Refugee Appeal Division Rules (SOR/2012-257)

Decisions

Marginal note:Notice of decision

• 50 (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

• 51 (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

52 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

53 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

54 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

55 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

• 56 (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.

Conduct of a Hearing

Marginal note:Restriction of hearing

• 57 (1) 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.

• Marginal note:Standard order of questioning

  (2) 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.

• Marginal note:Limiting questioning of witnesses

  (3) 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.

• Marginal note:Oral representations

  (4) Representations must be made orally at the end of a hearing unless the Division orders otherwise.

• Marginal note:Limits on representations

  (5) After all the evidence has been heard, the Division must

  • (a) set time limits for representations, taking into account the complexity of the issues and the amount of relevant evidence heard; and

  • (b) indicate what issues need to be addressed in the representations.

Person Who Is the Subject of an Appeal in Custody

Marginal note:Custody

58 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

Marginal note:Need for interpreter — person

• 59 (1) 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.

• Marginal note:Changing language of interpretation

  (2) 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.

• Marginal note:Need for interpreter — witness

  (3) 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.

• Marginal note:Interpreter’s oath

  (4) The interpreter must take an oath or make a solemn affirmation to interpret accurately.

Observers

Marginal note:Observers

• 60 (1) 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.

• Marginal note:Observers — factor

  (2) 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.

• Marginal note:Observers — confidentiality of proceeding

  (3) The Division may take any measures it considers necessary to ensure the confidentiality of the proceeding despite the presence of an observer.

Witnesses

Marginal note:Providing witness information

• 61 (1) 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:

  • (a) the witness’s contact information;

  • (b) 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;

  • (c) the time needed for the witness’s testimony;

  • (d) the party’s relationship to the witness;

  • (e) in the case of an expert witness, a description of the expert witness’s qualifications; and

  • (f) whether the party wants the witness to testify by means of live telecommunication.

• Marginal note:Proof witness information provided

  (2) The witness information provided to the Division must be accompanied by proof that it was provided to any other party.

• Marginal note:Time limit

  (3) Documents provided under this rule must be received by their recipients no later than 20 days before the date fixed for the hearing.

• Marginal note:Failure to provide witness information

  (4) If a party does not provide the witness information, the witness must not testify at the hearing unless the Division allows them to testify.

• Marginal note:Factors

  (5) In deciding whether to allow a witness to testify, the Division must consider any relevant factors, including

  • (a) the relevance and probative value of the proposed testimony; and

  • (b) the reason why the witness information was not provided.

Marginal note:Requesting summons

• 62 (1) 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.

• Marginal note:Factors

  (2) In deciding whether to issue a summons, the Division must consider any relevant factors, including

  • (a) the necessity of the testimony to a full and proper hearing;

  • (b) the person’s ability to give that testimony; and

  • (c) whether the person has agreed to be summoned as a witness.

• Marginal note:Using summons

  (3) If a party wants to use a summons, they must

  • (a) provide the summons to the person by hand;

  • (b) provide a copy of the summons to the Division, together with proof that it was provided to the person by hand; and

  • (c) pay or offer to pay the person the applicable witness fees and travel expenses set out in Tariff A of the Federal Courts Rules.

Marginal note:Cancelling summons

• 63 (1) 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.

• Marginal note:Application

  (2) The person must make the application in accordance with rule 37, but is not required to give evidence in an affidavit or statutory declaration.

Marginal note:Arrest warrant

• 64 (1) 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.

• Marginal note:Written request

  (2) A party who makes a written request for a warrant must provide supporting evidence by affidavit or statutory declaration.

• Marginal note:Requirements for issue of arrest warrant

  (3) The Division must not issue a warrant unless

  • (a) the person was provided the summons by hand or the person is avoiding being provided the summons;

  • (b) the person was paid or offered the applicable witness fees and travel expenses set out in Tariff A of the Federal Courts Rules;

  • (c) the person did not appear at the hearing as required by the summons; and

  • (d) the person’s testimony is still needed for a full and proper hearing.

• Marginal note:Content of warrant

  (4) A warrant issued by the Division for the arrest of a person must include directions concerning detention or release.