days on which the Board offices are closed. (jour ouvrable)
Rules Applicable to Appeals Made by a Person Who Is the Subject of an Appeal
Filing and Perfecting an Appeal
To file an appeal, the person who is the subject of the appeal must provide to the Division three copies of a written notice of appeal.
The Division must provide a copy of the notice of appeal to the Minister without delay.
In the notice of appeal, the appellant must indicate
their name and telephone number, and an address where documents can be provided to them;
if represented by counsel, counsel’s contact information and any limitations on counsel’s retainer;
the identification number given by the Department of Citizenship and Immigration to them;
the Refugee Protection Division file number, the date of the notice of decision relating to the decision being appealed and the date that they received the written reasons for the decision;
the language — English or French — chosen by them as the language of the appeal; and
the representative’s contact information if the Refugee Protection Division has designated a representative for them in the proceedings relating to the decision being appealed, and any proposed change in representative.
The notice of appeal provided under this rule must be received by the Division within the time limit for filing an appeal set out in the Regulations.
To perfect an appeal, the person who is the subject of the appeal must provide to the Division two copies of the appellant’s record.
The Division must provide a copy of the appellant’s record to the Minister without delay.
The appellant’s record must contain the following documents, on consecutively numbered pages, in the following order:
the notice of decision and written reasons for the Refugee Protection Division’s decision that the appellant is appealing;
all or part of the transcript of the Refugee Protection Division hearing if the appellant wants to rely on the transcript in the appeal, together with a declaration, signed by the transcriber, that includes the transcriber’s name and a statement that the transcript is accurate;
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;
a written statement indicating
whether the appellant is relying on any evidence referred to in subsection 110(4) of the Act,
whether the appellant is requesting that a hearing be held under subsection 110(6) of the Act, and if they are requesting a hearing, whether they are making an application under rule 66 to change the location of the hearing, and
the language and dialect, if any, to be interpreted, if the Division decides that a hearing is necessary and the appellant needs an interpreter;
any documentary evidence that the appellant wants to rely on in the appeal;
any law, case law or other legal authority that the appellant wants to rely on in the appeal; and
a memorandum that includes full and detailed submissions regarding
the errors that are the grounds of the appeal,
where the errors are located in the written reasons for the Refugee Protection Division’s decision that the appellant is appealing or in the transcript or in any audio or other electronic recording of the Refugee Protection Division hearing,
how any documentary evidence referred to in paragraph (e) meets the requirements of subsection 110(4) of the Act and how that evidence relates to the appellant,
the decision the appellant wants the Division to make, and
why the Division should hold a hearing under subsection 110(6) of the Act if the appellant is requesting that a hearing be held.
The memorandum referred to in paragraph (3)(g) must not be more than 30 pages long if typewritten on one side or 15 pages if typewritten on both sides.
The appellant’s record provided under this rule must be received by the Division within the time limit for perfecting an appeal set out in the Regulations.
Intervention by the Minister
To intervene in an appeal at any time before the Division makes a decision, the Minister must provide, first to the appellant and then to the Division, a written notice of intervention, together with any documentary evidence that the Minister wants to rely on in the appeal.
In the notice of intervention, the Minister must indicate
counsel’s contact information;
the identification number given by the Department of Citizenship and Immigration to the appellant;
the appellant’s name, the Refugee Protection Division file number, the date of the notice of decision relating to the decision being appealed and the date that the Minister received the written reasons for the decision;
whether the Minister is relying on any documentary evidence referred to in subsection 110(3) of the Act and the relevance of that evidence; and
whether the Minister is requesting that a hearing be held under subsection 110(6) of the Act, and if the Minister is requesting a hearing, why the Division should hold a hearing and whether the Minister is making an application under rule 66 to change the location of the hearing.
In addition to the documents referred to in subrule (1), the Minister may provide, first to the appellant and then to the Division, the Minister’s intervention record containing the following documents, on consecutively numbered pages, in the following order:
all or part of the transcript of the Refugee Protection Division hearing if the Minister wants to rely on the transcript in the appeal and the transcript was not provided with the appellant’s record, together with a declaration, signed by the transcriber, that includes the transcriber’s name and a statement that the transcript is accurate;
any law, case law or other legal authority that the Minister wants to rely on in the appeal; and
a memorandum that includes full and detailed submissions regarding
the grounds on which the Minister is contesting the appeal, and
the decision the Minister wants the Division to make.
The memorandum referred to in paragraph (3)(c) must not be more than 30 pages long if typewritten on one side or 15 pages if typewritten on both sides.
The documents provided to the Division under this rule must be accompanied by proof that they were provided to the appellant.
Reply
To reply to a Minister’s intervention, the appellant must provide, first to the Minister and then to the Division, a reply record.
The reply record must contain the following documents, on consecutively numbered pages, in the following order:
all or part of the transcript of the Refugee Protection Division hearing if the appellant wants to rely on the transcript to support the reply and the transcript was not provided with the appellant’s record or by the Minister, together with a declaration, signed by the transcriber, that includes the transcriber’s name and a statement that the transcript is accurate;
any documentary evidence that the appellant wants to rely on to support the reply and that was not provided with the appellant’s record or by the Minister;
any law, case law or other legal authority that the appellant wants to rely on to support the reply and that was not provided with the appellant’s record or by the Minister; and
a memorandum that includes full and detailed submissions regarding
only the grounds raised by the Minister,
how any documentary evidence referred to in paragraph (b) meets the requirements of subsection 110(4) or (5) of the Act and how that evidence relates to the appellant, and
why the Division should hold a hearing under subsection 110(6) of the Act if the appellant is requesting that a hearing be held and they did not include such a request in the appellant’s record, and if the appellant is requesting a hearing, whether they are making an application under rule 66 to change the location of the hearing.
The memorandum referred to in paragraph (2)(d) must not be more than 30 pages long if typewritten on one side or 15 pages if typewritten on both sides.
The reply record provided to the Division must be accompanied by proof that it was provided to the Minister.
Documents provided under this rule must be received by the Division no later than 15 days after the day on which the appellant receives the Minister’s notice of intervention, the Minister’s intervention record, or any additional documents provided by the Minister, as the case may be.
Extension of Time
A person who is the subject of an appeal who makes an application to the Division for an extension of the time to file or to perfect an appeal under the Regulations must do so in accordance with rule 37, except that the person must provide to the Division the original and a copy of the application.
The Division must provide a copy of an application under subrule (1) to the Minister without delay.
