Canadian Refugee Procedure/RPD Rules 3-13 - Information and Documents to be Provided

It is said that at its heart, the refugee process is about storytelling. Lawyer Tess Acton writes that "stories permeate the Canadian refugee determination system. At the port of entry a claimant tells their story to the border official, in preparation for a hearing a refugee claimant tells their story to their lawyer, and during the hearing the refugee claimant tells their story to a Board Member. After the hearing the claimant’s story is re-told in the form of a decision authored by the Board Member. These stories are the most important part of a refugee claim, as refugees often come with little else in the way of evidence of persecution." The set of rules described herein regulate, at a high level, the process by which claimants provide these stories to the Board.

RPD Rule 3(1)-(3) - Fixing date, time and location of hearing

The text of the relevant rule reads:

Information and Documents to Be Provided

Claims for Refugee Protection

Fixing date, time and location of hearing
3 (1) As soon as a claim for refugee protection is referred to the Division, or as soon as possible before it is deemed to be referred under subsection 100(3) of the Act, an officer must fix a date, time and location for the claimant to attend a hearing on the claim, within the time limits set out in the Regulations, from the dates, times and locations provided by the Division.

Date fixed by officer
(2) Subject to paragraph 3(b), the officer must 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.

Factors
(3) In fixing the date, time and location for the hearing, the officer must consider
(a) the claimant’s preference of location; and
(b) counsel’s availability, if the claimant has retained counsel at the time of referral and the officer has been informed that counsel will be available to attend a hearing on one of the dates provided by the Division.

Roles of officers, parties, and Board in scheduling matters

Responsibility for scheduling hearings before the Refugee Protection Division is multifaceted. As indicated by this rule, initial scheduling decisions are to be made by the IRCC or CBSA officer referring the claim. The parties to a proceeding then have the ability to request that the date and time of a claim be changed (Rule 54). The Board also has the power to act on its own motion in scheduling matters.

Rule 3(1): Regulation on mandatory timelines for scheduling claims

For the text of this regulation, see Canadian Refugee Procedure/Timelines.

RPD Rule 3(4)-(6) - Information an officer must provide to the claimant

Providing information to claimant in writing
(4) The officer must
(a) notify the claimant in writing by way of a notice to appear
    (i) of the date, time and location of the hearing of the claim; and
    (ii) of the date, time and location of any special hearing on the abandonment of the claim under subrules 65(2) and (3);
(b) unless the claimant has provided a completed Basis of Claim Form to the officer in accordance with subsection 99(3.1) of the Act, provide to the claimant the Basis of Claim Form; and
(c) provide to the claimant information in writing
    (i) explaining how and when to provide a Basis of Claim Form and other documents to the Division and to the Minister,
    (ii) informing the claimant of the importance of obtaining relevant documentary evidence without delay,
    (iii) explaining how the hearing will proceed,
    (iv) informing the claimant of the obligation to notify the Division and the Minister of the claimant’s contact information and any changes to that information,
    (v) informing the claimant that they may, at their own expense, be represented by legal or other counsel, and
    (vi) informing the claimant that the claim may be declared abandoned without further notice if the claimant fails to provide the completed Basis of Claim Form or fails to appear at the hearing.

Providing information in writing and documents to Division
(5) After providing to the claimant the information set out in subrule (4), the officer must without delay provide to the Division
(a) a written statement indicating how and when the information set out in subrule (4) was provided to the claimant;
(b) the completed Basis of Claim Form for a claimant referred to in subsection 99(3.1) of the Act;
(c) a copy of each notice to appear provided to the claimant in accordance with paragraph (4)(a);
(d) the information set out in Schedule 2;
(e) a copy of any identity and travel documents of the claimant that have been seized by the officer;
(f) a copy of the notice of seizure of any seized documents referred to in paragraph (e); and
(g) a copy of any other relevant documents that are in the possession of the officer.

Providing copies to claimant
(6) The officer must provide to the claimant a copy of any documents or information that the officer has provided to the Division under paragraphs (5)(d) to (g).

Right to counsel

RPD Rule 3(4) states that an officer must notify a claimant in writing that they may be represented "by legal or other counsel". For a discussion of the right to counsel, see: Canadian Refugee Procedure/Counsel of Record.

RPD Rule 4 - Claimant's contact information

Claimant’s contact information
4 (1) The claimant must provide their contact information in writing to the Division and to the Minister.

Time limit
(2) The claimant’s contact information must be received by the Division and the Minister no later than 10 days after the day on which the claimant receives the information provided by the officer under subrule 3(4).

Change to contact information
(3) If the claimant’s contact information changes, the claimant must without delay provide the changes in writing to the Division and to the Minister.

Information concerning claimant’s counsel
(4) A claimant who is represented by counsel must without delay, on retaining counsel, provide the counsel’s contact information in writing to the Division and to the Minister and notify them of any limitations on the counsel’s retainer. If that information changes, the claimant must without delay provide the changes in writing to the Division and to the Minister.

Rule 4(3): If the claimant's contact information changes, the claimant must without delay provide the changes in writing to the Division

Rule 4(3) provides that if a claimant's contact information changes, the claimant must without delay provide the changes in writing to the Division and to the Minister. As a result of this requirement, the Federal Court has declined to find a breach of procedural fairness where an applicant’s opportunity to be heard was lost because they failed to advise the RPD of their updated address and consequently did not receive notice of the hearing. This rule places the obligation on the claimant to advise where they can be contacted. When discussing the equivalent rule for the IAD, the Federal Court has rejected arguments from applicants who believed that advising the CBSA meant they had also advised the IAD, concluding that the obligation to advise the CBSA and the IAD is clearly indicated on the mailings from the tribunal. In addition, the applicant‘s stay conditions clearly specify his obligation to notify both bodies. The RPD has no positive obligation to conduct extensive investigations to locate a party, to the extent of engaging the enforcement powers of the Canada Border Services Agency that might be used to locate a person for apprehension. Furthermore, leaving a voicemail with the RPD is not sufficient to discharge a claimant's obligations under this rule, which explicitly requires that the claimant must provide the new contact information in writing. For additional discussion of principles relevant to this, see the discussion of principles related to whether the claimant has been diligent in keeping the Board up to date with their current and correct contact information at Canadian Refugee Procedure/RPD Rule 65 - Abandonment#RPD Rule 65(4) - Factors to consider at an abandonment hearing.

Rule 4(4): Information concerning claimant's counsel includes the name of the body of which the counsel is a member and the membership identification number issued to the counsel

Rule 4(4) provides that a claimant who is represented by counsel must, on retaining counsel, provide counsel's contact information in writing to the Division. As per Rule 1, contact information means, with respect to a person, "(a) the person’s name, postal address and telephone number, and their fax number and email address, if any; and (b) in the case of counsel for a claimant or protected person, if the counsel is a person referred to in any of paragraphs 91(2)(a) to (c) of the Act, in addition to the information referred to in paragraph (a), the name of the body of which the counsel is a member and the membership identification number issued to the counsel.": Canadian Refugee Procedure/RPD Rule 1 - Definitions.

RPD Rule 5 - Declaration where counsel is not acting for consideration

Declaration — counsel not representing or advising for consideration
5 If a claimant retains counsel who is not a person referred to in any of paragraphs 91(2)(a) to (c) of the Act, both the claimant and their counsel must without delay provide the information and declarations set out in Schedule 3 to the Division in writing.

Counsel may be representatives without fee who are not lawyers, paralegals, or immigration consultants

The Federal Court has observed that "Counsel need not be legally qualified and many are not; they are frequently friends, relatives, clergymen or immigration consultants. The latter are not always competent." Similarly, the Board has stated that "a limited category of others can represent an individual in a volunteer, unpaid capacity—this could include family members, community groups, or members of a religious institution." RPD Rule 5 applies where a claimant retains counsel who is not a person referred to in any of paragraphs 91(2)(a) to (c) of the Act. These paragraphs allow representation by lawyers, registered consultants, law students and others. Specifically, those provisions read, in context:

Representation or advice for consideration
91 (1) Subject to this section, no person shall knowingly, directly or indirectly, represent or advise a person for consideration — or offer to do so — in connection with the submission of an expression of interest under subsection 10.1(3) or a proceeding or application under this Act.

