Canadian Refugee Procedure/RPD Rules 62-63 - Reopening a Claim or Application

Section 170.2 of the IRPA

The legislative provision reads:

No reopening of claim or application
170.2 The Refugee Protection Division does not have jurisdiction to reopen on any ground — including a failure to observe a principle of natural justice — a claim for refugee protection, an application for protection or an application for cessation or vacation, in respect of which the Refugee Appeal Division or the Federal Court, as the case may be, has made a final determination.

The RPD does not have jurisdiction to reopen after the RAD or Federal Court has made a final determination

Section 170.2 of the IRPA provides that the RPD does not have jurisdiction to reopen after the RAD or Federal court has made a final determination. This provision was implemented by Bill C-31 around 2012. The mischief that this provision is intended to address can be seen by looking at caselaw involving the prior Immigration Act that did not include a similar provision. In Shaju v. Canada, the Refugee Division found the claimant not credible and dismissed his claim. The Trial Division dismissed his application for leave for judicial review. The claimant then brought a motion before the Refugee Division to reopen his claim on the grounds that there had been a lack of proper translation. The Refugee Division dismissed the motion on the grounds that the translation errors were not significant and that, in any event, that issue had been dealt with in the leave application. The claimant then brought an application for leave for judicial review of the decision dismissing the motion to reopen. The Trial Division dismissed the application for leave. The only point raised in the original leave application was the lack of proper translation, and the court had refused leave after considering the claimant’s argument’s. That decision therefore gave rise to "issue estoppel", i.e., it was decided matter (res judicata), and could not be appealed.

Board jurisdiction to issue amended reasons or reopen a matter on its own initiative

The principle of functus officio provides that judgments are final and that a decision-maker loses jurisdiction once a formal decision is rendered, signed, and communicated to the parties. The principle is that, as a starting point, such decisions cannot be re-opened. Mr. Justice Francis Muldoon in Jimenez v. Canada articulated the principle of functus officio in the immigration context as follows:

[T]he principle of functus officio favours the finality of proceedings, although it is flexible in its application in the case of administrative tribunals. By this it is meant that whether or not the parties agree with the decision rendered, the case cannot be reopened unless it can be established that there was an error in expressing the manifest intention of the decision-maker or if there is a clerical error that needs to be corrected: Paper Machinery Ltd. v. J.O. Ross Engineering Corp. Recently, Justice Nadon of this Court also recognized that cases may be reopened if necessary to adhere to the principles of natural justice: Zelzle v. Canada. The principle specifically does not allow a tribunal to revisit a decision. [internal citations in quotation omitted]

As such, per the principle of functus officio, a decision, once made (and even if wrongly made), is still a binding decision. In the absence of statutory authority, a decision once made cannot be administratively revisited. While speaking of the IRB's predecessor Immigration Appeal Board, the Federal Court of Appeal held that the Board has no inherent or continuing jurisdiction to reopen a redetermination hearing of an application for refugee status.

While there are many ways to structure an analysis of the functus officio doctrine, for the purporses of this text, I consider it helpful to divided the analysis into three steps: 1) the existence of a valid and final decision, 2) the absence of a categorical exception to the functus officio doctrine, and 3) the absence of a discretionary reason not to apply the doctrine.

1. A valid and final decision

To trigger functus officio, there must be a final and valid decision.

This requirement may not be met where a decision was purely intermediate or interlocutory or where an intent was expressed that the decision not be final. There is a question about whether the functus officio principle applies to a decision that is strictly procedural in nature. As a general matter, intermediate or interlocutory decisions are not ‘final decisions’ for the purposes of the functus officio doctrine. This requirement will also not be met where the decision as rendered was a nullity because of a failure of procedural fairness in the process that led to the decision. The Supreme Court of Canada has stated that "Traditionally, a tribunal, which makes a determination which is a nullity, has been permitted to reconsider the matter afresh and render a valid decision." Where a tribunal recognizes that it has failed to observe the rules of natural justice, it may treat its decision as a nullity and rehear the case. This, however, cannot simply reflect a realization that the tribunal made an error of law; as a general rule, once a tribunal has reached a final decision in respect to the matter that is before it in accordance with its enabling statute, that decision cannot be revisited because the tribunal made an error within jurisdiction. The Board has stated that the types of errors in this regard go to procedure, not substance. For example, if the panel decides that it did not apply the correct interpretation of "particular social group", it cannot reopen to correct this mistake. As the court stated in Zelzle v. Canada, the “breach of natural justice exception” to the principle of functus officio was established to allow an administrative tribunal to reopen proceedings where, if the hearing of an application has not been held according to the rules of natural justice, the administrative tribunal may treat its decision as a nullity and reconsider the matter. Examples:

