Canadian Refugee Procedure/RPD Rules 60-61 - Reinstating a Withdrawn Claim or Application

RPD Rule 60 - Reinstating a Withdrawn Claim or Application

The text of the relevant rule reads:

Reinstating a Withdrawn Claim or Application

Application to reinstate withdrawn claim
60 (1) A person may make an application to the Division to reinstate a claim that was made by the person and was withdrawn.

Form and content of application
(2) The person must make the application in accordance with rule 50, include in the application their contact information and, if represented by counsel, their counsel’s contact information and any limitations on counsel’s retainer, and provide a copy of the application to the Minister.

Factors
(3) The Division must not allow the application unless it is established that there was a failure to observe a principle of natural justice or it is otherwise in the interests of justice to allow the application.

Factors
(4) In deciding the application, the Division must consider any relevant factors, including whether the application was made in a timely manner and the justification for any delay.

Subsequent application
(5) If the person made a previous application to reinstate that was denied, the Division must consider the reasons for the denial and must not allow the subsequent application unless there are exceptional circumstances supported by new evidence.

Rule 60(3): This rule has two branches: failure to observe a principle of natural justice and reinstatement otherwise being in the interests of justice

There are two circumstances provided for in Rule 60(3) of the RPD Rules where an RPD member can reinstate a withdrawn refugee claim: i) where it is “established that there was a failure to observe a principle of natural justice” or ii) “it is otherwise in the interests of justice to allow the application [to reinstate].” A decision must address "both branches" of this rule.

Rule 60(3):The Division must not allow the application unless it is established that there was a failure to observe a principle of natural justice ...

Pursuant to RPD Rule 60(3), the Division must not allow an application to reinstate a withdrawn claim unless it is established that there was a failure to observe a principle of natural justice or it is otherwise in the interests of justice to allow the application. How is the Board to approach the question of whether "it is established that there was a failure to observe a principle of natural justice"? The full range of violations of natural justice may potentially be considered here. For a discussion of this, see: Canadian Refugee Procedure/The right to be heard and the right to a fair hearing. Where an applicant acted voluntarily and without constraint and any failure on the part of a claimant to inform themselves of the consequences of their withdrawal did not result from a breach of natural justice by the RPD or counsel, then a violation of procedural fairness will generally not be found.

Rule 60(3): The Division must not allow the application unless ... it is otherwise in the interests of justice to allow the application

Pursuant to RPD Rule 60(3), the Division must not allow an application to reinstate a withdrawn claim unless it is established that there was a failure to observe a principle of natural justice or it is otherwise in the interests of justice to allow the application. How is the Board to approach the question of whether it is "otherwise in the interests of justice to allow the application"?

As an aside, one can note that this provision relating to the reinstatement of “withdrawn” refugee claims differs from applications to reopen a refugee claim that has been “decided” or “declared abandoned.” For those types of applications, RPD Rule 62(6) only provides that the application must not be allowed unless “it is established that there was a failure to observe a principle of natural justice.” Contrary to applications to reinstate withdrawn refugee claims, the RPD is not required to consider whether it is “in the interests of justice” to allow an application to reopen a refugee claim that has been declared abandoned. See: Canadian Refugee Procedure/Reopening a Claim or Application#Rule 62(6) - Application must not be allowed absent a failure to observe a principle of natural justice.

As a starting point, the Federal Court noted in Ohanyan v Canada, the term "otherwise in the interests of justice" is a broad one, which gives the Board a wide discretion to reinstate. At the same time, the court has held that reinstatement is an exception to the norm and must be interpreted and applied in that context.

Second, with respect to the phrase “otherwise in the interests of justice,” subsection 60(3) of the RPD Rules does not use the language “unless it is established” that applies to a failure to observe a principle of natural justice. That fact that the term "unless it is established" does not apply to the "interests of justice" portion of the rule can be more easily seen in the French-language version of the rule: «si un manquement à un principe de justice naturelle est établi ou qu’il est par ailleurs dans l’intérêt de la justice de le faire». The provision rather requires the RPD to determine if “it is otherwise in the interests of justice” to allow the reinstatement application. The Federal Court concluded in Rajput v. Canada that the different wording used in the provision vests the RPD with a specific obligation to consider, on its own and in light of the particular circumstances of each case, the “interests of justice” at stake, whether or not specific submissions on the issue have been made by an applicant.

