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Canadian Refugee Procedure/RPD Rule 64 - Applications to Vacate or to Cease Refugee Protection

IRPA Section 108: Cessation of Refugee Protection
Section 108 of the Immigration and Refugee Protection Act reads: Cessation of Refugee Protection

Rejection 108 (1) A claim for refugee protection shall be rejected, and a person is not a Convention refugee or a person in need of protection, in any of the following circumstances: (a) the person has voluntarily reavailed themself of the protection of their country of nationality; (b) the person has voluntarily reacquired their nationality; (c) the person has acquired a new nationality and enjoys the protection of the country of that new nationality; (d) the person has voluntarily become re-established in the country that the person left or remained outside of and in respect of which the person claimed refugee protection in Canada; or (e) the reasons for which the person sought refugee protection have ceased to exist.

Cessation of refugee protection (2) On application by the Minister, the Refugee Protection Division may determine that refugee protection referred to in subsection 95(1) has ceased for any of the reasons described in subsection (1).

Effect of decision (3) If the application is allowed, the claim of the person is deemed to be rejected.

Exception (4) Paragraph (1)(e) does not apply to a person who establishes that there are compelling reasons arising out of previous persecution, torture, treatment or punishment for refusing to avail themselves of the protection of the country which they left, or outside of which they remained, due to such previous persecution, torture, treatment or punishment.

Section 108(1) provides that a claim for refugee protection shall be rejected in the specified circumstances, but this provision is not self-executing
Subsection 108(1) of the Act, which is titled “Rejection”, states that “[a] claim for refugee protection shall be rejected” (emphasis added) by the Board on the grounds for cessation listed. This provision can operate only before the Board has made a determination of refugee status, because its scope is limited to the “rejection” of a refugee claim. There is nothing in the provision that could reasonably be described as self-executing or automatic, particularly after the Board has made its determination. The provision simply compels the Board to reject a refugee claim that has not yet been determined if one of the enumerated grounds for cessation is established.

The responsible Minister for applications to cease refugee protection is the Minister of Citizenship and Immigration
Section 108(2) of the IRPA provides that "on application by the Minister, the Refugee Protection Division may determine that refugee protection [has ceased]". The responsible Minister for section 108(2), cessation, is the Minister of Citizenship and Immigration. This is so as, per section 4(1) of the IRPA, the Minister of Citizenship and Immigration is responsible for the administration of the IRPA except as otherwise provided:Canadian Refugee Procedure/4-6 - Enabling Authority.

Section 6 of the IRPA provides that the Minister responsible may designate any person or class of person as officers to carry out any purpose of any provision of the IRPA: Canadian Refugee Procedure/4-6 - Enabling Authority. The Minister's authority for making cessation applications has been delegated to CBSA hearings officers and IRCC senior immigration officers.

Section 108(3): If the application is allowed, the claim of the person is deemed to be rejected
Section 108(3) of the IRPA provides that if an application is allowed, the claim of the person is deemed to be rejected. However, a finding under s. 108(1)(e) does not result in a loss of permanent residence status: paragraph 46(1)(c.1) of IRPA: Canadian Refugee Procedure/44-53 - Loss of Status and Removal. A finding made under paragraph 108(1)(e) results in the loss of protected person status. Subsection 108(3) explains that the effect of a cessation decision on any ground listed in 108(1) is for “the claim of the person is deemed to be rejected”. It is not correct to say that this determination carries with it no consequences for those who retain their permanent resident status because s. 108(1)(e) applies to them. The principle of non-refoulement applies to protected persons and generally “prohibits the direct or indirect removal of refugees to a territory where they run a risk of being subjected to human rights violations”. For example, in the event that a person lost their permanent residence status, those who have protected person status are afforded a further process before they can be removed from Canada: Canadian Refugee Procedure/115-116 - Principle of Non-refoulement.

The Board must consider "compelling reasons" under s. 108(4) when determining whether an individual qualifies as a refugee
In every case in which the Board concludes that a claimant has suffered past persecution, but there has been a change of country conditions, the Board is obligated under s. 108(4) to consider whether the evidence presented establishes that there are "compelling reasons" as contemplated by that subsection. This obligation arises whether or not the claimant expressly invokes this subsection. That being said, the evidentiary burden remains on the claimant to adduce the evidence necessary to establish that he or she is entitled to the benefit of that subsection.

IRPA Section 109: Applications to Vacate
Section 109 of the Immigration and Refugee Protection Act reads: Applications to Vacate Vacation of refugee protection

109 (1) The Refugee Protection Division may, on application by the Minister, vacate a decision to allow a claim for refugee protection, if it finds that the decision was obtained as a result of directly or indirectly misrepresenting or withholding material facts relating to a relevant matter.

Rejection of application (2) The Refugee Protection Division may reject the application if it is satisfied that other sufficient evidence was considered at the time of the first determination to justify refugee protection.

Allowance of application (3) If the application is allowed, the claim of the person is deemed to be rejected and the decision that led to the conferral of refugee protection is nullified.

History of this provision
Prior to the enactment of the IRPA, the vacation of a decision granting Convention refugee protection was dealt with under sections 69.2 and 69.3 of the Immigration Act, RSC 1985, c I-2 (as amended). Broadly speaking, subsection 69.2(2) of the Immigration Act corresponded to what is now subsection 109(1) of the IRPA and subsection 69.3(5) of the Immigration Act corresponded to what is now subsection 109(2) of the IRPA. Subsection 69.3(5) of the Immigration Act stated:"The Refugee Division may reject an application under subsection 69.2(2) that is otherwise established if it is of the opinion that, notwithstanding that the determination was obtained by fraudulent means or misrepresentation, suppression or concealment of any material fact, there was other sufficient evidence on which the determination was or could have been based."

This provision applies even to those who have become Canadian citizens
It is true that, for the purposes of the Refugee Convention, an individual automatically ceases to be a refugee the moment they acquire Canadian citizenship. There is nothing in the language of section 109 to suggest that an application by the Minister to vacate refugee protection cannot be made if the claimant has subsequently become a citizen of Canada. Furthermore, subsection 108(1) of the IRPA, which deals only with the rejection of a claim before it has been determined, does not cause refugee status to disappear the moment one becomes a Canadian citizen.

See also: Canadian Refugee Procedure/Principles for the interpretation of refugee procedure.

New evidence is allowed for the assessment of s. 109(1), but not s. 109(2)
At the vacation hearing, both the Minister and claimant may adduce new evidence relating to alleged misrepresentation at the determination hearing. While new evidence is not permitted under s.109(2) to uphold the original determination, it is permitted under s.109(1) on the issue of misrepresentation. For example, in Bhuchung v. Canada, the court held that in precluding a refugee from relying on new evidence capable of confirming his identity and rebutting the Minister’s allegations of misrepresentation, the RPD erroneously applied the restrictions applicable to s.109(2) to s.109(1). This error both undermined the reasonableness of the RPD's decision as a whole and effectively deprived the refugee of procedural fairness in not being afforded a meaningful opportunity to answer the Minister’s case.