The person who is the subject of the appeal must include in an application under subrule (1)
their name and telephone number, and an address where documents can be provided to them;
if represented by counsel, counsel’s contact information and any limitations on counsel’s retainer;
the identification number given by the Department of Citizenship and Immigration to them; and
the Refugee Protection Division file number, the date of the notice of decision relating to the decision being appealed and the date that they received the written reasons for the decision.
An application for an extension of the time to file an appeal under subrule (1) must be accompanied by three copies of a written notice of appeal.
An application for an extension of the time to perfect an appeal under subrule (1) must be accompanied by two copies of the appellant’s record.
A person who is the subject of an appeal may make an application to the Division for an extension of the time to reply to a Minister’s intervention in accordance with rule 37.
In deciding an application under subrule (6), the Division must consider any relevant factors, including
whether the application was made in a timely manner and the justification for any delay;
whether there is an arguable case;
prejudice to the Minister, if the application was granted; and
the nature and complexity of the appeal.
The Division must without delay notify, in writing, both the person who is the subject of the appeal and the Minister of its decision with respect to an application under subrule (1) or (6).
Disposition of an Appeal
Unless a hearing is held under subsection 110(6) of the Act, the Division may, without further notice to the appellant and to the Minister, decide an appeal on the basis of the materials provided
if a period of 15 days has passed since the day on which the Minister received the appellant’s record, or the time limit for perfecting the appeal set out in the Regulations has expired; or
if the reply record has been provided, or the time limit for providing it has expired.
Rules Applicable to Appeals Made by the Minister
Filing and Perfecting an Appeal
To file an appeal in accordance with subsection 110(1.1) of the Act, the Minister must provide, first to the person who is the subject of the appeal, a written notice of appeal, and then to the Division, two copies of the written notice of appeal.
In the notice of appeal, the Minister must indicate
counsel’s contact information;
the name of the person who is the subject of the appeal and the identification number given by the Department of Citizenship and Immigration to them; and
the Refugee Protection Division file number, the date of the notice of decision relating to the decision being appealed and the date that the Minister received the written reasons for the decision.
The notice of appeal provided to the Division must be accompanied by proof that it was provided to the person who is the subject of the appeal.
The notice of appeal provided under this rule must be received by the Division within the time limit for filing an appeal set out in the Regulations.
To perfect an appeal in accordance with subsection 110(1.1) of the Act, the Minister must provide, first to the person who is the subject of the appeal and then to the Division, any supporting documents that the Minister wants to rely on in the appeal.
In addition to the documents referred to in subrule (1), the Minister may provide, first to the person who is the subject of the appeal and then to the Division, the appellant’s record containing the following documents, on consecutively numbered pages, in the following order:
the notice of decision and written reasons for the Refugee Protection Division’s decision that the Minister is appealing;
all or part of the transcript of the Refugee Protection Division hearing if the Minister wants to rely on the transcript in the appeal, together with a declaration, signed by the transcriber, that includes the transcriber’s name and a statement that the transcript is accurate;
any documents that the Refugee Protection Division refused to accept as evidence, during or after the hearing, if the Minister wants to rely on the documents in the appeal;
a written statement indicating
whether the Minister is relying on any documentary evidence referred to in subsection 110(3) of the Act and the relevance of that evidence, and
whether the Minister is requesting that a hearing be held under subsection 110(6) of the Act, and if the Minister is requesting a hearing, why the Division should hold a hearing and whether the Minister is making an application under rule 66 to change the location of the hearing;
any law, case law or other legal authority that the Minister wants to rely on in the appeal; and
a memorandum that includes full and detailed submissions regarding
the errors that are the grounds of the appeal,
where the errors are located in the written reasons for the Refugee Protection Division’s decision that the Minister is appealing or in the transcript or in any audio or other electronic recording of the Refugee Protection Division hearing, and
the decision the Minister wants the Division to make.
The memorandum referred to in paragraph (2)(f) must not be more than 30 pages long if typewritten on one side or 15 pages if typewritten on both sides.
Any supporting documents and the appellant’s record, if any, provided to the Division must be accompanied by proof that they were provided to the person who is the subject of the appeal.
Documents provided under this rule must be received by the Division within the time limit for perfecting an appeal set out in the Regulations.
Response to an Appeal
To respond to an appeal, the person who is the subject of the appeal must provide, first to the Minister and then to the Division, a written notice of intent to respond, together with the respondent’s record.
In the notice of intent to respond, the respondent must indicate
their name and telephone number, and an address where documents can be provided to them;
if represented by counsel, counsel’s contact information and any limitations on counsel’s retainer;
the identification number given by the Department of Citizenship and Immigration to them;
the Refugee Protection Division file number and the date of the notice of decision relating to the decision being appealed;
the language — English or French — chosen by them as the language of the appeal; and
the representative’s contact information if the Refugee Protection Division has designated a representative for them in the proceedings relating to the decision being appealed, and any proposed change in representative.
The respondent’s record must contain the following documents, on consecutively numbered pages, in the following order:
all or part of the transcript of the Refugee Protection Division hearing if the respondent wants to rely on the transcript in the appeal and the transcript was not provided with the appellant’s record, together with a declaration, signed by the transcriber, that includes the transcriber’s name and a statement that the transcript is accurate;
a written statement indicating
whether the respondent is requesting that a hearing be held under subsection 110(6) of the Act, and if they are requesting a hearing, whether they are making an application under rule 66 to change the location of the hearing, and
the language and dialect, if any, to be interpreted, if the Division decides that a hearing is necessary and the respondent needs an interpreter;
any documentary evidence that the respondent wants to rely on in the appeal;
any law, case law or other legal authority that the respondent wants to rely on in the appeal; and
a memorandum that includes full and detailed submissions regarding
the grounds on which the respondent is contesting the appeal,
the decision the respondent wants the Division to make, and
why the Division should hold a hearing under subsection 110(6) of the Act if the respondent is requesting that a hearing be held.
The memorandum referred to in paragraph (3)(e) must not be more than 30 pages long if typewritten on one side or 15 pages if typewritten on both sides.
The notice of intent to respond and the respondent’s record provided to the Division must be accompanied by proof that they were provided to the Minister.
Documents provided under this rule must be received by the Division no later than 15 days after
the day on which the respondent receives any supporting documents; or
if the Division allows an application for an extension of time to perfect the appeal under rule 12, the day on which the respondent is notified of the decision to allow the extension of time.
