Canadian Refugee Procedure

This is a book about the legal processes involved in claiming refugee status in Canada, focusing particularly on the Refugee Protection Division Rules of the Immigration and Refugee Board of Canada. Tens of thousands of people file a claim for refugee protection in Canada every year. The ensuing process that they navigate is governed by the set of laws described herein.

Preliminary

• About this text
• Glossary, Acronyms, Terms, and Definitions
• History of refugee procedure in Canada

Procedural Fairness and Natural Justice

• Principles for the interpretation of refugee procedure
• The Board's inquisitorial mandate
• The right to be heard and the right to a fair hearing
• The right to an impartial decision-maker (bias)
• The right to an independent decision-maker
• Appropriate decorum and propriety at a refugee hearing
• Chairperson Guidelines

Annotated Refugee Protection Division Rules

• Interpretation and Definitions (RPD Rule 1)
• Communicating with the Division (RPD Rule 2)
• Information and Documents to be Provided (RPD Rules 3-13). This section discusses the process for initially scheduling a hearing, the conduct of a hearing, the order of proceedings, and the information to be provided in advance of a hearing.
  • RPD Rule 6 - Basis of Claim Form
  • RPD Rule 7 - How to provide the BOC form and what documents are to be provided with it
  • RPD Rule 8 - Application for an extension of time to provide BOC form
  • RPD Rule 9 - Changes or additions to BOC Form
  • RPD Rule 10 - Order of questioning and requirement to provide oral representations and decisions
  • RPD Rule 11 - Documents Establishing Identity and Other Elements of the Claim
• Counsel of Record (RPD Rules 14-16). This section discusses the process to appoint and remove counsel and the way that deficiencies in counsel's conduct are attributed to their client.
  • Including: Hearing unfairness as a result of counsel incompetence
• Language of Proceedings (RPD Rules 17-18)
• Interpreters (RPD Rule 19)
• Designated Representatives (RPD Rule 20)
• Disclosure of Personal Information (RPD Rule 21)
• Specialized Knowledge (RPD Rule 22)
• Allowing a Claim Without a Hearing (RPD Rule 23). This section discusses the Board's File-Review Process (FRP), which has also been referred to as the "expedited process".
• Conferences (RPD Rule 24)
• Notice to Appear (RPD Rule 25)
• Exclusion, Integrity Issues, Inadmissibility and Ineligibility (RPD Rules 26-28)
• Intervention by the Minister (RPD Rule 29)
• Claimant or Protected Person in Custody (RPD Rule 30). The rules regarding the presence of those who have been detained (detention).
• Documents (RPD Rules 31-43)
  • RPD Rule 31 - How to provide documents. Concerns the format of, numbering of, and creation of lists of documents.
  • RPD Rule 32 - Language of Documents
  • RPD Rule 34 - Obligation, process, and timeline for a party to disclose documents they want to use in a hearing
  • RPD Rule 35 - Documents relevant and not duplicate (incl. voluminous disclosure)
  • RPD Rule 36 - Use of undisclosed or late documents
  • RPD Rule 43 - Additional documents provided after a hearing
• Witnesses (RPD Rules 44-48)
  • RPD Rule 44 - Witness notification
  • RPD Rule 45(1) - Requesting a summons
• Applications (RPD Rules 49-52)
  • RPD Rule 51 - Timelines and process for responding to a written application
  • RPD Rule 52 - Timelines and process for replying to a response to a written application
• Changing the Location of a Proceeding (RPD Rule 53)
• Changing the Date or Time of a Proceeding (RPD Rule 54)
• Joining or Separating Claims or Applications (RPD Rules 55-56)
• Proceedings Conducted in Public (RPD Rule 57)
• Observers (RPD Rule 58)
• Withdrawal (RPD Rule 59)
• Reinstating a Withdrawn Claim or Application (RPD Rules 60-61)
• Reopening a Claim or Application (RPD Rules 62-63)
• Applications to Vacate or to Cease Refugee Protection (RPD Rule 64). Rules regarding vacation and cessation of refugee status.
• Abandonment (RPD Rule 65)
• Notice of Constitutional Question (RPD Rule 66)
• Decisions (RPD Rules 67-68). Discusses rules for panels of a single member and three-member panels.
  • RPD Rule 67 - Obligation to provide written reasons
  • RPD Rule 68 - When a decision takes effect for single-member and three-member panels
• General Provisions (RPD Rules 69-71). These provisions govern what the Refugee Protection Division should do when there is no applicable rule to govern a matter, the process by which the Division may deviate from these rules, and the import of failing to follow the rules.
• Coming into Force (RPD Rule 74)
• Schedules to the RPD Rules

Annotated Refugee Appeal Division Rules

• Interpretation and Definitions (RAD Rule 1)
• Rules Applicable to Appeals Made by a Person Who Is the Subject of an Appeal (RAD Rules Part 1 - Rules 2 to 7)
  • Including: What is a new issue requiring notice?
• Rules Applicable to Appeals Made by the Minister (RAD Rules Part 2 - Rules 8 to 13)
• Rules Applicable to All Appeals (RAD Rules Part 3 - Rules 14 to 54)
• Rules Applicable to an Appeal for Which a Hearing Is Held (RAD Rules Part 4 - Rules 55 to 68)
• Coming into Force (RAD Rule 69)
• Schedule to the RAD Rules