109(3): If the application is allowed, the claim of the person is deemed to be rejected
Section 109(3) of the Act provides that if the application is allowed, the claim of the person is deemed to be rejected and the decision that led to the conferral of refugee protection is nullified. An applicant's status thus does not revert to that of a refugee claimant following such a decision, but instead a claimant whose claim has been rejected. Subsections 40(1)(c), 40(2)(a), 46(1)(d) of the IRPA cross-reference a final determination under subsection 109(3) of the IRPA removing permanent resident status if they had it, and rendering the protected person inadmissible to Canada for a period of five (5) years. See: Canadian Refugee Procedure/33-43 - Inadmissibility and Canadian Refugee Procedure/44-53 - Loss of Status and Removal.

RPD Rule 64
The text of rule 64 reads: Applications to Vacate or to Cease Refugee Protection

Form of application 64 (1) An application to vacate or to cease refugee protection made by the Minister must be in writing and made in accordance with this rule.

Content of application (2) In the application, the Minister must include (a) the contact information of the protected person and of their counsel, if any; (b) the identification number given by the Department of Citizenship and Immigration to the protected person; (c) the date and file number of any Division decision with respect to the protected person; (d) in the case of a person whose application for protection was allowed abroad, the person’s file number, a copy of the decision and the location of the office; (e) the decision that the Minister wants the Division to make; and (f) the reasons why the Division should make that decision.

Providing application to protected person and Division (3) The Minister must provide (a) a copy of the application to the protected person; and (b) the original of the application to the registry office that provided the notice of decision in the claim or to a registry office specified by the Division, together with a written statement indicating how and when a copy was provided to the protected person.

History
The process for cessation and vacation applications has evolved over time. When the Convention Refugee Determination Division was founded, the Minister could make an application to it for cessation or vacation of a person’s refugee status, but an application for vacation first required leave from the Chairperson. The Minister’s application for cessation, or for vacation (if leave was granted), would be heard and decided by a three-member panel of the CRDD, with the decision of the majority governing. The leave requirement was eventually eliminated and one-person panels instead began to decide such applications. When the CBSA was created in the early 2000s, it took on the mandate for the cessation or vacation of refugee protection (see: Canadian Refugee Procedure/History of refugee procedure in Canada). Then, in 2012, the legislation was modified such that cessation proceedings would revoke a refugee's PR status per the Protecting Canada’s Immigration System Act. In 2013-14 the CBSA identified cessation and vacation applications as a priority and set itself an internal annual target of 875 applications. In January 2021, IRCC received the delegated authority to file cessation applications, in addition to CBSA.

Use of this rule where a previous application to cease or vacate protection has been withdrawn
A question can arise about the interaction between this rule, which allows the Minister to commence an application to vacate or cease refugee protection, and Rule 61, which allows the Minister to reinstate a withdrawn application to vacate or to cease refugee protection: Canadian Refugee Procedure/Reinstating a Withdrawn Claim or Application. Where the Minister wishes to reinstate a previous application to vacate or cease refugee protection, they must use Rule 61. However, where the Minister wishes to make a new application based on new facts and allegations, then they may make a new application to cease or vacate refugee status, notwithstanding the existence of a previous withdrawn application for same that was based on different facts. This issue arose in Cohen v. Canada, a case in which a previous Minister's application to vacate refugee protection had been withdrawn by the Minister. The Minister then filed a subsequent application to vacate the applicant’s refugee status pursuant to Rule 64 of the Rules. The RPD found that the Minister’s vacation application filed pursuant to Rule 64 as a “new” application was filed in error and that the application should have been filed pursuant to Rule 61(1) as a reinstatement of the withdrawn application to vacate. The answer as to whether Rule 61 or Rule 64 should be used in a particular case will be a factual one. If the application is substantially based on the previous allegations, or information which, while new to the Minister was obtainable with reasonable diligence, then the Minister should proceed by way of reinstatement. In contrast, where new events occur subsequent to the withdrawal of a previous application, for example a new act of reavailment of a country's protection, then this will point to the use of Rule 64 being appropriate for a new application. Any other result could lead to absurd consequences, for example tying the Minister's hands to bring a new application to cease protection even where a claimant has engaged in new, obvious, and high-profile instances of reavailment that could bring the refugee protection system into disrepute.

Rule 64(3): The Minister must provide a copy of the application to the protected person
Rule 64(3) requires that the Minister provide a copy of the application to the protected person and that the Minister provide a written statement indicating how and when a copy was provided to the protected person. In some circumstances, the Minister may not be able to locate the protected person to serve a copy of the application. In those circumstances, the Minister is required to make an application under RPD Rule 40 to vary or be excused from the service requirement. That rule also provides that the RPD must not allow such an application unless it is satisfied that reasonable efforts have been made to provide the document as required: Canadian Refugee Procedure/Documents. This service issue is distinct from issues that arise where a protected person has been served with an application and then does not keep their contact information current with the IRB and Minister; once a protected person has been served with an application, pursuant to RPD Rule 12, the onus is on that person to notify the Division and Minister of any address changes for themselves or their counsel: Canadian Refugee Procedure/Information and Documents to be Provided.

Rule 64(3): The Minister must provide a copy of the application to the protected person and this can be done even where the protected person is located outside of Canada
Rule 64(3) requires the Minister to provide a copy of the application to the protected person. Where the protected person is no longer in Canada, the Minister may be permitted to serve the protected person at an address outside Canada and the person may participate by telephone, videoconference, or other appropriate means. The fact that a protected person is located outside of Canada thus does not relieve the Minister of their service obligation.

Timeliness of the Minister making an application to cease or vacate protection
At times applicants have argued that the Minister engaged in an abuse of process by filing an application for cessation years after having known that the applicant had returned to their country of origin. This argument was rejected in Seid v. Canada, with Justice LeBlanc holding that for a delay to constitute an abuse of process, it “must have been part of an administrative or legal proceeding that was already under way."

See also: Canadian Refugee Procedure/The right to be heard and the right to a fair hearing and Canadian Refugee Procedure/The right to be heard and the right to a fair hearing.


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Canadian Refugee Procedure/RPD Rules 60-61 - Reinstating a Withdrawn Claim or Application

RPD Rule 60 - Reinstating a Withdrawn Claim or Application
The text of the relevant rule reads: Reinstating a Withdrawn Claim or Application

Application to reinstate withdrawn claim 60 (1) A person may make an application to the Division to reinstate a claim that was made by the person and was withdrawn.

Form and content of application (2) The person must make the application in accordance with rule 50, include in the application their contact information and, if represented by counsel, their counsel’s contact information and any limitations on counsel’s retainer, and provide a copy of the application to the Minister.

Factors (3) 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.

Factors (4) 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.

Subsequent application (5) If the person made a previous application to reinstate 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.

Rule 60(3): This rule has two branches: failure to observe a principle of natural justice and reinstatement otherwise being in the interests of justice
There are two circumstances provided for in Rule 60(3) of the RPD Rules where an RPD member can reinstate a withdrawn refugee claim: i) where it is “established that there was a failure to observe a principle of natural justice” or ii) “it is otherwise in the interests of justice to allow the application [to reinstate].” A decision must address "both branches" of this rule.

