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  1. Article ; Online: Informed consent: Old and new challenges in the context of the COVID-19 pandemic.

    Rothwell, Erin / Brassil, Donna / Barton-Baxter, Marietta / Brownley, Kimberly A / Dickert, Neal W / Ford, Daniel E / Kraft, Stephanie A / McCormick, Jennifer B / Wilfond, Benjamin S

    Journal of clinical and translational science

    2021  Volume 5, Issue 1, Page(s) e105

    Abstract: ... We begin with a brief overview of informed consent and the challenges that existed prior to COVID-19 ... In this paper, we address how the COVID-19 pandemic has impacted informed consent for clinical ... for examining what we have learned about informed consent and determining the next steps for improving ...

    Abstract In this paper, we address how the COVID-19 pandemic has impacted informed consent for clinical research through examining experiences within Clinical and Translation Science Award (CTSA) institutions. We begin with a brief overview of informed consent and the challenges that existed prior to COVID-19. Then, we discuss how informed consent processes were modified or changed to address the pandemic, consider what lessons were learned, and present research and policy steps to prepare for future research and public health crises. The experiences and challenges for CTSA institutions offer an important perspective for examining what we have learned about informed consent and determining the next steps for improving the consent process.
    Language English
    Publishing date 2021-04-07
    Publishing country England
    Document type Journal Article
    ISSN 2059-8661
    ISSN (online) 2059-8661
    DOI 10.1017/cts.2021.401
    Database MEDical Literature Analysis and Retrieval System OnLINE

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  2. Article ; Online: Informed consent

    Erin Rothwell / Donna Brassil / Marietta Barton-Baxter / Kimberly A. Brownley / Neal W. Dickert / Daniel E. Ford / Stephanie A. Kraft / Jennifer B. McCormick / Benjamin S. Wilfond

    Journal of Clinical and Translational Science, Vol

    Old and new challenges in the context of the COVID-19 pandemic

    2021  Volume 5

    Abstract: ... We begin with a brief overview of informed consent and the challenges that existed prior to COVID-19 ... In this paper, we address how the COVID-19 pandemic has impacted informed consent for clinical ... for examining what we have learned about informed consent and determining the next steps for improving ...

    Abstract In this paper, we address how the COVID-19 pandemic has impacted informed consent for clinical research through examining experiences within Clinical and Translation Science Award (CTSA) institutions. We begin with a brief overview of informed consent and the challenges that existed prior to COVID-19. Then, we discuss how informed consent processes were modified or changed to address the pandemic, consider what lessons were learned, and present research and policy steps to prepare for future research and public health crises. The experiences and challenges for CTSA institutions offer an important perspective for examining what we have learned about informed consent and determining the next steps for improving the consent process.
    Keywords Informed consent ; COVID-19 ; pandemic ; clinical research ; CTSA ; Medicine ; R
    Language English
    Publishing date 2021-01-01T00:00:00Z
    Publisher Cambridge University Press
    Document type Article ; Online
    Database BASE - Bielefeld Academic Search Engine (life sciences selection)

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  3. Book ; Online: Wikibooks

    Canadian Refugee Procedure/Information and Documents to be Provided

    Abstract: ... Conference Montreal Quebec May 2013 page 4. However for the duration of the Covid 19 pandemic the RPD is ... if the claimant has retained counsel at the time of referral and the officer has been informed that counsel ... to the Division and to the Minister (ii) informing the claimant of the importance of obtaining relevant ...