Rule 60(4): In deciding an application, the Division must consider any relevant factors

Pursuant to Rule 60(4), in deciding an application under RPD Rule 60, the Division must consider any relevant factors. The nature of this analysis is a “flexible approach aimed at protecting the interest of a just, fair and efficient resolution of an application for reinstatement, while remaining alert and sensitive to the particular factual circumstances of each case”.The Board’s reasons must deal with the “interests of justice” that both favour and militate against reinstatement. As such, in making these determinations, the Board must weigh all the circumstances of a case and it is not just to approach the question from the vantage point of an applicant's interests or from the vantage point of the Board (The court has said that "if this were so, few, if any, applications for reinstatement would ever succeed"). As Waldman puts it in his text, "it is clear that the tribunal must consider all of the circumstances that are placed before it when assessing whether or not it would be in the interests of justice to allow the claim to be reinstated. This requires the tribunal to assess the circumstances from the perspective of the applicant and from that of the tribunal." With respect to the consideration of the "interests of justice" under Rule 60(3), the Federal Court has held that this requirement to consider all of the circumstances that are placed before the tribunal applies whether or not specific submissions on the issue have been made by an applicant:

It was...the RPD’s duty, as a decision maker, to assess and determine whether it was in the interests of justice to allow Ms. Rajput’s application for reinstatement, considering all the relevant factors and the evidence before the panel. I agree with Ms. Rajput that, in conducting this assessment, the RPD had to take a holistic and contextual approach, considering all of the circumstances before it, and that the panel could not simply ask itself whether Ms. Rajput had provided evidence and made submissions on the interests of justice at play.

This "analysis must be done holistically and contextually." It need not require an explicit balancing of each of these factors, but the reasons must reflect that a holistic review was conducted.

Factors that past panels have considered have included:

• Did the claimant make an informed decision to withdraw their claim? The starting point is that a claimant should be presumed to have understood and intended the effect of their past withdrawal. The Board has noted in past decisions that the form a claimant signs to withdraw their claim involves them stating that they acknowledge that they are aware of the consequence of withdrawing their claim. Specifically, the form that a claimant signs to withdraw their claim includes the following statement: "I am freely withdrawing my claim for refugee protection, and I am fully aware of the consequences of this withdrawal. I am aware that as a result of the withdrawal of my claim, the Canada Border Services Agency may require me to leave Canada, and I will not be permitted to make another claim for refugee protection in Canada." There are strong policy reasons for presuming that a claimant's signature on this form was an informed one, as the court articulated in Arndorfer v. Canada where they stated that "the IRB and the respondent must be able to rely on what is communicated to them by claimants. If the IRB and the Minister had to impose on themselves a waiting period before acting on such notices as the Notice of Withdrawal, or impose extra steps on themselves simply to ensure that the statement of the claimant is indeed his or her final answer, the refugee claims process would be encumbered, which would in turn worsen an already critical backlog in the refugee claims system." When considering a claimant's argument that their decision was not informed, decision-makers have considered the following:
  • Did the claimant make a free decision to withdraw their claim?
    • Was the decision to withdraw made under duress? The court has overturned Board decisions failing to reinstate claims where it was clear that the applicant was under duress. In Kaur v. Canada, the “pressure on her was such that she was not free to speak about the situation she was in and unable to retain counsel to assist her in her choices”. In Acevedo v. Canada, the applicant had presented evidence that “the abuse she suffered at the hands of her husband . . . had prevented her from participating in the claim”. The fact that a claimant was under stress or pressure does not necessarily mean that the claimant was under duress. The claimant may still have made a personal and voluntary decision to withdraw their claim.
    • Was a designated representative acting in the best interests of a minor or incompetent persons when withdrawing a claim? In Castillo v. Canada the principal applicant and her son (a minor) applied for refugee protection in Canada on the basis that they feared persecution by the principal applicant’s abusive ex-partner. The Board rejected their application to reinstate their claims, but this decision was found to be unreasonable by the court on the basis that the decision contained "no reference to the personal circumstances of the Minor Applicant who cannot be blamed for the decision of the Principal Applicant to withdraw their refugee application." The Board's Chairperson Guideline 3: Child Refugee Claimants: Procedural and Evidentiary Issues provide that "in determining the procedure to be followed when considering the refugee claim of a child, the CRDD should give primary consideration to the best interests of the child." That said, a designated representative must be appointed by the Board. There will be a period of time in which claims, including those of a minor have been made, but the designated representative relationship has not been established by the Board. This does not preclude the parent from acting on the child's behalf to withdraw the claim during this period notwithstanding the lack of a formal DR appointment: Arndorfer v. Canada. Furthermore, in Boguzinskaite v Canada, Justice Zinn held that the RPD cannot be faulted for failing to consider the best interests of the child when that factor was not specifically raised before it. That principle has been held to apply to reinstatement applications where the best interests of the child are not explicitly raised in submissions.
    • Associate claimants: At times, the tribunal has found that a principal claimant has withdrawn the claims of associate claimants without their knowledge and consent. Where this can be shown, and the associate claimants apply to reinstate their claims, this will usually point in favour of the tribunal allowing the application.
  • Did the claimant consult with counsel and family members before withdrawing? The court has commented approvingly on the Board considering factors such as whether the applicant was unrepresented when they withdrew and what measures were taken to ensure that the claimant understood the consequences of the withdrawal of their refugee claim. RPD Member Daniel Tucci considered this factor as follows in one claim: "The claimant’s decision was done with the advice of counsel and in consultation with his wife. Although the application was filed in a timely manner, the timeliness is not sufficient to overcome the fact that the claimant had time to consult with counsel and his wife before completing the withdrawal form and that he freely chose to withdraw knowing what the consequences of that decision would be." Even where the claimant has not consulted with family and counsel prior to withdrawing, this fact will not be determinative: in Dezsone v. Canada, the court stated that "In the circumstances, I do not believe that...it is otherwise in the interests of justice to require that the RPD ensure that Ms. Dezsone had consulted her children and her counsel before withdrawing her refugee protection claim."
  • Was the decision to withdraw made by mistake? The court commented that this is a relevant factor to consider in Ohanyan v. Canada.
    • Allegation of a mistake induced by the negligence of counsel: In Arndorfer v. Canada, the applicants argued that they had not intended to withdraw their claims for refugee protection and that as a result the withdrawal of their claims was non est factum; in other words, it was not an act that they knowingly and willingly performed. In that case, they argued that the reason for their act was that they were misled by their counsel, and, if it were not for the misleading acts of counsel, they would not have signed the forms. In that case, the facts did not disclose that there had been any deficiency in counsel's conduct. In any event, this factor of mistake (or non est factum) appears to have a limited role in this analysis because if counsel really has mislead the claimants, then this will likely be considered a procedural fairness violation and the reinstatement application could be accepted pursuant to the first part of Rule 60(3). In contrast, where there has not been such a procedural fairness violation, then the ordinary result is that stated by the court in Arndorfer, subject to the exceptions described in the following