Rule 60(3):The Division must not allow the application unless it is established that there was a failure to observe a principle of natural justice ...
Pursuant to RPD Rule 60(3), the Division must not allow an application to reinstate a withdrawn claim 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. How is the Board to approach the question of whether "it is established that there was a failure to observe a principle of natural justice"? The full range of violations of natural justice may potentially be considered here. For a discussion of this, see: Canadian Refugee Procedure/The right to be heard and the right to a fair hearing. Where an applicant acted voluntarily and without constraint and any failure on the part of a claimant to inform themselves of the consequences of their withdrawal did not result from a breach of natural justice by the RPD or counsel, then a violation of procedural fairness will generally not be found.

Rule 60(3): The Division must not allow the application unless ... it is otherwise in the interests of justice to allow the application
Pursuant to RPD Rule 60(3), the Division must not allow an application to reinstate a withdrawn claim 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. How is the Board to approach the question of whether it is "otherwise in the interests of justice to allow the application"?

As an aside, one can note that this provision relating to the reinstatement of “withdrawn” refugee claims differs from applications to reopen a refugee claim that has been “decided” or “declared abandoned.” For those types of applications, RPD Rule 62(6) only provides that the application must not be allowed unless “it is established that there was a failure to observe a principle of natural justice.” Contrary to applications to reinstate withdrawn refugee claims, the RPD is not required to consider whether it is “in the interests of justice” to allow an application to reopen a refugee claim that has been declared abandoned. See: Canadian Refugee Procedure/Reopening a Claim or Application.

As a starting point, the Federal Court noted in Ohanyan v Canada, the term "otherwise in the interests of justice" is a broad one, which gives the Board a wide discretion to reinstate. At the same time, the court has held that reinstatement is an exception to the norm and must be interpreted and applied in that context.

Second, with respect to the phrase “otherwise in the interests of justice,” subsection 60(3) of the RPD Rules does not use the language “unless it is established” that applies to a failure to observe a principle of natural justice. That fact that the term "unless it is established" does not apply to the "interests of justice" portion of the rule can be more easily seen in the French-language version of the rule: «si un manquement à un principe de justice naturelle est établi ou qu’il est par ailleurs dans l’intérêt de la justice de le faire». The provision rather requires the RPD to determine if “it is otherwise in the interests of justice” to allow the reinstatement application. The Federal Court concluded in Rajput v. Canada that the different wording used in the provision vests the RPD with a specific obligation to consider, on its own and in light of the particular circumstances of each case, the “interests of justice” at stake, whether or not specific submissions on the issue have been made by an applicant.

Rule 60(4): In deciding an application, the Division must consider any relevant factors
Pursuant to Rule 60(4), in deciding an application under RPD Rule 60, the Division must consider any relevant factors. The nature of this analysis is a “flexible approach aimed at protecting the interest of a just, fair and efficient resolution of an application for reinstatement, while remaining alert and sensitive to the particular factual circumstances of each case”. The Board’s reasons must deal with the “interests of justice” that both favour and militate against reinstatement. As such, in making these determinations, the Board must weigh all the circumstances of a case and it is not just to approach the question from the vantage point of an applicant's interests or from the vantage point of the Board (The court has said that "if this were so, few, if any, applications for reinstatement would ever succeed" ). As Waldman puts it in his text, "it is clear that the tribunal must consider all of the circumstances that are placed before it when assessing whether or not it would be in the interests of justice to allow the claim to be reinstated. This requires the tribunal to assess the circumstances from the perspective of the applicant and from that of the tribunal." With respect to the consideration of the "interests of justice" under Rule 60(3), the Federal Court has held that this requirement to consider all of the circumstances that are placed before the tribunal applies whether or not specific submissions on the issue have been made by an applicant:"It was...the RPD’s duty, as a decision maker, to assess and determine whether it was in the interests of justice to allow Ms. Rajput’s application for reinstatement, considering all the relevant factors and the evidence before the panel. I agree with Ms. Rajput that, in conducting this assessment, the RPD had to take a holistic and contextual approach, considering all of the circumstances before it, and that the panel could not simply ask itself whether Ms. Rajput had provided evidence and made submissions on the interests of justice at play."This "analysis must be done holistically and contextually." It need not require an explicit balancing of each of these factors, but the reasons must reflect that a holistic review was conducted.

Factors that past panels have considered have included:

 * Did the claimant make an informed decision to withdraw their claim? The starting point is that a claimant should be presumed to have understood and intended the effect of their past withdrawal. The Board has noted in past decisions that the form a claimant signs to withdraw their claim involves them stating that they acknowledge that they are aware of the consequence of withdrawing their claim. Specifically, the form that a claimant signs to withdraw their claim includes the following statement: "I am freely withdrawing my claim for refugee protection, and I am fully aware of the consequences of this withdrawal. I am aware that as a result of the withdrawal of my claim, the Canada Border Services Agency may require me to leave Canada, and I will not be permitted to make another claim for refugee protection in Canada." There are strong policy reasons for presuming that a claimant's signature on this form was an informed one, as the court articulated in Arndorfer v. Canada where they stated that "the IRB and the respondent must be able to rely on what is communicated to them by claimants. If the IRB and the Minister had to impose on themselves a waiting period before acting on such notices as the Notice of Withdrawal, or impose extra steps on themselves simply to ensure that the statement of the claimant is indeed his or her final answer, the refugee claims process would be encumbered, which would in turn worsen an already critical backlog in the refugee claims system." When considering a claimant's argument that their decision was not informed, decision-makers have considered the following:
 * Did the claimant make a free decision to withdraw their claim?
 * Was the decision to withdraw made under duress? The court has overturned Board decisions failing to reinstate claims where it was clear that the applicant was under duress. In Kaur v. Canada, the “pressure on her was such that she was not free to speak about the situation she was in and unable to retain counsel to assist her in her choices”. In Acevedo v. Canada, the applicant had presented evidence that “the abuse she suffered at the hands of her husband . . . had prevented her from participating in the claim”. The fact that a claimant was under stress or pressure does not necessarily mean that the claimant was under duress. The claimant may still have made a personal and voluntary decision to withdraw their claim.
 * Was a designated representative acting in the best interests of a minor or incompetent persons when withdrawing a claim? In Castillo v. Canada the principal applicant and her son (a minor) applied for refugee protection in Canada on the basis that they feared persecution by the principal applicant’s abusive ex-partner. The Board rejected their application to reinstate their claims, but this decision was found to be unreasonable by the court on the basis that the decision contained "no reference to the personal circumstances of the Minor Applicant who cannot be blamed for the decision of the Principal Applicant to withdraw their refugee application." The Board's Chairperson Guideline 3: Child Refugee Claimants: Procedural and Evidentiary Issues provide that "in determining the procedure to be followed when considering the refugee claim of a child, the CRDD should give primary consideration to the best interests of the child." That said, a designated representative must be appointed by the Board. There will be a period of time in which claims, including those of a minor have been made, but the designated representative relationship has not been established by the Board. This does not preclude the parent from acting on the child's behalf to withdraw the claim during this period notwithstanding the lack of a formal DR appointment: Arndorfer v. Canada. Furthermore, in Boguzinskaite v Canada, Justice Zinn held that the RPD cannot be faulted for failing to consider the best interests of the child when that factor was not specifically raised before it. That principle has been held to apply to reinstatement applications where the best interests of the child are not explicitly raised in submissions.
 * Associate claimants: At times, the tribunal has found that a principal claimant has withdrawn the claims of associate claimants without their knowledge and consent. Where this can be shown, and the associate claimants apply to reinstate their claims, this will usually point in favour of the tribunal allowing the application.
 * Did the claimant consult with counsel and family members before withdrawing? The court has commented approvingly on the Board considering factors such as whether the applicant was unrepresented when they withdrew and what measures were taken to ensure that the claimant understood the consequences of the withdrawal of their refugee claim. RPD Member Daniel Tucci considered this factor as follows in one claim: "The claimant’s decision was done with the advice of counsel and in consultation with his wife. Although the application was filed in a timely manner, the timeliness is not sufficient to overcome the fact that the claimant had time to consult with counsel and his wife before completing the withdrawal form and that he freely chose to withdraw knowing what the consequences of that decision would be." Even where the claimant has not consulted with family and counsel prior to withdrawing, this fact will not be determinative: in Dezsone v. Canada, the court stated that "In the circumstances, I do not believe that...it is otherwise in the interests of justice to require that the RPD ensure that Ms. Dezsone had consulted her children and her counsel before withdrawing her refugee protection claim."
 * Was the decision to withdraw made by mistake? The court commented that this is a relevant factor to consider in Ohanyan v. Canada.
 * Allegation of a mistake induced by the negligence of counsel: In Arndorfer v. Canada, the applicants argued that they had not intended to withdraw their claims for refugee protection and that as a result the withdrawal of their claims was non est factum; in other words, it was not an act that they knowingly and willingly performed. In that case, they argued that the reason for their act was that they were misled by their counsel, and, if it were not for the misleading acts of counsel, they would not have signed the forms. In that case, the facts did not disclose that there had been any deficiency in counsel's conduct. In any event, this factor of mistake (or non est factum) appears to have a limited role in this analysis because if counsel really has mislead the claimants, then this will likely be considered a procedural fairness violation and the reinstatement application could be accepted pursuant to the first part of Rule 60(3). In contrast, where there has not been such a procedural fairness violation, then the ordinary result is that stated by the court in Arndorfer, subject to the exceptions described in the following excerpt: "The Court made reference to earlier jurisprudence describing non est factum as being a state in which the mind of a party did not follow his hand at the time of the execution of the document. Carelessness in a situation where reasonable care could have, and should have been taken, precludes a party from claiming that his or her mind did not follow the hand. The Court raised the policy concern that allowing non est factum to be pleaded in a case where a party was careless would essentially have the effect of shifting to an innocent third party harm or loss which could have been prevented by greater care on the part of the parties. The policy considerations related to concerns for reliability and security are present to some extent in the case before this Court. Counsel, who act for refugee claimants, ought to be able to rely on the expressed wishes of their clients, subject to a duty to ensure that clients with a limited understanding of English or of the law, are aware of the consequences of acting on those wishes. Similarly, the IRB and the respondent must be able to rely on what is communicated to them by claimants."
 * Allegation of a mistake induced by the Board: In Cuni v. Canada, the court found that the applicant had withdrawn her refugee claim because she had been given incorrect evidence by the RPD. As such the court found that it was in the interests of justice that her case be allowed to proceed. The facts in that case were described in the case as follows: "June 28, 2008 is a day that Zymryte Cuni will never forget. That is the day she last saw her husband. That was the day she and her infant son Tigran arrived in Canada. They filed a refugee claim. Her husband was supposed to join them but was detained in England and never made it here. Relying on misinformation, she withdrew their claim for refugee protection in an attempt to reunite with her husband. However, she could not leave Canada because she had no travel documents. She attempted to reinstate their claim. Her application was rejected by the Refugee Protection Division (RPD) of the Immigration and Refugee Board. This is a judicial review of that decision." The court went on to make the following finding of fact: "The information given to Ms. Cuni by someone at the RPD office on Victoria Street in Toronto was incorrect. She did not need to withdraw her refugee claim in order to leave the country. Her problem is that without proper travel documents no airline will accept her. Had she had a valid passport, she could have left the country without notifying the RPD, which in due course would have come to the conclusion that she had abandoned her claim."
 * Did a medical condition vitiate the claimant's intention to withdraw? The Board should consider any medical conditions through the lens of how they affected the claimant's decision to withdraw. Where a past medical condition may be said to have vitiated the claimant's intention to withdraw, this points towards it being in the interests of justice to allow the application. An example of this is where a claimant was affected by schizophrenia when they withdrew and the claimant then reconsiders that decision when in a different state of mind. In contrast, where a medical condition may have caused upset and distress but did not impact the decision to withdraw the claim, then this would not support a reinstatement application, as with the following comments from RPD Member Daniel Tucci: "The RPD has also considered the claimant’s health problems. The evidence before the RPD indicates that the claimant received medical attention in Canada at least twice. It appears that the claimant is suffering from a heart ailment. The RPD accepts that the claimant was upset and distressed with his medical condition. That being said, the RPD finds that the claimant’s medical condition was not sufficient to impact the decision he made to withdraw his claim. The RPD finds that the claimant freely and knowingly made the decision to withdraw his refugee claim despite his medical condition. The RPD has not been presented with any medical reports stating that the claimant’s medical condition impaired his ability to understand his actions." Similarly, in Dezsone v. Canada the court commented on the necessity of evidence regarding the effects of any medical issues: "Although the issue of Ms. Dezsone’s mental state was raised, there was no evidence adduced in that regard. At best, it can be said that she made a bad decision, a decision that she wishes she had not made." In making this assessment, it is relevant to consider the date of any psychological evidence offered.
 * Did language issues prevent the claimant from understanding the withdrawal form? The form that a claimant completes to withdraw their claim requires a claimant to either declare that "I declare that I am able to read English and that I fully understand the entire content of this notice in English" or else to have an interpreter declare that "I (please print clearly), _____________________________, certify that I have accurately translated the entire content of this form for the claimant from the English language to the_____________________ language. The claimant indicate that he/she fully understands the entire content of this notice as translated." A claimant's ability to understand what they have signed has been considered in past decisions, for example in Dezsone v. Canada the court noted that: "Ms. Dezsone signed a notice of withdrawal willingly, a notice that had, moreover, been translated for her from French to Hungarian."
 * Whether the application to reinstate was made in a timely manner: Pursuant to Rule 60(4), in deciding the application, the Division must consider whether the application was made in a timely manner (and the justification for any delay). The court has supported calculating any delay from the date an applicants submitted their withdrawal notice.
 * The claimant's diligence in making the reinstatement application can be assessed: In Arcila v. Canada, the applicant withdrew her claim and then waited more than 2 months before asking that it be reinstated. The applicant stated that she was awaiting her PIF before making her application to reinstate and had difficulty in obtaining it. The RPD commented that, had the applicant made the request for her PIF to the RPD office, she would have received a copy. The RPD stated in its reasons that, pursuant to [the then] Rule 44 of the RPD Rules, an application to reinstate a refugee claim must be made without delay. The RPD found that the applicant had not acted without delay, as she did not apply to reinstate until nearly three months after withdrawing her claim. This conclusion was upheld by the court.