    Abstract It is said that at its heart the refugee process is about storytelling. Lawyer Tess Acton writes that stories permeate the Canadian refugee determination system. At the port of entry a claimant tells their story to the border official in preparation for a hearing a refugee claimant tells their story to their lawyer and during the hearing the refugee claimant tells their story to a Board Member. After the hearing the claimant’s story is re told in the form of a decision authored by the Board Member. These stories are the most important part of a refugee claim as refugees often come with little else in the way of evidence of persecution. Acton Tess Understanding Refugee Stories Lawyers Interpreters and Refugee Claims in Canada 2015 Master of Laws Thesis page 37 (Accessed January 23 2020). The set of rules described herein regulate at a high level the process by which claimants provide these stories to the Board. = Rule 3(1) (3) Fixing date time and location of hearing = The text of the relevant rule reads Information and Documents to Be Provided Claims for Refugee Protection Fixing date time and location of hearing 3 (1) As soon as a claim for refugee protection is referred to the Division or as soon as possible before it is deemed to be referred under subsection 100(3) of the Act an officer must fix a date time and location for the claimant to attend a hearing on the claim within the time limits set out in the Regulations from the dates times and locations provided by the Division. Date fixed by officer (2) Subject to paragraph 3(b) the officer must select the date closest to the last day of the applicable time limit set out in the Regulations unless the claimant agrees to an earlier date. Factors (3) In fixing the date time and location for the hearing the officer must consider (a) the claimant’s preference of location and (b) counsel’s availability if the claimant has retained counsel at the time of referral and the officer has been informed that counsel will be available to attend a hearing on one of the dates provided by the Division. = Roles of officers parties and Board in scheduling matters = Responsibility for scheduling hearings before the Refugee Protection Division is multifaceted. As indicated by this rule initial scheduling decisions are to be made by the IRCC or CBSA officer referring the claim. The parties to a proceeding then have the ability to request that the date and time of a claim be changed (Rule 54). The Board also has the power to act on its own motion in scheduling matters. = Rule 3(1) Regulation on mandatory timelines for scheduling claims = For the text of this regulation see [[Canadian Refugee Procedure/Timelines]]. = Rule 3(4) (6) Information an officer must provide to the claimant = Providing information to claimant in writing (4) The officer must (a) notify the claimant in writing by way of a notice to appear (i) of the date time and location of the hearing of the claim and (ii) of the date time and location of any special hearing on the abandonment of the claim under subrules 65(2) and (3) (b) unless the claimant has provided a completed Basis of Claim Form to the officer in accordance with subsection 99(3.1) of the Act provide to the claimant the Basis of Claim Form and (c) provide to the claimant information in writing (i) explaining how and when to provide a Basis of Claim Form and other documents to the Division and to the Minister (ii) informing the claimant of the importance of obtaining relevant documentary evidence without delay (iii) explaining how the hearing will proceed (iv) informing the claimant of the obligation to notify the Division and the Minister of the claimant’s contact information and any changes to that information (v) informing the claimant that they may at their own expense be represented by legal or other counsel and (vi) informing the claimant that the claim may be declared abandoned without further notice if the claimant fails to provide the completed Basis of Claim Form or fails to appear at the hearing. Providing information in writing and documents to Division (5) After providing to the claimant the information set out in subrule (4) the officer must without delay provide to the Division (a) a written statement indicating how and when the information set out in subrule (4) was provided to the claimant (b) the completed Basis of Claim Form for a claimant referred to in subsection 99(3.1) of the Act (c) a copy of each notice to appear provided to the claimant in accordance with paragraph (4)(a) (d) the information set out in Schedule 2 (e) a copy of any identity and travel documents of the claimant that have been seized by the officer (f) a copy of the notice of seizure of any seized documents referred to in paragraph (e) and (g) a copy of any other relevant documents that are in the possession of the officer. Providing copies to claimant (6) The officer must provide to the claimant a copy of any documents or information that the officer has provided to the Division under paragraphs (5)(d) to (g). = Right to counsel = Rule 3(4) states that an officer must notify a claimant in writing that they may be represented by legal or other counsel . For a discussion of the right to counsel see [[Canadian Refugee Procedure/Counsel of Record]]. = Rule 4 