Refugee Protection Refugee Protection DivisionDivision

Navigating the Sea of Change – Refugee Lawyers Group CLE 2013

22

What is new at the RPD What is new at the RPD after after BRRABRRA and and PCISAPCISA

Time limits set by regulation

Hearing date fixed by referring officer

Designated Countries of Origin (DCO) and Designated Foreign Nationals (DFN)

Basis of Claim (BoC) Form replaces the Personal Information Form (PIF)

Appeal to the Refugee Appeal Division (RAD)

Pre-Removal Risk Assessment (PRRA) functions

will be transferred to the RPD

3

Designated Country of Origin (DCO)Designated Country of Origin (DCO)IRPAIRPA, s. 109.1, s. 109.1

DCOs designated by the Minister

Effects of designation: accelerated hearing date no appeal to the RAD no automatic stay of removal pending judicial review

4

Designated Foreign National (DFN)Designated Foreign National (DFN)IRPAIRPA, s. 20.1(2), , s. 20.1(2), 55(3.1), and 110(2)(a)

A person who arrives in Canada as part of a group designated by the Minister as an “irregular arrival”, becomes a “designated foreign national” (DFN)

Effects of designation: mandatory detention no appeal to the RAD no automatic stay of removal pending judicial

review five-year bar on applications for permanent

residence; temporary residence; H&C

55

Providing documents and informationProviding documents and information

Inland claimants Port of entry claimants 99(3.1) must provide the

officer within the time limits

provided for in the regulations

with the documents and information … required by the rules of the Board, in accordance with those rules.

100(4) must provide the Division

within the time limits provided for in the regulations

with the documents and information … required by the rules of the Board, in accordance with those rules.

6

Documents required by the RPD RulesDocuments required by the RPD Rules

Basis of Claim Form (BoC Form)

– RPD Rules 1, 6, and Schedule 1

Documents to be attached to the form:

– RPD Rule 7(3) copy of identity and travel documents copy of any other relevant documents in the

claimant’s possession

7

Date of hearing fixed by officerDate of hearing fixed by officerIRPA, IRPA, s. 100(4.1); s. 100(4.1); RPD Rule 3RPD Rule 3

Division provides dates, times and locations

Officer must consider counsel’s availability, if claimant has

retained counsel and officer has been informed that counsel is available on one of the dates provided

ensure date is within the time limits set out in the Regulations

select the date closest to the last day of the applicable time limit set out in the Regulations (unless the claimant agrees to an earlier date)

8

Time limits for RPD hearings Time limits for RPD hearings set out in set out in RegulationsRegulations

IRPA, IRPA, ss. 100(4.1) and 111.1(1)(ss. 100(4.1) and 111.1(1)(bb) and (2)) and (2)

Time limits under the Regulations, s. 159.9:

30 days Inland claimant from a DCO

45 days Port of Entry claimant from a DCO

60 days Claimant from a non-DCO

9

Timelines Chart of the RPD ProcessTimelines Chart of the RPD Process

Inland DCO Inland All

othersPoE DCO PoE All others

DAY

1

ReferralBoC form provided to officer

ReferralBoC form provided to officer

Referral Referral

15BoC form received from claimant

BoC form received from claimant

30 Hearing

45 Hearing

60 Hearing Hearing

10

Officer provides documents to claimantOfficer provides documents to claimantRPD Rule 3(4)RPD Rule 3(4)

Basis of Claim Form - only for claims at ports of entry

Notices to appear for hearing of the claim; and any special hearing on abandonment (for failure to provide

BoC Form or to appear for hearing of the claim)

Information in writing about providing BoC Form and other documents importance of obtaining relevant evidence without delay how hearings proceed need to provide contact information and notify of any changes right to counsel possibility of abandonment without further notice for failing to

provide BoC Form or failing to appear at hearing

11

AFTER REFERRAL – AFTER REFERRAL –

PREPARING FOR AN PREPARING FOR AN RPD HEARINGRPD HEARING

12

Between referral and the hearingBetween referral and the hearing

Becoming Counsel of Record

Applications change date, time or location extension of time to provide BoC Form

Port of entry claimants – provide BoC Form to RPD

Additional identity or travel documents, documentary evidence

13

Becoming Counsel of RecordBecoming Counsel of Record RPD Rule 14RPD Rule 14

Counsel becomes counsel of record: as soon as counsel agrees to a date for a

proceeding; or becoming counsel after a date for a proceeding

has been fixed.