Reply
To reply to a response by the respondent, the Minister must provide, first to the respondent and then to the Division, any documentary evidence that the Minister wants to rely on to support the reply and that was not provided at the time that the appeal was perfected or with the respondent’s record.
In addition to the documents referred to in subrule (1), the Minister may provide, first to the respondent and then to the Division, a reply record containing the following documents, on consecutively numbered pages, in the following order:
all or part of the transcript of the Refugee Protection Division hearing if the Minister wants to rely on the transcript to support the reply and the transcript was not provided with the appellant’s record, if any, or the respondent’s record, together with a declaration, signed by the transcriber, that includes the transcriber’s name and a statement that the transcript is accurate;
any law, case law or other legal authority that the Minister wants to rely on to support the reply and that was not provided with the appellant’s record, if any, or the respondent’s record; and
a memorandum that includes full and detailed submissions regarding
only the grounds raised by the respondent, and
why the Division should hold a hearing under subsection 110(6) of the Act if the Minister is requesting that a hearing be held and the Minister did not include such a request in the appellant’s record, if any, and if the Minister is requesting a hearing, whether the Minister is making an application under rule 66 to change the location of the hearing.
The memorandum referred to in paragraph (2)(c) must not be more than 30 pages long if typewritten on one side or 15 pages if typewritten on both sides.
Any documentary evidence and the reply record, if any, provided to the Division under this rule must be accompanied by proof that they were provided to the respondent.
Extension of Time
If the Minister makes an application to the Division for an extension of the time to file or to perfect an appeal under the Regulations, the Minister must do so in accordance with rule 37.
An application for an extension of the time to file an appeal under subrule (1) must be accompanied by two copies of a written notice of appeal.
An application for an extension of the time to perfect an appeal under subrule (1) must be accompanied by any supporting documents, and an appellant’s record, if any.
A person who is the subject of an appeal may make an application to the Division for an extension of the time to respond to an appeal in accordance with rule 37.
The person who is the subject of the appeal must include in an application under subrule (4)
their name and telephone number, and an address where documents can be provided to them;
if represented by counsel, counsel’s contact information and any limitations on counsel’s retainer;
the identification number given by the Department of Citizenship and Immigration to them; and
the Refugee Protection Division file number, the date of the notice of decision relating to the decision being appealed and the date that they received the written reasons for the decision.
In deciding an application under subrule (4), the Division must consider any relevant factors, including
whether the application was made in a timely manner and the justification for any delay;
whether there is an arguable case;
prejudice to the Minister, if the application was granted; and
the nature and complexity of the appeal.
The Division must without delay notify, in writing, both the person who is the subject of the appeal and the Minister of its decision with respect to an application under subrule (1) or (4).
Disposition of an Appeal
Unless a hearing is held under subsection 110(6) of the Act, the Division may, without further notice to the parties, decide an appeal on the basis of the materials provided
if a period of 15 days has passed since the day on which the Minister received the respondent’s record, or the time limit for providing it set out in subrule 10(6) has expired; or
if the Minister’s reply has been provided.
Rules Applicable to All Appeals
Communicating with the Division
All communication with the Division must be directed to the registry office specified by the Division.
If the contact information of a person who is the subject of an appeal changes, the person must without delay provide the changes in writing to the Division and to the Minister.
Counsel
If a person who is the subject of an appeal retains counsel after providing a notice of appeal or a notice of intent to respond, as the case may be, the person must without delay provide the counsel’s contact information in writing to the Division and to the Minister.
If the contact information of counsel for a person who is the subject of an appeal changes, the person must without delay provide the changes in writing to the Division and to the Minister.
If the contact information of counsel for the Minister changes, the Minister must without delay provide the changes in writing to the Division and to the person who is the subject of the appeal.
If a person who is the subject of an appeal retains counsel who is not a person referred to in any of paragraphs 91(2)(a) to (c) of the Act, both the person who is the subject of the appeal and their counsel must without delay provide the information and declarations set out in the schedule to the Division in writing.
Subject to subrule (2), as soon as counsel for a person who is the subject of an appeal provides on behalf of the person a notice of appeal or a notice of intent to respond, as the case may be, or as soon as a person becomes counsel after the person provided a notice, the counsel becomes counsel of record for the person.
If a person who is the subject of an appeal has notified the Division of a limitation on their counsel’s retainer, counsel is counsel of record only to the extent of the services to be provided within the limited retainer. Counsel ceases to be counsel of record as soon as those services are completed.
To be removed as counsel of record, counsel for a person who is the subject of an appeal must first provide to the person and to the Minister a copy of a written request to be removed and then provide the written request to the Division.
The request provided to the Division must be accompanied by proof that copies were provided to the person represented and to the Minister.
If a date for a proceeding has been fixed and three working days or less remain before that date, counsel must make the request orally at the proceeding.
Counsel remains counsel of record unless the request to be removed is granted.
To remove counsel as counsel of record, a person who is the subject of an appeal must first provide to counsel and to the Minister a copy of a written notice that counsel is no longer counsel for the person and then provide the written notice to the Division.
The notice provided to the Division must be accompanied by proof that copies were provided to counsel and to the Minister.
Counsel ceases to be counsel of record when the Division receives the notice.
Refugee Protection Division Record
The Division must without delay provide a copy of the notice of appeal to the Refugee Protection Division after the appeal is perfected under rule 3 or 9, as the case may be.
The Refugee Protection Division must prepare a record and provide it to the Division no later than 10 days after the day on which the Refugee Protection Division receives the notice of appeal.
The Refugee Protection Division record must contain
the notice of decision and written reasons for the decision that is being appealed;
the Basis of Claim Form as defined in the Refugee Protection Division Rules and any changes or additions to it;
all documentary evidence that the Refugee Protection Division accepted as evidence, during or after the hearing;
any written representations made during or after the hearing but before the decision being appealed was made; and
any audio or other electronic recording of the hearing.
If the Minister did not take part in the proceedings relating to the decision being appealed, the Division must provide a copy of the Refugee Protection Division record to the Minister as soon as the Division receives it.
Language of the Appeal
A person who is the subject of an appeal must choose English or French as the language of the appeal. The person must indicate that choice in the notice of appeal if they are the appellant or in the notice of intent to respond if they are the respondent.
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.
A person who is the subject of an appeal may change the language of the appeal that they chose under subrule (1) by notifying the Division and the Minister in writing without delay and, if a date for a proceeding has been fixed, the notice must be received by their recipients no later than 20 days before that date.
