# Canadian Refugee Procedure/RAD Rules Part 3 - Rules Applicable to All Appeals

The text of Part 3 of the RAD Rules reads:

## RAD Rule 14 - Communicating with the Division

Regarding RAD Rule 14, see the commentary to RPD Rule 2: Canadian Refugee Procedure/RPD Rule 2 - Communicating with the Division.

## RAD Rule 15 - Change to contact information

Regarding RAD Rule 15, see the commentary to RPD Rule 4: Canadian Refugee Procedure/RPD Rules 3-13 - Information and Documents to be Provided#RPD Rule 4 - Claimant's contact information.

## RAD Rule 16 - Counsel
### Rule 16(2): A failure to copy the Minister on a change of counsel can be procedurally unfair

RAD Rule 16(2) provides that if the person who is the subject of the appeal retains new counsel, that person must without delay notify the Minister in writing. A failure to do so is potentially procedurally unfair and may justify setting aside the decision, as the Federal Court did in Canada v. Miller.

## RAD Rule 21 - Refugee Protection Division Record
### The onus is on the appellant to include in their appeal record any documents that the Refugee Protection Division refused to accept as evidence, during or after the hearing, if the appellant wants to rely on the documents in the appeal

See: Canadian Refugee Procedure/RAD Rules Part 1 - Rules Applicable to Appeals Made by a Person Who Is the Subject of an Appeal#Rule 3(3)(c): The appellant's record must contain any documents that the Refugee Protection Division refused to accept as evidence, during or after the hearing, if the appellant wants to rely on the documents in the appeal.

## RAD Rule 22 - Language of the Appeal

See the commentary on the equivalent RPD rule: Canadian Refugee Procedure/RPD Rules 17-18 - Language of Proceedings.

## RAD Rule 23 - Designated Representatives
### Rule 23(7): Designation applies to all proceedings in the Refugee Appeal Division

Rule 23(7) specifies that the designation of a representative for a person who is under 18 years of age applies to all subsequent proceedings in the Refugee Appeal Division with respect to that person, unless the Division orders otherwise. A designated representative appointed by the RAD would not ordinarily establish such a relationship before another division, for example if the RAD remitted a matter to the RPD and had appointed a DR prior to that remittal. Instead, the fact that a person has had a representative designated for a proceeding in another division of the Board is simply one factor for the RPD to take account in such circumstances when determining whether the RPD should appoint a designated representative: Canadian Refugee Procedure/Designated Representatives#RPD Rule 20(5) - Factors for determining whether a claimant or protected person is unable to appreciate the nature of the proceedings.

### Commentary

See the commentary on the equivalent RPD rule: Canadian Refugee Procedure/RPD Rule 20 - Designated Representatives.

## RAD Rule 24 - Specialized Knowledge
### Commentary

See the commentary on the equivalent RPD rule: Canadian Refugee Procedure/RPD Rule 22 - Specialized Knowledge.

## RAD Rule 25 - Notice of Constitutional Question
### Rule 25(3)(c): An "interested person" is a concept that normally only applies to three-member panels at the RAD

RAD Rule 25(3)(c) provides that a party must provide a copy of any notice of constitutional question to any interested person. The concept of an "interested person" is defined in RAD Rule 1 as "a person whose application to participate in an appeal under rule 46 has been granted". RAD Rule 46 is the rule that specifically governs three-member panels: Canadian Refugee Procedure/RAD Rules Part 3 - Rules Applicable to All Appeals#RAD Rule 46: Application by person to participate in three-member panel.

### Commentary

For commentary, see: Canadian Refugee Procedure/RPD Rule 66 - Notice of Constitutional Question.

## RAD Rule 26 - Conferences
### Commentary

For commentary, see the equivalent RPD rule: Canadian Refugee Procedure/RPD Rule 24 - Conferences.

## RAD Rule 27 - Documents
### Commentary

For commentary, see the equivalent RPD rule: Canadian Refugee Procedure/RPD Rules 31-43 - Documents#RPD Rule 31 - How to provide documents.