 * A timely application is a factor, but is not determinative: RPD Member Daniel Tucci considered this factor as follows in one case, finding the factor not to be determinative: "The RPD acknowledges that the application for reconsideration was made in a timely manner. Counsel for the claimant informed the RPD on December 14, 2015 that the claimant no longer wished to withdraw his refugee claim. Following the RPD’s decision to accept the withdrawal, counsel for the claimant filed the application to reinstate the claim. ... Although the application was filed in a timely manner, the timeliness not sufficient to overcome the fact that the claimant had time to consult with counsel and his wife before completing the withdrawal form and that he freely chose to withdraw knowing what the consequences of that decision would be."
 * Is the claimant's behaviour consistent with someone seeking protection? When the Board has considered reinstatement applications, it has often looked at the applicant's behaviour in totality to assess whether it is consistent with the behaviour that would be expected of someone seeking protection. Where this is not found to be the case, this will properly indicated that the interests of justice do not require reinstating the claim.
 * A claimant's actions over time evince a desire to return to their country: Where a claimant undertakes a series of steps over time that evince a desire to return to their country, then this will not be considered behaviour consistent with someone who has a genuine fear of persecution or who anticipates harm in their country. For example, in Arcila v. Canada, the applicant was as a minor claimant in her mother’s claim for refugee protection. Her PIF was signed and filed by her mother, as she was only 17 years old at the time. She stated that she and her mother had a serious argument on December 29, 2010, and, as a result, she made the dangerous and irrational decision to call Immigration and ask to cancel her refugee claim so she could obtain her passport and return to Colombia. The RPD acknowledged the applicant’s evidence that she withdrew the claim impulsively and recklessly because of the fight with her mother. However, based on all of the evidence, the Board did not accept that the decision was a simple mistake made in a moment of pique. Instead, in that case, the RPD found that the applicant’s behaviour was not that of someone with a genuine fear for her life if she returned to Colombia. The claimant had taken steps over a series of months, even after becoming an adult, to return to Colombia, including by asking her father to send her passport on December 20, 2010 (before any confrontation with her mother) and y then booking a flight home, writing to the Board to request her passport, and then waiting months before asking for her claim to be reinstated.
 * A claimant was more focused on obtaining status quickly than on pursuing their refugee claim: For example, in Sathasivam v. Canada the applicant had filed a claim for protection, then got married and, on the advice of his counsel, withdrew his claim and attempted to obtain status in Canada through a spousal sponsorship. When this spousal sponsorship application was denied, the claimant subsequently attempted to reinstate his refugee claim. The Board declined to do so, stating: "The claimant came to Canada as a Convention Refugee alleging a fear of persecution in Sri Lanka. Within a year of his arrival in Canada, the claimant decided to renounce his refugee claim only in order to expedite his landing in Canada. Despite alleging today a continued fear of persecution in Sri Lanka, the panel is not persuaded that the claimant's behaviour in Canada is consistent with the behaviour of someone seeking protection. The Refugee Protection system exists to protect refugees and is not a means of obtaining immigrant status in Canada. Thus, if the claimant came to Canada for the reasons alleged in his Personal Information Form (PIF), why would he renounce to them so quickly? The panel is not persuaded by claimant's explanation as having to wait a longer period for a full refugee claim hearing."
 * Gender guidelines should be considered where appropriate: In Castillo v. Canada, Ms. Diaz Ordaz Castillo says she fled to Canada order to escape her abusive ex-partner. She filed a refugee claim, contacted a lawyer, acquired a Legal Aid certificate, and set up an appointment with counsel to fill out her personal information form (PIF). She arrived late for the appointment and could not re-schedule another prior to the due date for her PIF. Nor could she obtain the assistance of anyone else over the holiday period. As a result, she failed to submit her PIF by the deadline. Ms. Diaz Ordaz Castillo’s ex-partner contacted her at that point and asked her to return to Mexico. Because she was feeling depressed and isolated, and was having difficulty raising her son on her own, she agreed. She formally withdrew her refugee claim at a hearing convened to determine whether she had abandoned it. However, Ms. Diaz Ordaz Castillo then changed her mind. Her ex-partner continued to contact her and was now becoming verbally abusive, accusing her of having slept with his best friend. She decided that it was not safe for her to return to Mexico after all, so she submitted an application to reinstate her claim. The Board dismissed it. Ms. Diaz Ordaz Castillo submits that the Board failed to appreciate that her mental state at the point in time when she withdrew her refugee claim was affected by the abusive relationship she had fled. In effect, she was unable to make a free and informed decision about her claim. Further, Ms. Diaz Ordaz Castillo submits that the Board failed to consider the Gender Guidelines applicable to women making refugee claims, as well as and an affidavit she had filed describing, in general terms, why women sometimes choose to remain in abusive relationships. In the court's view, the Board did not ignore the evidence of Ms. Diaz Ordaz Castillo’s mental state. However, the evidence before the Board member did not suggest that her mental state had prevented her from making an informed decision to withdraw her claim. She spoke of feeling “alone and isolated”, “defeated” and “without hope” and that these feelings caused her to agree to return to Mexico. The court stated: "While these feelings were no doubt genuine and perhaps natural in her circumstances, I cannot fault the Board for concluding that there had been no breach of natural justice." While the gender guidelines will not preordain any particular result or finding in a reinstatement application, their discussion of the cycle of abuse and issues like Battered Women's Syndrome are appropriately considered at this stage of the analysis.
 * Related legal proceedings: The existence of related legal proceedings may point towards or away from a conclusion that it would be in the interests of justice to allow a claim to be reopened.
 * The fact that a claimant decided to abandon a claim knowing that their family members were still pursuing claims: A family will often each file claims together, even if some of the claimants are more at risk than others. A decision by a claimant to withdraw their claim where they have the knowledge that their family members' claims are proceeding, may reflect a reasoned judgement about relative risks and merits. For example, RPD Member Daniel Tucci considered such a situation and concluded that the fact that the applicant's family were still pursuing their claims, and that the claimant was aware of this prior to withdrawing his, was a factor pointing against accepting his application to reinstate, as follows: "The RPD also takes into consideration that his wife and child are pursuing their refugee claims. This could be an important factor if the evidence before the RPD showed that the claimant was not in contact with his wife prior to making the decision to withdraw his claim. In this case, the claimant spoke to his wife on two occasions on December 4, 2015 and the purpose of the call was to discuss his withdrawal. One call was made before he consulted with legal counsel and a second call was made after his consultation with legal counsel. The RPD finds that the claimant made the decision to withdraw his refugee claim knowing that his wife and child would pursue their claim."
 * A Hague Convention proceeding: In Zagroudnitski v. Canada, the court considered allegations of child abduction against the applicant who wanted to reinstate his claim. The court concluded that a related Hague Convention application and the facts related thereto pointed strongly against accepting the reinstatement application: "On May 2, 2014, in the context of an Application under the Convention on Civil Aspects of International Child Abduction, [1983] Can TS 35 (the Hague Convention), filed by the minor Applicant’s mother, who lives in France, Justice L.S. Parent of the Ontario Court of Justice ordered the return of the minor Applicant to France, and held that the mother had custody rights in respect of the child at the time of father’s removal of the child. The father’s removal and retention of the child was wrongful and breached the mother’s rights under the Hague Convention (N.A. v A.Z., 2014 ONCJ 293; Affidavit of Irena Kakowska, dated March 11, 2015). ... Upon review of the Certified Tribunal Record and the parties’ submissions, which depict an alarming portrait, to say the least, of allegations of parental abduction, abuse, instability and detention in regard to the child in the proceedings, it is clear that the application cannot succeed."
 * The efficient use of Board resources: This is a proper consideration for the Board when considering the interests of justice under this rule. For example, in Castillo v. Canada the Board noted that it offered a hearing at which the issue of abandonment could have been addressed but that the claimant chose to withdraw her application instead. Therefore, the Board concluded that to grant the reinstatement request would be to duplicate the process that had already been provided to her and which she had declined. The Board noted that a member and an interpreter had already been assigned to hear and consider her submissions and that, accordingly, allowing the reinstatement of the claim would prejudice Board’s efforts to deal with these matters efficiently and in a timely manner and would not be in the interests of justice for that reason. In that case, the court appears to accept that it was proper for the Board to consider this criterion, even if this criterion, on its own, was not determinative. Similarly, in Akbari v. Canada, the court states that the RPD’s ability to deal with refugee claims fairly and efficiently is a relevant consideration in the “interests of justice” branch of the reinstatement analysis. The court notes that it may be relevant, for example, if reinstatement in a case would establish too low of a threshold for reinstatement applications such that it would impair the RPD’s operations.
 * Considerations related to events developing in the claimant's home country:
 * Level of risk to the clamant: The level of risk in the underlying refugee claim may be relevant to the “interests of justice” branch of the analysis of reinstatement applications.
 * A desire to return to one's country because of a family member's medical condition is not generally a good reason to withdraw a claim: In Dezsone v. Canada the claimant left Hungary for Canada to claim refugee protection on the basis of her Roma origins. Shortly afterwards, she learned that her grandson had been hospitalized in Hungary. She then decided to return there, but the Canadian authorities were in possession of her passport. To get it back, she withdrew her refugee protection claim. In the end, Ms. Dezsone did not return to Hungary. She instead decided to file an application to reinstate her refugee protection claim. That reinstated application was not approved by the Board and the court upheld the reasonableness of that decision.
 * The re-emergence of the risk that is at the heart of the claim: A common issue that arises in applications for reinstatement is a change of circumstances in the claimant's country or the claimant's knowledge of the risk in their country. For example, in Ohanyan v. Canada, the Applicant was a 29 year old citizen of Armenia who claimed refugee protection. Shortly thereafter he withdrew his claim because his wife informed him that government agents had stopped looking for him and it was safe to return. A few weeks later his wife advised him that the government agents had returned to his house looking for him. The Applicant then applied to reinstate his refugee claim. The court concluded that the Board was right to reject the claimant's reinstatement application: "The Applicant made a strategic decision which apparently did not work to his advantage. The Rule is not designed to protect applicants from the consequences of their freely chosen course of conduct even where they have made a decision or taken a step which did not work out as they may have hoped." As per the Board and court in that case, if the claimant made an assessment of risk and decided to return to their country, only to change their assessment upon receiving new information, the proper process for the claimant is to avail themselves of the PRRA process that is designed to consider such new information, not to attempt to reinstate their claim. However, the precedential value of these statements from Ohanyan has been put in doubt by Baidu v. Canada, in which the court observed that, since Ohanyan, the Supreme Court of Canada issued Vavilov, where it emphasized the heightened obligation to provide responsive reasons where the impact of the decision is severe. In that case, the court commented as follows: "What else was Mr. Baidu to do in these circumstances? Was he to proceed with the refugee hearing even though he no longer believed that he had a basis to make a claim? This is really the key issue and one that the RPD had to grapple with".