Claimant s contact information = Claimant’s contact information 4 (1) The claimant must provide their contact information in writing to the Division and to the Minister. Time limit (2) The claimant’s contact information must be received by the Division and the Minister no later than 10 days after the day on which the claimant receives the information provided by the officer under subrule 3(4). Change to contact information (3) If the claimant’s contact information changes the claimant must without delay provide the changes in writing to the Division and to the Minister. Information concerning claimant’s counsel (4) A claimant who is represented by counsel must without delay on retaining counsel provide the counsel’s contact information in writing to the Division and to the Minister and notify them of any limitations on the counsel’s retainer. If that information changes the claimant must without delay provide the changes in writing to the Division and to the Minister. = Rule 5 Declaration where counsel is not acting for consideration = Declaration — counsel not representing or advising for consideration 5 If a claimant retains counsel who is not a person referred to in any of paragraphs 91(2)(a) to (c) of the Act both the claimant and their counsel must without delay provide the information and declarations set out in Schedule 3 to the Division in writing. = Counsel may be representatives without fee who are not lawyers paralegals or immigration consultants = The Federal Court has observed that Counsel need not be legally qualified and many are not they are frequently friends relatives clergymen or immigration consultants. The latter are not always competent. Weerasinge v. Canada (Minister of Employment and Immigration) 1993 CanLII 2996 (FCA) [1994] 1 FC 330. Rule 5 applies where a claimant retains counsel who is not a person referred to in any of paragraphs 91(2)(a) to (c) of the Act. Those provisions read in context Representation or advice for consideration 91 (1) Subject to this section no person shall knowingly directly or indirectly represent or advise a person for consideration — or offer to do so — in connection with the submission of an expression of interest under subsection 10.1(3) or a proceeding or application under this Act. Persons who may represent or advise (2) A person does not contravene subsection (1) if they are (a) a lawyer who is a member in good standing of a law society of a province or a notary who is a member in good standing of the Chambre des notaires du Québec (b) any other member in good standing of a law society of a province or the Chambre des notaires du Québec including a paralegal or (c) a member in good standing of a body designated under subsection (5). . Designation by Minister (5) The Minister may by regulation designate a body whose members in good standing may represent or advise a person for consideration — or offer to do so — in connection with the submission of an expression of interest under subsection 10.1(3) or a proceeding or application under this Act. The Rule provides that in that situation both the claimant and their counsel must without delay provide the information and declarations set out in Schedule 3 to the Division in writing. That schedule reads as follows SCHEDULE 3 (Rules 5 and 13) Information and Declarations — Counsel Not Representing or Advising for Consideration Item Information 1 IRB Division and file number with respect to the claimant or protected person. 2 Name of counsel who is representing or advising the claimant or protected person and who is not receiving consideration for those services. 3 Name of counsel’s firm or organization if applicable and counsel’s postal address telephone number fax number and email address if any. 4 If applicable a declaration signed by the interpreter that includes the interpreter’s name the language and dialect if any interpreted and a statement that the interpretation is accurate. 5 Declaration signed by the claimant or protected person that the counsel who is representing or advising them is not receiving consideration and the information provided in the form is complete true and correct. 6 Declaration signed by counsel that they are not receiving consideration for representing or advising the claimant or protected person and that the information provided in the form is complete true and correct. The declaration includes a statement that the counsel is not receiving consideration. This is discussed in the Board s Basis of Claim form which states that The Immigration and Refugee Protection Act makes it an offence for any person not authorized under the Act to knowingly directly or indirectly represent or advise a person for consideration – or offer to do so – in connection with a proceeding or application under that Act. (Consideration includes money or any other form of compensation or reward.) Immigration and Refugee Board of Canada Basis of Claim Form November 2012 Version https //irb cisr.gc.ca/en/forms/Documents/RpdSpr0201 e.pdf page 9. = Rule 6 Basis of Claim Form = Basis of Claim Form Claimant’s declarations 6 (1) The claimant must complete a Basis of Claim Form and sign and date the declaration set out in the form stating that (a) the information given by the claimant is complete true and correct and (b) the