Effective date: December 8, 2014
- Service of Documents
- Translation of Documents
- Form of Documents
- Amendments to Basis of Claim Form
In December 2012, the Refugee Protection Division (RPD) of the Immigration and Refugee Board of Canada made new rules of procedure (RPD Rules or the Rules). The rules support the changes to the refugee claim process brought into effect through refugee reform.
Since their publication, there has been substantial non-compliance with several aspects of the RPD Rules. This non-compliance has led to delays and has interfered with the efficient work of the Division. In some cases, non-compliance with the RPD Rules may also lead to unfavourable rulings by the presiding member.
This Notice serves as a reminder to parties and counsel appearing before the RPD that the RPD expects them to be familiar with the RPD Rules and to adhere to them. This Notice also serves to highlight recurring issues that have been identified as particularly challenging and to clarify the RPD’s expectations in these regards.
Several RPD Rules require documents to be served on the other party. For example, in accordance with RPD Rule 34(1), any document a party wishes to use in a hearing must also be provided to the other party. In accordance with RPD Rule 34(2), when providing a copy of the document to the Division, it must be accompanied by a written statement indicating how and when a copy was provided to the other party.
Frequently, parties are not sending a copy to the other party, as required, or are omitting to send a notice of service to the Division. This can result in significant delays to the proceedings, for example if the document is an application, or could lead a member to not accept the document.
The Division also wishes to clarify that the combined effect of RPD Rules 1 and 29 is that the Minister is considered a party whenever they have intervened in the claim, even if they have indicated that they will not be appearing at the hearing. Therefore, in such a situation, where the rules require that a document be served on the other party, the Minister must be provided a copy.
Documents not served on the other party when required may be refused by the presiding member until proof of service is provided.
RPD Rule 32(1) provides that a refugee claimant or protected person must include an English or French translation with any document that is not written in one of those languages. RPD Rule 32(2) provides that any document the Minister wishes to use must be in the language of the proceedings, or be accompanied by a translation into that language. RPD Rule 32(3) provides that the translations must be accompanied by a declaration signed by a translator.
The RPD frequently receives documents that have not been translated, or have been translated but are not accompanied by a translator’s declaration. Sometimes these documents have been translated by a web-based tool, such as Google Translate. Such translations do not comply with RPD Rule 32, cause delays to the proceedings and may not be accepted by the presiding member.
RPD Rule 34(3) provides that if a party wants to use a document in a hearing, a copy must be provided to the Division and the other party no later than 10 days before the date fixed for the hearing, unless it is in response to a document filed by another party or the Division, in which case the time limit is five days before the date fixed for the hearing.
The RPD regularly receives documents after the time limit set out in Rule 34, often on the day of the hearing. While refugee claims are now heard more expeditiously post-reform, it is still incumbent on parties to submit the evidence they wish to rely upon within the time limits set out in the rules.
If a party is not able to comply with this time limit, the RPD expects the documents to be provided as soon as possible afterwards. Parties should be prepared to explain to the presiding member why the documents should be accepted late, in particular with reference to the criteria set out in RPD Rule 36.
The rules allow a member to refuse to accept documents not filed within the prescribed time limits, after considering all relevant factors.
RPD Rule 31 sets out the RPD’s expectations with respect to the form of documents. The RPD frequently receives packages of documents that are not paginated nor accompanied by a list identifying each document in the package, as required by Rule 31.
To comply with the requirement to identify each document, the list should contain clear descriptions, for example, by author, date, and subject. This allows all participants to efficiently reference the documents during the hearing and facilitates the completion of the tribunal record for the Refugee Appeal Division or the Federal Court, as required.
The rules allow a member to refuse to accept documents that are not in the prescribed form.
RPD Rule 9 sets out the procedure to follow and the time limit for making amendments to the Basis of Claim Form (BOC Form). Specifically, the changes must be underlined and a declaration attached indicating the information is complete, true and correct. This must be provided to the Division no later than 10 days before the day fixed for the hearing.
Frequently, amended BOC Forms are provided to the Division late and the amendments are not specified by underlining. This is not in conformity with the rule and interferes with the efficient functioning of the Board. The rules allow a member to refuse to accept amendments if they are not provided in the prescribed form and within the time limit stipulated.
Refugee Protection Division