Canadian Refugee Procedure/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.[1]

IRPA Section 168(2)Edit

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.

Rule 59Edit

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.

CommentaryEdit

No decision is required from the Board to accept a withdrawal notice where no substantive evidence has been acceptedEdit

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commented in one decision that "once the Notice to withdraw the claim is filed with the RPD, the claim is considered withdrawn and no decision is required by the RPD."[2] This principle was explained by the Federal Court in Arndorfer v. Canada, a case considering a previous version of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.[3]

ReferencesEdit

  1. Martin David Jones and Sasha Baglay. Refugee Law (Second Edition). Irwin Law, 2017, page 306.
  2. X (Re), 2016 CanLII 65021 (CA IRB), par. 5, <http://canlii.ca/t/gtxqh#5>, retrieved on 2020-01-29.
  3. Arndorfer v. Canada (Minister of Citizenship and Immigration), 2002 FCT 2007 (CanLII), [2002] F.C.J. No 1659).