Refugee Appeal Division Rules (SOR/2012-257)

How to Make an Application

Marginal note:Form of application and time limit

• 37 (1) Unless these Rules provide otherwise, an application must be made in writing and without delay.

• Marginal note:Oral application

  (2) 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.

• Marginal note:Content of application

  (3) Unless these Rules provide otherwise, in a written application, the party must

  • (a) state the decision the party wants the Division to make;

  • (b) give reasons why the Division should make that decision; and

  • (c) if there is another party and the views of that party are known, state whether the other party agrees to the application.

• Marginal note:Affidavit or statutory declaration

  (4) 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.

• Marginal note:Providing application to other party and Division

  (5) A party who makes a written application must provide

  • (a) to any other party, a copy of the application and a copy of any affidavit or statutory declaration; and

  • (b) 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

Marginal note:Responding to written application

• 38 (1) A response to a written application must be in writing and

  • (a) state the decision the party wants the Division to make; and

  • (b) give reasons why the Division should make that decision.

• Marginal note:Evidence in written response

  (2) Any evidence that the party wants the Division to consider with the written response must be given in an affidavit or statutory declaration that accompanies the response. Unless the Division requires it, an affidavit or statutory declaration is not required if the party who made the application was not required to give evidence in an affidavit or statutory declaration, together with the application.

• Marginal note:Providing response

  (3) A party who responds to a written application must provide

  • (a) to the other party, a copy of the response and a copy of any affidavit or statutory declaration; and

  • (b) 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.

• Marginal note:Time limit

  (4) 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

Marginal note:Replying to written response

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

• Marginal note:Evidence in reply

  (2) Any evidence that the party wants the Division to consider with the written reply must be given in an affidavit or statutory declaration that accompanies the reply. Unless the Division requires it, an affidavit or statutory declaration is not required if the party was not required to give evidence in an affidavit or statutory declaration, together with the application.

• Marginal note:Providing reply

  (3) A party who replies to a written response must provide

  • (a) to the other party, a copy of the reply and a copy of any affidavit or statutory declaration; and

  • (b) 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.

• Marginal note:Time limit

  (4) 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

Marginal note:Appeals automatically joined

40 The Division must join any appeals of decisions on claims that were joined at the time that the Refugee Protection Division decided the claims.

Marginal note:Application to join

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

• Marginal note:Application to separate

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

• Marginal note:Form of application and providing application

  (3) A party who makes an application to join or separate appeals must do so in accordance with rule 37, but the party is not required to give evidence in an affidavit or statutory declaration. The party must also

  • (a) provide a copy of the application to any person who will be affected by the Division’s decision on the application; and

  • (b) provide to the Division proof that the party provided the copy of the application to any affected person.

• Marginal note:Time limit

  (4) Documents provided under this rule must be received by their recipients,

  • (a) 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

  • (b) 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.

• Marginal note:Factors

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

  • (a) the appeals involve similar questions of fact or law;

  • (b) allowing the application would promote the efficient administration of the Division’s work; and

  • (c) allowing the application would likely cause an injustice.

Proceedings Conducted in Public

Marginal note:Minister considered party

• 42 (1) 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.

• Marginal note:Application

  (2) 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.

• Marginal note:Oral application

  (3) 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.

• Marginal note:Content of application

  (4) In the application, the person must

  • (a) state the decision they want the Division to make;

  • (b) give reasons why the Division should make that decision;

  • (c) state whether they want the Division to consider the application in public or in the absence of the public;

  • (d) give reasons why the Division should consider the application in public or in the absence of the public; and

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

• Marginal note:Providing application

  (5) 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.

• Marginal note:Response to application

  (6) A party may respond to a written application. The response must

  • (a) state the decision they want the Division to make;

  • (b) give reasons why the Division should make that decision;

  • (c) state whether they want the Division to consider the application in public or in the absence of the public;

  • (d) give reasons why the Division should consider the application in public or in the absence of the public; and

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

• Marginal note:Minister’s notice

  (7) 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.

• Marginal note:Providing response

  (8) 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.

• Marginal note:Providing response to applicant

  (9) 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).

• Marginal note:Reply to response

  (10) An applicant or a party may reply in writing to a written response or a summary of a response.

• Marginal note:Providing reply

  (11) 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.

• Marginal note:Time limit

  (12) 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.

• Marginal note:Confidentiality

  (13) The Division may take any measures it considers necessary to ensure the confidentiality of the proceeding in respect of the application, including

  • (a) providing a summary of the response to the applicant instead of a copy; and

  • (b) if the Division holds a hearing in respect of the appeal and the application,

    • (i) 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

    • (ii) 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.

• Marginal note:Summary of response

  (14) 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.

• Marginal note:Notification of decision on application

  (15) 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

Marginal note:Notice of order

• 43 (1) 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.

• Marginal note:Providing documents to UNHCR

  (2) The Division must provide the UNHCR with a copy of the following documents at the same time that it provides notice of the order:

  • (a) the Refugee Protection Division record; and

  • (b) 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.

• Marginal note:UNHCR’s notice to Division

  (3) 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.

• Marginal note:Time limit

  (4) 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.