ppt - refugeelawyers.net

CBA BC Refugee Lawyers Group CLE Conference
February 8, 2013
Presentation by Peggy Lee
Associate Lawyer at Elgin, Cannon & Associates
Immigration and Refugee Protection Act
Refugee Protection Division Rules (Dec. 15,
IRB Chairperson’s Guidelines (Dec.15, 2012)
Ministerial Orders – DCOs & DFNs (Dec. 2012)
◦ amended by Balanced Refugee Reform Act (June
◦ amended by Protecting Canada’s Immigration
System Act (June 2012)
◦ Guideline 6 – Scheduling & Changing Date or Time
◦ Guideline 7 – Preparation & Conduct of RPD Hearing
◦ Guideline 8 – Vulnerable Persons before the RPD
Inland DCO
All others
All others
BoC & Forms BoC & Forms Forms to
Forms to
RPD referral
RPD referral
RPD referral
BoC to RPD
BoC to RPD
RPD referral
RPD Hearing
RPD Hearing
RPD Hearing
RPD Hearing
Accepting retainers for refugee claimants
POE / Inland / Detained claimants
Completing refugee claim forms
Declarations / Extensions/ Amendments
Scheduling RPD Hearings & Applications
Time limits / Applications to Change Date
Preparation & Conduct of RPD Hearings
Disclosure / Minister’s Intervention / Procedures
Are you able to submit the completed BOC
Form to RPD within the time limit of less
than 15 days?
Are you available for the scheduled RPD
hearing date in less than 45 days for
DCOs or 60 days for non-DCOs?
Are you able to submit the completed BOC
Form to RPD within a reasonable time
If claimant is out-of-status, advise on risk of CBSA arrest
before refugee eligibility is determined.
Are you available for the RPD hearing in
less than 30 days for DCOs or 60 days for
Are you able to submit the completed BOC
and Forms to CBSA immediately (or latest
within 3 days)?
◦ Is there a qualified interpreter that is available
◦ Are there potential eligibility or inadmissibility
issues that could complicate the case?
Are you available for the RPD hearing in
less than 30 days for DCOs or 60 days for
RPD Rule 14(1): Subject to extent of limited
retainer, as soon as counsel for a claimant agrees
to a date for a proceeding or as soon as person
becomes counsel after proceeding is fixed, the
counsel becomes “counsel of record”
RPD Rule 14(2): if the claimant has notified the
Division of counsel’s limited retainer, counsel is
counsel of record only to the extent of the
limited retainer and ceases to be counsel as soon
as those services are completed
RPD Rule 15:
RPD Rule 16:
◦ Counsel must provide written request first to Claimant,
then if applicable to the Minister and then to the RPD no
later than 3 working days before next hearing;
◦ if less than 3 working days then must appear on date
fixed to make oral request to be removed as counsel;
◦ Counsel remains ‘counsel of record’ unless the request
to be removed is granted
◦ Claimant can remove counsel as counsel of record by
providing written notice to RPD and Minister if Minster is
a party;
◦ Counsel ceases to be counsel of record as soon as RPD
receives the notice
Refugee Claim Document Checklist (IMM 5745)
Generic Application Form for Canada
Additional Dependants/Declaration
Schedule A – Background/Declaration
Schedule 12 – Refugee Claimants Inside Canada
(IMM 0008 – Schedule 12)
Basis of Claim Form
Use of Representative (IMM 5476)
BoC Q.2(a) “Have you or your family ever been
harmed, mistreated or threatened by any person or
group?” If ‘YES’ explain in detail –what, when, who,
why, any similarly-situated?
◦ insufficient time to draft BoC for POE & detained claimants
◦ skeletal summary of basis of claim especially if insufficient
time. (eg. Yes, I fear political persecution from the state
government because I am an opposition party member.)
◦ modify BoC declaration in narrative (eg. Due to insufficient
time to prepare the BoC, it is not possible to declare that
the information is ‘complete, true, and correct’ and an BoC
amendment may be forwarded as soon as possible.)
PIF is brief recitation of claim: “The PIF is
supposed to be a brief recitation of the
applicant’s claim, not a documentation of his
whole case.” (Erdos v. Canada, 2003 FC 955
at para. 20)
BoC Form purpose: “to gather information
from a refugee claimant about their claim to
help prepare and conduct the hearing
properly.” (CIC Website, ‘Notice-Q&A: PCISA’)
applicable only to POE Claimants
RPD Rule 8: BoC written extension application
to RPD “no later than 3 working days” before
time limit
◦ must include decision sought, supporting reasons &
views of other party if known; not required to give
evidence in affidavit or statutory declaration RPD Rule
May be better to submit skeletal BoC within
time limits than seek BoC extension.