• The court commented in Sainflina v. Canada that, in a situation in which a panel of the Board mistakenly dismissed a claim on the basis of a lack of perfection because the Board misplaced the Appellant's appeal submissions, the principle of functus officio would not prevent the RAD from correcting the failure in procedural fairness by reopening the file and rendering a decision on the file's merits.
• The Board has provided as an example that, if the Refugee Division becomes satisfied that the interpreter made substantial mistakes during the hearing, the Refugee Division might find that the claimant did not have a proper "opportunity to be heard" and, as a result, the Division may grant a new hearing.
• In Kaur v. Canada, the person concerned had not made a refugee claim at an inquiry because of threats and duress by her husband. Kaur has been taken for the proposition "that an immigration inquiry, held at a moment when the person concerned was under the direct influence of a third party (her husband) and not free to bring up facts as they were, could be seen as having breached the rules of natural justice, with the result that the decision that followed was a nullity under the Charter and the adjudicator could reconsider his decision."

2. The absence of a categorical exception to the functus officio doctrine

There are well-recognized categorical exceptions to the application of functus officio. The doctrine will not apply should any of the exceptions be made out on the facts. Exceptions to the principle of functus officio provide that a matter may be reopened in the following circumstances:

• Clerical error or slip: Decisions may be amended where there was a clerical error in drawing up the formal judgement that needs to be corrected. For example, in Chen v. Canada the tribunal issued amended reasons which "amalgamated a few paragraphs, corrected a number of footnotes to correctly cite to the National Documentation Package that was before it and made three amendments to the text of the decision". The court held that "the amendments made by the Board do not alter its original decision in any meaningful way and were made to correct a slip; accordingly, the doctrine of functus officio is inapplicable."
• Error expressing the manifest intention of the decision-maker: There was an error expressing the manifest intention of the decision-maker. This exception cannot simply reflect a decision-maker having changed their mind; as a general rule, once a tribunal has reached a final decision in respect to the matter that is before it in accordance with its enabling statute, that decision cannot be revisited because the tribunal has changed its mind. However, in Canadian National Railway Company v. National Transportation Agency, the agency was found to possess jurisdiction to detail more precisely the types of documents it had ordered disclosed in its initial decision on the point. The Board provides as an example that, at the hearing, a panel might determine the claimant to be a Convention refugee. If a notice of decision were then issued stating that the claimant had been determined not to be a Convention refugee, clearly that notice of decision could be (and should be) amended under the second exception above.

3. Discretionary flexibility not to apply the functus officio doctrine

In some cases, despite the existence of a final and valid decision and the non-engagement of the above categorical common law exceptions, operation of functus officio should nonetheless be suspended to enable reconsideration of the decision by the decision-maker. As Justice Nadon held in Zelzle v. Canada, "while the principle of functus officio favours the finality of proceedings, its application is flexible in the case of administrative tribunals. Proceedings may be reopened if justice requires it."

One example of this is the power to reconsider decisions on the basis of new information. Should new information be brought to light, a decision can be reconsidered. However, the information cannot simply reflect a change in circumstances; as a general rule, once a tribunal has reached a final decision in respect to the matter that is before it in accordance with its enabling statute, that decision cannot be revisited because there has been a change of circumstances. See also Agbona v. Canada: once the CRDD has decided a claim, it lacks jurisdiction to reopen for new facts. UNHCR has taken the view that under Canadian law new facts can be submitted to trigger a reopening of a hearing, however, it is not enough simply to have new facts, there must also be a lack of natural justice. Even court decisions may be set aside or varied by reason of a matter that arises or was discovered subsequent to the making of the order, or where the order results from fraudulent conduct by one of the parties. The case law that applies to the courts has established three conditions that provide a basis for allowing a motion to set aside or vary an order by reason of a matter that arises or was discovered subsequent to the making of the order: 1. The discovered information must be a “matter” within the meaning of the Rule; 2. The “matter” must not be one which was discoverable (by the respondent) prior to the making of the order by the exercise of due diligence; and 3. The “matter” must be something which would have a determining influence on the decision in question.