Annotated Immigration and Refugee Protection Regulations (IRPR) Provisions

Part 2 - General Requirements:

• Section 13: Documents and Certified Copies
• Section 13.1: Disclosure of Information - Authorized disclosure
• Section 13.11: Disclosure of Personal Information

Part 3 - Inadmissibility:

• Section 22: Misrepresentation

Part 4 - Procedures:

• Sections 28-52: Conduct of Examination

Part 8 - Refugee Classes:

• Sections 138-151.1: Convention Refugees Abroad, Humanitarian-protected Persons Abroad and Protected Temporary Residents (Division 1)
• Sections 159-159.7: Eligibility to Claim and Safe Third Countries
• Section 159.8: Time Limits for Providing Documents
• Section 159.9: Time Limits for Holding Hearings
• Section 159.91: Time Limits for Appeals

Part 13 - Removal:

• Sections 228-229: Specified Removal Order
• Sections 230-234: Stay of Removal Orders

Part 19.1 - Information Sharing Between Countries:

• Sections 315.21-315.43: Information Sharing Between Countries

Part 20 - Transitional Provisions:

• Sections 338-347: Division 5 - Refugee Protection

Annotated Immigration and Refugee Protection Act (IRPA) Provisions

• Summary of provisions of the IRPA concerning refugees
• Sections 2-3: Definitions, objectives, and application of the IRPA
• Sections 4-6: Enabling Authority
• Sections 15-17: Immigration to Canada - Examination
• Sections 20.1-20.2: Designated Foreign Nationals
• Sections 21-23: Status and Authorization to Enter
• Section 24: Temporary resident permit
• Section 25: Humanitarian and compassionate considerations
• Section 31.1: Refugee Travel Document
• Sections 33-43: Inadmissibility
• Sections 44-53: Loss of Status and Removal
• Sections 72-75: Judicial Review
• Sections 91-91.1: Representation or Advice

Provisions about Convention Refugees and Persons in Need of Protection:

• Sections 95-97: Refugee Protection, Convention Refugees and Persons in Need of Protection
• Section 98: Exclusion — Refugee Convention
• Section 99: Claim for Refugee Protection. Where and how to make a claim for protection inside and outside of Canada.
• Sections 100-102: Examination of Eligibility to Refer Claim
• Sections 103-104: Suspension or Termination of Consideration of Claim
• Section 106: Claimant Without Identification - Credibility
• Section 107: Decision on Claim for Refugee Protection. Manifestly unfounded and no credible basis determinations.
• Section 108: Cessation of Refugee Protection
• Section 109: Applications to Vacate
• Section 109.1: Designated Countries of Origin
• Sections 110-111: Appeal to Refugee Appeal Division
  • Including: Criteria for presenting new evidence at the RAD
  • Including: Criteria for holding a hearing at the RAD
  • Including: Criteria for the RAD remitting a matter to the RPD
• Sections 112-114: Pre-Removal Risk Assessment (PRRA)
• Sections 115-116: Principle of Non-refoulement

Part 3 - Enforcement:

• Sections 117-121.1: Enforcement - Human Smuggling and Trafficking
• Sections 124-132: General Offences
• Sections 133-136: Prosecution of Offences
• Section 140: Seizure
• Section 150.1: Sharing of Information

Part 4 - Immigration and Refugee Board:

• Section 153: Chairperson and other members
• Section 154: Disposition after member ceases to hold office
• Section 155: Disposition if member unable to take part
• Section 156: Immunity and no summons
• Section 159: Duties of Chairperson
• Section 161: Functioning of Board and Division Rules
• Section 162: The jurisdiction of the Board and its obligation to proceed quickly and informally
• Section 163: Composition of Panels. When panels have one or three members.
• Section 164: Presence of parties and use of telecommunications for hearings
• Section 165: Powers of each Division and each Member. This describes the powers of the Divisions and the Board Members, including those provided by the Inquiries Act.
• Section 166: Proceedings must be held in the absence of the public. Provisions of the Act and privacy and confidentiality of each Division's proceedings.
• Section 167: Right to counsel and representation by a designated representative
• Section 168: Abandonment of proceeding
• Section 169: Decisions and Reasons. When the Board must provide written reasons
• Provisions specific to the Refugee Protection Division:
  • Section 169.1: Composition
  • Section 170: Proceedings. How the RPD is to approach proceedings before it, including with respect to evidence, holding hearings, and providing notice to the Minister.
    • Section 170(f) - Allowing a claim without a hearing (the file-review process)
    • Section 170(h) - The Board may receive evidence considered credible or trustworthy
  • Section 170.2: No reopening of claim or application
• Provisions specific to the Refugee Appeal Division:
  • Section 171: Proceedings. How the RAD is to approach proceedings before it, including with respect to evidence, holding hearings, and providing notice to the Minister.
  • Section 170.1: No reopening of appeal

Related Legislation

• Charter of Rights and Freedoms
• Official Languages Act
• Privacy Act