Persons who may represent or advise
(2) A person does not contravene subsection (1) if they are
(a) a lawyer who is a member in good standing of a law society of a province or a notary who is a member in good standing of the Chambre des notaires du Québec;
(b) any other member in good standing of a law society of a province or the Chambre des notaires du Québec, including a paralegal; or
(c) a member in good standing of a body designated under subsection (5).

...

Designation by Minister
(5) The Minister may, by regulation, designate a body whose members in good standing may represent or advise a person for consideration — or offer to do so — in connection with the submission of an expression of interest under subsection 10.1(3) or a proceeding or application under this Act.

For the fuller context of the above provisions, see: Canadian Refugee Procedure/91-91.1 - Representation or Advice. RPD Rule 5 provides that in the situation where a claimant retains counsel who is not a person referred to in paragraphs 91(2)(a) to (c) above, both the claimant and their counsel must without delay provide the information and declarations set out in Schedule 3 to the Division in writing. That schedule reads as follows:

SCHEDULE 3
(Rules 5 and 13)

Information and Declarations — Counsel Not Representing or Advising for Consideration

Item	Information
1	IRB Division and file number with respect to the claimant or protected person.
2	Name of counsel who is representing or advising the claimant or protected person and who is not receiving consideration for those services.
3	Name of counsel’s firm or organization, if applicable, and counsel’s postal address, telephone number, fax number and email address, if any.
4	If applicable, a declaration, signed by the interpreter, that includes the interpreter’s name, the language and dialect, if any, interpreted and a statement that the interpretation is accurate.
5	Declaration signed by the claimant or protected person that the counsel who is representing or advising them is not receiving consideration and the information provided in the form is complete, true and correct.
6	Declaration signed by counsel that they are not receiving consideration for representing or advising the claimant or protected person and that the information provided in the form is complete, true and correct.

The declaration includes a statement that the counsel is not receiving consideration. This is discussed in the Board's Basis of Claim form which states that "The Immigration and Refugee Protection Act makes it an offence for any person not authorized under the Act to knowingly, directly or indirectly, represent or advise a person for consideration – or offer to do so – in connection with a proceeding or application under that Act. (Consideration includes money, or any other form of compensation or reward.)" The Federal Court has noted that "there is a duty incumbent upon the Board to verify that those individuals representing clients with whom it has dealings are authorized representatives pursuant to the Regulations, or that they are not receiving a fee for their services." The court articulated the rationale for this duty as follows: "This duty envisions the protection of applicants and the preservation of the integrity of Canada’s immigration system". This Rule is one of the ways that the Board fulfills that obligation.

As of July 1, 2023, all Regulated Canadian Immigration Consultants require a new type of licence to represent clients before the IRB. This applies even if they are not charging a fee. By its terms, RPD Rule 5 does not apply to such representation, even if an Immigration Consultant is providing it pro bono.

The requirement for a signature on this declaration is waived when it is provided electronically

RPD Rule 5 provides that if a claimant retains counsel who is not a person referred to in any of paragraphs 91(2)(a) to (c) of the Act, both the claimant and their counsel must without delay provide the information and declarations set out in Schedule 3 to the Division in writing. That schedule includes a requirement for signed statements from the claimant or protected person and their counsel. As per the Refugee Protection Division: Practice Notice on Procedural Issues, one no longer needs to sign the completed documents when they are provided electronically, such as by email, Connect, or the My ​Case portal. The Board is explicit that the requirement to sign these documents is not waived if they are provided by mail, courier, fax, or in-person delivery. Furthermore, the practice notice states that "you must still write the date that you completed the documents."

RPD Rule 6 - Basis of Claim Form

Basis of Claim Form

Claimant’s declarations
6 (1) The claimant must complete a Basis of Claim Form and sign and date the declaration set out in the form stating that
(a) the information given by the claimant is complete, true and correct; and
(b) the claimant understands that the declaration is of the same force and effect as if made under oath.

Form completed without interpreter
(2) If the claimant completes the Basis of Claim Form without an interpreter’s assistance, the claimant must sign and date the declaration set out in the form stating that they can read the language of the form and understand what information is requested.

Interpreter’s declaration
(3) If the claimant completes the Basis of Claim Form with an interpreter’s assistance, the interpreter must sign and date the declaration in the form stating that
(a) they are proficient in the language and dialect, if any, used, and were able to communicate effectively with the claimant;
(b) the completed Basis of Claim Form and all attached documents were interpreted to the claimant; and
(c) the claimant indicated that the claimant understood what was interpreted.

History of this Rule

The text of Rule 6 is similar, but not identical, to the text of Rule 5 in the previous RPD rules:

5. (1) The claimant must complete the Personal Information Form and sign and date the included declaration that states that
(a) the information given by the claimant is complete, true and correct; and
(b) the claimant knows that the declaration is of the same force and effect as if made under oath.

(2) If the claimant completes the Personal Information Form without an interpreter, the claimant must also sign and date the included declaration that states that the claimant can read the language of the form and understands what information is requested.

(3) If the claimant completes the Personal Information Form with an interpreter, the interpreter must sign and date the included declaration that states
(a) the interpreter is proficient in the languages or dialects used, and was able to communicate fully with the claimant;
(b) the completed form and all attached documents were interpreted to the claimant; and
(c) the claimant assured the interpreter that the claimant understood what was interpreted.

There is a long history to the requirement that a claimant for refugee status provide a complete declaration of the particulars supporting their claim. It relates to the the burden of proof that rests on a claimant to show that they meet the definition of a Convention Refugee or a 'person in need of protection' in the Act. This burden flows from the general proposition in international law that an individual seeking admission to a state must justify their admission. See: Canadian Refugee Procedure/The Board's inquisitorial mandate#A claimant has an onus to show that they meet the criteria to be recognized as a refugee. A requirement to provide particulars justifying admission has long been a way that Canada has implemented this onus. For example, subsection 11(2) of the Immigration Appeal Board Act of the 1970s provided that where an appeal was based on a claim that the appel­lant was a "refugee," the notice of appeal must contain a declaration under oath setting out all the particulars on which the claim is based.

Rule 6(1): The requirement that the claimant must sign and date the Basis of Claim form is waived

The RPD Refugee Protection Division: Practice Notice on Procedural Issues states that the RPD has waived the requirement in the rules for signatures on the BOC form, including changes to the BOC form, if they are provided electronically, such as by email, Connect or the My Case portal.

Requirement that the information provided be complete, true and correct

The Rule 6(1)(a) obligation to provide information that is "complete" should be read in conjunction with the instructions in the BOC form that claimants are to include everything that is important to their claims therein, "including dates, names and places wherever possible". Where a fact that is a "significant and central part of a claim" is omitted from the Basis of Claim form, then the Board can consider that when determining whether it has been established that the alleged incident more likely than not occurred; the omission may properly point away from the claimant having established the allegation on a balance of probabilities. All relevant and important facts should be included in in the Basis of Claim form. A Basis of Claim form should contain the significant events that give rise to an applicant’s claim.

In the words of the Federal Court in Arroyave v. Canada, it is clearly established that all the material facts of a story must appear in the Basis of Claim form and that failure to include them can be fatal to the credibility of a claim. The Board is entitled to make adverse credibility findings when significant and important aspects going to the heart of the Applicant’s refugee claim have been omitted from the original BOC and arise for the first time at the hearing and where a reasonable explanation for the omission has not been provided. However, if a claimant includes details in another document that they submit, but not in their Basis of Claim form, their absence from the BOC form should not in itself justify a negative credibility inference. Furthermore, while the Basis of Claim form instructions are to provide dates, names, and places wherever possible, their absence from a narrative cannot be equated with a material omission that impugns a claimant's credibility. See also: Canadian Refugee Procedure/The Board's inquisitorial mandate#Evidence is primarily presented in written form in the Canadian process.