There is a statutory limit on the Board's power to revisit its decisions in the above limited circumstances: section 170.2 of the IRPA, above, provides that the RPD lacks jurisdiction to reopen on any ground once the Federal Court or RAD has made a final determination of a matter and RPD Rule 70(a) which provides that the Division may only act on its own initiative, without a party having to make an application or request to the Division, if it first gives the parties notice and an opportunity to object (Canadian Refugee Procedure/General Provisions#Rule 70 - Power to change a rule, excuse a person from a rule, extend a time limit, or act on its own initiative).

Once a decision-maker is functus officio, then their decision is a final one for the purposes of the related doctrine of res judicata.

Once reopened, is a claim to be heard de novo or as a redetermination based on the previous record?

A “true de novo proceeding” is a proceeding where the second decision-maker starts anew: the record below is not before them and the original decision is ignored in all respects. A hearing de novo is, as the term implies, an altogether fresh or new hearing and is not limited to an inquiry to determine if the tribunal acted properly and correctly on the evidence and material before it. Black's Law Dictionary defines, "hearing de novo" in the following manner: "Generally, a new hearing or a hearing for the second time, contemplating an entire trial in same manner in which matter was originally heard and a review of previous hearing." Whether a claim, once reopened, will include the evidence and testimony previously on record is a question of procedural fairness that must be decided in each case. Where a denial of natural justice taints the whole proceeding, the tribunal must start afresh. In some cases, a procedural fairness violation in the original proceeding will be of such a nature that it would be unfair for the newly constituted panel to be presented with the previous, tainted evidence (for example in the case of interpretation inaccuracies). In other cases, a panel will have the discretion to consider the prior evidence, provided the applicants are given an opportunity to make representations and to provide explanations regarding the prior testimony. Doing so is generally discretionary; an RPD panel is not required to have regard to the transcript from a prior hearing on reconsideration: Huang v. Canada. Where possible, not having to repeat existing testimony is an efficient course of action consistent with a panel's mandate to "deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit." (Canadian Refugee Procedure/162 - Board Jurisdiction and Procedure#IRPA Section 162(2) - Obligation to proceed informally and expeditiously) A panel's choice to have recourse to the testimony given at a prior sitting is not generally indicative of bias or of having pre-judged a matter. As a matter of procedure, the Board will generally have its legal services staff review matters that have been reopened or remitted in order to make a recommendation to the Division's management about what should remain on the record for the new panel, and whether certain documents should be removed from the record to avoid tainting the panel.

See also:

• Canadian Refugee Procedure/The right to an impartial decision-maker#A Member considering prior testimony during a redetermination of a claim is not, in itself, indicative of bias
• Canadian Refugee Procedure/The right to be heard and the right to a fair hearing#The record on a court-ordered redetermination

RPD Rule 62(1) - Who may make an application to reopen when

The text of the relevant rules reads:

Reopening a Claim or Application

Application to reopen claim
62 (1) At any time before the Refugee Appeal Division or the Federal Court has made a final determination in respect of a claim for refugee protection that has been decided or declared abandoned, the claimant or the Minister may make an application to the Division to reopen the claim.

History of this provision

Under the previous version of the RPD Rules, the equivalent rule read: "55. (1) A claimant or the Minister may make an application to the Division to reopen a claim for refugee protection that has been decided or abandoned."

Rule 62(1) applies to applications that have either been decided on their merits or declared abandoned

Rule 62(1) provides that the claimant or the Minister may make an application to the Division to reopen a claim at any time before the RAD or Federal Court has made a final determination in respect of a claim for refugee protection that has been either decided or declared abandoned. As such, reopening applications can be made both to reopen claims that have been abandoned (e.g. Noel v. Canada) as well as those that have been determined on their merits and either accepted or rejected (e.g. Simmons v. Canada).