Designated Representatives
If the Refugee Protection Division designated a representative for the person who is the subject of the appeal in the proceedings relating to the decision being appealed, the representative is deemed to have been designated by the Division, unless the Division orders otherwise.
If the Refugee Protection Division did not designate a representative for the person who is the subject of the appeal and counsel for a party believes that the Division should designate a representative for the person because the person is under 18 years of age or is unable to appreciate the nature of the proceedings, counsel must without delay notify the Division in writing.
Subrule (2) does not apply in the case of a person under 18 years of age whose appeal is joined with the appeal of their parent or legal guardian if the parent or legal guardian is 18 years of age or older.
The notice must include the following information:
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;
a copy of any available supporting documents; and
the reasons why counsel believes that a representative should be designated.
To be designated as a representative, a person must
be 18 years of age or older;
understand the nature of the proceedings;
be willing and able to act in the best interests of the person who is the subject of the appeal; and
not have interests that conflict with those of the person who is the subject of the appeal.
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
whether the person can understand the reason for the proceeding and can instruct counsel;
the person’s statements and behaviour at the proceeding;
expert evidence, if any, on the person’s intellectual or physical faculties, age or mental condition; and
whether the person has had a representative designated for a proceeding in a division other than the Refugee Protection Division.
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.
The designation of a representative for a person who is under 18 years of age ends when the person reaches 18 years of age unless that representative has also been designated because the person is unable to appreciate the nature of the proceedings.
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.
Before designating a person as a representative, the Division must
assess the person’s ability to fulfil the responsibilities of a designated representative; and
ensure that the person has been informed of the responsibilities of a designated representative.
The responsibilities of a designated representative include
deciding whether to retain counsel and, if counsel is retained, instructing counsel or assisting the represented person in instructing counsel;
making decisions regarding the appeal or assisting the represented person in making those decisions;
informing the represented person about the various stages and procedures in the processing of their case;
assisting in gathering evidence to support the represented person’s case and in providing evidence and, if necessary, being a witness at the hearing;
protecting the interests of the represented person and putting forward the best possible case to the Division; and
informing and consulting the represented person to the extent possible when making decisions about the case.
Specialized Knowledge
Before using any information or opinion that is within its specialized knowledge, the Division must notify the parties and give them an opportunity to,
if a date for a hearing has not been fixed, make written representations on the reliability and use of the information or opinion and provide written evidence in support of their representations; and
if a date for a hearing has been fixed, make oral or written representations on the reliability and use of the information or opinion and provide evidence in support of their representations.
A party must provide its written representations and evidence first to any other party and then to the Division.
The written representations and evidence provided to the Division must be accompanied by proof that they were provided to any other party.
Notice of Constitutional Question
A party who wants to challenge the constitutional validity, applicability or operability of a legislative provision must complete a notice of constitutional question.
The party must complete the notice as set out in Form 69 of the Federal Courts Rules or any other form that includes
the party’s name;
the Division file number;
the specific legislative provision that is being challenged;
the material facts relied on to support the constitutional challenge; and
a summary of the legal argument to be made in support of the constitutional challenge.
The party must provide
a copy of the notice to the Attorney General of Canada and to the attorney general of each province of Canada, in accordance with section 57 of the Federal Courts Act;
a copy of the notice to the Minister even if the Minister has not yet intervened in the appeal;
a copy of the notice to the UNHCR, if the UNHCR has provided notice of its intention to provide written submissions, and to any interested person; and
Documents provided under this rule must be received by their recipients at the same time as the Division receives the appellant’s record, respondent’s record or the reply record, as the case may be.
The Division must not make a decision on the constitutional question until at least 10 days after the day on which it receives the notice of constitutional question.
Conferences
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.
The Division may require the parties to give any information or provide any document, at or before the conference.
The Division must make a written record of any decisions and agreements made at the conference.
Documents
Form and Language of Documents
A document prepared for use by a party in a proceeding must be typewritten, in a type not smaller than 12 point, on one or both sides of 216 mm by 279 mm (8 ½ inches x 11 inches) paper.
Any photocopy provided by a party must be a clear copy of the document photocopied and be on one or both sides of 216 mm by 279 mm (8 ½ inches x 11 inches) paper.
If more than one document is provided, the party must provide a list identifying each of the documents.
A party must consecutively number each page of all the documents provided as if they were one document.
All documents used by a person who is the subject of an appeal in an appeal must be in English or French or, if in another language, be provided together with an English or French translation and a declaration signed by the translator.
All documents used by the Minister in an appeal must be in the language of the appeal or be provided together with a translation in the language of the appeal and a declaration signed by the translator.
A translator’s declaration must include the translator’s name, the language and dialect, if any, translated and a statement that the translation is accurate.
Documents or Written Submissions not Previously Provided
A person who is the subject of an appeal who does not provide a document or written submissions with the appellant’s record, respondent’s record or reply record must not use the document or provide the written submissions in the appeal unless allowed to do so by the Division.
If a person who is the subject of an appeal wants to use a document or provide written submissions that were not previously provided, the person must make an application to the Division in accordance with rule 37.
The person who is the subject of the appeal must include in an application to use a document that was not previously provided an explanation of how the document meets the requirements of subsection 110(4) of the Act and how that evidence relates to the person, unless the document is being presented in response to evidence presented by the Minister.
In deciding whether to allow an application, the Division must consider any relevant factors, including
the document’s relevance and probative value;
any new evidence the document brings to the appeal; and
whether the person who is the subject of the appeal, with reasonable effort, could have provided the document or written submissions with the appellant’s record, respondent’s record or reply record.
If, at any time before the Division makes a decision, the Minister, in accordance with paragraph 171(a.5) of the Act, submits documentary evidence or written submissions in support of the Minister’s appeal or intervention that were not previously provided, the Minister must provide the documentary evidence or written submissions first to the person who is the subject of the appeal and then to the Division.
The additional documents or written submissions provided to the Division under subrule (5) must be accompanied by proof that they were provided to the person who is the subject of the appeal.
The person who is the subject of the appeal may reply to the additional documents or written submissions in accordance with rule 5 with any modifications that the circumstances require.
Providing a Document
Rules 31 to 35 apply to any document, including a notice or request in writing.
A document to be provided to the Division must be provided to the Division’s registry office that is located in the same region as the Refugee Protection Division’s registry office through which the notice of decision under appeal was provided.
A document to be provided to the Refugee Protection Division must be provided to the Refugee Protection Division’s registry office through which the notice of decision under appeal was provided.
A document to be provided to the Minister must be provided to the Minister’s counsel.
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.