## RAD Rule 28 - Language of Documents
### Commentary

For commentary, see the equivalent RPD rules: Canadian Refugee Procedure/Documents#RPD Rule 32 - Language of Documents.

## RAD Rule 29 - Documents or Written Submissions not Previously Provided
### In deciding whether to allow an application, the Division must consider any relevant factors, including those listed in Rule 29(4)

In deciding whether to allow an application under RAD Rule 29, the Division must consider any relevant factors, including, but not limited to, the three listed in RAD Rule 29(4). The RAD must consider all three criteria under subsection 29(4) of the RAD Rules, and cannot simply limit its analysis to one of the relevant factors, namely, whether the evidence could have been provided with the Appellants’ perfected record. While the list of factors to be considered in Rule 37(3) is not exhaustive, the use of the word “including” rather than the words “such as” before the list of factors indicates the intent that each of the factors included in the sub-rule be considered. A failure to do so gives rise to a breach of procedural fairness.

### RAD Rule 29 may apply even in cases where submissions are solicited on an issue by the RAD

RAD Rule 29(2) states that a person who wants to use a document or provide written submissions that were not previously provided must make an application. This is so even in cases where submissions are solicited by the RAD. In Gomez Guzman v. Canada, upon the reopening of the RAD’s offices following a closure due to the COVID-19 pandemic, the RAD wrote to the Applicants’ counsel giving 30 days to submit documents in support of the appeal which “[would] be accepted without an application.” The RAD letter further specified that “other requirements of Rule 29 and 110(4) continue to apply." The panel did not accept the evidence, concluding that it did not meet the requirements of RAD Rule 29. The court upheld this decision, concluding that the panel was right to apply Rule 29, despite the submissions having been invited by the Division.

### Whether and how RAD Rule 29 applies to court-ordered redeterminations

RAD Rule 29(1) provides that a person who is the subject of an appeal who does not provide a document or written submissions with the appellant’s record, respondent’s record, or reply record must not use the document or provide the written submissions in the appeal unless allowed to do so by the Division. As such, the intent of this rule is that a person who is the subject of an appeal does not need to satisfy the requirements of RAD Rule 29 when they are originally providing their appellant's record, respondent's record, or reply record, but they must do so where they provide documents or written submissions afterwards.
A question can arise about how this rule should be interpreted in the case of a court-ordered redetermination of a file, as when a case is remitted by the Federal Court for reconsideration. The practice of the RAD is to send out a standard form letter regarding such cases which makes clear that the person who is the subject of the appeal may submit new evidence (subject to the statutory criteria thereon) and implicitly indicates that RAD Rule 29 does not apply provided that the evidence is received prior to the deadline specified in the letter:
   Please be advised that any objections to the file content should be made in writing and any additional evidence should satisfy the admissibility requirements for new evidence (s. 110(4) of the Immigration and Refugee Protection Act and the criteria set out in MCI v. Singh, 2016 FCA 96), as well as be provided to every party and to the RAD no later than <date>. In instances where there was a RAD hearing, unless ordered to hold a new hearing by the Federal Court, the new panel may or may not decide to hold a new hearing.
See also:
* Canadian Refugee Procedure/RAD Rules Part 1 - Rules Applicable to Appeals Made by a Person Who Is the Subject of an Appeal#RAD Rule 3: Perfecting Appeal
* Canadian Refugee Procedure/The right to be heard and the right to a fair hearing#The record on a court-ordered redetermination.

## RAD Rule 32 - How to provide document
### The Division allows documents to be provided by email and other electronic means

RAD Rule 32(e) provides that a document may be provided by email or other electronic means if the Division allows. The Division has a practice notice on Exchange of Documents through Canada Post epost Connect to the Refugee Appeal Division which so allows. The Practice Notice on Resumption of Time Limits at the Refugee Appeal Division (RAD) also provides that the Division accepts documents by email to the email addresses listed.