Counsel can be retained on a limited retainer

1414

Application to change hearing date or timeApplication to change hearing date or timeRPD Rules 54(4), (6), (7), (8)RPD Rules 54(4), (6), (7), (8)

Application must not be allowed unless there are “exceptional circumstances”, such as accommodating a vulnerable person an emergency or some development outside the party’s

control, where the party has acted diligently

Medical certificate required if application is made for medical reasons (other than those related to counsel) / explanation of failure to provide medical certificate

Exception for where counsel retained within 5 working days …

15

Exception to the requirement for Exception to the requirement for “exceptional circumstances“exceptional circumstances”

RPD Rule 54(5)RPD Rule 54(5)Claimant,

whose date of hearing was fixed before claimant had counsel or dates of counsel’s availability,

obtains counsel and makes an application no later than 5 working days after officer fixes a hearing date,

provides at least 3 dates and times when counsel is available, which are within the time limits set out in the Regulations

16

Amendments to BoC FormAmendments to BoC Form RPD Rule 9RPD Rule 9

RPD Rule 9 sets out the modalities for amending the BoC Form

applies to changes and additions

Must be received no later than 10 days before the date fixed for the hearing

17

ReschedulingRescheduling RPD Rules 54(2) and (11)RPD Rules 54(2) and (11)

Application must include three dates and times, which are no later than ten (10) working days after the date originally fixed, on which the party is available to proceed (RPD Rule 54(2)(c))

If application allowed, new date must be no later than ten (10) working days after the date originally fixed or as soon as possible thereafter (RPD Rule 54(11))

18

Extension of time to provide BoC FormExtension of time to provide BoC Form Regulations, s. 159.8(3);Regulations, s. 159.8(3); RPD Rule 8RPD Rule 8

Extension only if required “for reasons of fairness and natural justice”

RPD Rule 8 sets out the modalities application must be made no later than three working

days before expiry of the time limit medical certificate required if application is made for

medical reasons (other than those related to counsel) / explanation of failure to provide medical certificate

19

Abandonment – failure to provide BoC FormAbandonment – failure to provide BoC FormIRPA, IRPA, s. 168(1); RPD Rules 3(4)(s. 168(1); RPD Rules 3(4)(aa)(ii), 65(2))(ii), 65(2)

Claimant who fails to provide information required by the Division is in default in the proceedings

Officer at the PoE will have given claimant the notice to appear for a special hearing (show-cause hearing) on abandonment

Reopening an abandonment decisionReopening an abandonment decision IRPA, IRPA, s. 170.2; RPD Rule 62(6)s. 170.2; RPD Rule 62(6)

RPD has no jurisdiction to reopen on any ground — including a failure to observe a principle of natural justice — if Federal Court or RAD has made a final determination

RPD must not allow an application to reopen unless a failure to observe a principle of natural justice is established

21

Disclosure of EvidenceDisclosure of Evidence RPD Rule 34RPD Rule 34

If a party wants to use a document in a hearing, it must be provided to the Division and any other party

10 days before the date fixed for the hearing; or

5 days before the date fixed for the hearing if the document is provided to respond to another document provided by a party or the Division

22

RPD HEARINGRPD HEARING

23

Intervention by the MinisterIntervention by the Minister RPD Rule 29RPD Rule 29

When the Minister intervenes notice of intervention to be provided no later than

10 days before the date fixed for the hearing hearing becomes adversarial

New RPD Rule 27RPD Rule 27:: notice to Minister of possible integrity issues

24

Decisions and ReasonsDecisions and Reasons IRPA, IRPA, ss. 107, 107.1; RPD Rules 67 and 68ss. 107, 107.1; RPD Rules 67 and 68

RPD may allow or reject a refugee claim

If the claim is rejected, RPD must state that the claim: has no credible basis, if there is no credible or

trustworthy evidence on which it could have been accepted (IRPA, s. 107(2));

is manifestly unfounded, if the claim is clearly fraudulent (new provision: IRPA, s. 107.1)

Decisions take effect in accordance with the RPD Rules

25

Abandonment for Abandonment for failure to appear at RPD hearingfailure to appear at RPD hearing

IRPAIRPA, s. 168(1); RPD Rules 65(3), (4), (8), s. 168(1); RPD Rules 65(3), (4), (8)

Claimant who fails to appear for the hearing is in default in the proceedings

Officer at the PoE will have given the claimant the notice to appear for a special hearing (show-cause hearing) on abandonment

If claim is not declared abandoned, claimant must be prepared to proceed with the hearing that same day

26

Reopening: decision on a claim or Reopening: decision on a claim or abandonment decision abandonment decision

IRPA, IRPA, s. 170.2; RPD Rule 62(6)s. 170.2; RPD Rule 62(6)

RPD has no jurisdiction to reopen on any ground — including a failure to observe a principle of natural justice — a claim or an application in respect of which the RAD or the Federal Court has made a final determination

RPD must not allow an application to reopen unless a failure to observe a principle of natural justice is established.

27

APPEALS APPEALS andand

JUDICIAL REVIEWJUDICIAL REVIEW

28

Judicial review by Federal CourtJudicial review by Federal CourtIRPAIRPA, s. 72, s. 72

PCISA does not affect any party’s right to seek leave for judicial review at the Federal Court

However, if a party has a right of appeal to RAD, no application for judicial review may be made until after the right of appeal has been exhausted