Refugee Appeal Division Rules (SOR/2012-257)

Regulations are current to 2017-11-20 and last amended on 2012-12-15. Previous Versions

Withdrawal

Marginal note:Abuse of process
  •  (1) 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.

  • Marginal note:Withdrawal on notice

    (2) 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.

  • Marginal note:Application to withdraw

    (3) 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Reinstating a Withdrawn Appeal

Marginal note:Application to reinstate withdrawn appeal
  •  (1) An appellant may apply to the Division to reinstate an appeal that was made by the appellant and was withdrawn.

  • Marginal note:Form and content of application

    (2) 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.

  • Marginal note:Documents provided to Minister

    (3) 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.

  • Marginal note:Factors

    (4) 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.

  • Marginal note:Factors

    (5) 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.

  • Marginal note:Subsequent application

    (6) 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

Marginal note:Application to reopen appeal
  •  (1) 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.

  • Marginal note:Form and content of application

    (2) 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.

  • Marginal note:Documents provided to Minister

    (3) 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 .

  • Marginal note:Allegations against counsel

    (4) 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,

    • (a) 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

    • (b) the application provided to the Division must be accompanied by proof that a copy was provided to the counsel.

  • Marginal note:Copy of pending application

    (5) 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.

  • Marginal note: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.

  • Marginal note: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 any delay; and

    • (b) 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.

  • Marginal note:Subsequent application

    (8) 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.

  • Marginal note: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

Marginal note:Notice of decision
  •  (1) 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.

  • Marginal note:Written reasons

    (2) The Division must provide written reasons for the decision, together with the notice of decision, if a hearing

    • (a) was not held under subsection 110(6) of the Act; or

    • (b) was held under subsection 110(6) of the Act and the decision and reasons were not given orally at the hearing.

  • Marginal note:Request for written reasons

    (3) A request under paragraph 169(1)(e) of the Act for written reasons for a decision must be made in writing.

Marginal note:When decision of single member takes effect
  •  (1) A decision, other than an interlocutory decision, made by a single Division member takes effect

    • (a) if made in writing, when the member signs and dates the reasons for the decision; and

    • (b) if given orally at a hearing, when the member states the decision and gives the reasons.

  • Marginal note:When decision of three-member panel takes effect

    (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 the members sign and date their reasons for the decision; and

    • (b) if given orally at a hearing, when all the members state their decision and give their reasons.

General Provisions

Marginal note:No applicable rule

 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.

Marginal note:Powers of Division

 The Division may, after giving the parties notice and an opportunity to object,

  • (a) 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 shorten it if the time limit has not expired.

Marginal note:Failure to follow rules

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

PART 4Rules Applicable to an Appeal for Which a Hearing Is Held

Fixing a Date for a Hearing

Marginal note:Conference to fix date for 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

Marginal note:Notice to appear
  •  (1) 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.

  • Marginal note:Date fixed for hearing

    (2) 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.

 
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