Limitation on reopening where a final determination has been made by the RAD or Federal Court

Rule 62(9) should be read in conjunction with s. 170.2 of the IRPA which forecloses any reopening of a claim for refugee protection or a claim for protection, pursuant to section 96 and subsection 97(1), respectively, of the Act, when a “final determination” has been made by either the Refugee Appeal Division or the Federal Court:

170.2 The Refugee Protection Division does not have jurisdiction to reopen on any ground — including a failure to observe a principle of natural justice — a claim for refugee protection, an application for protection or an application for cessation or vacation, in respect of which the Refugee Appeal Division or the Federal Court, as the case may be, has made a final determination.

Burden of proof

As stated in Rule 62(1), either a claimant or the Minister may make an application to the Division to reopen a claim. The burden of proof is on the applicant. As the Division has held, this burden of proof should be relied upon by the Board and "The role of the Division hearing an application to re-open does not include a fact-finding mission on behalf of the applicants."

RPD Rule 62(2) - Form of the application for reopening

The text of the relevant rules reads:

Form of application
(2) The application must be made in accordance with rule 50 and, for the purpose of paragraph 50(5)(a), the Minister is considered to be a party whether or not the Minister took part in the proceedings.

Full Rule 50 requirements apply to such applications

Per Rule 50, the application will have to consist of a notice specifying the grounds on which the application is made, an affidavit setting out the facts [a requirement currently waived by practice notice], and a statement of law and of argument that is to be relied upon by the applicant: Canadian Refugee Procedure/RPD Rules 49-52 - Applications#RPD Rule 50 - How to Make an Application

RPD Rule 62(3) - Contact information

Contact information
(3) If a claimant makes the application, they must include in the application their contact information and, if represented by counsel, their counsel’s contact information and any limitations on counsel’s retainer.

RPD Rule 62(4) - Allegations against counsel

Allegations against counsel
(4) If it is alleged in the application that the claimant’s counsel in the proceedings that are the subject of the application provided inadequate representation,
(a) the claimant must first provide a copy of the application to the counsel and then provide the original application to the Division, and
(b) the application provided to the Division must be accompanied by a written statement indicating how and when the copy of the application was provided to the counsel.

A claimant must follow the process set out in the relevant Board Practice Notice

See the IRB Practice Notice on Allegations Against Former Counsel. For more details on the right to counsel, and making arguments about the incompetence thereof, see: Canadian Refugee Procedure/RPD Rules 14-16 - Counsel of Record#Deficiencies of counsel's conduct are properly attributed to their client.

RPD Rule 62(5) - Copy of the notice of appeal or pending application

Copy of notice of appeal or pending application
(5) The application must be accompanied by a copy of any notice of pending appeal or any pending application for leave to apply for judicial review or any pending application for judicial review.

RPD Rule 62(6) - Application must not be allowed absent a failure to observe a principle of natural justice

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

History of this rule

The Federal Court has noted that the RPD’s "power to reopen a refugee claim is very limited" and that "the Rules are highly prescriptive". Rule 62(6) states the RPD “must not allow the application unless it is established that there was a failure to observe a principle of natural justice” [emphasis added]. This rule updated the Rule 55(4) found in the previous version of the Refugee Protection Division Rules, (SOR/2002-228), which was broader in scope and read that the RPD “must allow the application if it is established that there was a failure to observe a principle of natural justice” [emphasis added]. The background against which these rules were written, is that prior to the founding of the Immigration and Refugee Board, the Immigration Appeal Board had been entitled to reopen an appeal to hear new evidence if it saw fit to do so and it could revise its former decision because it had a continuing "equitable" jurisdiction to decide if a person should be allowed to remain in Canada. This type of continuing jurisdiction and broad latitude to reopen was explicitly not provided to the CRDD/RPD, and it was eventually removed from the powers of the Immigration Appeal Division, the IAB's successor.

Rule 62(6) limits applications to reopen to circumstances where there was a failure to observe a principle of natural justice

Rule 62(6) provides that the Division "must not allow" an application (from a party) to reopen unless it is established that there was a failure to observe a principle of natural justice. It is clear on a plain reading of Rule 62, that the right to reopen is a limited and unusual right to be exercised carefully.

The Board has affirmed that the onus is on the applicant to establish on a balance of probabilities there was a denial of a principle of natural justice. The Board has held that the role of the Division hearing an application to re-open does not include a fact-finding mission on behalf of the applicants, and the Division is not to second-guess the assessment of the situation of the original member who presided over the proceeding previously.

