1. Refugee Protection Division Navigating the Sea of Change – Refugee Lawyers Group CLE 2013

2. 2 2 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

3. 3 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

4. 4 Designated Foreign National (DFN) IRPA, s. 20.1(2), 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

5. 5 5 Providing documents and information Inland claimantsPort 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. 6 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 claimants possession

7. 7 Date of hearing fixed by officer IRPA, s. 100(4.1); RPD Rule 3 Division provides dates, times and locations Officer must consider counsels 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. 8 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

9. 9 Timelines Chart of the RPD Process Inland DCO Inland All others PoE DCOPoE All others DAY 1 Referral BoC form provided to officer Referral BoC form provided to officer Referral 15 BoC form received from claimant 30Hearing 45Hearing 60Hearing

10. 10 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

11. 11 AFTER REFERRAL – PREPARING FOR AN RPD HEARING

12. 12 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

13. 13 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

14. 14 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 partys 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. 15 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 counsels 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. 16 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

17. 17 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))

18. 18 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

19. 19 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

20. 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

21. 21 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

22. 22 RPD HEARING

23. 23 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 RPD Rule 27: New RPD Rule 27: notice to Minister of possible integrity issues

24. 24 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

25. 25 Abandonment for failure to appear at RPD hearing IRPA, s. 168(1); RPD Rules 65(3), (4), (8) C laimant 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. 26 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.

27. 27 APPEALS and JUDICIAL REVIEW

28. 28 Judicial review by Federal Court IRPA, s. 72 PCISA does not affect any partys 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