A document may be provided in any of the following ways:
by hand;
by regular mail or registered mail;
by courier;
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
by email or other electronic means if the Division allows.
If a party is unable to provide a document in a way required by rule 32, the party may make an application to the Division to be allowed to provide the document in another way or to be excused from providing the document.
The application must be made in accordance with rule 37.
The Division must not allow the application unless the party has made reasonable efforts to provide the document to the person to whom the document must be provided.
Proof that a document was provided must be established by
an acknowledgment of receipt signed by the recipient or a statement of service, if the document was provided by hand;
a confirmation of receipt if the document was provided by registered mail, courier, fax or email or other electronic means; or
a statement of service if the document was provided by regular mail.
For the purpose of paragraph (1)(a) or (c), a statement of service consists of a written statement, signed by the person who provided the document, that includes the person’s name and a statement of how and when the document was provided.
If a party is unable to provide proof that a document was provided in a way required by paragraph (1)(a) to (c), the party must provide a written statement, signed by the party, that includes an explanation of why they are unable to provide proof.
A document provided to the Division or to the Refugee Protection Division is considered to be received on the day on which the document is date-stamped by that division.
A document provided by regular mail other than to the Division or to the Refugee Protection Division is considered to be received seven days after the day on which it was mailed. If the seventh day is not a working day, the document is considered to be received on the next working day.
When the time limit for providing a document ends on a day that is not a working day, the time limit is extended to the next working day.
Applications
General
Unless these Rules provide otherwise,
a party who wants the Division to make a decision on any matter in a proceeding, including the procedure to be followed, must make an application to the Division in accordance with rule 37;
a party who wants to respond to the application must respond in accordance with rule 38; and
a party who wants to reply to a response must reply in accordance with rule 39.
How to Make an Application
Unless these Rules provide otherwise, an application must be made in writing and without delay.
If a date for a hearing has been fixed, the Division must not allow a party to make an application orally at the hearing unless the party, with reasonable effort, could not have made a written application before that date.
Unless these Rules provide otherwise, in a written application, the party must
state the decision the party wants the Division to make;
give reasons why the Division should make that decision; and
if there is another party and the views of that party are known, state whether the other party agrees to the application.
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.
A party who makes a written application must provide
to any other party, a copy of the application and a copy of any affidavit or statutory declaration; and
to the Division, the original application and the original of any affidavit or statutory declaration, together with proof that a copy was provided to any other party.
How to Respond to a Written Application
A response to a written application must be in writing and
state the decision the party wants the Division to make; and
give reasons why the Division should make that decision.
Any evidence that the party wants the Division to consider with the written response must be given in an affidavit or statutory declaration that accompanies the response. Unless the Division requires it, an affidavit or statutory declaration is not required if the party who made the application was not required to give evidence in an affidavit or statutory declaration, together with the application.
A party who responds to a written application must provide
to the other party, a copy of the response and a copy of any affidavit or statutory declaration; and
to the Division, the original response and the original of any affidavit or statutory declaration, together with proof that a copy was provided to the other party.
Documents provided under subrule (3) must be received by their recipients no later than seven days after the day on which the party receives the copy of the application.
How to Reply to a Written Response
A reply to a written response must be in writing.
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.
A party who replies to a written response must provide
to the other party, a copy of the reply and a copy of any affidavit or statutory declaration; and
to the Division, the original reply and the original of any affidavit or statutory declaration, together with proof that a copy was provided to the other party.
Documents provided under subrule (3) must be received by their recipients no later than five days after the day on which the party receives the copy of the response.
Joining or Separating Appeals
The Division must join any appeals of decisions on claims that were joined at the time that the Refugee Protection Division decided the claims.
A party may make an application to the Division to join appeals.
A party may make an application to the Division to separate appeals that are joined.
A party who makes an application to join or separate appeals must do so in accordance with rule 37, but the party is not required to give evidence in an affidavit or statutory declaration. The party must also
provide a copy of the application to any person who will be affected by the Division’s decision on the application; and
provide to the Division proof that the party provided the copy of the application to any affected person.
Documents provided under this rule must be received by their recipients,
if the person who is the subject of the appeal is the applicant, at the same time as the Division receives the person’s notice of appeal, notice of intent to respond or reply record; or
if the Minister is the applicant, at the same time as the Division receives the Minister’s notice of appeal, notice of intervention or reply.
In deciding the application, the Division must consider any relevant factors, including whether
the appeals involve similar questions of fact or law;
allowing the application would promote the efficient administration of the Division’s work; and
allowing the application would likely cause an injustice.
Proceedings Conducted in Public
For the purpose of this rule, the Minister is considered to be a party even if the Minister has not yet intervened in the appeal.
A person who makes an application to the Division to have a proceeding conducted in public must do so in writing and in accordance with this rule rather than rule 37.
If a date for a hearing has been fixed, the Division must not allow a person to make an application orally at the hearing unless the person, with reasonable effort, could not have made a written application before that date.
In the application, the person must
state the decision they want the Division to make;
give reasons why the Division should make that decision;
state whether they want the Division to consider the application in public or in the absence of the public;
give reasons why the Division should consider the application in public or in the absence of the public; and
include any evidence that they want the Division to consider in deciding the application.
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.
A party may respond to a written application. The response must
state the decision they want the Division to make;
give reasons why the Division should make that decision;
state whether they want the Division to consider the application in public or in the absence of the public;
give reasons why the Division should consider the application in public or in the absence of the public; and
include any evidence that they want the Division to consider in deciding the application.
If the Minister responds to a written application, the response must be accompanied by a notice of intervention in accordance with subrule 4(2), if one was not previously provided.
The party must provide a copy of the response to the other party and provide the original response and a copy to the Division, together with proof that the copy was provided to the other party.
The Division must provide to the applicant either a copy of the response or a summary of the response referred to in paragraph (13)(a).
An applicant or a party may reply in writing to a written response or a summary of a response.
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.
An application made under this rule must be received by the Division without delay. The Division must specify the time limit within which a response or reply, if any, is to be provided.
The Division may take any measures it considers necessary to ensure the confidentiality of the proceeding in respect of the application, including
providing a summary of the response to the applicant instead of a copy; and
if the Division holds a hearing in respect of the appeal and the application,
excluding the applicant or the applicant and their counsel from the hearing while the party responding to the application provides evidence and makes representations, or
allowing the presence of the applicant’s counsel at the hearing while the party responding to the application provides evidence and makes representations, on receipt of a written undertaking by counsel not to disclose any evidence or information adduced until a decision is made to hold the hearing in public.