The limited scope of this rule may be contrasted with RPD Rule 60, concerning reopening withdrawn claims, which provides that the Division may reopen both if "it is established that there was a failure to observe a principle of natural justice" or if "it is otherwise in the interests of justice to allow the application". Which see: Canadian Refugee Procedure/RPD Rules 60-61 - Reinstating a Withdrawn Claim or Application.

A question can arise about the effect of RPD Rule 70, which allows a panel to excuse a person from a rule, and s. 170.2 of the Act, which concerns a panel's jurisdiction to reopen on "any ground", of which a failure to observe a principle of natural justice is just one ground. Specifically, Rule 70 provides that the Division may excuse a person from a requirement of a rule (Canadian Refugee Procedure/RPD Rules 69-71 - General Provisions#RPD Rule 70 - Power to change a rule, excuse a person from a rule, extend a time limit, or act on its own initiative). Section 170.2 of the Act provides that a panel may not reopen on any ground — including a failure to observe a principle of natural justice — once the Refugee Appeal Division or the Federal Court, as the case may be, has made a final determination (Canadian Refugee Procedure/RPD Rules 62-63 - Reopening a Claim or Application#Section 170.2 of the IRPA). Any argument that these provisions provide the RPD with jurisdiction to allow an application to reopen on a ground other than procedural fairness is best rejected.

As a starting-point, the common law generally limits a tribunal's ability to reopen a matter absent explicit statutory authority. For example, in Longia v. Canada, the Federal Court of Appeal held that the IRB's predecessor Immigration Appeal Board had been correct in deciding that it had no jurisdiction to reopen an application for redetermination of a claim which it had already disposed of solely in order to hear evidence of new facts. The RPD has not been held to have such jurisdiction. For example, the IRB has stated that panels normally do not have jurisdiction to reopen a claim to hear new evidence:

After the Refugee Division has rendered a decision, a claimant might request the Refugee Division to reopen the hearing, on the basis that the claimant has: (1) additional evidence which existed at the time of the hearing, but not presented at the hearing; or (2) new evidence which arose after the hearing. The Refugee Division should normally refuse to reopen in both situations, on the basis that it has no jurisdiction to do so.

When considering a previous version of the RPD rules, the Federal Court rejected an argument that, while the rule expressly obliged the Division to reopen for breach of natural justice, since this was not stated to be the only ground for reopening, it did not preclude the Division from reopening decisions on other grounds, including the existence of new evidence. The Court held the rule did not expand the jurisdiction to reopen refugee and protection determinations and concluded that the Division could reopen only for breach of a principle of natural justice. This reasoning could be considered a persuasive basis on which to reject any application to excuse a party from the Rule 62(6) requirement pursuant to RPD Rule 70.

When considering the scheme of the Act and the relevant common law, panels arguably may not waive the requirement of Rule 62(6) that matters only be reopened in situations where a principle of natural justice was not observed, particularly where a panel seeks to re-open for new evidence to be considered. Parliament chose to not make a Pre-Removal Risk Assessment (PRRA) available for 12 months following a refugee decision, and chose to place limits on adducing new evidence at the Refugee Appeal Division. Allowing reopenings simply to consider new evidence could run contrary to these aspects of the scheme of the Act, and hence these parliamentary choices. In the words of the Federal Court of Appeal considering a previous version of this rule, the rule does not confer on the Refugee Division jurisdiction to reopen a dismissal of a refugee claim in order to consider new evidence relating, for example, changed country conditions. A failed refugee claimant can only put evidence of this nature to the immigration officer conducting a pre‑removal risk assessment (PRRA), or use it as the basis of an application to the Minister to remain in Canada on humanitarian and compassionate grounds.

What is a principle of natural justice and is this the same thing as procedural fairness?

As the Federal Court stated in Huseen v. Canada, one can interpret Rule 62(6) as permitting the RPD to reopen a claim where there has been either a denial of natural justice or a denial of procedural fairness to the applicant. This reflects the history of the terms "natural justice" and "procedural fairness". Originally, there was a distinction between the stricter rules of natural justice as they applied to judicial or quasi-judicial decisions ("natural justice") and those rules of fairness which would apply only to administrative decisions ("procedural fairness"). However, this distinction has been eroded and at present the Courts have accepted that there only exists a general duty of fairness which can be referred to by using either the term “natural justice” or the term “procedural fairness”.

