Canadian Refugee Procedure/RAD Rules Part 4 - Rules Applicable to an Appeal for Which a Hearing Is Held

RAD Rules Part 4

The text of the relevant rules reads:

PART 4
Rules Applicable to an Appeal for Which a Hearing Is Held

RAD Rule 55 - Fixing a Date for a Hearing

Fixing a Date for a Hearing

Conference to fix date for hearing
55 The Division may require the parties to participate in a scheduling conference or otherwise give information to help the Division fix a date for a hearing.

RAD Rule 56 - Notice to Appear

Notice to appear
56 (1) When, in accordance with paragraph 171(a) of the Act, the Division gives notice to the person who is the subject of the appeal and to the Minister of any hearing, it must notify them in writing of the date, time and location fixed for the hearing and the issues that will be raised at the hearing.

Date fixed for hearing
(2) The date fixed for the hearing of an appeal must not be earlier than 10 days after the day on which the person who is the subject of the appeal and the Minister receive the notice referred to in subrule (1), unless they consent to an earlier date.

Hearings at the RAD will normally be scheduled 3-6 weeks from the date on which the hearing is ordered

RAD Rule 56(2) provides that the date fixed for the hearing of an appeal must not be earlier than 10 days after the day on which the person who is the subject of the appeal and the Minister receive the Notice to appear for the hearing. RAD policy is also that the hearing must be scheduled within 42 days (6 weeks) from the date that the hearing is ordered, which provides a window of several weeks during which the hearing will normally be scheduled.

RAD Rule 57 - Conduct of a Hearing

Conduct of a Hearing

Restriction of hearing
57 (1) A hearing is restricted to matters relating to the issues provided with the notice to appear unless the Division considers that other issues have been raised by statements made by the person who is the subject of the appeal or by a witness during the hearing.

Standard order of questioning
(2) Unless the Division orders otherwise, any witness, including the person who is the subject of the appeal, will be questioned first by the appellant, then by any other party, then by the appellant in reply, and then by the Division.

Limiting questioning of witnesses
(3) The Division may limit the questioning of witnesses, including the person who is the subject of the appeal, taking into account the nature and complexity of the issues and the relevance of the questions.

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

Limits on representations
(5) After all the evidence has been heard, the Division must
(a) set time limits for representations, taking into account the complexity of the issues and the amount of relevant evidence heard; and
(b) indicate what issues need to be addressed in the representations.

The order of questioning in RAD hearings is not the same as the order of questioning in RPD hearings

In hearings at the RAD, the rules provides that any witness will be questioned first by the appellant, including the person who is the subject of the appeal. In contrast, at the RPD, the rules provide that the Member will question first: Canadian Refugee Procedure/RPD Rules 3-13 - Information and Documents to be Provided#RPD Rule 10 - Order of questioning in hearings, oral representations, oral decisions, limiting questioning.

RAD Rule 58 - Person Who Is the Subject of an Appeal in Custody

Person Who Is the Subject of an Appeal in Custody

Custody
58 The Division may order a person who holds a person who is the subject of an appeal in custody to bring the person to a proceeding at a location specified by the Division.

RAD Rule 59 - Interpreters

Interpreters

Need for interpreter — person
59 (1) If a person who is the subject of an appeal needs an interpreter, the person must indicate the language and dialect, if any, to be interpreted in the appellant’s record if they are the appellant or in the respondent’s record if they are the respondent.

Changing language of interpretation
(2) A person who is the subject of an appeal may change the language and dialect, if any, that they specified under subrule (1), or if they had not indicated that an interpreter was needed, they may indicate that they need an interpreter, by notifying the Division in writing and indicating the language and dialect, if any, to be interpreted. The notice must be received by the Division no later than 20 days before the date fixed for the hearing.

Need for interpreter — witness
(3) If any party’s witness needs an interpreter for a hearing, the party must notify the Division in writing and specify the language and dialect, if any, to be interpreted. The notice must be received by the Division no later than 20 days before the date fixed for the hearing.

Interpreter’s oath
(4) The interpreter must take an oath or make a solemn affirmation to interpret accurately.

Commentary

See the equivalent RPD rule: Canadian Refugee Procedure/RPD Rule 19 - Interpreters.

RAD Rule 60 - Observers

Observers

Observers
60 (1) An application under rule 42 is not necessary if an observer is the UNHCR or a member of the staff of the Board or if the person who is the subject of the appeal consents to or requests the presence of an observer other than a representative of the press or other media of communication at the proceeding.

Observers — factor
(2) The Division must allow the attendance of an observer unless, in the opinion of the Division, the observer’s attendance is likely to impede the proceeding.

