Canadian Refugee Procedure/Applications

Rule 49 - General provision describing how to make, respond to, and reply to a response to an applicationEdit

The text of Rule 49 reads:

Applications

General

General provision
49 Unless these Rules provide otherwise,
(a) a party who wants the Division to make a decision on any matter in a proceeding, including the procedure to be followed, must make an application to the Division in accordance with rule 50;
(b) a party who wants to respond to the application must respond in accordance with rule 51; and
(c) a party who wants to reply to a response must reply in accordance with rule 52.

Evidence attached to an application, a response to an application, or a reply to a response must meet the requirements in Rules 35, 36 or 43 regarding relevance, probative value, new evidence, etc. (as applicable)Edit

The fact that Rules 50(4), 51(2), and 52(2) make provision for a party to attach evidence to an application, a response, or a reply to a response, does not establish the legal framework for whether or not such evidence is to be accepted. It merely provides the process and procedure for providing such evidence. Instead, the rules for whether or not such evidence should be accepted are Rule 35 (if the evidence is provided at least 10 days prior to the hearing date), Rule 36 (if the evidence is provided within 10 days of the hearing), or Rule 43 (if the evidence is provided post-hearing).

The Board may convene a conference in response to an application made under these rulesEdit

As Lorne Waldman notes in his text, "once all of the documents have been received by the parties, the Refugee Protection Division may order a hearing into the application or, in cases where it is satisfied that no injustice would result, may dispose of the matter without a hearing."[1] The framework in the Rules for having such a hearing are the provisions in Rule 24 on case conferences: Canadian Refugee Procedure/Conferences#Rule 24 - Conferences.

Rule 50 - How to Make an ApplicationEdit

How to Make an Application

Written application and time limit
50 (1) Unless these Rules provide otherwise, an application must be made in writing, without delay, and must be received by the Division no later than 10 days before the date fixed for the next proceeding.

Oral application
(2) The Division must not allow a party to make an application orally at a proceeding unless the party, with reasonable effort, could not have made a written application before the proceeding.

Content of application
(3) Unless these Rules provide otherwise, in a written application, the party must
(a) state the decision the party wants the Division to make;
(b) give reasons why the Division should make that decision; and
(c) if there is another party and the views of that party are known, state whether the other party agrees to the application.

Affidavit or statutory declaration
(4) Unless these Rules provide otherwise, any evidence that the party wants the Division to consider with a written application must be given in an affidavit or statutory declaration that accompanies the application.

Providing application to other party and Division
(5) A party who makes a written application must provide
(a) to the other party, if any, a copy of the application and a copy of any affidavit or statutory declaration; and
(b) to the Division, the original application and the original of any affidavit or statutory declaration, together with a written statement indicating how and when the party provided a copy to the other party, if any.

The Rule 50(4) requirement that evidence be provided in an affidavit is waived during the Covid-19 pandemicEdit

The Refugee Protection Division: Practice Notice on the resumption of in-person hearings states:

Several RPD Rules refer to RPD Rule 50 which requires that an application be accompanied by an affidavit or statutory declaration. Until further notice, the requirement to provide an affidavit or statutory declaration is waived. This waiver applies to all applications, including those made pursuant to Chairperson’s Guideline 8 to declare a person to be a vulnerable person. The waiver also applies to the Response to the Application (RPD Rule 51) and the Reply to the Response (RPD Rule 52).[2]

Rule 51 - How to Respond to a Written ApplicationEdit

How to Respond to a Written Application

Responding to written application
51 (1) A response to a written application must be in writing and
(a) state the decision the party wants the Division to make; and
(b) give reasons why the Division should make that decision.

Evidence in written response
(2) Any evidence that the party wants the Division to consider with the written response must be given in an affidavit or statutory declaration that accompanies the response. Unless the Division requires it, an affidavit or statutory declaration is not required if the party who made the application was not required to give evidence in an affidavit or statutory declaration, together with the application.

Providing response
(3) A party who responds to a written application must provide
(a) to the other party, a copy of the response and a copy of any affidavit or statutory declaration; and
(b) to the Division, the original response and the original of any affidavit or statutory declaration, together with a written statement indicating how and when the party provided a copy to the other party.

Time limit
(4) Documents provided under subrule (3) must be received by their recipients no later than five days after the date on which the party receives the copy of the application.

Rule 52 - How to Reply to a Written ResponseEdit

How to Reply to a Written Response

Replying to written response
52 (1) A reply to a written response must be in writing.

Evidence in reply
(2) Any evidence that the party wants the Division to consider with the written reply must be given in an affidavit or statutory declaration that accompanies the reply. Unless the Division requires it, an affidavit or statutory declaration is not required if the party was not required to give evidence in an affidavit or statutory declaration, together with the application.

Providing reply
(3) A party who replies to a written response must provide
(a) to the other party, a copy of the reply and a copy of any affidavit or statutory declaration; and
(b) to the Division, the original reply and the original of any affidavit or statutory declaration, together with a written statement indicating how and when the party provided a copy to the other party.

Time limit
(4) Documents provided under subrule (3) must be received by their recipients no later than three days after the date on which the party receives the copy of the response.

ReferencesEdit

  1. Waldman, Lorne, Canadian Immigration & Refugee Law Practice, Markham, Ont.: LexisNexis Butterworths, 2018, ISBN 9780433478928, ISSN 1912-0311, <https://search.library.utoronto.ca/details?5022478> (Accessed April 1, 2020) at page 1746 of the PDF.
  2. Immigration and Refugee Board of Canada, Refugee Protection Division: Practice Notice on the resumption of in-person hearings, June 23, 2020, <https://irb-cisr.gc.ca/en/legal-policy/procedures/Pages/rpd-pn-hearing-resumption.aspx> (Accessed August 1, 2020).