Refugee Appeal Division Rules (SOR/2012-257)

Marginal note:Request to be removed as counsel of record

• 19 (1) 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.

• Marginal note:Proof request was provided

  (2) The request provided to the Division must be accompanied by proof that copies were provided to the person represented and to the Minister.

• Marginal note:Request — if date for proceeding fixed

  (3) 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.

• Marginal note:Division’s permission required

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

Marginal note:Removing counsel of record

• 20 (1) 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.

• Marginal note:Proof notice was provided

  (2) The notice provided to the Division must be accompanied by proof that copies were provided to counsel and to the Minister.

• Marginal note:Ceasing to be counsel of record

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

Refugee Protection Division Record

Marginal note:Providing notice of appeal

• 21 (1) 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.

• Marginal note:Preparing and providing record

  (2) 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.

• Marginal note:Content of record

  (3) The Refugee Protection Division record must contain

  • (a) the notice of decision and written reasons for the decision that is being appealed;

  • (b) the Basis of Claim Form as defined in the Refugee Protection Division Rules and any changes or additions to it;

  • (c) all documentary evidence that the Refugee Protection Division accepted as evidence, during or after the hearing;

  • (d) any written representations made during or after the hearing but before the decision being appealed was made; and

  • (e) any audio or other electronic recording of the hearing.

• Marginal note:Providing record to absent Minister

  (4) 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

Marginal note:Choice of language

• 22 (1) 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.

• Marginal note:Language — Minister’s appeals

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

• Marginal note:Changing language

  (3) 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

Marginal note:Continuation of designation

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

• Marginal note:Duty of counsel to notify

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

• Marginal note:Exception

  (3) 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.

• Marginal note:Content of notice

  (4) The notice must include the following information:

  • (a) whether counsel is aware of a person in Canada who meets the requirements to be designated as a representative and, if so, the person’s contact information;

  • (b) a copy of any available supporting documents; and

  • (c) the reasons why counsel believes that a representative should be designated.

• Marginal note:Requirements for being designated

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

  • (a) be 18 years of age or older;

  • (b) understand the nature of the proceedings;

  • (c) be willing and able to act in the best interests of the person who is the subject of the appeal; and

  • (d) not have interests that conflict with those of the person who is the subject of the appeal.

• Marginal note:Factors

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

  • (a) whether the person can understand the reason for the proceeding and can instruct counsel;

  • (b) the person’s statements and behaviour at the proceeding;

  • (c) expert evidence, if any, on the person’s intellectual or physical faculties, age or mental condition; and

  • (d) whether the person has had a representative designated for a proceeding in a division other than the Refugee Protection Division.

• Marginal note:Designation applies to all proceedings

  (7) 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.

• Marginal note:End of designation — person reaches 18 years of age

  (8) 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.

• Marginal note:Termination of designation

  (9) 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.

• Marginal note:Designation criteria

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

  • (a) assess the person’s ability to fulfil the responsibilities of a designated representative; and

  • (b) ensure that the person has been informed of the responsibilities of a designated representative.

• Marginal note:Responsibilities of representative

  (11) The responsibilities of a designated representative include

  • (a) deciding whether to retain counsel and, if counsel is retained, instructing counsel or assisting the represented person in instructing counsel;

  • (b) making decisions regarding the appeal or assisting the represented person in making those decisions;

  • (c) informing the represented person about the various stages and procedures in the processing of their case;

  • (d) assisting in gathering evidence to support the represented person’s case and in providing evidence and, if necessary, being a witness at the hearing;

  • (e) protecting the interests of the represented person and putting forward the best possible case to the Division; and

  • (f) informing and consulting the represented person to the extent possible when making decisions about the case.

Specialized Knowledge

Marginal note:Notice to parties

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

  • (a) 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

  • (b) 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.

• Marginal note:Providing written representations and evidence

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

• Marginal note:Proof written representations and evidence were provided

  (3) 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

Marginal note:Notice of constitutional question

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

• Marginal note:Form and content of notice

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

  • (a) the party’s name;

  • (b) the Division file number;

  • (c) the specific legislative provision that is being challenged;

  • (d) the material facts relied on to support the constitutional challenge; and

  • (e) a summary of the legal argument to be made in support of the constitutional challenge.

• Marginal note:Providing notice

  (3) The party must provide

  • (a) a copy of the notice to the Attorney General of Canada and to the attorney general of each province of Canada, in accordance with section 57 of the Federal Courts Act;

  • (b) a copy of the notice to the Minister even if the Minister has not yet intervened in the appeal;

  • (c) 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

  • (d) the original notice to the Division, together with proof that copies were provided under paragraphs (a) to (c).

• Marginal note:Time limit

  (4) 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.

• Marginal note:Deciding of constitutional question

  (5) 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

Marginal note:Requirement to participate at conference

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

• Marginal note:Information or documents

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

• Marginal note:Written record

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

Documents

Form and Language of Documents

Marginal note:Documents prepared by party

• 27 (1) 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.

• Marginal note:Photocopies

  (2) Any photocopy provided by a party must be a clear copy of the document photocopied and be on one or both sides of 216 mm by 279 mm (8 ½ inches x 11 inches) paper.

• Marginal note:List of documents

  (3) If more than one document is provided, the party must provide a list identifying each of the documents.

• Marginal note:Consecutively numbered pages

  (4) A party must consecutively number each page of all the documents provided as if they were one document.

Marginal note:Language of documents — person

• 28 (1) 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.

• Marginal note:Language of Minister’s documents

  (2) All documents used by the Minister in an appeal must be in the language of the appeal or be provided together with a translation in the language of the appeal and a declaration signed by the translator.

• Marginal note:Translator’s declaration

  (3) 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

Marginal note:Documents or written submissions not previously provided — person

• 29 (1) 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.

• Marginal note:Application

  (2) 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.

• Marginal note:Documents — new evidence

  (3) 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.

• Marginal note:Factors

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

  • (a) the document’s relevance and probative value;

  • (b) any new evidence the document brings to the appeal; and

  • (c) 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.

• Marginal note:Documents or written submissions not previously provided — Minister

  (5) 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.

• Marginal note:Proof documents or written submissions provided

  (6) 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.

• Marginal note:Reply to Minister’s documents or written submissions

  (7) 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.