excerpt: "The Court made reference to earlier jurisprudence describing non est factum as being a state in which the mind of a party did not follow his hand at the time of the execution of the document. Carelessness in a situation where reasonable care could have, and should have been taken, precludes a party from claiming that his or her mind did not follow the hand. The Court raised the policy concern that allowing non est factum to be pleaded in a case where a party was careless would essentially have the effect of shifting to an innocent third party harm or loss which could have been prevented by greater care on the part of the parties. The policy considerations related to concerns for reliability and security are present to some extent in the case before this Court. Counsel, who act for refugee claimants, ought to be able to rely on the expressed wishes of their clients, subject to a duty to ensure that clients with a limited understanding of English or of the law, are aware of the consequences of acting on those wishes. Similarly, the IRB and the respondent must be able to rely on what is communicated to them by claimants."
    • Allegation of a mistake induced by the Board: In Cuni v. Canada, the court found that the applicant had withdrawn her refugee claim because she had been given incorrect evidence by the RPD. As such the court found that it was in the interests of justice that her case be allowed to proceed. The facts in that case were described in the case as follows: "June 28, 2008 is a day that Zymryte Cuni will never forget. That is the day she last saw her husband. That was the day she and her infant son Tigran arrived in Canada. They filed a refugee claim. Her husband was supposed to join them but was detained in England and never made it here. Relying on misinformation, she withdrew their claim for refugee protection in an attempt to reunite with her husband. However, she could not leave Canada because she had no travel documents. She attempted to reinstate their claim. Her application was rejected by the Refugee Protection Division (RPD) of the Immigration and Refugee Board. This is a judicial review of that decision." The court went on to make the following finding of fact: "The information given to Ms. Cuni by someone at the RPD office on Victoria Street in Toronto was incorrect. She did not need to withdraw her refugee claim in order to leave the country. Her problem is that without proper travel documents no airline will accept her. Had she had a valid passport, she could have left the country without notifying the RPD, which in due course would have come to the conclusion that she had abandoned her claim."
  • Did a medical condition vitiate the claimant's intention to withdraw? The Board should consider any medical conditions through the lens of how they affected the claimant's decision to withdraw. Where a past medical condition may be said to have vitiated the claimant's intention to withdraw, this points towards it being in the interests of justice to allow the application. An example of this is where a claimant was affected by schizophrenia when they withdrew and the claimant then reconsiders that decision when in a different state of mind. In contrast, where a medical condition may have caused upset and distress but did not impact the decision to withdraw the claim, then this would not support a reinstatement application, as with the following comments from RPD Member Daniel Tucci: "The RPD has also considered the claimant’s health problems. The evidence before the RPD indicates that the claimant received medical attention in Canada at least twice. It appears that the claimant is suffering from a heart ailment. The RPD accepts that the claimant was upset and distressed with his medical condition. That being said, the RPD finds that the claimant’s medical condition was not sufficient to impact the decision he made to withdraw his claim. The RPD finds that the claimant freely and knowingly made the decision to withdraw his refugee claim despite his medical condition. The RPD has not been presented with any medical reports stating that the claimant’s medical condition impaired his ability to understand his actions." Similarly, in Dezsone v. Canada the court commented on the necessity of evidence regarding the effects of any medical issues: "Although the issue of Ms. Dezsone’s mental state was raised, there was no evidence adduced in that regard. At best, it can be said that she made a bad decision, a decision that she wishes she had not made." In making this assessment, it is relevant to consider the date of any psychological evidence offered.
  • Did language issues prevent the claimant from understanding the withdrawal form? The form that a claimant completes to withdraw their claim requires a claimant to either declare that "I declare that I am able to read English and that I fully understand the entire content of this notice in English" or else to have an interpreter declare that "I (please print clearly), _____________________________, certify that I have accurately translated the entire content of this form for the claimant from the English language to the_____________________ language. The claimant indicate that he/she fully understands the entire content of this notice as translated." A claimant's ability to understand what they have signed has been considered in past decisions, for example in Dezsone v. Canada the court noted that: "Ms. Dezsone signed a notice of withdrawal willingly, a notice that had, moreover, been translated for her from French to Hungarian."
• Whether the application to reinstate was made in a timely manner: Pursuant to Rule 60(4), in deciding the application, the Division must consider whether the application was made in a timely manner (and the justification for any delay). The court has supported calculating any delay from the date an applicants submitted their withdrawal notice.
  • The claimant's diligence in making the reinstatement application can be assessed: In Arcila v. Canada, the applicant withdrew her claim and then waited more than 2 months before asking that it be reinstated. The applicant stated that she was awaiting her PIF before making her application to reinstate and had difficulty in obtaining it. The RPD commented that, had the applicant made the request for her PIF to the RPD office, she would have received a copy. The RPD stated in its reasons that, pursuant to [the then] Rule 44 of the RPD Rules, an application to reinstate a refugee claim must be made without delay. The RPD found that the applicant had not acted without delay, as she did not apply to reinstate until nearly three months after withdrawing her claim. This conclusion was upheld by the court.