## RAD Rule 34 - Proof document was provided

For commentary, see the concomitant RPD Rule 34: Canadian Refugee Procedure/RPD Rules 31-43 - Documents#RPD Rule 34 - Obligation, process, and timeline for a party to disclose documents they want to use in a hearing.

## RAD Rule 35 - When a document is considered received

For commentary, see the concomitant RPD Rule 41: Canadian Refugee Procedure/RPD Rules 31-43 - Documents#RPD Rule 41 - When documents are considered received.

## RAD Rule 37 - How to Make an Application
### RAD Rule 37(4): The requirement to submit an affidavit or statutory declaration under RAD Rule 37(4) has been waived

The Practice Notice: Exchange of documents through Canada Post epost Connect™ to the Refugee Appeal Division states that the RAD will not require a signed affidavit or statutory declaration to accompany an application under Rule 37 if it is submitted electronically. Furthermore, the Refugee Appeal Division: Practice Notice on the temporary waiving of rules for submitting documents during the COVID-19 pandemic provides that the RAD will not require an​ appellant's records to be signed, nor will it require a signed affidavit or statutory declaration to accompany an application under Rule 37. The rationale for this is that "given the continued presence of COVID-19, the RAD will continue to encourage electronic communication with the division and promote physical distancing by removing the requirement in the rules for signatures on documents and RAD forms submitted in support of an appeal."

## RAD Rule 38 - How to Respond to a Written Application
### The requirement to submit an affidavit or statutory declaration under RAD Rule 38(2) has been waived

The Practice Notice: Exchange of documents through Canada Post epost Connect™ to the Refugee Appeal Division states that the RAD will not require a signed affidavit or statutory declaration to accompany an application under Rule 37 if it is submitted electronically. Given that RAD Rule 38(2) provides that an affidavit or statutory declaration is not required if the party who made the application was not required to give evidence in that form, and given that this requirement has been waived for all applications, it cannot be said that the requirement in RAD Rule 38(2) applies either.

## RAD Rule 44 - These Rules apply to UNHCR and Interested Persons
### Interested person is a term defined in RAD Rule 1

See: Canadian Refugee Procedure/RAD Rule 1 - Interpretation and Definitions#Interested Person.

## RAD Rule 45 - UNHCR providing written submissions in an appeal conducted by a three-member panel
### A three-member panel may accept written submissions from UNHCR

The above provisions of RAD Rule 45 relate to s. 110(3) of the IRPA: Canadian Refugee Procedure/110-111 - Appeal to Refugee Appeal Division#In the case of a matter that is conducted before a panel of three members, the RAD may accept documentary evidence and written submissions from UNHCR.

## RAD Rule 47 - Withdrawal
### Withdrawal is not an abuse of process if the requirements set out in rules 7 or 13 have not been met

If the requirements set out in rule 7 or 13, as the case may be, for deciding an appeal on the basis of the materials provided have not been met, withdrawal is not an abuse of process. The requirements set out in rule 7 are that a period of 15 days has passed since the day on which the Minister received the appellant’s record, and the time limit for perfecting the appeal set out in the Regulations has expired. See RAD Rule 7: Canadian Refugee Procedure/RAD Rules Part 1 - Rules Applicable to Appeals Made by a Person Who Is the Subject of an Appeal#RAD Rule 7: Decision without further notice and/or RAD Rule 13: Canadian Refugee Procedure/RAD Rules Part 2 - Rules Applicable to Appeals Made by the Minister#RAD Rule 13: Disposition of an Appeal.

### 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

Section 168(2) of the Act provides that 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. For more context, see the commentary to the RPD rule on withdrawal: Canadian Refugee Procedure/RPD Rule 59 - Withdrawal.

## RAD Rule 49 - Reopening an Appeal
### Commentary

For commentary, see the equivalent RPD Rules: Canadian Refugee Procedure/RPD Rules 62-63 - Reopening a Claim or Application. See also section 168 of the Act: Canadian Refugee Procedure/Section 168 IRPA: Abandonment of proceeding.

