Practice notice: RPD and RAD processing for individuals applying under government of Canada public policies

​​​​​​​​​​​​This practice notice sets out how the Refugee Protection Division (RPD) and the Refugee Appeal Division (RAD) of the Immigration and Refugee Board (IRB) will schedule and hear refugee claims and appeals for those individuals who have made applications under two temporary government of Canada Public Policies (the Public Policy).^{Footnote 1}

This practice notice comes into force on December 14​, 2020.

Background

Immigration, Refugees and Citizenship Canada (IRCC) is administering a special program to recognize certain refugee claimants who were front-line health workers during the COVID-19 pandemic. Many of these individuals have pending refugee claims or appeals before the IRB.

Processing the claims and appeals of these individuals at the IRB at the same time as IRCC is processing their applications under the Public Policy would result in an inefficient use of resources and a duplication of effort. It would also unnecessarily require those individuals to spend time and money pursuing two streams to obtaining status in Canada.

Therefore, as described below, the IRB has agreed to put these claims and appeals on hold pending the outcome of the application under the Public Policy.

Application

Refugee Protection Division

Processing stopped on notice from IRCC, if no substantive evidence has been accepted at a hearing

Upon notification by IRCC that a refugee claimant has made an application under the Public Policy (the application), the RPD will stop processing that claim pending the outcome of the application. This includes claims that were returned to the RPD by the RAD or the Federal Court for redetermination. ​

The RPD will stop processing the claim upon notification by IRCC. The RPD will send a notice to the claimant confirming when it has put a claim on hold. It is not necessary for claimants to notify the RPD that they have made an application. However, to account for possible processing time between the date of filing the application with IRCC and when notice is sent to the IRB, if a claimant’s hearing is scheduled to be held within 35 days after the claimant has made the application under the Public Policy, the RPD will cancel the hearing on application of the claimant if they file proof they made the application under the Public Policy.

Cancellation of hearing

Where a claim was scheduled for a hearing, but the hearing has not started and the RPD has received notification from IRCC that the claimant has applied under the Public Policy, the hearing will be cancelled.

Processing continues if substantive evidence has been accepted

This hold in processing the claim does not apply to claims where a hearing was started and substantive evidence was accepted before the RPD was notified by IRCC that an application was made. Those claims will continue to be heard and a decision issued on their refugee claim.

Additionally, as described below, the time limits for filing and perfecting an appeal to the RAD have been extended if the decision is negative. This will allow those individuals to wait until the outcome of the application before deciding whether to file an appeal to the RAD.

Withdrawal of claim after acceptance under the Public Policy

IRCC requires applicants, including their in-Canada family members, who meet all of the eligibility criteria under the Public Policy to withdraw their refugee claims as a final condition before being granted permanent residence. IRCC will notify successful applicants of this requirement in writing prior to the granting of permanent residence.

Rule 59(2) of the Refugee Protection Division Rules (RPD Rules)^{Footnote 2} ​sets out the procedures regarding withdrawal of a claim where no substantive evidence has been accepted. This can be done by notifying the RPD of the withdrawal using the Notice of withdrawl of a claim for refugee protection form​.(PDF, 185​ KB)

The RPD will provide an acknowledgement of the withdrawal to the claimant and to IRCC. This will terminate the refugee claim.

Resumption of processing

If the RPD receives notice from IRCC that the application under the Public Policy was refused or withdrawn, the RPD will resume processing that claim.

Refugee Appeal Division

i. Appeals in progress

Processing stopped on notice from IRCC, if no substantive work has begun

Upon notification by IRCC that a refugee appellant who has filed and perfected their appeal at the RAD has made an application under the Public Policy, the RAD will stop processing the appeal pending the outcome of the application. This includes appeals that were returned to the RAD by the Federal Court for redetermination.

The RAD will stop processing the appeal upon notification by IRCC. The RAD will send a notice to the claimant confirming when it has put a claim on hold.

Processing continues if substantive work has begun

This hold does not apply where, in the discretion of the RAD, substantive work has begun on the appeal before the RAD was notified by IRCC or the appellant that an application was made. Appellants will be informed if their appeal is proceeding.​

Withdrawal of appeal after acceptance under the Public Policy

IRCC requires applicants, including their in-Canada family members, who meet all eligibility criteria under the Public Policy to withdraw their refugee appeals as a final condition before being granted permanent residence. IRCC will notify successful applicants of this requirement in writing prior to the granting of permanent residence.

Rule 47 of the Refugee Appeal Division Rules (RAD Rules)^{Footnote 3} sets out the procedures regarding withdrawal of an appeal. The RAD waives the requirements of Rule 47(3) for all appellants who have been notified in writing by IRCC of the obligation to withdraw their appeals, so that all appellants who are successful under the Public Policy may withdraw their appeals by notifying the RAD in writing, without the requirement for a formal application in accordance with Rule 37. This can be done by notifying the RAD of the withdrawal using the Notification of withdrawl of an appeal form​. (PDF, 130​​ KB)

The RAD will provide notice to the appellant and to IRCC that the withdrawal has been accepted. This will terminate the appeal.

Resumption of processing

If the RAD receives notice from IRCC that the application under the Public Policy was refused or withdrawn, the RAD will resume processing that appeal.

ii. Appeals not yet filed or perfected

Extension of time limits

Refugee claimants whose claims are rejected by the RPD (unsuccessful claimants) normally have 15 days after the day they receive written reasons for the decision to file an appeal to the RAD and 30 days (which is currently extended to 45 days^{Footnote 4}) after receiving written reasons for the decision to perfect their appeal.^{Footnote 5}

For unsuccessful claimants whose application under the Public Policy is rejected or withdrawn, the RAD extends the time limits for filing and perfecting their appeal if their refugee claim was rejected either (i) after the coming into force of this practice notice or (ii) the time limits for filing or perfecting their appeal had not expired when this practice notice came into force.

The new time limits are:

1. The Notice of Appeal is due 15 days after the application is withdrawn or notification is received by the unsuccessful claimant that their application has been rejected.
2. The perfected record is due 45 days after the application is withdrawn or notification is received by the unsuccessful claimant that the application has been rejected.

When filing their Notice of Appeal or Appellant’s Record, appellants who wish to take advantage of these extended time limits must file evidence indicating when they were notified that their application was rejected or when it was withdrawn. This may be a copy of the decision from IRCC along with a statement from the appellant indicating when it was received, or, in the case of withdrawal, a copy of the correspondence withdrawing the application.

Time limits are not extended for unsuccessful claimants whose applications are accepted under the public policy.

Authority

Paragraph 159(1)(f) of the Immigration and Refugee Protection Act^{Footnote 6} (IRPA) provides that the Chairperson fixes the place, date and time of proceedings of each Division.^{Footnote 7} Also, section 165 of the IRPA provides that the RPD and the RAD may do whatever is necessary for a full and proper hearing.

In addition, RAD Rule 53 allows the RAD to change a requirement of a rule. Subsection 159.91(2) of the Immigration and Refugee Protection Regulations^{Footnote 8} provides that the RAD may extend the time for filing or perfecting an appeal by the number of days necessary for reasons of fairness and natural justice.

Signed on December 10​, 2020.