If the Division provides a summary of the response under paragraph (13)(a), or excludes the applicant and their counsel from a hearing in respect of the application under subparagraph (13)(b)(i), the Division must provide a summary of the representations and evidence, if any, that is sufficient to enable the applicant to reply, while ensuring the confidentiality of the proceeding having regard to the factors set out in paragraph 166(b) of the Act.
The Division must notify the applicant and the parties of its decision on the application and provide reasons for the decision.
Assignment of Three-member Panel
If the Chairperson of the Board orders a proceeding to be conducted by three Division members, the Division must without delay notify the parties — including the Minister even if the Minister has not yet intervened in the appeal — and the UNHCR in writing of the order.
The Division must provide the UNHCR with a copy of the following documents at the same time that it provides notice of the order:
the Refugee Protection Division record; and
the notice of appeal, appellant’s record, notice of intent to respond, respondent’s record, reply record, Minister’s notice of intervention, Minister’s intervention record, if any, Minister’s reply, and Minister’s reply record, if any.
If the UNHCR receives notice of an order, the UNHCR may provide notice to the Division in accordance with subrule 45(1) of its intention to provide written submissions.
The Division may, without further notice to the parties and to the UNHCR, decide the appeal on the basis of the materials provided if a period of 15 days has passed since the day on which the Minister and the UNHCR receive notice of the order.
UNHCR and Interested Persons
These Rules, with the exception of rules 25 (notice of constitutional question) and 47 to 49 (withdrawal, reinstatement, reopening), apply to the UNHCR and interested persons with any modifications that the circumstances require.
The UNHCR must notify the Division in writing of its intention to provide written submissions in an appeal conducted by a three-member panel, and include its contact information and that of its counsel, if any.
The Division must without delay provide a copy of the UNHCR’s notice to the person who is the subject of the appeal and to the Minister.
The UNHCR’s written submissions must be received by the Division no later than 10 days after the day on which the UNHCR provided the notice.
The UNHCR’s written submissions must not raise new issues.
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.
The Division must without delay provide a copy of the UNHCR’s written submissions to the person who is the subject of the appeal and to the Minister.
The person who is the subject of the appeal or the Minister may respond to the UNHCR’s submissions in writing.
A response must not raise new issues.
A response must not be more than 30 pages long if typewritten on one side or 15 pages if typewritten on both sides.
The response must first be provided to the person who is the subject of the appeal or to the Minister, as the case may be, and then to the Division.
The response provided to the Division must be accompanied by proof that it was provided to the person who is the subject of the appeal or to the Minister, as the case may be.
Documents provided under subrules (10) and (11) must be received by their recipients no later than seven days after the day on which the person who is the subject of the appeal or the Minister, as the case may be, receives the UNHCR’s submissions.
Any person, other than the UNHCR, may make an application to the Division to be allowed to participate in an appeal conducted by a three-member panel. The person must make the application without delay and in accordance with this rule.
The application must be in writing and include
the applicant’s name;
an explanation of why the applicant wants to participate;
the submissions the applicant wants to put forward and an explanation of how they are relevant to the appeal;
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;
an explanation of how the applicant’s submissions may help the Division decide the appeal; and
the contact information of the applicant and their counsel, if any.
The Division must provide a copy of the application to the person who is the subject of the appeal and to the Minister.
The person who is the subject of the appeal or the Minister may respond to the application in writing.
A response must not raise new issues.
A response must not be more than 30 pages long if typewritten on one side or 15 pages if typewritten on both sides.
A response must be received by the Division no later than 10 days after the day on which the person who is the subject of the appeal or the Minister, as the case may be, receives the application.
The Division must without delay notify the applicant, the person who is the subject of the appeal and the Minister in writing of its decision on the application.
If the Division allows the application, it must without delay provide the interested person with a copy of the following documents as soon as they are available:
the Refugee Protection Division record;
the notice of appeal, appellant’s record, notice of intent to respond, respondent’s record, reply record, Minister’s notice of intervention, Minister’s intervention record, if any, Minister’s reply, and Minister’s reply record, if any; and
the written submissions of any other interested person and the UNHCR.
The interested person’s written submissions must not raise new issues.
The interested person’s written submissions must not be more than 30 pages long if typewritten on one side or 15 pages if typewritten on both sides.
The interested person’s written submissions must first be provided to the person who is the subject of the appeal and to the Minister and then to the Division.
The written submissions provided to the Division must be accompanied by proof that they were provided to the person who is the subject of the appeal and to the Minister.
The person who is the subject of the appeal or the Minister may respond to the written submissions in writing.
A response must not raise new issues.
A response must not be more than 30 pages long if typewritten on one side or 15 pages if typewritten on both sides.
The response must first be provided to the interested person, then to the person who is the subject of the appeal or to the Minister, as the case may be, and then to the Division.
The response provided to the Division must be accompanied by proof that it was provided to the interested person, and to the person who is the subject of the appeal or to the Minister, as the case may be.
Documents provided under subrules (17) and (18) must be received by their recipients no later than seven days after the day on which the person who is the subject of the appeal or the Minister, as the case may be, receives the interested person’s written submissions.
Withdrawal
For the purpose of subsection 168(2) of the Act, withdrawal of an appeal is an abuse of process if withdrawal would likely have a negative effect on the Division’s integrity. If the requirements set out in rule 7 or 13, as the case may be, for deciding an appeal on the basis of the materials provided have not been met, withdrawal is not an abuse of process.
If the requirements set out in rule 7 or 13, as the case may be, for deciding an appeal have not been met, an appellant may withdraw an appeal by notifying the Division in writing.
If the requirements set out in rule 7 or 13, as the case may be, for deciding an appeal have been met, an appellant who wants to withdraw an appeal must make an application to the Division in accordance with rule 37.
Reinstating a Withdrawn Appeal
An appellant may apply to the Division to reinstate an appeal that was made by the appellant and was withdrawn.
The appellant must make the application in accordance with rule 37. If a person who is the subject of an appeal makes the application, they must provide to the Division the original and a copy of the application and include in the application their contact information and, if represented by counsel, their counsel’s contact information and any limitations on counsel’s retainer.
The Division must provide to the Minister, without delay, a copy of an application made by a person who is the subject of an appeal.
The Division must not allow the application unless it is established that there was a failure to observe a principle of natural justice or it is otherwise in the interests of justice to allow the application.
In deciding the application, the Division must consider any relevant factors, including whether the application was made in a timely manner and the justification for any delay.
