Canadian Refugee Procedure/RAD Rules Part 2 - Rules Applicable to Appeals Made by the Minister

RAD Rules - Part 2
The text of the relevant rules reads: PART 2 - Rules Applicable to Appeals Made by the Minister

Filing and Perfecting an Appeal

Filing appeal 8 (1) To file an appeal in accordance with subsection 110(1.1) of the Act, the Minister must provide, first to the person who is the subject of the appeal, a written notice of appeal, and then to the Division, two copies of the written notice of appeal.

Content of notice of appeal (2) In the notice of appeal, the Minister must indicate (a) counsel’s contact information; (b) the name of the person who is the subject of the appeal and the identification number given by the Department of Citizenship and Immigration to them; and (c) the Refugee Protection Division file number, the date of the notice of decision relating to the decision being appealed and the date that the Minister received the written reasons for the decision.

Proof document was provided (3) The notice of appeal provided to the Division must be accompanied by proof that it was provided to the person who is the subject of the appeal.

Time limit (4) The notice of appeal provided under this rule must be received by the Division within the time limit for filing an appeal set out in the Regulations.

Perfecting appeal 9 (1) To perfect an appeal in accordance with subsection 110(1.1) of the Act, the Minister must provide, first to the person who is the subject of the appeal and then to the Division, any supporting documents that the Minister wants to rely on in the appeal.

Content of appellant’s record (2) In addition to the documents referred to in subrule (1), the Minister may provide, first to the person who is the subject of the appeal and then to the Division, the appellant’s record containing the following documents, on consecutively numbered pages, in the following order: (a) the notice of decision and written reasons for the Refugee Protection Division’s decision that the Minister is appealing; (b) all or part of the transcript of the Refugee Protection Division hearing if the Minister wants to rely on the transcript in the appeal, together with a declaration, signed by the transcriber, that includes the transcriber’s name and a statement that the transcript is accurate; (c) any documents that the Refugee Protection Division refused to accept as evidence, during or after the hearing, if the Minister wants to rely on the documents in the appeal; (d) a written statement indicating (i) whether the Minister is relying on any documentary evidence referred to in subsection 110(3) of the Act and the relevance of that evidence, and (ii) whether the Minister is requesting that a hearing be held under subsection 110(6) of the Act, and if the Minister is requesting a hearing, why the Division should hold a hearing and whether the Minister is making an application under rule 66 to change the location of the hearing; (e) any law, case law or other legal authority that the Minister wants to rely on in the appeal; and (f) a memorandum that includes full and detailed submissions regarding (i) the errors that are the grounds of the appeal, (ii) where the errors are located in the written reasons for the Refugee Protection Division’s decision that the Minister is appealing or in the transcript or in any audio or other electronic recording of the Refugee Protection Division hearing, and (iii) the decision the Minister wants the Division to make.

Length of memorandum (3) The memorandum referred to in paragraph (2)(f) must not be more than 30 pages long if typewritten on one side or 15 pages if typewritten on both sides.

Proof documents were provided (4) Any supporting documents and the appellant’s record, if any, provided to the Division must be accompanied by proof that they were provided to the person who is the subject of the appeal.

Time limit (5) Documents provided under this rule must be received by the Division within the time limit for perfecting an appeal set out in the Regulations.

Response to an Appeal

Response to appeal 10 (1) To respond to an appeal, the person who is the subject of the appeal must provide, first to the Minister and then to the Division, a written notice of intent to respond, together with the respondent’s record.

Content of notice of intent to respond (2) In the notice of intent to respond, the respondent must indicate (a) their name and telephone number, and an address where documents can be provided to them; (b) if represented by counsel, counsel’s contact information and any limitations on counsel’s retainer; (c) the identification number given by the Department of Citizenship and Immigration to them; (d) the Refugee Protection Division file number and the date of the notice of decision relating to the decision being appealed; (e) the language — English or French — chosen by them as the language of the appeal; and (f) the representative’s contact information if the Refugee Protection Division has designated a representative for them in the proceedings relating to the decision being appealed, and any proposed change in representative.

Content of respondent’s record (3) The respondent’s record must contain the following documents, on consecutively numbered pages, in the following order: (a) all or part of the transcript of the Refugee Protection Division hearing if the respondent wants to rely on the transcript in the appeal and the transcript was not provided with the appellant’s record, together with a declaration, signed by the transcriber, that includes the transcriber’s name and a statement that the transcript is accurate; (b) a written statement indicating (i) whether the respondent is requesting that a hearing be held under subsection 110(6) of the Act, and if they are requesting a hearing, whether they are making an application under rule 66 to change the location of the hearing, and (ii) the language and dialect, if any, to be interpreted, if the Division decides that a hearing is necessary and the respondent needs an interpreter; (c) any documentary evidence that the respondent wants to rely on in the appeal; (d) any law, case law or other legal authority that the respondent wants to rely on in the appeal; and (e) a memorandum that includes full and detailed submissions regarding (i) the grounds on which the respondent is contesting the appeal, (ii) the decision the respondent wants the Division to make, and (iii) why the Division should hold a hearing under subsection 110(6) of the Act if the respondent is requesting that a hearing be held.