It is irrelevant how sparse an applicant’s BOC narrative is, as all important facts and details of a claim should be included. However, in Feradov v. Canada, the court held that it was proper to take note that "Mr. Feradov’s PIF was clearly not intended to be an encyclopaedic recitation of the evidence. To the contrary, it was obviously written as a very general summary of the central aspects of his claim and the absence of collateral detail ought not to have concerned the Board."

Bishop v. Canada provides guidance about the level of completeness that is expected in a Basis of Claim form. In that case, the claimant wrote in her Basis of Claim form that the police had issued a warning to her husband in response to her complaint about threats and domestic abuse. At the hearing, the claimant indicated that the warning had been made jokingly. The court determined that it was reasonable for the RAD to conclude that this was a material change from the BOC form and to impugn the claimant's credibility on this basis: "It is true that a warning made jokingly is still a warning. However, I agree with the Minister that a police warning is inherently serious, and subsequently stating that a police warning was made jokingly constitutes a material change. ... The police warning to Mr. Arthur was a significant event and a fact central to Ms. Bishop’s claim for refugee protection. By stating that the police warning was made jokingly, Ms. Bishop was not solely adding more detail, she was instead modifying her story and creating a material inconsistency." Similarly, in that case the claimant made no mention in her BOC form of the fact that the agent of harm's father was a police officer in her country, something that also properly gave rise to a negative credibility inference in a case that centered on state protection, even where the claimant had amended her BOC form to add this information. See also: Canadian Refugee Procedure/RPD Rules 3-13 - Information and Documents to be Provided#The fact that a claimant amends their BOC form does not prevent the Board from drawing an adverse credibility inference as a result of initially incorrect information.

In contrast, in Apena v. Canada, the court held that the RAD erred in undermining the credibility of a narrative on the basis that the BOC form did not mention that the claimant accompanied the police the day after an alleged attack. The court held that this detail was immaterial to the core elements of this assertion, such as whether the attack occurred, whether the Applicant reported the attack to the police, whether the police searched for the assailants, or whether the attack resulted in an injury as he claimed. Given that those elements were supported by the evidentiary record, the court held that the credibility finding was unreasonable and represented an unreasonably overzealous and microscopic analysis in the applicant’s case. Similarly, in Feradov v. Canada, the court held that the significance of the claimant's identification of those who attended a sacrifice ritual was over-stated by the Board: "The fact that he mentioned the presence of only relatives in his PIF but testified that both relatives and friends were present is the kind of microscopic difference that the Board said it was mindful to ignore."

The obligation to provide information that is "complete, true and correct" in Rule 6(1)(a) tracks the following conclusion from the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status: "The applicant should...Tell the truth and assist the examiner to the full in establishing the facts of his case." Furthermore, the Handbook provides that an applicant should "Supply all pertinent information concerning himself and his past experience in as much detail as is necessary to enable the examiner to establish the relevant facts. He should be asked to give a coherent explanation of all the reasons invoked in support of his application for refugee status and he should answer any questions put to him." In the words of the Law Reform Commission of Canada's report on the refugee determination process, “There is no place in such a process for adversary tactics of surprise. If the process is to work effectively, there must be full and frank disclosure by all parties concerned and all documents must be available in time to allow them to be reviewed prior to commencement of any hearing.” See also: Canadian Refugee Procedure/RPD Rules 3-13 - Information and Documents to be Provided#RPD Rule 9 - Changes or additions to BOC Form and Canadian Refugee Procedure/Principles for the interpretation of refugee procedure#Principles about the expectations that one reasonably has of claimants and counsel.

This analysis regarding expectations for the completeness of the Basis of Claim form may be contrasted with the expectations for the predecessor Personal Information Form, that existed until the BOC form was introduced in 2012. It was said that the PIF was supposed to be "a brief recitation of the applicant's claim, not a documentation of his whole case".

Providing exemptions to the Rule 6 requirements for illiterate claimants

When this Rule was being drafted, the Board received feedback that illiterate claimants should be given flexibility in those situations in which the BOC form is not filled out and signed as requested. The Board stated that as discretion rests with the Member to provide an exemption from the requirements of a rule when necessary, and after proper notice to parties, this comment did not necessitate a change in the rules.

At the beginning of the hearing, the member is to ask the claimant to confirm that the BOC form interpretation was done

RPD Rule 6(3) provides the requirements for the interpreter's declaration on the BOC form. Chairperson Guideline 7: Concerning Preparation and Conduct of a Hearing in the Refugee Protection Division further states "The claimant is responsible for making sure that the BOC Form was interpreted to them before the hearing. At the beginning of the hearing, the member will ask the claimant to confirm that the interpretation was done."

RPD Rule 7 - Providing BOC Form

Providing Basis of Claim Form — inland claim
7 (1) A claimant referred to in subsection 99(3.1) of the Act must provide the original and a copy of the completed Basis of Claim Form to the officer referred to in rule 3.

Providing Basis of Claim Form — port of entry claim
(2) A claimant other than a claimant referred to in subsection 99(3.1) of the Act must provide the original and a copy of the completed Basis of Claim Form to the Division.

Documents to be attached
(3) The claimant must attach to the original and to the copy of the completed Basis of Claim Form a copy of their identity and travel documents, genuine or not, and a copy of any other relevant documents in their possession. The claimant does not have to attach a copy of a document that has been seized by an officer or provided to the Division by an officer.

Documents obtained after providing Basis of Claim Form
(4) If the claimant obtains an identity or travel document after the Division has received the completed Basis of Claim Form, they must provide two copies of the document to the Division without delay.

Providing Basis of Claim Form — port of entry claim
(5) The Basis of Claim Form provided under subrule (2) must be
(a) received by the Division within the time limit set out in the Regulations, and
(b) provided in any of the following ways:
(i) by hand,
(ii) by courier,
(iii) by fax if the document is no more than 20 pages long, unless the Division consents to receiving more than 20 pages, or
(iv) by email or other electronic means if the Division allows.

Original Basis of Claim Form
(6) A claimant who provides the Basis of Claim Form by fax must provide the original to the Division at the beginning of the hearing.

When a claimant must provide their BOC form

• Port of Entry claimants: As per Rule 7(5)(a), for a Port of Entry claimant, their BOC must be submitted to the RPD within 15 days after referral per s. 159.8(2) of the Regulation. However, the RPD has issued a practice notice extending the time limit to 45 days after the day on which the claim was referred to the RPD.
• Inland claimants: For inland claimants, their BOC must be submitted to IRCC at determination of eligibility, per s. 159.8(1) of the Regulation.
• Detained claimants: CBSA has taken the position that individuals who initiate claims after being arrested or detained inland are required to complete all the forms, including the Basis of Claim form, within three working days. The basis for this interpretation appears to be the combination of IRPR s. 159.8(1) which says that a person who makes a claim for refugee protection inside Canada other than at a port of entry must provide an officer with the documents and information referred to in s. 99(3.1) not later than the day on which the officer determines the eligibility of their claim under IRPA s. 100(1). RPD Rule 7 specifies that the Basis of Claim must be provided to the officer referred to in IRPA s. 99(3.1).

See Canadian Refugee Procedure/Time Limit for Providing Documents for the full text of the relevant regulations.

A BOC Abandonment hearing must be scheduled if a claimant fails to provide a completed Basis of Claim Form in accordance with RPD Rule 7

RPD Rule 7(2) provides that a claimant making a claim at a port of entry (an airport, seaport or land border crossing) must provide the original and a copy of the completed Basis of Claim Form to the Division. As per RPD Rule 7(5), this must be received by the Division within the time limit set out in the Regulations. If it is not so received, then a special hearing on the abandonment of the claim for the failure to provide a completed Basis of Claim Form in accordance with paragraph 7(5)(a) must be held no later than five working days after the day on which the completed Basis of Claim Form was due: Canadian Refugee Procedure/Abandonment#RPD Rule 65(2) - When the BOC Abandonment hearing must be scheduled.