  • A timely application is a factor, but is not determinative: RPD Member Daniel Tucci considered this factor as follows in one case, finding the factor not to be determinative: "The RPD acknowledges that the application for reconsideration was made in a timely manner. Counsel for the claimant informed the RPD on December 14, 2015 that the claimant no longer wished to withdraw his refugee claim. Following the RPD’s decision to accept the withdrawal, counsel for the claimant filed the application to reinstate the claim. ... Although the application was filed in a timely manner, the timeliness not sufficient to overcome the fact that the claimant had time to consult with counsel and his wife before completing the withdrawal form and that he freely chose to withdraw knowing what the consequences of that decision would be."
• Is the claimant's behaviour consistent with someone seeking protection? When the Board has considered reinstatement applications, it has often looked at the applicant's behaviour in totality to assess whether it is consistent with the behaviour that would be expected of someone seeking protection. Where this is not found to be the case, this will properly indicated that the interests of justice do not require reinstating the claim.
  • A claimant's actions over time evince a desire to return to their country: Where a claimant undertakes a series of steps over time that evince a desire to return to their country, then this will not be considered behaviour consistent with someone who has a genuine fear of persecution or who anticipates harm in their country. For example, in Arcila v. Canada, the applicant was as a minor claimant in her mother’s claim for refugee protection. Her PIF was signed and filed by her mother, as she was only 17 years old at the time. She stated that she and her mother had a serious argument on December 29, 2010, and, as a result, she made the dangerous and irrational decision to call Immigration and ask to cancel her refugee claim so she could obtain her passport and return to Colombia. The RPD acknowledged the applicant’s evidence that she withdrew the claim impulsively and recklessly because of the fight with her mother. However, based on all of the evidence, the Board did not accept that the decision was a simple mistake made in a moment of pique. Instead, in that case, the RPD found that the applicant’s behaviour was not that of someone with a genuine fear for her life if she returned to Colombia. The claimant had taken steps over a series of months, even after becoming an adult, to return to Colombia, including by asking her father to send her passport on December 20, 2010 (before any confrontation with her mother) and y then booking a flight home, writing to the Board to request her passport, and then waiting months before asking for her claim to be reinstated.
  • A claimant was more focused on obtaining status quickly than on pursuing their refugee claim: For example, in Sathasivam v. Canada the applicant had filed a claim for protection, then got married and, on the advice of his counsel, withdrew his claim and attempted to obtain status in Canada through a spousal sponsorship. When this spousal sponsorship application was denied, the claimant subsequently attempted to reinstate his refugee claim. The Board declined to do so, stating: "The claimant came to Canada as a Convention Refugee alleging a fear of persecution in Sri Lanka. Within a year of his arrival in Canada, the claimant decided to renounce his refugee claim only in order to expedite his landing in Canada. Despite alleging today a continued fear of persecution in Sri Lanka, the panel is not persuaded that the claimant's behaviour in Canada is consistent with the behaviour of someone seeking protection. The Refugee Protection system exists to protect refugees and is not a means of obtaining immigrant status in Canada. Thus, if the claimant came to Canada for the reasons alleged in his Personal Information Form (PIF), why would he renounce to them so quickly? The panel is not persuaded by claimant's explanation as having to wait a longer period for a full refugee claim hearing."
  • Gender guidelines should be considered where appropriate: In Castillo v. Canada, Ms. Diaz Ordaz Castillo says she fled to Canada order to escape her abusive ex-partner. She filed a refugee claim, contacted a lawyer, acquired a Legal Aid certificate, and set up an appointment with counsel to fill out her personal information form (PIF). She arrived late for the appointment and could not re-schedule another prior to the due date for her PIF. Nor could she obtain the assistance of anyone else over the holiday period. As a result, she failed to submit her PIF by the deadline. Ms. Diaz Ordaz Castillo’s ex-partner contacted her at that point and asked her to return to Mexico. Because she was feeling depressed and isolated, and was having difficulty raising her son on her own, she agreed. She formally withdrew her refugee claim at a hearing convened to determine whether she had abandoned it. However, Ms. Diaz Ordaz Castillo then changed her mind. Her ex-partner continued to contact her and was now becoming verbally abusive, accusing her of having slept with his best friend. She decided that it was not safe for her to return to Mexico after all, so she submitted an application to reinstate her claim. The Board dismissed it. Ms. Diaz Ordaz Castillo submits that the Board failed to appreciate that her mental state at the point in time when she withdrew her refugee claim was affected by the abusive relationship she had fled. In effect, she was unable to make a free and informed decision about her claim. Further, Ms. Diaz Ordaz Castillo submits that the Board failed to consider the Gender Guidelines applicable to women making refugee claims, as well as and an affidavit she had filed describing, in general terms, why women sometimes choose to remain in abusive relationships. In the court's view, the Board did not ignore the evidence of Ms. Diaz Ordaz Castillo’s mental state. However, the evidence before the Board member did not suggest that her mental state had prevented her from making an informed decision to withdraw her claim. She spoke of feeling “alone and isolated”, “defeated” and “without hope” and that these feelings caused her to agree to return to Mexico. The court stated: "While these feelings were no doubt genuine and perhaps natural in her circumstances, I cannot fault the Board for concluding that there had been no breach of natural justice." While the gender guidelines will not preordain any particular result or finding in a reinstatement application, their discussion of the cycle of abuse and issues like Battered Women's Syndrome are appropriately considered at this stage of the analysis.
• Related legal proceedings: The existence of related legal proceedings may point towards or away from a conclusion that it would be in the interests of justice to allow a claim to be reopened.