claimant understands that the declaration is of the same force and effect as if made under oath. Form completed without interpreter (2) If the claimant completes the Basis of Claim Form without an interpreter’s assistance the claimant must sign and date the declaration set out in the form stating that they can read the language of the form and understand what information is requested. Interpreter’s declaration (3) If the claimant completes the Basis of Claim Form with an interpreter’s assistance the interpreter must sign and date the declaration in the form stating that (a) they are proficient in the language and dialect if any used and were able to communicate effectively with the claimant (b) the completed Basis of Claim Form and all attached documents were interpreted to the claimant and (c) the claimant indicated that the claimant understood what was interpreted. = Requirement that the information provided be complete true and correct = The obligation to provide information that is complete true and correct in Rule 6(1)(a) tracks the following conclusion from the UNHCR Handbook The applicant should.Tell the truth and assist the examiner to the full in establishing the facts of his case. Furthermore the Handbook provides that an applicant should Supply all pertinent information concerning himself and his past experience in as much detail as is necessary to enable the examiner to establish the relevant facts. He should be asked to give a coherent explanation of all the reasons invoked in support of his application for refugee status and he should answer any questions put to him. UN High Commissioner for Refugees (UNHCR) Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees April 2019 HCR/1P/4/ENG/REV. 4 available at https //www.refworld.org/docid/5cb474b27.html [accessed 26 January 2020] page 45. In the words of the Law Reform Commission of Canada’ report on the refugee determination process “There is no place in such a process for adversary tactics of surprise. If the process is to work effectively there must be full and frank disclosure by all parties concerned and all documents must be available in time to allow them to be reviewed prior to commencement of any hearing.” Law Reform Commission of Canada The Determination of Refugee Status in Canada A Review of the Procedure (Draft Final Report) 128 (1992). = Providing exemptions to illiterate claimants = When this Rule was being drafted the Board received feedback that illiterate claimants should be given flexibility in those situations in which the BoC Form is not filled out and signed as requested. The Board stated that as discretion rests with the Member to provide an exemption from the requirements of a rule when necessary and after proper notice to parties this comment did not necessitate a change in the rules. Immigration and Refugee Board of Canada RPD Rules Regulatory Impact Analysis Statement Date modified 2018 07 04 Accessed January 3 2020 https //irb cisr.gc.ca/en/legal policy/act rules regulations/Pages/RiasReir.aspx . = Rule 7 Providing BOC Form = Providing Basis of Claim Form — inland claim 7 (1) A claimant referred to in subsection 99(3.1) of the Act must provide the original and a copy of the completed Basis of Claim Form to the officer referred to in rule 3. Providing Basis of Claim Form — port of entry claim (2) A claimant other than a claimant referred to in subsection 99(3.1) of the Act must provide the original and a copy of the completed Basis of Claim Form to the Division. Documents to be attached (3) The claimant must attach to the original and to the copy of the completed Basis of Claim Form a copy of their identity and travel documents genuine or not and a copy of any other relevant documents in their possession. The claimant does not have to attach a copy of a document that has been seized by an officer or provided to the Division by an officer. Documents obtained after providing Basis of Claim Form (4) If the claimant obtains an identity or travel document after the Division has received the completed Basis of Claim Form they must provide two copies of the document to the Division without delay. Providing Basis of Claim Form — port of entry claim (5) The Basis of Claim Form provided under subrule (2) must be (a) received by the Division within the time limit set out in the Regulations and (b) provided in any of the following ways (i) by hand (ii) by courier (iii) by fax if the document is no more than 20 pages long unless the Division consents to receiving more than 20 pages or (iv) by email or other electronic means if the Division allows. Original Basis of Claim Form (6) A claimant who provides the Basis of Claim Form by fax must provide the original to the Division at the beginning of the hearing. = When a claimant must provide their BOC form = Port of Entry claimants As per Rule 7(5)(a) for a Port of Entry claimant their BOC must be submitted to the RPD within 15 days after referral per s. 159.8(2) of the Regulation. Berger Max Refugee Essentials Canadian Bar Association Immigration Law Conference Montreal Quebec May 2013 page 4. However for the duration of the Covid 19 pandemic the RPD is temporarily extending the time limit for claims made on or after August 29 2020. In these cases the BOC form will now be due 45 days after the