Those unable to reinstate a claim may still be entitled to PRRA
It should be noted that it does not necessarily follow that a claimant whose application to reinstate is refused will be removed to a country where she was allegedly persecuted (or had a well-founded fear thereof). As the court states, "[they are] still entitled to a pre-removal risk assessment (PRRA). Under sections 112 and 113 of the Immigration and Refugee Protection Act, [a] PRRA will address all of the risks listed in sections 96 and 97 of the Act."

An oral hearing is unnecessary when deciding reinstatement applications, unless credibility is at issue
In Ohanyan v. Canada, the Board denied the claimant's application to reinstate his withdrawn claim. As is the usual practice, the Board assessed the claimant's written application to reinstate the claim but did not hold an oral hearing for the application. The court held that failing to have an oral hearing was not a breach of natural justice "because a hearing was unnecessary". The court noted that in the application "neither the Applicant’s credibility nor any of the relevant facts were in issue. The Applicant was able to make all of his representations in writing." In contrast, in Sathasivam v. Canada the Board drew negative inferences about the credibility of some of the evidence tendered by the applicant without giving him an opportunity to reply; this was held to be in error: "In my opinion, the Board erred in law in relying upon its own knowledge of the applicant's former counsel to discredit, and to disbelieve his evidence that he had been misled by counsel's advice, without giving the applicant notice of its doubt about that evidence and an opportunity to address that doubt. ... Failure to provide notice to the applicant, and an opportunity to respond to the CRDD's conclusion that key evidence, concerning alleged advice from former counsel, was implausible and not to be believed, constituted procedural unfairness in this case, warranting the Court's intervention."

"Full" written reasons for an application to reopen are not required, but the rationale of the decision-maker should be provided
The court concluded in Ahmad v. Canada that "full written reasons" are not required for interlocutory decisions, only final ones. That decision went on to note that "decisions regarding refusals to reopen or grant leave to appeal have always been considered interlocutory decisions". As such, the court held that they do not require full written reasons. The court cited with approval Faghihi v. Canada in which Evans J. stated: "I am prepared to assume for present purposes that a motion to reopen a decision is an "interlocutory matter" because, if granted, it will not be a final disposition of the case. It will simply open the gate to a redetermination of the claim by the Refugee Division". The court went on to note that on the record before it, "in this case, the Board gave an extensive endorsement which certainly indicates the rationale of the decision maker." It noted that such endorsements "can take the place of written reasons". An endorsement appears to be a shorter set of reasons for decision provided by the decision-maker that are often written on a pre-printed form and may be in highly summary form. While Ahmad concerned an application to reopen a claim, not reinstate a withdrawn one, the ratio of that decision is equally persuasive when consideration reinstatement applications, mutatis mutandis.