If the appellant made a previous application to reinstate an appeal that was denied, the Division must consider the reasons for the denial and must not allow the subsequent application unless there are exceptional circumstances supported by new evidence.
Reopening an Appeal
At any time before the Federal Court has made a final determination in respect of an appeal that has been decided or declared abandoned, the appellant may make an application to the Division to reopen the appeal.
The application must be made in accordance with rule 37. If a person who is the subject of an appeal makes the application, they must provide to the Division the original and a copy of the application and include in the application their contact information and, if represented by counsel, their counsel’s contact information and any limitations on counsel’s retainer.
The Division must provide to the Minister, without delay, a copy of an application made by a person who is the subject of an appeal .
If it is alleged in the application that the person who is the subject of the appeal’s counsel in the proceedings that are the subject of the application provided inadequate representation,
the person must first provide a copy of the application to the counsel and then provide the original and a copy of the application to the Division, and
the application provided to the Division must be accompanied by proof that a copy was provided to the counsel.
The application must be accompanied by a copy of any pending application for leave to apply for judicial review or any pending application for judicial review.
The Division must not allow the application unless it is established that there was a failure to observe a principle of natural justice.
In deciding the application, the Division must consider any relevant factors, including
whether the application was made in a timely manner and the justification for any delay; and
if the appellant did not make an application for leave to apply for judicial review or an application for judicial review, the reasons why an application was not made.
If the appellant made a previous application to reopen an appeal that was denied, the Division must consider the reasons for the denial and must not allow the subsequent application unless there are exceptional circumstances supported by new evidence.
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
When the Division makes a decision, other than an interlocutory decision, it must provide in writing a notice of decision to the person who is the subject of the appeal, to the Minister and to the Refugee Protection Division. The Division must also provide in writing a notice of decision to the UNHCR and to any interested person, if they provided written submissions in the appeal.
The Division must provide written reasons for the decision, together with the notice of decision, if a hearing
was not held under subsection 110(6) of the Act; or
was held under subsection 110(6) of the Act and the decision and reasons were not given orally at the hearing.
A request under paragraph 169(1)(e) of the Act for written reasons for a decision must be made in writing.
A decision, other than an interlocutory decision, made by a single Division member takes effect
if made in writing, when the member signs and dates the reasons for the decision; and
if given orally at a hearing, when the member states the decision and gives the reasons.
A decision, other than an interlocutory decision, made by a panel of three Division members takes effect
if made in writing, when all the members sign and date their reasons for the decision; and
if given orally at a hearing, when all the members state their decision and give their reasons.
General Provisions
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.
The Division may, 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;
change a requirement of a rule;
excuse a person from a requirement of a rule; and
extend a time limit, before or after the time limit has expired, or shorten it if the time limit has not expired.
Unless proceedings are declared invalid by the Division, a failure to follow any requirement of these Rules does not make the proceedings invalid.
Rules Applicable to an Appeal for Which a Hearing Is Held
Fixing a Date for a Hearing
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
When, in accordance with paragraph 171(a) of the Act, the Division gives notice to the person who is the subject of the appeal and to the Minister of any hearing, it must notify them in writing of the date, time and location fixed for the hearing and the issues that will be raised at the hearing.
The date fixed for the hearing of an appeal must not be earlier than 10 days after the day on which the person who is the subject of the appeal and the Minister receive the notice referred to in subrule (1), unless they consent to an earlier date.
Conduct of a Hearing
A hearing is restricted to matters relating to the issues provided with the notice to appear unless the Division considers that other issues have been raised by statements made by the person who is the subject of the appeal or by a witness during the hearing.
Unless the Division orders otherwise, any witness, including the person who is the subject of the appeal, will be questioned first by the appellant, then by any other party, then by the appellant in reply, and then by the Division.
The Division may limit the questioning of witnesses, including the person who is the subject of the appeal, taking into account the nature and complexity of the issues and the relevance of the questions.
Representations must be made orally at the end of a hearing unless the Division orders otherwise.
After all the evidence has been heard, the Division must
set time limits for representations, taking into account the complexity of the issues and the amount of relevant evidence heard; and
indicate what issues need to be addressed in the representations.
Person Who Is the Subject of an Appeal in Custody
The Division may order a person who holds a person who is the subject of an appeal in custody to bring the person to a proceeding at a location specified by the Division.
Interpreters
If a person who is the subject of an appeal needs an interpreter, the person must indicate the language and dialect, if any, to be interpreted in the appellant’s record if they are the appellant or in the respondent’s record if they are the respondent.
A person who is the subject of an appeal may change the language and dialect, if any, that they specified under subrule (1), or if they had not indicated that an interpreter was needed, they may indicate that they need an interpreter, by notifying the Division in writing and indicating the language and dialect, if any, to be interpreted. The notice must be received by the Division no later than 20 days before the date fixed for the hearing.
If any party’s witness needs an interpreter for a hearing, the party must notify the Division in writing and specify the language and dialect, if any, to be interpreted. The notice must be received by the Division no later than 20 days before the date fixed for the hearing.
The interpreter must take an oath or make a solemn affirmation to interpret accurately.
Observers
An application under rule 42 is not necessary if an observer is the UNHCR or a member of the staff of the Board or if the person who is the subject of the appeal consents to or requests the presence of an observer other than a representative of the press or other media of communication at the proceeding.
The Division must allow the attendance of an observer unless, in the opinion of the Division, the observer’s attendance is likely to impede the proceeding.
The Division may take any measures it considers necessary to ensure the confidentiality of the proceeding despite the presence of an observer.
Witnesses
If a party wants to call a witness, the party must provide the following witness information in writing to any other party and to the Division:
the witness’s contact information;
a brief statement of the purpose and substance of the witness’s testimony or, in the case of an expert witness, the expert witness’s brief signed summary of the testimony to be given;
the time needed for the witness’s testimony;
the party’s relationship to the witness;
in the case of an expert witness, a description of the expert witness’s qualifications; and
whether the party wants the witness to testify by means of live telecommunication.
The witness information provided to the Division must be accompanied by proof that it was provided to any other party.
Documents provided under this rule must be received by their recipients no later than 20 days before the date fixed for the hearing.
If a party does not provide the witness information, the witness must not testify at the hearing unless the Division allows them to testify.
In deciding whether to allow a witness to testify, the Division must consider any relevant factors, including
the relevance and probative value of the proposed testimony; and
the reason why the witness information was not provided.
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.