day on which the claim was referred to the RPD. Immigration and Refugee Board of Canada Practice notice on the temporary extension of time limits for filing the Basis of Claim form August 28 2020 (Accessed August 31 2020). Inland claimants For inland claimants their BOC must be submitted to IRCC at determination of eligibility per s. 159.8(1) of the Regulation. Detained claimants CBSA has taken the position that individuals who initiate claims after being arrested or detained inland are required to complete all the forms including the Basis of Claim form within three working days. The basis for this interpretation appears to be the combination of IRPR s. 159.8(1) which says that a person who makes a claim for refugee protection inside Canada other than at a port of entry must provide an officer with the documents and information referred to in s. 99(3.1) not later than the day on which the officer determines the eligibility of their claim under IRPA s. 100(1). The RPD Rule 7 specifies that the Basis of Claim must be provided to the officer referred to in IRPA s. 99(3.1). BC Public Interest Advocacy Centre (BCPIAC) Refugee Reform and Access to Counsel in British Columbia July 30 2015 https //bcpiac.com/wp content/uploads/2015/09/LFBC Refugee Reform Paper Final July 30 2015 2.pdf (Accessed January 12 2020) page 33. See [[Canadian Refugee Procedure/Time Limit for Providing Documents]] for the full text of the relevant regulations. = Documents attached to the BOC form need not be translated at the time that they are attached = Rule 7(3) requires a claimant to attach to their BOC Form a copy of their identity and travel documents genuine or not and a copy of any other relevant documents in their possession. In this way Rule 7(3) functions as one of the main RPD Rules that oblige the disclosure of documents (in comparison other rules regarding the disclosure of documents generally provide a claimant with discretion about what documents they will provide see [[Canadian Refugee Procedure/Documentshat documents does a party need to provide when?]]). Such documents need not be translated in order for them to be accepted by the Board. This is because the rule on the language of documents Rule 32 ([[Canadian Refugee Procedure/Documentsule 32 Language of Documents]]) only applies to documents that a claimant chooses to use in the proceeding All documents used by a claimant or protected person in a proceeding must be in English or French or if in another language be provided together with an English or French translation and a declaration signed by the translator. In this way Rule 7(3) requires a claimant to provide all relevant documents in their possession at the time that they file their claim but if a claimant wants to use such documents in the proceeding then they will need to provide a translation of those documents prior to the hearing. Otherwise the documents will be retained for the purposes of the record but in an untranslated form and will likely therefore be assigned limited or no weight. On the other hand some untranslated documents such as original ID documents from a country may be assigned significant weight especially where they can be authenticated or compared to sample documents available to the Board in the National Documentation Package or other sources. If these rules were interpreted any other way for example to limit the ability of a claimant to provide documents such as their non genuine ID documents where those ID documents are not accompanied by a translation then it would frustrate the purpose of this disclosure obligation which is clearly to ensure that the claimant provides en masse relevant documents at the earliest time so that the Minister can assess those documents as part of any investigation into the claimant their credibility and their identity. If the claimant were only obliged to submit documents for which they had secured a translation then it would either frustrate the broad mandatory language of the rule ( must attach ) or else it could potentially impose significant translation costs on refugee claimants who may not have the resources to pay for or the ability to procure translations of the documents (especially in the four Canadian provinces that provide no legal aid to refugee claimants whatsoever [[Canadian Refugee Procedure/Counsel of Recordefugee related services provided by provincial legal aid programs]]). = Rule 8 Application for an extension of time to provide BOC Form = Application for extension of time 8 (1) A claimant who makes an application for an extension of time to provide the completed Basis of Claim Form must make the application in accordance with rule 50 but the claimant is not required to give evidence in an affidavit or statutory declaration. Time limit (2) The application must be received by the Division no later than three working days before the expiry of the time limit set out in the Regulations. Application for medical reasons (3) If a claimant makes the application for medical reasons other than those related to their counsel they must provide together with the application a legible recently dated medical certificate signed by a qualified medical practitioner whose name and address are printed or stamped on the certificate. A claimant who has provided a copy of