RPD Rule 62(7) - Factors

Factors
(7) In deciding the application, the Division must consider any relevant factors, including
(a) whether the application was made in a timely manner and the justification for any delay; and
(b) the reasons why
    (i) a party who had the right of appeal to the Refugee Appeal Division did not appeal, or
    (ii) a party did not make an application for leave to apply for judicial review or an application for judicial review.

"Any relevant factors"

In deciding such an application, the Division must consider any relevant factors, including, but not limited to, those in (a) and (b) enumerated above. As the court noted in Lopez v. Canada, these factors must be relevant to the question of whether there has been a failure to observe a principle of natural justice (Rule 62(6)). The Board and courts have commented that these factors as follows:

• Whether the claimant was represented by counsel. There is nuance to this criterion, as the court noted in Huseen v. Canada wherein it stated "I wish to stress that a failure or delay in engaging counsel is, in itself, not an acceptable panacea to all the harm that results from missteps in the refugee process. Equally unacceptable, however, is a failure on the Board’s part to consider an individual’s circumstances in these situations."
• The language(s) the claimants speak. For example, in Huseen v. Canada the Board considered that the BOC kit was provided to the claimants in Arabic, their first language, and concluded that this properly pointed away from any conclusion that there had been a failure to observe a principle of natural justice in the case. The Federal Court also held that an applicant chose not to ask anyone to verify what correspondence about their hearing date said, and consequently missed their hearing, was indicative of how they were not diligently pursuing their refugee claim, notwithstanding their limited literacy.
• Whether the claimant complied with procedural obligations: A procedural failing on an Applicant’s part does not automatically mean they cannot obtain relief through a re-opening application. Justice McHaffie ruled in Perez that "What is clear from the foregoing cases is that a failure to comply with procedural obligations does not automatically disqualify a claimant from relief on fairness grounds, but at some point a claimant will be considered the author of their own misfortune. The line between these two, and thus the assessment of procedural fairness, will be heavily dependent on the overall factual matrix and the conduct of the claimant." In Aguirre Meza v. Canada, the RPD concluded that the Applicant’s refugee claim being denied was the result “of a chains of events which the claimant himself set in motion.” and was thus not procedurally unfair. See: Canadian Refugee Procedure/Principles for the interpretation of refugee procedure#Principles about the expectations that one reasonably has of claimants. In Brar v. Canada, the court noted that it was relevant that the applicant had erroneously believed that updating his mailing address with IRCC would result in it being updated with the IRB.
• Whether the claimant was diligent in keeping in touch with their counsel and the Board. In Garcia v. Canada the Applicant could not be located despite (i) several months of both his counsel and the IRB trying unsuccessfully to locate and contact him, and (ii) the IRB thereafter rescheduling the hearing in the hope of giving the applicant a final chance. The court concluded that it was reasonable for the Board to refuse to reopen the claim in the circumstances. In contrast, in Glowacki v. Canada, the claim was abandoned after neither the claimant nor their counsel updated the claimants' contact information with the IRB when they moved. Counsel had gotten off the record because their legal aid certificate had been cancelled, but without providing the claimants' updated contact information. The claimants then did not receive the Notice to Appear for their hearing. In the circumstances, the court concluded that the Division's refusal to reopen the claim was unreasonable, noting that no slip or mistake of counsel should be permitted to bring about a miscarriage of justice.
• Deficiency of counsel: If an application was not made in a timely manner for reasons that had to do with deficiency of counsel, and thus procedural fairness implications arise, then there may have been a failure to observe a principle of natural justice. See also: Canadian Refugee Procedure/RPD Rules 14-16 - Counsel of Record#A hearing will be unfair where counsel incompetence results in a miscarriage of justice. When making such an assessment, a decision maker should consider the counsel's "cumulative conduct", which may include conduct in previous steps in the proceeding, such as an abandonment hearing preceding an application to reopen, consistent with the reviewing body's mandate to consider whether the procedure was fair having regard to all of the circumstances.
• Whether the claimant received notice of the proceeding that preceded the application to reopen: Decisions have considered whether the claimant had an opportunity to be heard during the proceeding that preceded their application to reopen. For example, whether they received notice of an abandonment proceeding. See: Canadian Refugee Procedure/RPD Rule 65 - Abandonment#RPD Rule 65(1) - Opportunity to Explain. In Brar v. Canada, the court noted that it was relevant that the applicant had supplied his email address to the Board, but he was not contacted at that address to advise him of the proceedings.
• Whether the applicant is attempting to reopen a claim that they succeeded on: The court comments that a request to reopen a claim under Rule 62 of the RPD Rules serves the purpose of providing an applicant with an equitable remedy when a denial of natural justice or procedural unfairness led to an unfavourable result. By corollary, it would be unnecessary for an applicant (other than the Minister) to need to reopen their successful claim. In Kaur v. Canada, the applicants’ original refugee protection claim had been decided in their favour in 2005. After the Minister applied to vacate their positive decision on the basis of misrepresentation, the applicants sought to reopen the claim in 2022, approximately 17 years later and after the decision that granted refugee protection was vacated. In upholding the RPD's decision to refuse to allow the applicants to reopen their claim, the court held that it was relevant that they were attempting to reopen a refugee protection claim that was decided in their favour, and that per the scheme of the act, adducing new evidence following a determination to vacate refugee protection under section 109(3) of IPRA is something that can be done under other provisions of the IRPA, such as the humanitarian and compassionate provisions.