Length of memorandum (4) The memorandum referred to in paragraph (3)(e) must not be more than 30 pages long if typewritten on one side or 15 pages if typewritten on both sides.

Proof documents were provided (5) The notice of intent to respond and the respondent’s record provided to the Division must be accompanied by proof that they were provided to the Minister.

Time limit (6) Documents provided under this rule must be received by the Division no later than 15 days after (a) the day on which the respondent receives any supporting documents; or (b) if the Division allows an application for an extension of time to perfect the appeal under rule 12, the day on which the respondent is notified of the decision to allow the extension of time.

RAD Rule 11: Reply
Minister’s reply 11 (1) To reply to a response by the respondent, the Minister must provide, first to the respondent and then to the Division, any documentary evidence that the Minister wants to rely on to support the reply and that was not provided at the time that the appeal was perfected or with the respondent’s record.

Reply record (2) In addition to the documents referred to in subrule (1), the Minister may provide, first to the respondent and then to the Division, a reply record containing the following documents, on consecutively numbered pages, in the following order: (a) all or part of the transcript of the Refugee Protection Division hearing if the Minister wants to rely on the transcript to support the reply and the transcript was not provided with the appellant’s record, if any, or the respondent’s record, together with a declaration, signed by the transcriber, that includes the transcriber’s name and a statement that the transcript is accurate; (b) any law, case law or other legal authority that the Minister wants to rely on to support the reply and that was not provided with the appellant’s record, if any, or the respondent’s record; and (c) a memorandum that includes full and detailed submissions regarding (i) only the grounds raised by the respondent, and (ii) why the Division should hold a hearing under subsection 110(6) of the Act if the Minister is requesting that a hearing be held and the Minister did not include such a request in the appellant’s record, if any, and if the Minister is requesting a hearing, whether the Minister is making an application under rule 66 to change the location of the hearing.

Length of memorandum (3) The memorandum referred to in paragraph (2)(c) must not be more than 30 pages long if typewritten on one side or 15 pages if typewritten on both sides.

Proof documents were provided (4) Any documentary evidence and the reply record, if any, provided to the Division under this rule must be accompanied by proof that they were provided to the respondent.

RAD Rule 12: Extension of Time
Application for extension of time — Minister 12 (1) If the Minister makes an application to the Division for an extension of the time to file or to perfect an appeal under the Regulations, the Minister must do so in accordance with rule 37.

Accompanying documents — filing (2) An application for an extension of the time to file an appeal under subrule (1) must be accompanied by two copies of a written notice of appeal.

Accompanying documents — perfecting (3) An application for an extension of the time to perfect an appeal under subrule (1) must be accompanied by any supporting documents, and an appellant’s record, if any.

Application for extension of time — person (4) A person who is the subject of an appeal may make an application to the Division for an extension of the time to respond to an appeal in accordance with rule 37.

Content of application for extension of time to respond to appeal (5) The person who is the subject of the appeal must include in an application under subrule (4) (a) their name and telephone number, and an address where documents can be provided to them; (b) if represented by counsel, counsel’s contact information and any limitations on counsel’s retainer; (c) the identification number given by the Department of Citizenship and Immigration to them; and (d) the Refugee Protection Division file number, the date of the notice of decision relating to the decision being appealed and the date that they received the written reasons for the decision.

Factors — respond (6) In deciding an application under subrule (4), the Division must consider any relevant factors, including (a) whether the application was made in a timely manner and the justification for any delay; (b) whether there is an arguable case; (c) prejudice to the Minister, if the application was granted; and (d) the nature and complexity of the appeal.

Notification of decision on application (7) The Division must without delay notify, in writing, both the person who is the subject of the appeal and the Minister of its decision with respect to an application under subrule (1) or (4).

Commentary
See the concordant rule for appeals made by the person who is the subject of the appeal: Canadian Refugee Procedure/RAD Rules Part 1 - Rules Applicable to Appeals Made by a Person Who Is the Subject of an Appeal.

RAD Rule 13: Disposition of an Appeal
Decision without further notice 13 Unless a hearing is held under subsection 110(6) of the Act, the Division may, without further notice to the parties, decide an appeal on the basis of the materials provided (a) if a period of 15 days has passed since the day on which the Minister received the respondent’s record, or the time limit for providing it set out in subrule 10(6) has expired; or (b) if the Minister’s reply has been provided.