The requirement to provide the original and an extra copy of the BOC Form is waived

RPD Rule 7(1) provides that a claimant referred to in subsection 99(3.1) of the Act must provide the original and a copy of the completed Basis of Claim Form to the officer referred to in rule 3. However, the RPD has waived the requirement to provide the original BOC Form and an extra copy to the RPD or to the referring officer. A claimant may instead submit 1 copy of the completed BOC Form to the RPD or to the referring officer. However, a claimant must retain the original and provide it to the RPD on request.

Documents attached to the BOC form need not be translated at the time that they are attached

Rule 7(3) requires a claimant to attach to their BOC Form a copy of their identity and travel documents, genuine or not, and a copy of any other relevant documents in their possession. In this way, Rule 7(3) functions as one of the main RPD Rules that oblige the disclosure of documents (in comparison, other rules regarding the disclosure of documents generally provide a claimant with discretion about what documents they will provide, see: Canadian Refugee Procedure/Documents#What documents does a party need to provide when?). Such documents need not be translated in order for them to be accepted by the Board. This is because the rule on the language of documents, Rule 32 (Canadian Refugee Procedure/RPD Rules 31-43 - Documents#RPD Rule 32 - Language of Documents), only applies to documents that a claimant chooses to use in the proceeding: "All documents used by a claimant or protected person in a proceeding must be in English or French or, if in another language, be provided together with an English or French translation and a declaration signed by the translator." In this way, Rule 7(3) requires a claimant to provide all relevant documents in their possession at the time that they file their claim, but if a claimant wants to "use" such documents in the proceeding, then they will need to provide a translation of those documents prior to the hearing. Otherwise, the documents will be retained for the purposes of the record, but in an untranslated form, and will likely therefore be assigned limited or no weight. On the other hand, some untranslated documents such as original ID documents from a country may be assigned significant weight, especially where they can be authenticated or compared to sample documents available to the Board in the National Documentation Package or other sources. If these rules were interpreted any other way, for example to limit the ability of a claimant to provide documents such as their non-genuine ID documents where those ID documents are not accompanied by a translation, then it would frustrate the purpose of this disclosure obligation, which is clearly to ensure that the claimant provides, en masse, relevant documents at the earliest time so that the Minister can assess those documents as part of any investigation into the claimant, their credibility, and their identity. If the claimant were only obliged to submit documents for which they had secured a translation, then it would either frustrate the broad mandatory language of the rule ("must attach") or else it could potentially impose significant translation costs on refugee claimants who may not have the resources to pay for, or the ability to procure translations of, the documents (especially in the four Canadian provinces that provide no legal aid to refugee claimants whatsoever: Canadian Refugee Procedure/RPD Rules 14-16 - Counsel of Record#Refugee-related services are provided by some provincial legal aid programs).

RPD Rule 8 - Application for an extension of time to provide BOC Form

Application for extension of time
8 (1) A claimant who makes an application for an extension of time to provide the completed Basis of Claim Form must make the application in accordance with rule 50, but the claimant is not required to give evidence in an affidavit or statutory declaration.

Time limit
(2) The application must be received by the Division no later than three working days before the expiry of the time limit set out in the Regulations.

Application for medical reasons
(3) If a claimant makes the application for medical reasons, other than those related to their counsel, they must provide, together with the application, a legible, recently dated medical certificate signed by a qualified medical practitioner whose name and address are printed or stamped on the certificate. A claimant who has provided a copy of the certificate to the Division must provide the original document to the Division without delay.

Content of certificate
(4) The medical certificate must set out the particulars of the medical condition, without specifying the diagnosis, that prevent the claimant from providing the completed Basis of Claim Form in the time limit referred to in paragraph 7(5)(a).

Failure to provide medical certificate
(5) If a claimant fails to provide a medical certificate in accordance with subrules (3) and (4), the claimant must include in their application
(a) particulars of any efforts they made to obtain the required medical certificate, supported by corroborating evidence;
(b) particulars of the medical reasons for the application, supported by corroborating evidence; and
(c) an explanation of how the medical condition prevents them from providing the completed Basis of Claim Form in the time limit referred to in paragraph 7(5)(a).

Providing Basis of Claim Form after extension granted
(6) If an extension of time is granted, the claimant must provide the original and a copy of the completed Basis of Claim Form to the Division in accordance with subrules 7(2) and (3), no later than on the date indicated by the Division and by a means set out in paragraph 7(5)(b).

The RPD has produced a form for applications to extend the time limit to submit the Basis of Claim form and use of the form is mandatory

The Refugee Protection Division: Practice Notice on Procedural Issues states:

2.2 Request for additional time

A claimant may make an application to further extend the time limits to provide the completed BOC Form to the RPD as outlined in section 2.1. The application must be made using the ​Application to extend the time limit to submit the Basis of Claim Form. Use of the form is mandatory, but the RPD will apply this requirement flexibly for an unrepresented claimant.

The application must be received by the RPD no later than 3 working days before the expiry of the 45 ​calendar-​day time limit in section 2.1 and must include reasons why an extension is required.

Extensions will only be granted if there is a justifiable reason for the delay

The Board's public commentary to the previous version of the RPD rules that "An extension [to provide this form] will only be granted if there is a justifiable reason for the delay" continues to apply to decisions made under the current Rule 8. The legal standard that the Board is to apply in assessing an application for an extension of time to provide the Basis of Claim form is that set out in subsection 159.8(3) of the Immigration and Refugee Protection Regulations, which provides that "If the documents and information cannot be provided within the time limit ... the Refugee Protection Division may, for reasons of fairness and natural justice, extend that time limit by the number of days that is necessary in the circumstances." As such, a claimant should demonstrate that the form "cannot be provided within the time limit", that their inability to provide it within the time limit raises "reasons of fairness and natural justice", and that the period that they are requesting as an extension is what is "necessary" in the circumstances.

One academic argues that as a principle, refugee claimants should have time to recover and be ready to disclose the reasons of their flight and the possible ill treatment they risk suffering in their country of origin in case of return prior to having to provide such information to the state. It is frequently observed that there are gendered aspects to this short deadline, which is said to particularly penalize survivors of rape and sexual violence, since it is well-documented that these survivors often need time before they are ready to disclose their experiences, whether to a lawyer completing a form describing their experiences, or to decision-makers.

This Rule applies to applications for an extension of time, but does not constrain the Board's ability to extend deadlines on its own motion

RPD Rule 8 does not constrain the Board from extending a deadline and only governs how the Board should exercise its discretion where a claimant applies to extend the deadline.

This principle may be illustrated by looking at how, at times, the IRB has extended the deadline for filing a Basis of Claim form of its own accord. For example, during the Covid-19 pandemic, the Board issued a Practice notice on the temporary extension of time limits for filing the basis of claim form. This practice notice provided a temporary extension for filing a Basis of Claim form, specifically stating: "If your time limit for filing the BOC Form with the RPD falls between February 15 and April 15, 2020 inclusive, the deadline is extended to May 30, 2020." The authority for this rule was cited as subsection 159.8(3) of the Immigration and Refugee Protection Regulations which provide that the RPD may extend the time for providing the BOC Form for port of entry claimants by the number of days necessary for reasons of fairness and natural justice. Furthermore, that practice directive noted that section 165 of the Immigration and Refugee Protection Act provides that the RPD may do whatever is necessary for a full and proper hearing. The Practice notice on the temporary extension of time limits for filing the basis of claim form was replaced in 2024.

Applications for an extension of time must be received at least three working days before the expiry of the time limit for providing the form

As per Rule 8(2), the application for an extension of time to provide the BOC must be received by the Division no later than three working days before the expiry of the time limit set out in the Regulations. The 3 working day time period is counted backwards from the expiry date to provide the BOC. Day 1 is the first business day before the expiry date. The application must be received no later than the third business day before the expiry date to provide the BOC. This arises as a result of the definition of "working day" in RPD Rule 1.