In deciding whether to issue a summons, the Division must consider any relevant factors, including
the necessity of the testimony to a full and proper hearing;
the person’s ability to give that testimony; and
whether the person has agreed to be summoned as a witness.
If a party wants to use a summons, they must
provide the summons to the person by hand;
provide a copy of the summons to the Division, together with proof that it was provided to the person by hand; and
pay or offer to pay the person the applicable witness fees and travel expenses set out in Tariff A of the Federal Courts Rules.
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.
The person must make the application in accordance with rule 37, but is not required to give evidence in an affidavit or statutory declaration.
If a person does not obey a summons to appear as a witness, the party who requested the summons may make a request to the Division orally at the hearing, or in writing, to issue a warrant for the person’s arrest.
A party who makes a written request for a warrant must provide supporting evidence by affidavit or statutory declaration.
The Division must not issue a warrant unless
the person was provided the summons by hand or the person is avoiding being provided the summons;
the person was paid or offered the applicable witness fees and travel expenses set out in Tariff A of the Federal Courts Rules;
the person did not appear at the hearing as required by the summons; and
the person’s testimony is still needed for a full and proper hearing.
A warrant issued by the Division for the arrest of a person must include directions concerning detention or release.
If the Division excludes a witness from a hearing room, no person may communicate to the witness any evidence given while the witness was excluded unless allowed to do so by the Division or until the witness has finished testifying.
Changing the Location of a Hearing
A party may make an application to the Division to change the location of a hearing.
The party must make the application in accordance with rule 37, but is not required to give evidence in an affidavit or statutory declaration.
Documents provided under this rule must be received by their recipients no later than 20 days before the date fixed for the hearing.
In deciding the application, the Division must consider any relevant factors, including
whether the party is residing in the location where the party wants the hearing to be held;
whether a change of location would allow the hearing to be full and proper;
whether a change of location would likely delay the hearing;
how a change of location would affect the Division’s operation;
how a change of location would affect the parties;
whether a change of location is necessary in order to accommodate a vulnerable person; and
whether a hearing may be conducted by means of live telecommunication with the person who is the subject of the appeal.
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
A party may make an application to the Division to change the date or time fixed for a hearing.
The party must
make the application in accordance with rule 37, but is not required to give evidence in an affidavit or statutory declaration; and
give at least six dates and times, within the period specified by the Division, on which the party is available to start or continue the hearing.
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 the party wants to make an application two working days or less before the date fixed for the hearing, the party must make the application orally on the date fixed for the hearing.
In deciding the application, the Division must consider any relevant factors, including
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;
when the party made the application;
the time the party has had to prepare for the hearing;
the efforts made by the party to be ready to start or continue the hearing;
in the case of a party who requests more time to obtain information in support of their arguments, the Division’s ability to proceed in the absence of that information without causing an injustice;
whether the party has counsel;
the knowledge and experience of any counsel who represents the party;
any previous delays and the reasons for them;
whether the date and time fixed were peremptory;
whether the change is required to accommodate a vulnerable person;
whether allowing the application would unreasonably delay the hearing or likely cause an injustice; and
the nature and complexity of the matter to be heard.
If the party made a previous application that was denied, the Division must consider the reasons for the denial and must not allow the subsequent application unless there are exceptional circumstances supported by new evidence.
If a person who is the subject of an appeal makes the application for medical reasons, other than those related to their counsel, they must provide, together with the application, a legible, recently dated medical certificate signed by a qualified medical practitioner whose name and address are printed or stamped on the certificate. A person who has provided a copy of the certificate to the Division must provide the original document to the Division without delay.
The medical certificate must set out
the particulars of the medical condition, without specifying the diagnosis, that prevent the person from participating in the hearing on the date fixed for the hearing; and
the date on which the person is expected to be able to participate in the hearing.
If a person who is the subject of an appeal fails to provide a medical certificate in accordance with subrules (7) and (8), the person must include in their application
particulars of any efforts they made to obtain the required medical certificate, supported by corroborating evidence;
particulars of the medical reasons for the application, supported by corroborating evidence; and
an explanation of how the medical condition prevents them from participating in the hearing on the date fixed for the hearing.
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
In determining whether an appeal has been abandoned under subsection 168(1) of the Act after a date for a hearing has been fixed, the Division must give the appellant an opportunity to explain why the appeal should not be declared abandoned,
immediately, if the appellant is present at the hearing and the Division considers that it is fair to do so; or
in any other case, by way of a special hearing, after notifying the appellant in writing.
The Division must consider, in deciding if the appeal should be declared abandoned, the explanation given by the appellant and any other relevant factors, including the fact that the appellant is ready to start or continue the proceedings.
If the appellant is the person who is the subject of the appeal and the explanation includes medical reasons, other than those related to their counsel, they must provide, together with the explanation, the original of a legible, recently dated medical certificate signed by a qualified medical practitioner whose name and address are printed or stamped on the certificate.
The medical certificate must set out
the particulars of the medical condition, without specifying the diagnosis, that prevented the person from pursuing their appeal; and
the date on which the person is expected to be able to pursue their appeal.
If a person who is the subject of an appeal fails to provide a medical certificate in accordance with subrules (3) and (4), the person must include in their explanation
particulars of any efforts they made to obtain the required medical certificate, supported by corroborating evidence;
particulars of the medical reasons included in the explanation, supported by corroborating evidence; and
an explanation of how the medical condition prevented them from pursuing their appeal.
If the Division decides not to declare the appeal abandoned, it must start or continue the proceedings without delay.
Coming into Force
These Rules come into force on the day on which section 110 of the Immigration and Refugee Protection Act comes into force, but if they are registered after that day, they come into force on the day on which they are registered.[Note: Rules in force December 15, 2012, see SI/2012-94.]
INFORMATION AND DECLARATIONS — COUNSEL NOT REPRESENTING OR ADVISING FOR CONSIDERATION Item Information 1 IRB Division and file number with respect to the person who is the subject of the appeal. 2 Name of counsel who is representing or advising the person who is the subject of the appeal and who is not receiving consideration for those services. 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 If applicable, a declaration, signed by the interpreter, that includes the interpreter’s name, the language and dialect, if any, interpreted and a statement that the interpretation is accurate. 5 Declaration signed by the person who is the subject of the appeal that the counsel who is representing or advising them is not receiving consideration and that the information provided in the form is complete, true and correct. 6 Declaration signed by counsel that they are not receiving consideration for representing or advising the person who is the subject of the appeal and that the information provided in the form is complete, true and correct.