### Rule 49(6): The Division must not allow the application unless it is established that there was a failure to observe a principle of natural justice

The interpretation of this rule is similar to the concomitant RPD rule: Canadian Refugee Procedure/RPD Rules 62-63 - Reopening a Claim or Application. One difference relates to the largely paper-based RAD process, where the RAD has held that perfecting an appeal cannot be delayed for the purpose of gathering and translating new evidence because Rule 29 of the RAD Rules allows applicants to tender new evidence after an appeal has been perfected.

## RAD Rules 50-51: Decisions
### The RAD can issue amended decisions

The RAD can issue amended decisions; this is generally done to correct clerical errors. See the following RPD rule: Canadian Refugee Procedure/RPD Rules 62-63 - Reopening a Claim or Application#What jurisdiction does the Board have to reopen a decision that it has reached?.

### Rule 50(2)(b) provides that a decision and reasons may be given orally, but this is not allowed by the statute for non-interlocutory decision

Rule 50(2)(b) provides that where the RAD holds a hearing, it may provide a decision and reasons for that decision orally at the hearing and that doing so obviates the need to provide written reasons. However, s. 169(c) of the Act provides that all decisions of the Refugee Appeal Division must be rendered in writing: Canadian Refugee Procedure/Decisions and Reasons. To the extent of inconsistency between this provision of the rules and the statute, s. 169 of the statute is controlling. As such, non-interlocutory RAD decisions may not be provided orally. It appears that this provision in the rules reflects an earlier version of the Act which had allowed oral reasons to be provided, and it was not updated when the Act was amended to preclude that. However, it could also be read as only applying to interlocutory decisions provided during a RAD hearing.

## References

* ↑ Canada (Citizenship and Immigration) v. Miller, 2022 FC 1131 (CanLII), at para 72, <https://canlii.ca/t/jr5nh#par72>, retrieved on 2022-08-03.
* ↑ Arisekola v. Canada (Citizenship and Immigration), 2019 FC 275 (CanLII), at para 10, <https://canlii.ca/t/hxxcj#par10>, retrieved on 2022-09-08.
* ↑ Arisekola v. Canada (Citizenship and Immigration), 2019 FC 275 (CanLII), at para 11, <https://canlii.ca/t/hxxcj#par11>, retrieved on 2022-09-08.
* ↑ Gomez Guzman v. Canada (Citizenship and Immigration), 2022 FC 152 (CanLII), at para 15, <https://canlii.ca/t/jm88g#par15>, retrieved on 2022-09-08.
* ↑ Gomez Guzman v. Canada (Citizenship and Immigration), 2022 FC 152 (CanLII), at para 19, <https://canlii.ca/t/jm88g#par19>, retrieved on 2022-09-08.
* 1 2 3 Immigration and Refugee Board of Canada, Practice Notice: Exchange of Documents through Canada Post epost Connect to the Refugee Appeal Division, ​​​​​June 15, 2020, <https://irb.gc.ca/en/legal-policy/procedures/Pages/notice-documents-epost-connect.aspx> (Accessed September 16, 2022).
* ↑ Immigration and Refugee Board of Canada, Practice Notice on Resumption of Time Limits at the Refugee Appeal Division (RAD), June 12, 2020, <https://irb.gc.ca/en/legal-policy/procedures/Pages/rad-business-resumption.aspx> (Accessed September 16, 2022).
* ↑ Immigration and Refugee Board of Canada, Refugee Appeal Division: Practice Notice on the temporary waiving of rules for submitting documents during the COVID-19 pandemic, Date modified: 2024-05-27, <https://www.irb-cisr.gc.ca/en/legal-policy/procedures/Pages/rad-pn-temporary-waiving-submitting-documents.aspx>.
* ↑ X (Re), 2020 CanLII 93771 (CA IRB), at para 32, <https://canlii.ca/t/jbvh7#par32>, retrieved on 2024-10-18.
* ↑ Masoud v. Canada (Citizenship and Immigration), 2019 FC 103 (CanLII), at para 8, <https://canlii.ca/t/hxlwh#par8>, retrieved on 2024-03-17.