Applications received after that date will be dealt with under the BOC abandonment rule, Rule 65(2): Canadian Refugee Procedure/Abandonment#Rule 65(2) - When the BOC Abandonment hearing must be scheduled. The interaction between this rule and the abandonment rule was discussed in the Board's commentary to the previous version of the RPD Rules, which remains instructive:

An application for an extension of time received after the [time limit] will be considered at a special hearing held under [presently, subsection 65(2)] of the Rules. At that hearing, the claimant will be given a chance to explain the delay in filing the [Form]. The claimant should make every effort to provide a completed [Form] to the Division before or at the special hearing. If there is no justifiable reason for the delay, the Division may declare the claim to be abandoned (Immigration and Refugee Protection Act, subsection 168(1)).

Thus, for example, the Board has denied requests for an extension of time to file Basis of Claim forms where the claims had already been declared abandoned. As such, the proper procedure in such cases is for the claimant to either participate in the abandonment process under Rule 65 or, if that has been completed, then to apply to reopen the claim pursuant to Rule 62.

8(3): The requirement to provide a medical certificate is waived

The requirement to provide a medical certificate for applications to extend the time to provide the BOC Form (subrules 8(3), (4) and (5)) is waived. The Refugee Protection Division: Practice Notice on Procedural Issues states:

4.3 RPD waives (removes) the requirement to provide a medical certificate

Unless required by the RPD, where the RPD Rules contain a requirement to provide a medical certificate, this requirement, and the requirement to explain why a medical certificate is not provided, are waived. However, a party may still present a medical certificate in support of an application if they wish.

8(6): The requirement to provide the original and an extra copy of the BOC Form is waived

RPD Rule 8(6) provides that if an extension of time is granted, the claimant must provide the original and a copy of the completed Basis of Claim Form to the Division in accordance with subrules 7(2) and (3). However, the RPD has waived the requirement to provide the original BOC Form and an extra copy to the RPD or to the referring officer. A claimant may instead submit 1 copy of the completed BOC Form to the RPD or to the referring officer. However, a claimant must retain the original and provide it to the RPD on request.

RPD Rule 9 - Changes or additions to BOC Form

Changes or additions to Basis of Claim Form
9 (1) To make changes or add any information to the Basis of Claim Form, the claimant must
(a) provide to the Division the original and a copy of each page of the form to which changes or additions have been made;
(b) sign and date each new page and underline the changes or additions made; and
(c) sign and date a declaration stating that
(i) the information given by the claimant in the Basis of Claim Form, together with the changes and additions, is complete, true and correct, and
(ii) the claimant understands that the declaration is of the same force and effect as if made under oath.

Time limit
(2) The documents referred to in subrule (1) must be provided to the Division without delay and must be received by it no later than 10 days before the date fixed for the hearing.

History of this rule

The previous 2002 version of the RPD rules did not include an analogous rule. For example, there was no rule which mentioned adding information to the then-PIF. Instead, the most on point rule was Rule 6, the relevant parts of which read as follows:

Changes to the claimant’s information
(4) If a claimant wants to change any information given in the Personal Information Form, the claimant must provide to the Division three copies of each page of the form to which changes have been made. The claimant must sign and date each new page and underline the change made. This subsection does not apply to a change in the choice of language for the proceedings or the language of interpretation.

Documents obtained after providing the form
(5) If the claimant obtains a passport, travel document, identity document or any other relevant document after providing the Personal Information Form, the claimant must provide three copies of the document to the Division without delay.

The Minister took the position that this prior Rule 6(4) generated an obligation on a claimant to amend their PIFs to include information and events that occurred after the applicants’ initial declaration.

Claimants are under an ongoing obligation to amend their Basis of Claim form should significant or important additional information arise

Some decisions have concluded that claimants are under an ongoing obligation to update their Basis of Claim form to ensure that it is complete, and that a failure to do so may justify a negative credibility inference. The process for making such changes is described by this rule, RPD Rule 9. The obligation to provide such updates arises from the requirement in RPD Rule 9(2) to provide the Division with such update documents "without delay"; the fact that claimants swear or affirm at the beginning of their hearing that their Basis of Claim form is "complete, true, and correct", the instruction on the BOC form that "if your information changes or if you want to add information, you must inform the IRB", the statements in the IRB's Claimant's Guide that "If you find a mistake on your BOC Form or realize that you forgot something important, or receive additional information, you must tell the RPD", the fact that the RPD issued a Practice Notice on Procedural Issues which stipulates that "the information in your BOC Form must be accurate, truthful, and as complete as possible", and caselaw that all the important facts of a claim for refugee protection must appear in the BOC Form. As is summarized in the Irwin Law text Refugee Law, "the duty to provide a complete and accurate BOC Form has been interpreted as an ongoing one. A claimant must amend and update their BOC if circumstances change or new information comes to light; in the absence of such amendments, adverse inferences can be drawn."

This principle has been affirmed by the Federal Court in Olusola v. Canada: "the RAD reasonably found that the Principal Applicant’s failure to update her BOC and report the new threat to the police, undermined her credibility". Similarly, in Gedara v. Canada, the court concluded: "in the case at bar, the applicants had two years from the filing of the original PIF and their hearing date to make amendments. If their families were threatened, such important events should have been included".

For a discussion of how the phrase "without delay", which is used extensively in the RPD Rules, has been interpreted in other contexts, see: Canadian Refugee Procedure/RPD Rules 26-28 - Exclusion, Integrity Issues, Inadmissibility and Ineligibility#What does it mean that the Division must notify the Minister "without delay"?.

However, in Zhang v. Canada, the Court disagreed with the Board's decision to draw an adverse inference from Ms. Zhang’s failure to amend her PIF to mention recent visits to her parents’ home by security officers: "These visits took place after she had filed her PIF. Again, the basis for the Board’s concern is difficult to appreciate. The applicant understandably felt that she could testify about recent events at her hearing without having to amend her written documents." This decision was cited with approval in Weng v. Canada as continuing to apply despite the 2012 changes to the rules, including the addition of RPD Rule 9, albeit without any discussion of this change and its applicability, or lack thereof. In Ma v. Canada, the court found "that it was improper of the RPD to ask the Applicant if the PSB had returned to her home after June 14, 2018, only to draw a negative inference from the fact that she failed to amend her BOC to include subsequent PSB visits". The court found that "the RAD erred by placing undue focus on the BOC omissions", pointing to the fact that even where a BOC omission occurs, the weight of that omission relative to all of the other evidence must be assessed. See also the court's comment in Husyn v. Canada: "While I agree with the Applicants that they were not compelled to file an amended BOC to address the ongoing threat, in these circumstances the failure to do so supported the RPD’s negative inference."

No explanation for BOC amendments necessary

It was previously the case that a draft of this rule required that an explanation of changes to the BOC form be provided. Following stakeholder feedback, that requirement was eliminated. The Board commented on this feedback as follows in its RPD Rules Regulatory Impact Analysis Statement:

Respondents commented that the rule which addresses changes or additions to the BoC Form was overly complicated in its wording. Several respondents expressed confusion regarding how the requested explanations for any additions or deletions were to be provided. A respondent also suggested that the IRB ensure that claimants, when providing amendments to their BoC Form, be required to state that the changes are "true to the best of the claimant's knowledge". In response to these comments, the IRB has: (1) simplified the language in this rule, (2) removed the requirement for an explanation of changes, and (3) included an additional requirement that claimants provide a declaration which states that the information given by the claimant in the BoC Form, together with the changes and additions, is complete, true and correct, which is consistent with the declaration in the BoC Form that claimants must initially sign.

Signatures are not required for BOC amendments provided electronically

The Refugee Protection Division: Practice Notice on Procedural Issues states that the RPD waives the requirement in RPD Rule 9(1) for a signature when providing changes to the BOC form ​if they are provided electronically, such as by email, Connect or the My Case portal. However, the requirement to sign these documents is not waived if they are provided by mail, courier, fax, or in-person delivery. Furthermore, per the RPD, all documents must be dated, even if submitted electronically.

