Canadian Refugee Procedure/RPD Rule 59 - Withdrawal

In certain circumstances, claimants may wish to withdraw a claim. This may happen, for example, if they have otherwise acquired status in Canada or if they wish to leave Canada.

IRPA Section 168(2)

Abuse of process
168(2) A Division may refuse to allow an applicant to withdraw from a proceeding if it is of the opinion that the withdrawal would be an abuse of process under its rules.

RPD Rule 59

The text of the relevant rule reads:

Withdrawal

Abuse of process
59 (1) For the purpose of subsection 168(2) of the Act, withdrawal of a claim or of an application to vacate or to cease refugee protection is an abuse of process if withdrawal would likely have a negative effect on the Division’s integrity. If no substantive evidence has been accepted in the hearing, withdrawal is not an abuse of process.

Withdrawal if no substantive evidence accepted
(2) If no substantive evidence has been accepted in the hearing, a party may withdraw the party’s claim or the application to vacate or to cease refugee protection by notifying the Division orally at a proceeding or in writing.

Withdrawal if substantive evidence accepted
(3) If substantive evidence has been accepted in the hearing, a party who wants to withdraw the party’s claim or the application to vacate or to cease refugee protection must make an application to the Division in accordance with rule 50.

Rule 59(1): Withdrawal of specified proceedings is an abuse of process if withdrawal would likely have a negative effect on the Division's integrity

Rule 59(1) provides that withdrawal of a claim or of an application to vacate or to cease refugee protection is an abuse of process if withdrawal would likely have a negative effect on the Division's integrity, however if no substantive evidence has been accepted in a hearing, withdrawal is not an abuse of process. In this way, the standard for allowing withdrawal is different from that applied to visa applications where a misrepresentation has been discovered. In that context, the Federal Court has found that applicants should not be permitted to hedge their bets and benefit from a misrepresentation, with the security that they could simply withdraw their application if the misrepresentation is later discovered.

Common reasons for requests to withdraw refugee protection applications that have been accepted include withdrawal requests so that the applicant may travel outside of Canada, for example to visit a relative who has fallen ill, a claimant wishes to return to their country of nationality, or a claimant wishes to apply for a Temporary Resident Permit, something that may not be done until a certain amount of time has passed after the rejection of a claim. See: Canadian Refugee Procedure/24 - Temporary resident permit.

Rule 59(2): No decision is required from the Board to accept a withdrawal notice where no substantive evidence has been accepted

Board member Daniel Tucci has commented in one decision that "once the Notice to withdraw the claim is filed with the RPD, the claim is considered withdrawn and no decision is required by the RPD." This principle was explained by the Federal Court in Arndorfer v. Canada, a case considering a previous version of the RPD Rules which applies with equal force to the present rule:

The applicants complained in their affidavits that they were not contacted in order to confirm that they were withdrawing their claims. Such a complaint is not justified. As discussed above, the CRDD is entitled to rely on documents which it receives, and is entitled to presume that they have been properly executed. In addition, the abandonment hearings to which applicants have a right under s. 69.1(6) of the Act are not necessary in the case of a withdrawal. The applicant who is found by the CRDD to have abandoned a claim requires, as a matter of procedural fairness, the right to be heard by the body that is making that decision with regard to his or her claim. In the case of a withdrawal, the applicant is the one who makes the decision and exercises his right to put an end to his claim.

The RPD also published a form Notice of Withdrawal of a Claim for Refugee Protection, which it states should be submitted to the Division if a claimant is withdrawing their claim for refugee protection under Rule 59(2) of the Rules. The form warns: "I am aware that as a result of the withdrawal of my claim, the Canada Border Services Agency may require me to leave Canada, and I will not be permitted to make another claim for refugee protection in Canada." However, the form also notes that it is not to be used for cases where substantive evidence has been heard, in which case the Rule 59(3) process is to be followed instead.

Rule 59(3): If substantive evidence has been accepted in the hearing, an application to withdraw must be made per with Rule 50

If substantive evidence has been accepted in the hearing, a party who wants to withdraw the party’s claim or the application to vacate or to cease refugee protection must make an application to the Division in accordance with rule 50. Which see: Canadian Refugee Procedure/RPD Rules 49-52 - Applications#RPD Rule 50 - How to Make an Application.

A claimant may not withdraw their claim if a final decision has already been rendered on it

Sometimes a claimant asks to withdraw their claim after an (unfavourable) final decision has been rendered. That is not possible pursuant to this rule. See the following discussion of the principle of functus officio: Canadian Refugee Procedure/RPD Rules 62-63 - Reopening a Claim or Application#Section 170.2 of the IRPA.