Marginal note:Hearing — prescribed factors
167. For the purpose of determining whether a hearing is required under paragraph 113(b) of the Act, the factors are the following:
(a) whether there is evidence that raises a serious issue of the applicant's credibility and is related to the factors set out in sections 96 and 97 of the Act;
(b) whether the evidence is central to the decision with respect to the application for protection; and
(c) whether the evidence, if accepted, would justify allowing the application for protection.
Marginal note:Hearing procedure
168. A hearing is subject to the following provisions:
(a) notice shall be provided to the applicant of the time and place of the hearing and the issues of fact that will be raised at the hearing;
(b) the hearing is restricted to matters relating to the issues of fact stated in the notice, unless the officer conducting the hearing considers that other issues of fact have been raised by statements made by the applicant during the hearing;
(c) the applicant must respond to the questions posed by the officer and may be assisted for that purpose, at their own expense, by a barrister or solicitor or other counsel; and
(d) any evidence of a person other than the applicant must be in writing and the officer may question the person for the purpose of verifying the evidence provided.
169. An application for protection is declared abandoned
(a) in the case of an applicant who fails to appear at a hearing, if the applicant is given notice of a subsequent hearing and fails to appear at that hearing; and
(b) in the case of an applicant who voluntarily departs Canada, when the applicant's removal order is enforced under section 240 or the applicant otherwise departs Canada.
- SOR/2009-290, s. 5(F).
170. An application for protection may be withdrawn by the applicant at any time by notifying the Minister in writing. The application is declared to be withdrawn on receipt of the notice.
Marginal note:Effect of abandonment and withdrawal
171. An application for protection is rejected when a decision is made not to allow the application or when the application is declared withdrawn or abandoned.
Marginal note:Applicant described in s. 112(3) of the Act
172. (1) Before making a decision to allow or reject the application of an applicant described in subsection 112(3) of the Act, the Minister shall consider the assessments referred to in subsection (2) and any written response of the applicant to the assessments that is received within 15 days after the applicant is given the assessments.
(2) The following assessments shall be given to the applicant:
(a) a written assessment on the basis of the factors set out in section 97 of the Act; and
(b) a written assessment on the basis of the factors set out in subparagraph 113(d)(i) or (ii) of the Act, as the case may be.
(2.1) Despite subsection (2), no assessments shall be given to an applicant who is named in a certificate until a judge under section 78 of the Act determines whether the certificate is reasonable.
Marginal note:When assessments given
(3) The assessments are given to an applicant when they are given by hand to the applicant or, if sent by mail, are deemed to be given to an applicant seven days after the day on which they are sent to the last address that the applicant provided to the Department.
Marginal note:Applicant not described in s. 97 of the Act
(4) Despite subsections (1) to (3), if the Minister decides on the basis of the factors set out in section 97 of the Act that the applicant is not described in that section,
(a) no written assessment on the basis of the factors set out in subparagraph 113(d)(i) or (ii) of the Act need be made; and
(b) the application is rejected.
- SOR/2008-193, s. 2.
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