Refugee Protection
Division
Navigating the Sea of Change – Refugee
Lawyers Group CLE 2013
What is new at the RPD
after BRRA and PCISA

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
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Designated Country of Origin (DCO)
IRPA, 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
3
Designated Foreign National (DFN)
IRPA, 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
4
Providing documents and information
Inland 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.
Port of entry claimants
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.
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Documents 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
6
Date of hearing fixed by officer
IRPA, s. 100(4.1); RPD 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)
7
Time limits for RPD hearings
set out in Regulations
IRPA, ss. 100(4.1) and 111.1(1)(b) 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
8
Timelines Chart of the RPD Process
Inland DCO
Inland All
others
PoE DCO
PoE All others
Referral
BoC form
provided to
officer
Referral
BoC form
provided to
officer
Referral
Referral
BoC form
received from
claimant
BoC form
received from
claimant
DAY
1
15
30
Hearing
45
60
Hearing
Hearing
Hearing
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Officer provides documents to claimant
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
10
AFTER REFERRAL –
PREPARING FOR AN
RPD HEARING
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Between 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
12
Becoming Counsel of Record
RPD 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
13
Application to change hearing date or time
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
14
14
days …
Exception to the requirement for
“exceptional circumstances”
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
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Amendments to BoC Form
RPD 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
16
Rescheduling
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))
17
Extension of time to provide BoC Form
Regulations, s. 159.8(3); RPD 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
18
Abandonment – failure to provide BoC Form
IRPA, s. 168(1); RPD Rules 3(4)(a)(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
19
Reopening an abandonment decision
IRPA, 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
Disclosure of Evidence
RPD 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
21
RPD HEARING
22
Intervention by the Minister
RPD 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 27:
 notice to Minister of possible integrity issues
23
Decisions and Reasons
IRPA, ss. 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
24
Abandonment for
failure to appear at RPD hearing
IRPA, 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 (showcause hearing) on abandonment
 If claim is not declared abandoned, claimant must
be prepared to proceed with the hearing that
same day
25
Reopening: decision on a claim or
abandonment decision
IRPA, 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.
26
APPEALS
and
JUDICIAL REVIEW
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Judicial review by Federal Court
IRPA, 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
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