  • The fact that a claimant decided to abandon a claim knowing that their family members were still pursuing claims: A family will often each file claims together, even if some of the claimants are more at risk than others. A decision by a claimant to withdraw their claim where they have the knowledge that their family members' claims are proceeding, may reflect a reasoned judgement about relative risks and merits. For example, RPD Member Daniel Tucci considered such a situation and concluded that the fact that the applicant's family were still pursuing their claims, and that the claimant was aware of this prior to withdrawing his, was a factor pointing against accepting his application to reinstate, as follows: "The RPD also takes into consideration that his wife and child are pursuing their refugee claims. This could be an important factor if the evidence before the RPD showed that the claimant was not in contact with his wife prior to making the decision to withdraw his claim. In this case, the claimant spoke to his wife on two occasions on December 4, 2015 and the purpose of the call was to discuss his withdrawal. One call was made before he consulted with legal counsel and a second call was made after his consultation with legal counsel. The RPD finds that the claimant made the decision to withdraw his refugee claim knowing that his wife and child would pursue their claim."
  • A Hague Convention proceeding: In Zagroudnitski v. Canada, the court considered allegations of child abduction against the applicant who wanted to reinstate his claim. The court concluded that a related Hague Convention application and the facts related thereto pointed strongly against accepting the reinstatement application: "On May 2, 2014, in the context of an Application under the Convention on Civil Aspects of International Child Abduction, [1983] Can TS 35 (the Hague Convention), filed by the minor Applicant’s mother, who lives in France, Justice L.S. Parent of the Ontario Court of Justice ordered the return of the minor Applicant to France, and held that the mother had custody rights in respect of the child at the time of father’s removal of the child. The father’s removal and retention of the child was wrongful and breached the mother’s rights under the Hague Convention (N.A. v A.Z., 2014 ONCJ 293; Affidavit of Irena Kakowska, dated March 11, 2015). ... Upon review of the Certified Tribunal Record and the parties’ submissions, which depict an alarming portrait, to say the least, of allegations of parental abduction, abuse, instability and detention in regard to the child in the proceedings, it is clear that the application cannot succeed."
• The efficient use of Board resources: This is a proper consideration for the Board when considering the interests of justice under this rule. For example, in Castillo v. Canada the Board noted that it offered a hearing at which the issue of abandonment could have been addressed but that the claimant chose to withdraw her application instead. Therefore, the Board concluded that to grant the reinstatement request would be to duplicate the process that had already been provided to her and which she had declined. The Board noted that a member and an interpreter had already been assigned to hear and consider her submissions and that, accordingly, allowing the reinstatement of the claim would prejudice Board’s efforts to deal with these matters efficiently and in a timely manner and would not be in the interests of justice for that reason. In that case, the court appears to accept that it was proper for the Board to consider this criterion, even if this criterion, on its own, was not determinative. Similarly, in Akbari v. Canada, the court states that the RPD’s ability to deal with refugee claims fairly and efficiently is a relevant consideration in the “interests of justice” branch of the reinstatement analysis. The court notes that it may be relevant, for example, if reinstatement in a case would establish too low of a threshold for reinstatement applications such that it would impair the RPD’s operations.
• Considerations related to events developing in the claimant's home country:
  • Level of risk to the clamant: The level of risk in the underlying refugee claim may be relevant to the “interests of justice” branch of the analysis of reinstatement applications.
  • A desire to return to one's country because of a family member's medical condition is not generally a good reason to withdraw a claim: In Dezsone v. Canada the claimant left Hungary for Canada to claim refugee protection on the basis of her Roma origins. Shortly afterwards, she learned that her grandson had been hospitalized in Hungary. She then decided to return there, but the Canadian authorities were in possession of her passport. To get it back, she withdrew her refugee protection claim. In the end, Ms. Dezsone did not return to Hungary. She instead decided to file an application to reinstate her refugee protection claim. That reinstated application was not approved by the Board and the court upheld the reasonableness of that decision.
  • The re-emergence of the risk that is at the heart of the claim: A common issue that arises in applications for reinstatement is a change of circumstances in the claimant's country or the claimant's knowledge of the risk in their country. For example, in Ohanyan v. Canada, the Applicant was a 29 year old citizen of Armenia who claimed refugee protection. Shortly thereafter he withdrew his claim because his wife informed him that government agents had stopped looking for him and it was safe to return. A few weeks later his wife advised him that the government agents had returned to his house looking for him. The Applicant then applied to reinstate his refugee claim. The court concluded that the Board was right to reject the claimant's reinstatement application: "The Applicant made a strategic decision which apparently did not work to his advantage. The Rule is not designed to protect applicants from the consequences of their freely chosen course of conduct even where they have made a decision or taken a step which did not work out as they may have hoped." As per the Board and court in that case, if the claimant made an assessment of risk and decided to return to their country, only to change their assessment upon receiving new information, the proper process for the claimant is to avail themselves of the PRRA process that is designed to consider such new information, not to attempt to reinstate their claim. However, the precedential value of these statements from Ohanyan has been put in doubt by Baidu v. Canada, in which the court observed that, since Ohanyan, the Supreme Court of Canada issued Vavilov, where it emphasized the heightened obligation to provide responsive reasons where the impact of the decision is severe. In that case, the court commented as follows: "What else was Mr. Baidu to do in these circumstances? Was he to proceed with the refugee hearing even though he no longer believed that he had a basis to make a claim? This is really the key issue and one that the RPD had to grapple with".

