Canadian Refugee Procedure/Applications to Vacate or to Cease Refugee Protection

Rule 64Edit

The text of rule 64 reads:

Applications to Vacate or to Cease Refugee Protection

Form of application
64 (1) An application to vacate or to cease refugee protection made by the Minister must be in writing and made in accordance with this rule.

Content of application
(2) In the application, the Minister must include
(a) the contact information of the protected person and of their counsel, if any;
(b) the identification number given by the Department of Citizenship and Immigration to the protected person;
(c) the date and file number of any Division decision with respect to the protected person;
(d) in the case of a person whose application for protection was allowed abroad, the person’s file number, a copy of the decision and the location of the office;
(e) the decision that the Minister wants the Division to make; and
(f) the reasons why the Division should make that decision.

Providing application to protected person and Division
(3) The Minister must provide
(a) a copy of the application to the protected person; and
(b) the original of the application to the registry office that provided the notice of decision in the claim or to a registry office specified by the Division, together with a written statement indicating how and when a copy was provided to the protected person.

CommentaryEdit

HistoryEdit

The CBSA identified cessation and vacation applications as a priority in 2013-14 and set itself an internal annual target of 875 applications.[1]

Use of this rule where a previous application to cease or vacate protection has been withdrawnEdit

A question can arise about the interaction between this rule, which allows the Minister to commence an application to vacate or cease refugee protection, and Rule 61, which allows the Minister to reinstate a withdrawn application to vacate or to cease refugee protection: Canadian Refugee Procedure/Reinstating a Withdrawn Claim or Application#Rule 61 - Application to reinstate withdrawn application to vacate or to cease refugee protection. Where the Minister wishes to reinstate a previous application to vacate or cease refugee protection, they must use Rule 61. However, where the Minister wishes to make a new application based on new facts and allegations, then they may make a new application to cease or vacate refugee status, notwithstanding the existence of a previous withdrawn application for same that was based on different facts. This issue arose in Cohen v. Canada, a case in which a previous Minister's application to vacate refugee protection had been withdrawn by the Minister. The Minister then filed a subsequent application to vacate the applicant’s refugee status pursuant to Rule 64 of the Rules. The RPD found that the Minister’s vacation application filed pursuant to Rule 64 as a “new” application was filed in error and that the application should have been filed pursuant to Rule 61(1) as a reinstatement of the withdrawn application to vacate.[2] The answer as to whether Rule 61 or Rule 64 should be used in a particular case will be a factual one. If the application is substantially based on the previous allegations, or information which, while new to the Minister was obtainable with reasonable diligence, then the Minister should proceed by way of reinstatement. In contrast, where new events occur subsequent to the withdrawal of a previous application, for example a new act of reavailment of a country's protection, then this will point to the use of Rule 64 being appropriate for a new application. Any other result could lead to absurd consequences, for example tying the Minister's hands to bring a new application to cease protection even where a claimant has engaged in new, obvious, and high-profile instances of reavailment that could bring the refugee protection system into disrepute.

Rule 64(3): The Minister must provide a copy of the application to the protected personEdit

Rule 64(3) requires that the Minister provide a copy of the application to the protected person and that the Minister provide a written statement indicating how and when a copy was provided to the protected person. In some circumstances, the Minister may not be able to locate the protected person to serve a copy of the application.[3] In those circumstances, the Minister is required to make an application under RPD Rule 40 to vary or be excused from the service requirement. That rule also provides that the RPD must not allow such an application unless it is satisfied that reasonable efforts have been made to provide the document as required: Canadian Refugee Procedure/Documents#Rule 40 - Application if unable to provide document. This service issue is distinct from issues that arise where a protected person has been served with an application and then does not keep their contact information current with the IRB and Minister; once a protected person has been served with an application, pursuant to RPD Rule 12, the onus is on that person to notify the Division and Minister of any address changes for themselves or their counsel: Canadian Refugee Procedure/Information and Documents to be Provided#Rule 12 - Supplying contact information after an Application to Vacate or to Cease Refugee Protection.

Rule 64(3): The Minister must provide a copy of the application to the protected person and this can be done even where the protected person is located outside of CanadaEdit

Rule 64(3) requires the Minister to provide a copy of the application to the protected person. Where the protected person is no longer in Canada, the Minister may be permitted to serve the protected person at an address outside Canada and the person may participate by telephone or other appropriate means.[3] The fact that a protected person is located outside of Canada thus does not relieve the Minister of their service obligation.[4]

ReferencesEdit

  1. Sharryn Aiken, et al, Immigration and Refugee Law: Cases, Materials, and Commentary (Third Edition), Jan. 1 2020, Emond, ISBN: 1772556319, at page 922.
  2. Cohen v. Canada (Public Safety and Emergency Preparedness), 2018 FC 1101 (CanLII) <https://www.canlii.org/en/ca/fct/doc/2018/2018fc1101/2018fc1101.html>
  3. a b Immigration and Refugee Board of Canada, Legal Resources - Chapter 12 - Applications to Cease Refugee Protection, <https://irb-cisr.gc.ca/en/legal-policy/legal-concepts/Pages/RefDef12.aspx#n1242> (Accessed December 6, 2020).
  4. See, as an example, Seid, Faradj Mabrouk v. M.C.I. . (F.C. no. IMM-2555-18), LeBlanc, November 21, 2018; 2018 FC 1167 at paragraph 16 (protected person served in Chad).