RPD Rule 8(3): Claimant must provide medical
certificate by qualified medical practitioner
RPD Rule 8(4): medical certificate must set
out particulars of medical condition that
prevent claimant from providing completed
BoC within prescribed time limit
RPD Rule 8(5): if no medical certificate, show
efforts to obtain, medical reason particulars
and why prevent claimant provide BoC
RPD Rule 65(2): abandonment hearing for failure
to provide BoC held within 5 working days on
which BoC due; claimant must provide BoC at
special hearing (unless already provided to RPD)
RPD Rule 65(4): factors to consider include
explanation by claimant, any other relevant
factors, fact that claimant ready to start or
continue proceedings
RPD Rule 65(5): original medical certificate if
claimant explanation includes medical reasons
RPD Rule 9:
◦ provide original and copy to RPD
◦ sign & date each page & underline changes or
additions made;
◦ sign & date declaration “complete, true &
correct”, understand same force & effect as if
made under oath
◦ amendments no later than 10 days before
hearing date
RPD Rule 27(3): RPD may notify Minister re
“integrity issues” including:… (b) a substantial
change to the basis of the claim from that
indicated in the Basis of Claim Form first
provided to the Division; (c) information that,
in support of the claim, the claimant
submitted documents that may be fraudulent;
or (d) other information that the claimant may
be directly or indirectly misrepresenting or
withholding material facts relating to a
relevant matter.
amendment obligations & credibility: negative credibility
inference if not amend PIF with important information
directly connected to claim (Prak v. Canada, 2006 FC 1516
at para. 4);
delayed amendments: negative credibility inference if no
reasonable explanation for delayed amendments
(Lahocsinsky v. Canada, 2004 FC 275 at para. 10)
before affirmation at RPD hearing: “the Board was not
incorrect, in the circumstances, to draw negative
inferences from the applicants’ failure to include such
information, especially after they affirmed at the beginning
of the hearing that the PIFs were complete and true.”
(Delthalawe v. Canada (MCI), 2011 FC 1188 at para. 17)
RPD Rule 3(2): officer must select date closest to
last day of applicable time limit, unless claimant
agrees to earlier date
RPD Rule 3(3): officer must consider counsel’s
availability if the client has retained counsel at
time of referral and officer informed counsel
available to attend a hearing on one of the dates
provided by RPD
Practice Note: Counsel should submit available
dates & times within 5 days of 30/45/60-day
limits to CIC/CBSA/RPD (together with BoC &
IRB CG6, 3.3.1: scheduling based on
operational & legislative requirements &
principles of natural justice
IRB CG6, 3.3.3: except in RPD hearings set by
CIC/CBSA, IRB endeavors to contact counsel
for available dates
IRB CG6, 3.3.4: IRB attempts to accommodate
counsel’s calendar but is not bound by
counsel’s availability
IRB CG6, 3.3.6: IRB may schedule when
counsel is not available
RPD Rule 54(2) Time limit & content of
written application:
◦ (a) application must be made without delay
◦ (b) received by RPD no later than 3 working days
before date fixed for proceeding
◦ (c) include 3 dates and times no later than 10
working days of originally fixed date
RPD Rule 54(3) Oral application:
◦ oral application if less than 3 working days
before proceeding
RPD Rule 54(4) exceptional circumstances
◦ RPD must not allow application unless
there are exceptional circumstances
 (a) change required to accommodate vulnerable
person or
 (b) an emergency or other development outside
the party’s control and the party has acted
◦ RPD Rule 54(5): RPD must allow change of date
application if
 (a) claimant retains counsel no later than 5 working
days after hearing date fixed
 (b) counsel retained not available on date fixed for
the hearing
 (c) application made in writing
 (d) application made without delay & no later than 5
working days after hearing date fixed
 (e) claimant provides at least 3 dates & times when
counsel is available
right to counsel: right to counsel before RPD is a
procedural fairness issue (Bryndza v. Canada (MCI), 2012 FC
1250 at para. 3; Cervenakova v. Canada (MCI), 2012 FC 525 at para.
procedural fairness factors: RPD must consider
Siloch factors [Bryndza v. Canada (MCI), 2012 FC 1250 at
para.11 citing: Siloch v. Canada (MCI) (1993), 151 NR 76 (FCA) at
para. 7]:
(1) whether the applicant has done everything in her power to be
represented by counsel; (2) the number of previous adjournments
granted; (3) the length of time for which the adjournment is being
sought; (4) the effect on the immigration system; (5) would the
adjournment needlessly delay, impede or paralyse the conduct of
the inquiry; (6) the fault or blame to be placed on the applicant for
not being ready; (7) were any previous adjournments granted on a
peremptory basis; (8) any other relevant factors.