Those unable to reinstate a claim may still be entitled to PRRA

It should be noted that it does not necessarily follow that a claimant whose application to reinstate is refused will be removed to a country where she was allegedly persecuted (or had a well-founded fear thereof). As the court states, "[they are] still entitled to a pre-removal risk assessment (PRRA). Under sections 112 and 113 of the Immigration and Refugee Protection Act, [a] PRRA will address all of the risks listed in sections 96 and 97 of the Act."

An oral hearing is unnecessary when deciding reinstatement applications, unless credibility is at issue

In Ohanyan v. Canada, the Board denied the claimant's application to reinstate his withdrawn claim. As is the usual practice, the Board assessed the claimant's written application to reinstate the claim but did not hold an oral hearing for the application. The court held that failing to have an oral hearing was not a breach of natural justice "because a hearing was unnecessary". The court noted that in the application "neither the Applicant’s credibility nor any of the relevant facts were in issue. The Applicant was able to make all of his representations in writing." In contrast, in Sathasivam v. Canada the Board drew negative inferences about the credibility of some of the evidence tendered by the applicant without giving him an opportunity to reply; this was held to be in error: "In my opinion, the Board erred in law in relying upon its own knowledge of the applicant's former counsel to discredit, and to disbelieve his evidence that he had been misled by counsel's advice, without giving the applicant notice of its doubt about that evidence and an opportunity to address that doubt. ... Failure to provide notice to the applicant, and an opportunity to respond to the CRDD's conclusion that key evidence, concerning alleged advice from former counsel, was implausible and not to be believed, constituted procedural unfairness in this case, warranting the Court's intervention."

"Full" written reasons for an application to reopen are not required, but the rationale of the decision-maker should be provided

The court concluded in Ahmad v. Canada that "full written reasons" are not required for interlocutory decisions, only final ones. That decision went on to note that "decisions regarding refusals to reopen or grant leave to appeal have always been considered interlocutory decisions". As such, the court held that they do not require full written reasons. The court cited with approval Faghihi v. Canada in which Evans J. stated: "I am prepared to assume for present purposes that a motion to reopen a decision is an "interlocutory matter" because, if granted, it will not be a final disposition of the case. It will simply open the gate to a redetermination of the claim by the Refugee Division". The court went on to note that on the record before it, "in this case, the Board gave an extensive endorsement which certainly indicates the rationale of the decision maker." It noted that such endorsements "can take the place of written reasons". An endorsement appears to be a shorter set of reasons for decision provided by the decision-maker that are often written on a pre-printed form and may be in highly summary form. While Ahmad concerned an application to reopen a claim, not reinstate a withdrawn one, the ratio of that decision is equally persuasive when consideration reinstatement applications, mutatis mutandis.