Observers — confidentiality of proceeding
(3) The Division may take any measures it considers necessary to ensure the confidentiality of the proceeding despite the presence of an observer.

Commentary

See the equivalent RPD rule: Canadian Refugee Procedure/RPD Rule 58 - Observers.

RAD Rule 61 - Witnesses

Witnesses
Providing witness information

61 (1) If a party wants to call a witness, the party must provide the following witness information in writing to any other party and to the Division:

(a) the witness’s contact information;

(b) a brief statement of the purpose and substance of the witness’s testimony or, in the case of an expert witness, the expert witness’s brief signed summary of the testimony to be given;

(c) the time needed for the witness’s testimony;

(d) the party’s relationship to the witness;

(e) in the case of an expert witness, a description of the expert witness’s qualifications; and

(f) whether the party wants the witness to testify by means of live telecommunication.

Proof witness information provided

(2) The witness information provided to the Division must be accompanied by proof that it was provided to any other party.

Time limit

(3) Documents provided under this rule must be received by their recipients no later than 20 days before the date fixed for the hearing.

Failure to provide witness information

(4) If a party does not provide the witness information, the witness must not testify at the hearing unless the Division allows them to testify.

Factors

(5) In deciding whether to allow a witness to testify, the Division must consider any relevant factors, including

(a) the relevance and probative value of the proposed testimony; and

(b) the reason why the witness information was not provided.

Requesting summons

62 (1) A party who wants the Division to order a person to testify at a hearing must make a request to the Division for a summons, either orally at a proceeding or in writing.

Factors

(2) In deciding whether to issue a summons, the Division must consider any relevant factors, including

(a) the necessity of the testimony to a full and proper hearing;

(b) the person’s ability to give that testimony; and

(c) whether the person has agreed to be summoned as a witness.

Using summons

(3) If a party wants to use a summons, they must

(a) provide the summons to the person by hand;

(b) provide a copy of the summons to the Division, together with proof that it was provided to the person by hand; and

(c) pay or offer to pay the person the applicable witness fees and travel expenses set out in Tariff A of the Federal Courts Rules.

Cancelling summons

63 (1) If a person who is summoned to appear as a witness wants the summons cancelled, the person must make an application in writing to the Division.

Application

(2) The person must make the application in accordance with rule 37, but is not required to give evidence in an affidavit or statutory declaration.

Arrest warrant

64 (1) If a person does not obey a summons to appear as a witness, the party who requested the summons may make a request to the Division orally at the hearing, or in writing, to issue a warrant for the person’s arrest.

Written request

(2) A party who makes a written request for a warrant must provide supporting evidence by affidavit or statutory declaration.

Requirements for issue of arrest warrant

(3) The Division must not issue a warrant unless

(a) the person was provided the summons by hand or the person is avoiding being provided the summons;

(b) the person was paid or offered the applicable witness fees and travel expenses set out in Tariff A of the Federal Courts Rules;

(c) the person did not appear at the hearing as required by the summons; and

(d) the person’s testimony is still needed for a full and proper hearing.

Content of warrant

(4) A warrant issued by the Division for the arrest of a person must include directions concerning detention or release.

Excluded witness

65 If the Division excludes a witness from a hearing room, no person may communicate to the witness any evidence given while the witness was excluded unless allowed to do so by the Division or until the witness has finished testifying.

Changing the Location of a Hearing
Application to change location

66 (1) A party may make an application to the Division to change the location of a hearing.

Form and content of application

(2) The party must make the application in accordance with rule 37, but is not required to give evidence in an affidavit or statutory declaration.

Time limit

(3) Documents provided under this rule must be received by their recipients no later than 20 days before the date fixed for the hearing.

Factors

(4) In deciding the application, the Division must consider any relevant factors, including

(a) whether the party is residing in the location where the party wants the hearing to be held;

(b) whether a change of location would allow the hearing to be full and proper;

(c) whether a change of location would likely delay the hearing;

(d) how a change of location would affect the Division’s operation;

(e) how a change of location would affect the parties;

(f) whether a change of location is necessary in order to accommodate a vulnerable person; and

(g) whether a hearing may be conducted by means of live telecommunication with the person who is the subject of the appeal.

Duty to appear

(5) Unless a party receives a decision from the Division allowing the application, the party must appear for the hearing at the location fixed and be ready to start or continue the hearing.

RAD Rule 67 - Changing the Date or Time of a Hearing

Changing the Date or Time of a Hearing

Application to change date or time
67 (1) A party may make an application to the Division to change the date or time fixed for a hearing.