In contrast, the courts have commented that the following factors will generally not be relevant to such an enquiry:

• Lack of prejudice to the Minister is not generally relevant: As the Federal Court commented when considering the analogous Refugee Appeal Division Rule, "it is difficult to see how a lack of prejudice to the Respondent is relevant to whether...there was a failure to observe a principle of natural justice. The Respondent certainly has a justifiable interest and obligation in ensuring that timelines are met. Otherwise, chaos would result. That is why there are time deadlines in the legislation and the relevant rules. Requiring any applicant to meet those timelines is not a breach of any principle of natural justice."
• There is no requirement that the failure to observe a principle of natural justice arise from an error or mistake by the Board: As stated in Djilal v Canada, a failure to observe a principle of natural justice does not have to be the result of an error or mistake of the RPD. For example, negligence on the part of an applicant’s counsel has been recognized, in certain circumstances, as being sufficient to cause the applicant to have been denied natural justice in relation to an abandonment hearing. However, but see Kilave v. Canada: "Applications to reopen may only be allowed where a breach of natural justice by the Board can be established at the abandonment hearing; arguments that the applicant’s counsel was negligent or not diligent is relevant at the abandonment hearing, or on judicial review of the decision from the abandonment hearing, but become irrelevant hereafter. They are not relevant to whether the Board should reopen the claim. (2) The failure of the applicant’s original lawyer to file the PIF on time or to obtain an extension, or to attend the abandonment hearing, is not a basis upon which the Court will set aside a Board decision not to reopen a refugee claim." An additional example of a failure to observe a principle of natural justice that may justify reopening a claim is where a claimant fails to disclose a criminal charge; this may cause a breach of natural justice by preventing the Minister from considering whether to suspend the applicant’s refugee claim pursuant to s.103 of IRPA pending the outcome of the charges.
• The fact that a claimant misunderstood their obligations does not in itself establish that they were denied procedural fairness: In Rokisini v. Canada the claimant stated that he mistakenly believed that his appeal to the RAD had been perfected. It had not been, as the claimant had not submitted an application record, which is required. When the claimant failed to submit his application record by the required deadline, the RAD dismissed the appeal. On judicial review to the Federal Court, the claimant submitted that he misunderstood the obligations to file an appeal, and that if he had properly understood the steps required of him, he would have complied with them. In light of the language of the forms that had been sent by the Board to the claimant advising about the additional steps that he was required to take, the Board held that the claimant's misunderstanding was not sufficient to establish that procedural fairness had been denied: "I am not persuaded by the Applicant’s submissions that he mistakenly assumed that a hearing would be scheduled for the RAD appeal, and that the "notice of appeal" was the equivalent of an appellant’s record.  A plain reading of the RAD Acknowledgement Letter would clearly compel the reader to take next steps".