In practice, however, courts have been willing to overturn decisions not to reinstate on the basis that they did not adequately grapple with the evidence and record before them. For example, in Castillo v. Canada the court overturned a decision on the basis that it was not persuaded that the Board had regard to all of the evidence before it. The decision states:"I agree with the Respondent that, in general, the Board is presumed to have considered all of the evidence, and has no obligation to refer to every document in the record. However, in this case the Board refers to no documents. It is widely accepted that where a document is important to a determination by the Board it is necessary for the decision-maker to explicitly address that document. There were many documents before the Board that were relevant to the determination of what was “in the interests of justice” and should have been considered. It is not sufficient for the Board to baldly state “I am not swayed by the evidence submitted”."Similarly, in Akbari v. Canada the court commented that the length and depth of reasons offered, which were only ten paragraphs long, did not reflect the significance of the interests at stake:"The RPD decision at issue in this case is ten paragraphs long. While the reasons need not necessarily be longer, the length and depth of the reasons in this case do not reflect the significance of the interests at stake, nor do they provide an adequate rationale as to why the evidence of the adult Applicants’ mental health was seemingly assigned so little weight, if any at all."

A claim can only be reinstated pursuant to this rule after it has been referred to the Board
Section 100(3) of the IRPA provides that the Refugee Protection Division may not consider a claim until it is referred by an officer. The RPD has considered the interaction of this provision of the Act with Rule 60. In that case, the claimant was intercepted and interviewed by CBSA officers when the claimant disembarked from his flight to Canada. After indicating that he wished to make a claim, that same day the claimant signed and completed the Withdrawal of a Claim for Refugee Protection Prior to Referral to the Refugee Protection Division. As the name of the form implies, this was done before the claim had been referred to the RPD. The Board held that the claimant could not attempt to reinstate the claim pursuant to Rule 60 because the Board lacked jurisdiction since the claim was never referred to the Board: I have also considered Section 162(1) of the IRPA. This provisions gives the RPD wide authority, but only with respect to matters “brought before it.” In particular, this section provides that in respect of proceedings brought before it, the RPD has sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction. However, for the reasons given above, it cannot be said that the refugee claim has been brought before the RPD, which reinforces the fact that the RPD does not have jurisdiction.

The applicant made submissions to the effect that Rule 60 allows the RPD to reinstate a claim in the circumstances of this case. However, the RPD Rules are a subordinate set of legislation that cannot conflict with the statute that enables them, in this case, the IRPA. In simpler terms, an application made under Rule 60 to reinstate a claim does not confer jurisdiction where the RPD would not otherwise have jurisdiction. Again, in reviewing the evidence there is a signed Withdrawal of a Claim for Refugee Protection Prior to Referral to the Refugee Protection Division on the file which in my view by its very name would clearly suggest that the person concerned is signing a withdrawal form prior to it being referred to the RPD. This conclusion is consistent with the court's reasoning in Duri v. Canada.

RPD Rule 61 - Application to reinstate withdrawn application to vacate or to cease refugee protection
Application to reinstate withdrawn application to vacate or to cease refugee protection

61 (1) The Minister may make an application to the Division to reinstate an application to vacate or to cease refugee protection that was withdrawn.

Form of application (2) The Minister must make the application in accordance with rule 50.

Factors (3) 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.

Factors (4) 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.

Subsequent application (5) If the Minister made a previous application to reinstate 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.

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/


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User talk:Refcanimm

--ЗAНИA talk 05:14, 1 January 2020 (UTC)

Are you interested in becoming a reviewer?
Hi,

I was wondering if you were interested in becoming a reviewer? I've checked your contributions and you seem to fulfill the requirements to become one. However at the moment auto-promotion is not working. I can't give you the right myself, but the normal procedure is to apply at WB:RFP, and it should be uncontroversial for you to obtain it there I feel.

Becoming a reviewer means:

 * That your edits would no longer need external review, your edits will be auto-reviewed, and you can review any other pages.
 * You could also check other peoples' edits for quality at Special:RecentChanges if you felt that to be interesting.
 * You also gain access to rollback (undoing several edits from an editor with a single click).

Thanks for your consideration, -- Jules (Mrjulesd) 19:56, 16 April 2020 (UTC)

title: User talk:Refcanimm


text: User:Mbamscseditor/sandbox

title: User:Mbamscseditor/sandbox


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Canadian Refugee Procedure/RPD Rules 69-71 - General Provisions

The court has stated that the purpose of the following collection of rules "is to give the [Divisions] the flexibility to control their own processes by applying rules liberally to deal with proceedings in an informal and expeditious manner."

RPD Rule 69 - No applicable rule
The text of the relevant rules reads: General Provisions

No applicable rule 69 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.

This rule relates to the common law that tribunals control their own processes
This rule relates to the common law as articulated in Siloch v. Canada where Décary J.A. recalled the general rule that, “It is well settled that in the absence of specific rules laid down by statute or regulation, administrative tribunals control their own proceedings … subject to the proviso that they comply with the rules of fairness and, where they exercise judicial or quasi-judicial functions, the rules of natural justice.”

RPD Rule 70 - Power to change a rule, excuse a person from a rule, extend a time limit, or act on its own initiative
Powers of Division 70 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.

The procedural notice requirement in Rule 70 is a precondition for a panel to rely on it
In engaging Rule 70 to amend the Rules, the RPD is required to take action, including by providing notice to parties that it is considering taking any of the actions listed in Rule 70, such as waiving a requirement of a rule. As noted in Cohen v. Canada, Rule 70 only applies when its requirements have been complied with, and it is not engaged if the Division does not take any explicit actions as required by the rule. The requirement that before a Division of the IRB acts on its own initiative, it will give prior notice to the parties and give them an opportunity to object, was a substantive change to a previous draft of the Rules that resulted from the feedback of the Standing Joint Committee for the Scrutiny of Regulations.

RPD Rule 71 - Failure to follow a rule
Failure to follow rule 71 Unless proceedings are declared invalid by the Division, a failure to follow any requirement of these Rules does not make the proceedings invalid.

Effect of Rule 71 where the Division has explicitly changed the requirement of a rule
The Federal Court commented on the meaning of what is now Rule 71 in Cohen v. Canada, noting that this provision appears to relate to the authority of the RPD to act to change the requirement of a Rule. That is, the failure to follow a Rule once changed does not render a proceeding invalid. This is exemplified by the following decision from the RAD, interpreting its analogous rule, where the panel concluded that, despite the fact that an application to withdraw an appeal was not made in conformity with the relevant rule, it would nonetheless be accepted:"Rule 54 of the RAD Rules states that unless proceedings are declared invalid by the RAD, a failure to follow any requirement of these Rules does not make the proceedings invalid. Having analyzed the notice to withdraw submitted by the appellant on September 8, 2016, I am of the opinion that it is necessary, in the circumstances, to accept this withdrawal, even though it was not made in accordance with subrule 47(3) of the RAD Rules."