In practice, however, courts have been willing to overturn decisions not to reinstate on the basis that they did not adequately grapple with the evidence and record before them. For example, in Castillo v. Canada the court overturned a decision on the basis that it was not persuaded that the Board had regard to all of the evidence before it. The decision states:

I agree with the Respondent that, in general, the Board is presumed to have considered all of the evidence, and has no obligation to refer to every document in the record. However, in this case the Board refers to no documents. It is widely accepted that where a document is important to a determination by the Board it is necessary for the decision-maker to explicitly address that document. There were many documents before the Board that were relevant to the determination of what was “in the interests of justice” and should have been considered. It is not sufficient for the Board to baldly state “I am not swayed by the evidence submitted”.

Similarly, in Akbari v. Canada the court commented that the length and depth of reasons offered, which were only ten paragraphs long, did not reflect the significance of the interests at stake:

The RPD decision at issue in this case is ten paragraphs long. While the reasons need not necessarily be longer, the length and depth of the reasons in this case do not reflect the significance of the interests at stake, nor do they provide an adequate rationale as to why the evidence of the adult Applicants’ mental health was seemingly assigned so little weight, if any at all.

A claim can only be reinstated pursuant to this rule after it has been referred to the Board

Section 100(3) of the IRPA provides that the Refugee Protection Division may not consider a claim until it is referred by an officer. The RPD has considered the interaction of this provision of the Act with Rule 60. In that case, the claimant was intercepted and interviewed by CBSA officers when the claimant disembarked from his flight to Canada. After indicating that he wished to make a claim, that same day the claimant signed and completed the Withdrawal of a Claim for Refugee Protection Prior to Referral to the Refugee Protection Division. As the name of the form implies, this was done before the claim had been referred to the RPD. The Board held that the claimant could not attempt to reinstate the claim pursuant to Rule 60 because the Board lacked jurisdiction since the claim was never referred to the Board:

I have also considered Section 162(1) of the IRPA. This provisions gives the RPD wide authority, but only with respect to matters “brought before it.” In particular, this section provides that in respect of proceedings brought before it, the RPD has sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction. However, for the reasons given above, it cannot be said that the refugee claim has been brought before the RPD, which reinforces the fact that the RPD does not have jurisdiction. The applicant made submissions to the effect that Rule 60 allows the RPD to reinstate a claim in the circumstances of this case. However, the RPD Rules are a subordinate set of legislation that cannot conflict with the statute that enables them, in this case, the IRPA. In simpler terms, an application made under Rule 60 to reinstate a claim does not confer jurisdiction where the RPD would not otherwise have jurisdiction. Again, in reviewing the evidence there is a signed Withdrawal of a Claim for Refugee Protection Prior to Referral to the Refugee Protection Division on the file which in my view by its very name would clearly suggest that the person concerned is signing a withdrawal form prior to it being referred to the RPD.

This conclusion is consistent with the court's reasoning in Duri v. Canada.

RPD Rule 61 - Application to reinstate withdrawn application to vacate or to cease refugee protection

Application to reinstate withdrawn application to vacate or to cease refugee protection

61 (1) The Minister may make an application to the Division to reinstate an application to vacate or to cease refugee protection that was withdrawn.

Form of application
(2) The Minister must make the application in accordance with rule 50.

Factors
(3) The Division must not allow the application unless it is established that there was a failure to observe a principle of natural justice or it is otherwise in the interests of justice to allow the application.

Factors
(4) In deciding the application, the Division must consider any relevant factors, including whether the application was made in a timely manner and the justification for any delay.

Subsequent application
(5) If the Minister made a previous application to reinstate that was denied, the Division must consider the reasons for the denial and must not allow the subsequent application unless there are exceptional circumstances supported by new evidence.