Whether the application was made in a timely manner and the justification for any delay

Rule 62(7) requires that in deciding such an application, the Division must consider whether the application was made in a timely manner and the justification for any delay. Speed is often of the essence with applications to reopen, as claimants may be facing the prospect of imminent removal by CBSA, even prior to the Board arriving at a decision on the reopening application. A reopening application does not provide an automatic stay of removal. Reasons for delay that have been held to be "significant factors in play" in such cases have included:

• How long the applicant had access to any new evidence: In Adgo v. Canada the court considered the analogous RAD rule and concluded that the Division was reasonable in denying an application and finding that there was no breach of procedural fairness in a situation where an applicant requested reopening a claim so that it could consider documents that the applicant had had access to for some months prior to the decision being rendered.
• Challenges finding counsel because of holidays. For example, in Huseen v. Canada the court noted that the claimants "had difficulty finding a lawyer between the move to Alberta on December 18, 2013 and the January 7, 2014 abandonment hearing due to the Christmas holiday season".
• Whether the claimant was diligent in making attempts to understand the decision terminating their claim. For example, in Driss v. Canada, the claimant's claim was closed and then the claimant waited two years before attempting to reopen the claim. The court concluded that the evidence before the panel was that the claimant received the original decision terminating the claim in a timely manner but failed to understand its significance or to make any attempt to understand its content. The court upheld the Board's decision that the claimant's evidence was insufficient to justify a two-year delay. In contrast, in Ravi v. Canada, the claimant applied to have his negative decision re-opened approximately 20 months after the decision was made. The court concluded that in the circumstances, including the applicant's significant mental health issues, including auditory hallucinations, paranoia and distress affecting his functioning in society, the claim should have been re-opened despite the amount of time that had passed.

RPD Rule 62(8) - Subsequent application

Subsequent application
(8) If the party made a previous application to reopen 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.

The Division should look at whether there is new evidence that was not before the original panel

Rule 62(8) provides that if a party made a previous application to reopen that was denied, the Division must not allow the subsequent application unless there are exceptional circumstances supported by new evidence. Such evidence must be new in the sense that it was not before the Division at the time of the original application to reopen.

The test for subsequent applications is whether there are exceptional circumstances supported by new evidence

As per Rule 62(6), the test for whether to allow an initial application to reopen focuses on whether there was a failure to observe a principle of natural justice: "The Division must not allow the application unless it is established that there was a failure to observe a principle of natural justice." As the Federal Court stated in Brown v. Canada, "the legal test is different for the first application to re-open. A first application to re-open a claim focuses on a breach of natural justice (s. 62(6) of the RPD Rules) as opposed to a second application which requires exceptional circumstances (s. 62(8) of the RPD Rules) for a file to be re-opened."

RPD Rule 62(9) - Other remedies and timing of decision

Other remedies
(9) If there is a pending appeal to the Refugee Appeal Division or a pending application for leave to apply for judicial review or a pending application for judicial review on the same or similar grounds, the Division must, as soon as is practicable, allow the application to reopen if it is necessary for the timely and efficient processing of a claim, or dismiss the application.

RPD Rule 63 - Application to reopen application to vacate or to cease refugee protection

Application to reopen application to vacate or to cease refugee protection
63 (1) At any time before the Federal Court has made a final determination in respect of an application to vacate or to cease refugee protection that has been decided or declared abandoned, the Minister or the protected person may make an application to the Division to reopen the application.

Form of application
(2) The application must be made in accordance with rule 50.

Contact information
(3) If a protected person makes the application, they must 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 they must provide a copy of the application to the Minister.

Allegations against counsel
(4) If it is alleged in the application that the protected person’s counsel in the proceedings that are the subject of the application to reopen provided inadequate representation,
(a) the protected person must first provide a copy of the application to the counsel and then provide the original application to the Division, and
(b) the application provided to the Division must be accompanied by a written statement indicating how and when the copy of the application was provided to the counsel.

Copy of pending application
(5) The application must be accompanied by a copy of any pending application for leave to apply for judicial review or any pending application for judicial review in respect of the application to vacate or to cease refugee protection.

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

Factors
(7) In deciding the application, the Division must consider any relevant factors, including
(a) whether the application was made in a timely manner and the justification for any delay; and
(b) if a party did not make an application for leave to apply for judicial review or an application for judicial review, the reasons why an application was not made.

Subsequent application
(8) If the party made a previous application to reopen 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.

Other remedies
(9) If there is a pending application for leave to apply for judicial review or a pending application for judicial review on the same or similar grounds, the Division must, as soon as is practicable, allow the application to reopen if it is necessary for the timely and efficient processing of a claim, or dismiss the application.