Effect of Rule 71 where the Division has not explicitly changed the requirement of a rule
Rule 71 is also relevant to cases where a rule was not followed and this divergence from the rules was not explicitly authorized by the Division. Member Favreau of the Refugee Appeal Division commented on this in a case where the Minister had intervened in a case but, despite the requirement in Rule 29(2)(a) that the Minister identify the purpose of their intervention in their intervention notice, the Minister had not done so. The question for the Refugee Appeal Division in that case was whether that breach of the rules should lead to the original refugee determination proceeding being set aside. The RAD declined to set aside the RPD determination on the basis that the breach of the Rules was not necessarily a breach of procedural fairness:"The purpose of the Rules in question is intended to ensure a claimant knows the case against them. The RAD takes note that Rule 71 states that, unless proceedings are declared invalid by the Division, a failure to follow any requirement of these Rules does not make the proceedings invalid. While it can be true in some cases that a failure to follow the Rules may result in a breach of procedural fairness, it is not true in the present case. The RAD must consider what impact that breach of the Rules had on the affected parties, in this case, the Appellants."In this way, Rule 71 emphasizes that a failure to follow any requirements of the Rules does not, in and of itself, make proceedings invalid; such a breach may point, however, to the proceedings having been unfair. Danaj v. Canada is a case that considered the Immigration Division's similar rule and held that, on the basis of this rule, a technical failure to follow the rule requiring a translation to be accompanied by a translator's declaration should not invalidate the proceedings.


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Canadian Refugee Procedure/RPD Rule 1 - Definitions

RPD Rule 1
The text of the relevant rule reads: Interpretation

Definitions 1 The following definitions apply in these Rules.

Act means the Immigration and Refugee Protection Act. (Loi)

Basis of Claim Form means the form in which a claimant gives the information referred to in Schedule 1. (Formulaire de fondement de la demande d’asile)

contact information means, with respect to a person, (a) the person’s name, postal address and telephone number, and their fax number and email address, if any; and (b) in the case of counsel for a claimant or protected person, if the counsel is a person referred to in any of paragraphs 91(2)(a) to (c) of the Act, in addition to the information referred to in paragraph (a), the name of the body of which the counsel is a member and the membership identification number issued to the counsel. (coordonnées)

Division means the Refugee Protection Division. (Section)

officer means a person designated as an officer by the Minister under subsection 6(1) of the Act. (agent)

party means, (a) in the case of a claim for refugee protection, the claimant and, if the Minister intervenes in the claim, the Minister; and (b) in the case of an application to vacate or to cease refugee protection, the protected person and the Minister. (partie)

proceeding includes a conference, an application or a hearing. (procédure)

registry office means a business office of the Division. (greffe)

Regulations means the Immigration and Refugee Protection Regulations. (Règlement)

vulnerable person means a person who has been identified as vulnerable under the Guideline on Procedures with Respect to Vulnerable Persons Appearing Before the IRB issued under paragraph 159(1)(h) of the Act. (personne vulnérable)

working day does not include Saturdays, Sundays or other days on which the Board offices are closed. (jour ouvrable)

This should be read in conjunction with the definitions section in the Act
See the definitions section in the IRPA: Canadian Refugee Procedure/Definitions, objectives, and application of the IRPA.

Commentary on the definition of "party"
party means, (a) in the case of a claim for refugee protection, the claimant and, if the Minister intervenes in the claim, the Minister; and (b) in the case of an application to vacate or to cease refugee protection, the protected person and the Minister. (partie)

Procedural fairness may be owed to the Minister despite them not being a party to a proceeding
While this rule defines “party” as “the claimant and, if the Minister intervenes in the claim, the Minister”, however, for procedural fairness purposes, this is not exhaustive of the Minister’s interest in proceedings before the Division: Canada v. Alazar (as it applies, mutatis mutandis).

Commentary on the definition of "proceeding"
proceeding includes a conference, an application or a hearing. (procédure)

History of the definition
Under the previous version of the Rules, the word "proceeding" was defined to include "a conference, an application, a hearing and an interview".

Definition includes the listed elements, but is not limited to them
The definition of a proceeding in Rule 1 "includes" the listed procedures ("proceeding includes a conference, an application or a hearing"), but does not indicate that it is limited to them. The RPD Rules are subordinate to the Act, which in s. 170 contemplates a broad and expansive conception of what a Refugee Protection Division "proceeding" is, including that a file-review decision made without any hearing being held is something that happens in a proceeding (s. 170(f)) and that the Board's provision of notice of the hearing to the Minister is also something that happens in a proceeding (s. 170(c)). Furthermore, the court has commented that "proceedings" as used in section 167 of the Act encompass more than the actual hearing before the RPD. Thus, subsection 168(1) allows a division to determine that "a proceeding" before it has been abandoned for such pre-hearing matters as failing to provide a Basis of Claim form or otherwise failing to communicate with the division as required, and that proceedings include refugee claims as well as Minister's applications for cessation and vacation. In Cui v. Canada the Federal Court commented on the term "proceeding" as it is used in the IRPA as follows:"A “proceeding” has been considered by Justice Tremblay-Lamer of this Court in Gagné v. Canada (Attorney General), 2002 FCT 711 at paragraphs 27 and 28 where she adopted, inter alia, the definition found in Black’s Law Dictionary that a “proceeding” contemplates “the regular and orderly progression of a lawsuit, including all acts and events between the time of commencement and entry of judgment.” Thus a “proceeding” as contemplated by paragraph 166(c) of IRPA is not just the hearing but all that which occurs from the institution of the matter until its final disposition."The Federal Court of Appeal concluded in Canada v. Gutierrez that nothing in the Act compels a narrow interpretation of when an individual is "subject of proceedings before … the Board" and indicated that there were policy reasons to prefer a broad interpretation of this, and the attendant right to counsel that exists in such circumstances. See: Canadian Refugee Procedure/RPD Rules 14-16 - Counsel of Record. See also the following discussion of why a Notice to Intervene is a document provided by the Minister "in a proceeding": Canadian Refugee Procedure/Documents.

Commentary on the definition of "vulnerable person"
A vulnerable person is defined as a person who has been identified as vulnerable under the Guideline on Procedures with Respect to Vulnerable Persons Appearing Before the IRB issued under paragraph 159(1)(h) of the Act. However, that specific guideline was replaced in 2013 with a revised guideline, the Chairperson’s Guideline 8: Accessibility to IRB Proceedings, which removes the need to designate and consequently label an individual as a “vulnerable person”. See: Canadian Refugee Procedure/Chairperson Guidelines.


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Canadian Refugee Procedure/RPD Rule 2 - Communicating with the Division

RPD Rule 2
The text of the relevant rule reads: Communicating with Division

2 All communication with the Division must be directed to the registry office specified by the Division.

What are the registry offices specified by the Division?
The registry offices are specified on the IRB website, including in the Board's Claimant's Guide. The only registries are in Vancouver, Toronto, and Montreal. While the IRB has offices in other cities, such as Ottawa, Winnipeg, and Calgary, these offices do not have registries and are not registry offices "specified by the Division" to receive communications within the meaning of this rule.