9(1): The requirement to provide an extra copy of a BOC amendment is waived

RPD Rule 9(1) provides that to make changes or add any information to the Basis of Claim Form, the claimant must provide to the Division the original and a copy of each page of the form to which changes or additions have been made. However, the RPD has waived the requirement to provide the an extra copy.

The fact that a claimant amends their BOC form does not prevent the Board from drawing an adverse credibility inference as a result of initially incorrect information

RPD Rule 9 sets out a process by which a claimant can make changes to the Basis of Claim form. The ability to amend a BOC does not insulate a claimant from a credibility assessment in respect of inconsistencies or omissions arising from an amendment. For example, the fact that a claimant has updated their BOC information does not prevent a panel from drawing a negative credibility inference as a result of contradictions between the earlier information that was included in the form and the information in the amended BOC form. It can be open to the RPD to conclude that the information contained in amendments was likely an embellishment. The RPD may also draw a negative credibility inference with respect to late amendments relating to important elements of an applicant’s narrative. See also: Canadian Refugee Procedure/RPD Rules 3-13 - Information and Documents to be Provided#Requirement that the information provided be complete, true and correct.

However, if the amendment was simply an elaboration on previous details in the Basis of Claim form, then a panel should not draw a negative credibility inference. The question, then, is whether any discrepancy or amendment is an omission or an elaboration. In Corrales v Canada, the court approached this question by asking whether the amendment was "a simple expansion along the same theme or as an extension [or elaboration] of an original narrative". In that case, the court noted that the underpinning of the applicant's fear of persecution shifted from how generalised racism in Jordan is difficult for him (a person from the north of Jordan working in the south) to the applicant being personally threatened by actual Bedouin agents on account of his tourism business in the south on their territory. The court accepted that the omission of this allegation from the original narrative properly detracted from the applicant's credibility. In order to assess whether an omission justifies drawing an adverse credibility inference, the Board can consider whether the omitted information was significant or important, given that “it is trite law that omissions of a significant or important fact from a claimant’s PIF can be the basis for an adverse credibility finding”.

Do BOC amendments require a translator's declaration?

RPD Rule 6(3) set out the requirement for an interpreter's declaration on the BOC form when it is initially completed and filed. It provides that if the claimant completes the Basis of Claim Form with an interpreter’s assistance, the interpreter must sign and date the declaration in the form that includes the listed required elements. That requirement is not mirrored in this rule regarding the process and requirements for Basis of Claim form amendments. It could be argued that this omission creates flexibility to not require an interpreter's declaration, for example where a minor amendment is made by crossing out one word and replacing it with another, and the requirements of RPD Rule 9 are otherwise met.

RPD Rule 32 is a general one requiring an interpretation's declaration for translated documents, but it only applies where a document is provided to the Board in another language, along with a translation, so it would seem to be inapplicable to this circumstance: Canadian Refugee Procedure/RPD Rules 31-43 - Documents#RPD Rule 32(1) - Language of claimant or protected person's documents.

RPD Rule 10 - Order of questioning in hearings, oral representations, oral decisions, limiting questioning

Conduct of a Hearing

Standard order of questioning
10 (1) In a hearing of a claim for refugee protection, if the Minister is not a party, any witness, including the claimant, will be questioned first by the Division and then by the claimant’s counsel.

Order of questioning — Minister’s intervention on exclusion issue
(2) In a hearing of a claim for refugee protection, if the Minister is a party and has intervened on an issue of exclusion under subrule 29(3), any witness, including the claimant, will be questioned first by the Minister’s counsel, then by the Division and then by the claimant’s counsel.

Order of questioning — Minister’s intervention not on exclusion issue
(3) In a hearing of a claim for refugee protection, if the Minister is a party but has not intervened on an issue of exclusion under subrule 29(3), any witness, including the claimant, will be questioned first by the Division, then by the Minister’s counsel and then by the claimant’s counsel.

Order of questioning — application to vacate or cease refugee protection
(4) In a hearing into an application to vacate or to cease refugee protection, any witness, including the protected person, is to be questioned first by the Minister’s counsel, then by the Division and then by the protected person’s counsel.

Variation of order of questioning
(5) The Division must not vary the order of questioning unless there are exceptional circumstances, including that the variation is required to accommodate a vulnerable person.

Limiting questioning of witnesses
(6) The Division may limit the questioning of witnesses, including a claimant or a protected person, taking into account the nature and complexity of the issues and the relevance of the questions.

Oral representations
(7) Representations must be made orally at the end of a hearing unless the Division orders otherwise.

Oral decision and reasons
(8) A Division member must render an oral decision and reasons for the decision at the hearing unless it is not practicable to do so.

Rule 10(6) provides that the Division may limit the questioning of witnesses

RPD Rule 10(6) provides that the Division may limit the questioning of witnesses, including a claimant or a protected person, taking into account the nature and complexity of the issues and the relevance of the questions. Generally speaking, this may involve limiting the questions put to and the responses of a witness. Each Division of the IRB is required to deal with all proceedings before it as informally and expeditiously as the circumstances of fairness and natural justice permit: Canadian Refugee Procedure/162 - Board Jurisdiction and Procedure#IRPA Section 162(2) - Obligation to proceed informally and expeditiously. It is neither unfair nor unreasonable for a Member to not waste time on matters they properly consider irrelevant.

That said, a Member should not generally refuse to hear from a witness altogether on the basis that their testimony is not credible:

The fundamental problem with the Respondent’s argument is that the Member’s narrow characterization of relevance was wrong. After correctly stating that the central issue before him was the genuineness of the marriage, the Member erred by telling Mr. Kamtasingh that the testimony of others, which only corroborated his evidence, would not be useful. The Member may well have had only a few issues of concern, but the credibility of Mr. Kamtasingh was obviously one of them. Corroborating evidence from other witnesses may have been sufficient to rehabilitate Mr. Kamtasingh’s credibility and to displace the Member’s other concerns. All of these witnesses had potentially relevant evidence to give concerning the genuineness of the marriage, even if their testimony was not “different” from Mr. Kamtasingh’s evidence. In effect, what the Member did was predetermine the issue of credibility without having heard the witnesses.

In other words, as the court held in Ayele v. Canada, "one can never rule on the credibility of evidence that has not yet been heard. The presiding member violated this principle when he stated that even if the witnesses corroborated Mr. Ayele’s testimony that subsequent testimony would not be credible." As the court stated in Kamtasingh v. Canada:

I agree with counsel for the Respondent that the IAD has the right to limit repetitive testimony, but not by effectively excluding witnesses who could offer evidence going to the central issues of the case. The place to control excessive or repetitive evidence on issues of controversy which are central or determinative is generally not at the entrance to the witness box, but once the witness is testifying – and even then the member must grant some latitude to ensure that all important matters are covered.

The right to a fair hearing can also be violated where the RPD imposes an arbitrary time limit for counsel’s questions at the hearing.

See also: Canadian Refugee Procedure/The right to be heard and the right to a fair hearing#A panel can establish principled rules regarding the manner in which a witness testifies.

The standard order of questioning is that any witness will be questioned first by the Division and this is a fair process

It used to be the case that hearings began with an introductory "examination in chief" by a claimant's counsel. This aspect of the refugee process was sharply criticized. The Law Reform Commission of Canada noted that while the process before the Division is supposed to be non-adversarial, "all of the details of the adversarial system are present in the examination-in-chief, cross-examination, and re-examination format". The Board commissioned the noted refugee law academic James C. Hathaway to write a report on its processes in which he recommended "the present practice of an introductory 'examination in chief' by counsel should be dispensed with". The Board subsequently acted on this advice when issuing the Chairperson's Guideline 7 Concerning Preparation and Conduct of a Hearing in the Refugee Protection Division. In drafting the Guideline, the Board made a deliberate choice to avoid the use of terminology such as “examination‑in‑chief” and “cross‑examination” as inappropriate concepts better suited to an adversarial model requiring judicial formality. Thamotharem v Canada was a case which concluded that the resultant process is a fair one, especially given that Board Members may vary the order of questioning in exceptional circumstances.