Form and content of application
(2) The party must
(a) make the application in accordance with rule 37, but is not required to give evidence in an affidavit or statutory declaration; and
(b) give at least six dates and times, within the period specified by the Division, on which the party is available to start or continue the hearing.

Notice of period specified by Division
(3) The Division must provide notice of the period referred to in paragraph (2)(b) in a manner that will allow public access to it.

Hearing two working days or less away
(4) If the party wants to make an application two working days or less before the date fixed for the hearing, the party must make the application orally on the date fixed for the hearing.

Factors
(5) In deciding the application, the Division must consider any relevant factors, including
(a) in the case of a date and time that was fixed after the Division consulted or tried to consult the party, any exceptional circumstances for allowing the application;
(b) when the party made the application;
(c) the time the party has had to prepare for the hearing;
(d) the efforts made by the party to be ready to start or continue the hearing;
(e) in the case of a party who requests more time to obtain information in support of their arguments, the Division’s ability to proceed in the absence of that information without causing an injustice;
(f) whether the party has counsel;
(g) the knowledge and experience of any counsel who represents the party;
(h) any previous delays and the reasons for them;
(i) whether the date and time fixed were peremptory;
(j) whether the change is required to accommodate a vulnerable person;
(k) whether allowing the application would unreasonably delay the hearing or likely cause an injustice; and
(l) the nature and complexity of the matter to be heard.

Subsequent application
(6) If the party made a previous application that was denied, the Division must consider the reasons for the denial and must not allow the subsequent application unless there are exceptional circumstances supported by new evidence.

Application for medical reasons
(7) If a person who is the subject of an appeal 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 person who has provided a copy of the certificate to the Division must provide the original document to the Division without delay.

Content of certificate
(8) The medical certificate must set out
(a) the particulars of the medical condition, without specifying the diagnosis, that prevent the person from participating in the hearing on the date fixed for the hearing; and
(b) the date on which the person is expected to be able to participate in the hearing.

Failure to provide medical certificate
(9) If a person who is the subject of an appeal fails to provide a medical certificate in accordance with subrules (7) and (8), the person 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 participating in the hearing on the date fixed for the hearing.

Duty to appear
(10) Unless a party receives a decision from the Division allowing the application, the party must appear for the hearing at the date and time fixed and be ready to start or continue the hearing.

RAD Rule 68 - Abandonment

Abandonment

Abandonment after hearing scheduled
68 (1) In determining whether an appeal has been abandoned under subsection 168(1) of the Act after a date for a hearing has been fixed, the Division must give the appellant an opportunity to explain why the appeal should not be declared abandoned,
(a) immediately, if the appellant is present at the hearing and the Division considers that it is fair to do so; or
(b) in any other case, by way of a special hearing, after notifying the appellant in writing.

Factors to consider
(2) The Division must consider, in deciding if the appeal should be declared abandoned, the explanation given by the appellant and any other relevant factors, including the fact that the appellant is ready to start or continue the proceedings.

Medical reasons
(3) If the appellant is the person who is the subject of the appeal and the explanation includes medical reasons, other than those related to their counsel, they must provide, together with the explanation, the original of a legible, recently dated medical certificate signed by a qualified medical practitioner whose name and address are printed or stamped on the certificate.

Content of certificate
(4) The medical certificate must set out
(a) the particulars of the medical condition, without specifying the diagnosis, that prevented the person from pursuing their appeal; and
(b) the date on which the person is expected to be able to pursue their appeal.

Failure to provide medical certificate
(5) If a person who is the subject of an appeal fails to provide a medical certificate in accordance with subrules (3) and (4), the person must include in their explanation
(a) particulars of any efforts they made to obtain the required medical certificate, supported by corroborating evidence;
(b) particulars of the medical reasons included in the explanation, supported by corroborating evidence; and
(c) an explanation of how the medical condition prevented them from pursuing their appeal.

Start or continue proceedings
(6) If the Division decides not to declare the appeal abandoned, it must start or continue the proceedings without delay.

The RAD may determine that any proceeding before it has been abandoned, not just one where a hearing is scheduled

The RAD rule on abandonment is part of Part 4 of the rules, namely "Rules Applicable to an Appeal for Which a Hearing Is Held". However, this should not restrict the RAD's discretion to declare other types of proceedings abandoned which is enshrined in the IRPA. For more information, see this discussion of the related RPD rule: Canadian Refugee Procedure/RPD Rule 65 - Abandonment#A Division may determine that any proceeding before it has been abandoned, not just a refugee claim.