Understanding and applying to reopen abandoned refugee claims in Canada

For individuals seeking protection in Canada, having a refugee claim declared “abandoned” represents a serious setback with significant consequences. This post provides accurate information about what constitutes an abandoned claim and the process for potentially reopening such claims.

What Constitutes an Abandoned Refugee Claim?

Under section 168(1) of the Immigration and Refugee Protection Act (IRPA), the Refugee Protection Division (RPD) may determine that a proceeding has been abandoned if the claimant is “in default in the proceedings.” A claim may be declared abandoned for several reasons:

• Failure to submit a completed Basis of Claim (BOC) Form by the deadline
• Failure to appear for a scheduled hearing
• Failure to provide information required by the Division
• Failure to communicate with the Division when requested to do so

When a claimant misses a deadline or hearing, the RPD schedules a special hearing on abandonment, typically within five working days after the missed obligation. At this hearing, the claimant has an opportunity to explain why their claim should not be declared abandoned.

Consequences of an Abandoned Claim

If the RPD declares a claim abandoned, the consequences are severe:

• The claimant loses the right to continue with their current claim
• The claimant generally cannot make another refugee claim in the future
• For practical purposes, an abandoned claim has the same effect as a negative decision on the merits

Special Hearings on Abandonment

When a claimant fails to meet procedural requirements, the RPD must give them an opportunity to explain why their claim should not be declared abandoned:

• For failure to provide a BOC Form: A special hearing must be held no later than five working days after the day on which the completed form was due
• For failure to appear at a hearing: A special hearing must be held no later than five working days after the day originally fixed for the hearing

Factors Considered in Abandonment Decisions

In deciding whether to declare a claim abandoned, the RPD must consider:

1. The explanation provided by the claimant
2. Whether the claimant is ready to start or continue the proceedings
3. Whether the claimant has complied with the RPD’s rules
4. Any other relevant factors

The central test is whether the claimant’s conduct amounts to an expression of intention that they do not wish to pursue their claim with diligence.

Medical Explanations

If a claimant’s explanation includes medical reasons, they must provide a legible, recently dated medical certificate signed by a qualified medical practitioner that includes:

• Particulars of the medical condition (without specifying the diagnosis) that prevented compliance
• The date when the claimant is expected to be able to pursue their claim

If unable to provide a medical certificate, the claimant must explain:

• Efforts made to obtain the required certificate
• Medical reasons, supported by corroborating evidence
• How the medical condition prevented compliance

Reopening an Abandoned Claim

Rule 62 of the RPD Rules provides a mechanism to potentially reopen an abandoned claim:

1. Timing: An application to reopen can be made at any time before the Refugee Appeal Division (RAD) or Federal Court has made a final determination in respect of the claim.
2. Legal Standard: The RPD must not allow the application unless it is established that there was a failure to observe a principle of natural justice.
3. Relevant Factors: The Division must consider:
   • Whether the application was made in a timely manner
   • The justification for any delay
   • For claimants with appeal rights, why they did not appeal
   • Why a party did not seek judicial review
4. Subsequent Applications: If a previous application to reopen was denied, the Division must consider the reasons for that denial and will not allow a subsequent application unless there are exceptional circumstances supported by new evidence.
5. Jurisdictional Limitation: Section 170.2 of the IRPA explicitly states that the RPD does not have jurisdiction to reopen a claim “on any ground — including a failure to observe a principle of natural justice” if the RAD or Federal Court has made a final determination.

Application Process

To apply for reopening:

1. Submit a written application in accordance with Rule 50
2. Include contact information and counsel’s information if represented
3. Specify the grounds for reopening
4. Provide supporting evidence
5. Demonstrate how a principle of natural justice was not observed

The application should be made without delay, as timeliness is a factor the RPD will consider.

Given the complexity of reopening applications and the high stakes involved, seeking qualified legal representation is strongly recommended for claimants facing this situation.

References

1 Refugee Protection Division Rules, SOR/2012-256.
2. Immigration, Refugees and Citizenship Canada, “Guide 0174 – Application Guide for Inland Refugee Claims Portal” (14 February 2024).
3.Refugee Protection Division Rules, SOR/2012-256, r 62.

Disclaimer: This blog post provides general information and does not constitute legal advice. It is intended for informational purposes only. The information contained herein is not a substitute for professional legal advice from a licensed lawyer. Every refugee claim is unique, and the outcome depends on individual facts and legal circumstances. Do not act or rely on the information provided in this blog post without seeking the advice of a qualified legal professional. Contacting Ahlawat Law Professional Corporation through this blog post does not create a solicitor-client relationship. Past results are not indicative of future results, and the outcome will vary according to the facts of individual cases