It is expected that counsel will provide oral submissions after the evidence has been heard

Rule 10(7) states that representations must be made orally at the end of a hearing unless the Division orders otherwise. The Chairperson’s Guidelines 7: Concerning Preparation and Conduct of a Hearing in the Refugee Protection Division ) state that “in general, it is expected that counsel should be ready to give oral representations after the evidence has been heard.” However, the Division has the discretion to order that written representations be provided instead of oral ones.

The Division has the discretion to reconvene a hearing

The Board has stated that proceedings are not completed until a decision has been rendered. Until that time, a panel has the authority to reconvene the hearing or to receive further evidence, as it sees fit and as "fairness" dictates. This situation is not strictly a "reopening" or a "rehearing", but rather it is merely a continuation of the original hearing and no special legislative authority is necessary for the hearing to reconvene. See also: Canadian Refugee Procedure/RPD Rules 31-43 - Documents#If credibility concerns emerge from documents submitted by a claimant post-hearing, the panel generally need not resume the hearing.

A Member rendering an oral decision at the end of the hearing is not, in and of itself, indicative of bias

Rule 10(8) provides that a Division member must render an oral decision and reasons for the decision at the hearing unless it is not practicable to do so. In Pajarillo v. Canada, the claimant argues that the RPD was biased against her because the member made up her mind to reject the Applicant’s claim prior to hearing. The sole basis for making this allegation against the member was that the member returned after a lunch break and proceeded to render a lengthy oral decision. The court rejected this argument, noting that the claimant had failed to establish that the facts or issues in the case were so substantial or complex it was not reasonably practicable to comply with Rule 10(8) of the RPD Rules. The court stated: "The mere fact that the RPD was able to draft a decision and render it orally shortly 50 minutes after the conclusion of the hearing does not prove bias. A review of the transcript of the hearing discloses that the RPD member took into account the Applicant’s testimony and counsel’s arguments in reaching her decision." For more detail, see: Canadian Refugee Procedure/The right to an unbiased decision-maker#Statements or conduct that might indicate a predisposition on the part of the decision-maker.

RPD Rule 11 - Documents Establishing Identity and Other Elements of the Claim

Documents Establishing Identity and Other Elements of the Claim

Documents
11 The claimant must provide acceptable documents establishing their identity and other elements of the claim. A claimant who does not provide acceptable documents must explain why they did not provide the documents and what steps they took to obtain them.

Rule 11 should be read in conjunction with Section 106 of the Act

Section 106 of the IRPA states:

Claimant Without Identification

Credibility
106 The Refugee Protection Division must take into account, with respect to the credibility of a claimant, whether the claimant possesses acceptable documentation establishing identity, and if not, whether they have provided a reasonable explanation for the lack of documentation or have taken reasonable steps to obtain the documentation.

Despite the above provision of the Act referring to the RPD, section 106 of the IRPA does not preclude the RAD from overturning the RPD’s finding on the question of the Applicant’s identity. The RAD has jurisdiction to consider the question of a claimant’s identity, and to intervene when the RPD is wrong in law, in fact, or in fact or law. See: Canadian Refugee Procedure/110-111 - Appeal to Refugee Appeal Division.

History of Rule 11 of the RPD Rules

Rule 7 of the previous RPD Rules is in nearly (but not) identical language to the current version of the rules:

7. The claimant must provide acceptable documents establishing identity and other elements of the claim. A claimant who does not provide acceptable documents must explain why they were not provided and what steps were taken to obtain them.

Rule 7 was introduced into the RPD rules with the onset of the IRPA, and it built on a previous commentary and Practice Notice that had been issued by the IRB in 1997. This Commentary on Undocumented and Improperly Documented Claimants was issued to provide guidance to CRDD members as to how to deal with claimants who lacked proper documentation. The Federal Court held that Rule 7 was a codification of the common law that existed under the then Immigration Act: "Before Rule 7 existed, the law required that claimants provide sufficient proof of their identity or explain the failure to do so".

"Identity" as the term is used in the Act and the Rules refers to personal and national identity

The term "identity" can take on various meanings in the context of the IRPA and these rules. For example, the Board produced a public commentary to the previous version of the RPD Rules, which commented on the meaning of identity as follows:

"Identity" most commonly refers to the name or names that a claimant uses or has used to identify himself or herself. "Identity" also includes indications of personal status such as country of nationality or former habitual residence, citizenship, race, ethnicity, linguistic background, and political, religious or social affiliation.

That commentary is no longer in effect today. Thus, while it remains common to refer to an individual's “ethnic identity” or their “identity as Roma”, the Federal Court has held that these are not aspects of “identity” as that term is used in section 106 of the Act:

While ethnicity, like religion, sexuality, or other fundamental personal characteristics, may be considered part of one’s identity, I do not consider these characteristics to fall within the scope of “identity” in section 106. Rather, section 106 appears to refer to identity in the sense of personal/national identity

It should be presumed that the way that the term "identity" is used in the Rules conforms to the way that the term is used in the Act.

The birth date, like names and surnames, clearly constitute key components of identity.

A claimant is obliged to provide any relevant documents in their possession at the time that they provide their BOC form

As per Rule 7(3), the claimant must attach to the original and to the copy of the completed Basis of Claim Form a copy of their identity and travel documents, genuine or not, and a copy of any other relevant documents in their possession. This obligation is reproduced in the Basis of Claim form which instructs: "Attach two copies of any documents you have to support your claim, such as travel documents (including your passport) and identity, medical, psychological or police documents." The Appendix to the BOC form discusses this in more detail: "Attach two copies of all documents (identity, travel or other documents) that you have with you now to support your claim for refugee protection, including documents that are not genuine, documents that you got in an irregular or illegal way or by giving information that is not true, and documents you used that do not really belong to you." The requirement to provide copies of non-genuine identity documents is a reflection of the reality that roughly 60 percent of refugee claimants arrive either with false documents or without proper documentation. The Board's commentary to the previous version of the rules may provide some guidance about the scope of this obligation: "These documents include not only those that were used but also those intended to be used for travelling or supporting the claim." Rule 7(4) further provides that if the claimant obtains an identity or travel document after the Division has received the completed Basis of Claim Form, they must provide two copies of the document to the Division without delay.

A claimant has an obligation to make reasonable efforts to establish their identity and to corroborate their claim

RPD Rule 11 provides that a claimant must provide acceptable documents establishing their identity and other elements of the claim. In the words of the Federal Court, "this search for confirmatory evidence is a matter of common sense." Subsection 100(4) of the Immigration and Refugee Protection Act requires the claimant to produce all documents and information as required by the rules of the Board. This obligation tracks the following statement from the UNHCR Handbook: "The applicant should...make an effort to support his statements by any available evidence and give a satisfactory explanation for any lack of evidence. If necessary he must make an effort to procure additional evidence." The Basis of Claim form emphasizes a claimant's obligation to make efforts to obtain such documents as follows:

If you do not have [identification] documents like this with you, you need to do everything you can to get them immediately. If you still cannot get these documents, you will need to explain the reason for this at your hearing and show that you did everything you could to get them.