IRB CG6, 7.8: the RPD may administratively
postpone certain proceedings when
confirmation from CBSA on front-end security
screening of a claimant has not been received
Instructions Governing the Management of
Refugee Protection Claims Awaiting Frontend Security Screening
If RPD has not received confirmation of
approved security screening 5 days before
the hearing, it will be postponed.
Rule 34(3): refugee supporting documents
must be received by parties no later than 10
days before hearing date
◦ if provided in response no later than 5
days before hearing date
Rule 26: RPD must notify the Minister without
delay before the hearing if there is a
possibility of exclusion under Section E or F
of the Refugee Convention; RPD may notify
Minister during hearing
Rule 28: RPD must notify the Minister in
writing without delay of possible
inadmissibility or ineligibility;
Rule 27: RPD must notify the Minister without delay
before the hearing if there is a possibility of “issues
relating to the integrity of the Canadian refugee
protection system” ; RPD may notify Minister during
Rule 27(3): “integrity issues” include: (a) information
that the claim may have been made under a false
identity in whole or in part; (b) a substantial change
to the basis of the claim from that indicated in the
Basis of Claim Form first provided to the Division; (c)
information that, in support of the claim, the claimant
submitted documents that may be fraudulent; or (d)
other information that the claimant may be directly or
indirectly misrepresenting or withholding material
facts relating to a relevant matter.
RPD Rule 10: rules explicitly set down reverse
order questioning at RPD
◦ Rule 10(1): if Minister not a party, RPD first then
claimant’s counsel
◦ Rule 10(2): if Minister intervene on exclusion, Minister
first, then RPD, then claimant’s counsel
◦ Rule 10(3): if Minister intervene non-exclusion, RPD
first, then Minister, then claimant’s counsel
RPD 10(7): representations must be made
orally at the end of the hearing unless RPD
orders otherwise
RPD 10(8): RPD member must render oral
decision & reasons at end of hearing unless it
is not practicable to do so
Procedural fairness at RPD Hearings: DPF requires
that Claimants be allowed “adequate opportunity to
tell their story in full, to adduce evidence in support
of their claim, and to make submissions relevant to
it” (Han v. Canada (MCI), 2013 FC 42 at para. 11;
citing Thamotharen v. Canada (MCI), 2007 FCA 198 at
para. 39)
Procedural fairness 5-factors: (1) the nature of the
decision being made and the procedures followed in
making it; (2) the nature of the statutory scheme; (3)
the importance of the decision to the individual
affected; (4) the legitimate expectation of the
individual challenging the decision; and (5) the
choices of procedure made by the agency. (Baker v.
Canada (MCI), [1999] SCJ No 39 at paras. 21-28).
RPD referral before Dec. 15, 2012
will continue to use Personal Information Form (Basis of
Claim Form is not needed)
legacy claims not subject to regulatory time limits of new
hearing date will be fixed by IRB official rather than
CIC/CBSA referring officer
RPD hearing before either Governor in Council (GIC)
appointed RPD Members whose mandate has not expired
and authorized by Chairperson to hear legacy claims; OR
by public servant RPD member
updated Chairperson’s Guidelines apply to Legacy Claims
Legacy claims subject to Judicial Review before Federal
Court (CIC states no access to RAD and error in legislation
not specifically bar legacy claims from RAD access)
Code of Professional Conduct for British
Columbia (January 1, 2013)
◦ replaced Professional Conduct Handbook
◦ based on Federation of Law Society of Canada’s
“Model Code of Professional Conduct”
◦ harmonizes BC legal ethics regulation with
national regulations
◦ enables interprovincial mobility of lawyers
◦ Chp.3.1-1 “competent lawyer” means a lawyer who
has an applied relevant knowledge, skills and
attributes in a manner undertaken on behalf of a
client and nature and terms of the lawyer’s
engagement, including:
 (a) knowing general legal principles and procedure
and the substantive law and procedure for the areas
of law in which the lawyer practices;
 (h) recognizing limitations in one’s ability to handle
a matter or some aspect of it and taking steps
accordingly to ensure the client is appropriately
 (i) managing one’s practice effectively
Scenario 1: You are retained to represent an
inland DCO refugee claimant (30 days). You
provided your available dates to CIC but the
officer scheduled the hearing on a date you
are not available. What can you do?
Scenario 2: You are retained to represent a
detained POE refugee claimant who must
complete the BoC within the next 5 days.
There is no interpreter available. What can
you do?
Singh v. Canada (MEI) [1985] 1 SCR 177 at para.
70: “Certainly the guarantees of the Charter
would be illusory if they could be ignored
because it was administratively convenient to do
so….The principles of natural justice and
procedural fairness which have long been
espoused by our courts, and the constitutional
entrenchment of the principles of fundamental
justice in s.7, implicitly recognize that a balance
of administrative convenience does not override
the need to adhere to these principles.”

similar documents