As explained in the Board's commentary to the previous version of these rules, "the claimant should keep a record of the steps taken, such as copies of letters sent, to obtain identity and other necessary documents." In this way, as explained in the Board's commentary to the previous version of the RPD Rules, a claimant who is unsuccessful in obtaining documents to establish his or her identity and other elements of the claim should not only be prepared to provide a reasonable explanation for the lack of documents and describe the diligent efforts they made to obtain such documents, but they should also be able to present proof of the steps that were taken. There are limits on the types of documents that a claimant may reasonably be expected to produce. For example, in Discua v. Canada, the court commented that the Board may not question a claimant on their failure to obtain a passport from their embassy once in Canada:

it was altogether unreasonable for the RPD to find fault with Ms. Lazo Discua because she did not attempt to obtain a Honduran passport once she was in Canada. Had she done so, and had a Honduran passport been issued to her, Ms. Lazo Discua would have created a significant impediment to her refugee claim which she would then have to try to overcome. Indeed, even simply applying for a passport could have raised serious questions about her willingness to seek the protection of her country of nationality and, as a result, whether she was a Convention refugee. In short, the RPD faulted Ms. Lazo Discua for failing to take a step that could have made it materially more difficult for her to establish her claim for refugee protection. This cannot reasonably ground an adverse finding concerning her credibility. Indeed, it was unreasonable for the RPD even to pursue the line of questioning it did in this regard

The types of documents a claimant should submit to establish their identity

As stated in the Board's commentary to the previous version of the RPD Rules, "Section 106 of the Immigration and Refugee Protection Act imposes a duty on the claimant to provide acceptable documents establishing the claimant's identity, including documents the claimant does not possess but can reasonably obtain." The commentary went on to state that "In assessing the claimant's credibility, the Division must consider the lack of such documents and any reasonable explanation given for not providing them, as well as the steps taken to obtain them. Documents that are not genuine, that have been altered, or that are otherwise improper are generally not acceptable proof of identity." The Claimant's Kit from the Board highlights the claimant's responsibility to provide relevant documents and clarifies what types of documents might be considered acceptable:

You must show the RPD evidence of who you are by giving the RPD high-quality copies of official documents with your name and date of birth on them (“identity documents”). For example, you can give a passport, national identity card, birth certificate, school certificate, driver’s licence, military document, and professional or religious membership card. ... If you do not provide identity documents or other documents in support of your claim, you will have to explain at your hearing why you do not have them and show that you did everything to try to get them.

In the words of the Federal Court, the requirements of this rule impose "a burden that any claimant can meet." As noted in Arewel v. Canada, documents establishing identity need not necessarily be government-issued identity documents. The Board's commentary to the previous version of the rules had the following commentary on the subject of "other independent evidence to establish identity", which appears to be of continued relevance:

The claimant who lacks documents or whose documents are not found acceptable should be prepared to present other independent evidence to establish his or her identity or other elements of the claim, if such evidence is available. Such evidence may include:

• testimony of friends, relatives, community elders or other witnesses; and
• affidavits of individuals who have personal knowledge of the claimant's identity or other elements of the claim.

See also: Canadian Refugee Procedure/IRPR ss. 28-52 - Conduct of Examination#IRPR s. 50.1 - Designation of unreliable travel documents.

The types of documents a claimant should submit to establish "other elements of their claim"

The scope of Rule 11 is not limited to documents establishing identity and also applies to "other elements of the claim". The Board has a document on its website entitled Important instructions for refugee claimants which states "You should obtain and submit whatever documents you can to support your claim, such as police reports, medical records, newspaper articles etc." The Claimant's Kit highlights the claimant's responsibility to provide relevant documents and clarifies what type of documents might be considered acceptable:

Along with identity documents, you can submit other high-quality copies of original documents that you feel are relevant to your claim, including proof of membership in political organizations, medical or psychological reports, police documents, business records, news clippings, visas and travel documents (airplane, train or bus tickets). ... If you do not provide identity documents or other documents in support of your claim, you will have to explain at your hearing why you do not have them and show that you did everything to try to get them.

Similarly, the instructions on the BOC form state: "Attach two copies of any documents you have to support your claim, such as travel documents (including your passport) and identity, medical, psychological or police documents." The Federal Court holds that "it is essential that claimants be able to produce acceptable identification documents in order to establish their identity and their route to Canada". Additionally, the caselaw has indicated that Roma claimants may be expected to have approached NGO and governmental sources for identity documents relating to their ethnicity.

Inferences about credibility that may be made where a claimant does not supply documents

The starting-point when assessing credibility in the Canadian refugee determination system is the principle in the oft-cited case of Maldonado that “[w]hen an applicant swears to the truth of certain allegations, this creates a presumption that those allegations are true unless there be reason to doubt their truthfulness”. Drawing on the Maldonado presumption, a line of cases flowing from the decision of Justice Teitelbaum in Ahortor has concluded that the absence of corroborative evidence is not, in and of itself, a basis to disbelieve a claimant’s allegations. These principles, however, exist alongside section 106 of the IRPA and Rule 11 of the Refugee Protection Division Rules, SOR/2012-256 [RPD Rules], which were introduced subsequent to the decisions in Maldonado and Ahortor. As such, Canadian refugee law provides that it would be an error to make a credibility finding based on the absence of corroborative evidence alone where there is no independent reason to require corroboration. A decision-maker can only require corroborative evidence if:

1. The decision-maker clearly sets out an independent reason for requiring corroboration, such as doubts regarding the applicant’s credibility, implausibility of the applicant’s testimony or the fact that a large portion of the claim is based on hearsay; and 2. The evidence could reasonably be expected to be available and, after being given an opportunity to do so, the applicant failed to provide a reasonable explanation for not obtaining it.

See also: Canadian Refugee Procedure/170 - Proceedings#How should the Division determine whether evidence should be considered credible or trustworthy?.

The Division may instruct a claimant to provide specific documents

The Board's public comment to the previous version of the RPD Rules noted that "the Division may instruct the claimant to provide specific documents that have been identified by the Division in the claim-screening process as being necessary for considering the claim." The Board retains the power to issue such instructions under its power to control its own process. Further, the Board's powers under the Inquiries Act authorize members to compel testimony and the production of evidence: Canadian Refugee Procedure/165 - Powers of a Member.

A claimant must provide original documents at the hearing, or beforehand, on the request of the Division

As per RPD Rule 42, a claimant is to present the originals of his or her documents at the beginning of the hearing of the claim. The Division may require the claimant to provide the originals earlier by notice in writing. See Canadian Refugee Procedure/RPD Rules 31-43 - Documents#RPD Rule 42 - Original documents for further details, including the way that the Board has waived part of this rule during the Covid-19 period.

However, see IRPR s. 13 which provides that "Unless these Regulations provide otherwise, a passport, a permanent resident visa, a permanent resident card, a temporary resident visa, a temporary resident permit, a work permit or a study permit may be produced only by producing the original document": Canadian Refugee Procedure/IRPR s. 13 - Documents and Certified Copies.

RPD Rule 12 - Supplying contact information after an Application to Vacate or to Cease Refugee Protection

Application to Vacate or to Cease Refugee Protection

Contact information
12 If an application to vacate or to cease refugee protection is made, the protected person must without delay notify the Division and the Minister in writing of
(a) any change in their contact information; and
(b) their counsel’s contact information and any limitations on the counsel’s retainer, if represented by counsel, and any changes to that information.

Commentary

For a discussion of the principles applicable to this provision, see the commentary on Rule 4(3), the equivalent provision for refugee claimants: Canadian Refugee Procedure/Information and Documents to be Provided#Rule 4 - Claimant's contact information.

RPD Rule 13 - Declaration where counsel not representing or advising for consideration

Declaration — counsel not representing or advising for consideration
13 If a protected person retains counsel who is not a person referred to in any of paragraphs 91(2)(a) to (c) of the Act, both the protected person and their counsel must without delay provide the information and declarations set out in Schedule 3 to the Division in writing.

Commentary

In effect, Rule 13 requires that a protected person who is being represented by someone who is not a lawyer, paralegal, or registered immigration consultant to complete a form certifying that their counsel is not being paid. What is a protected person? Section 95(2) of the IRPA provides that "a protected person is a person on whom refugee protection is conferred [under subsection 95(1) of the Act], and whose claim or application has not subsequently been deemed to be rejected under subsection 108(3), 109(3) or 114(4)." In this way, Rule 13 is the analogue to RPD Rule 5 which imposes the same obligation on refugee claimants: Canadian Refugee Procedure/Information and Documents to be Provided#Rule 5 - Declaration where counsel is not acting for consideration.