the certificate to the Division must provide the original document to the Division without delay. Content of certificate (4) The medical certificate must set out the particulars of the medical condition without specifying the diagnosis that prevent the claimant from providing the completed Basis of Claim Form in the time limit referred to in paragraph 7(5)(a). Failure to provide medical certificate (5) If a claimant fails to provide a medical certificate in accordance with subrules (3) and (4) the claimant must include in their application (a) particulars of any efforts they made to obtain the required medical certificate supported by corroborating evidence (b) particulars of the medical reasons for the application supported by corroborating evidence and (c) an explanation of how the medical condition prevents them from providing the completed Basis of Claim Form in the time limit referred to in paragraph 7(5)(a). Providing Basis of Claim Form after extension granted (6) If an extension of time is granted the claimant must provide the original and a copy of the completed Basis of Claim Form to the Division in accordance with subrules 7(2) and (3) no later than on the date indicated by the Division and by a means set out in paragraph 7(5)(b). = Extensions will only be granted if there is a justifiable reason for the delay = The Board s public commentary to the previous version of the RPD rules that An extension [to provide this form] will only be granted if there is a justifiable reason for the delay continues to apply to decisions made under the current Rule 8. Immigration and Refugee Board of Canada  Commentaries to the Refugee Protection Division Rules Date Modified 2009 05 22 https //web.archive.org/web/20100704062357/http //www.irb cisr.gc.ca/eng/brdcom/references/aclo/pages/rpdcomment.aspx (Accessed January 28 2020). The legal standard that the Board is to apply in assessing an application for an extension of time to provide the Basis of Claim form is that set out in subsection 159.8(3) of the Immigration and Refugee Protection Regulations which provides that If the documents and information cannot be provided within the time limit . the Refugee Protection Division may for reasons of fairness and natural justice extend that time limit by the number of days that is necessary in the circumstances. As such a claimant should demonstrate that the form cannot be provided within the time limit that their inability to provide it within the time limit raises reasons of fairness and natural justice and that the period that they are requesting as an extension is what is necessary in the circumstances. One academic argues that as a principle refugee claimants should have time to recover and be ready to disclose the reasons of their flight and the possible ill treatment they risk suffering in their country of origin in case of return prior to having to provide such information to the state. Mariagiulia Giuffré ‘Access to Asylum at Sea? Non Refoulement and a Comprehensive Approach to Extraterritorial Human Rights Obligations’ in Violeta Moreno Lax and Efthymios Papastavridis (eds) Boat Refugees and Migrants at Sea A Comprehensive Approach Integrating Maritime Security with Human Rights (Brill Nijhoff 2017) 265. It is frequently observed that there are gendered aspects to this short deadline which is said to particularly penalize survivors of rape and sexual violence since it is well documented that these survivors often need time before they are ready to disclose their experiences whether to a lawyer completing a form describing their experiences or to decision makers. Canadian Council for Refugees The challenge of fair and effective refugee determination 23 July 2009 https //ccrweb.ca/files/fairdetermination.pdf (Accessed April 24 2020) page 7. = This Rule applies to applications for an extension of time but does not constrain the Board s ability to extend deadlines on its own motion = At times the IRB has extended the deadline for filing a Basis of Claim form of its own accord. For example during the COVID 19 pandemic the Board issued a Practice notice on the temporary extension of time limits for filing the basis of claim form . This practice notice provided a temporary extension for filing a Basis of Claim form specifically stating If your time limit for filing the BOC Form with the RPD falls between February 15 and April 15 2020 inclusive the deadline is extended to May 30 2020. The authority for this rule was cited as subsection 159.8(3) of the Immigration and Refugee Protection Regulations which provide that the RPD may extend the time for providing the BOC Form for port of entry claimants by the number of days necessary for reasons of fairness and natural justice. Furthermore that practice directive noted that section 165 of the Immigration and Refugee Protection Act provides that the RPD may do whatever is necessary for a full and proper hearing. Immigration and Refugee Board of Canada Practice notice on the temporary extension of time limits for filing the basis of claim form Signed March 15 2020 (Accessed March 16 2020). The principle is that this rule does not constrain the Board from extending a deadline and only governs how the Board should exercise its discretion where a claimant applies to extend the deadline. = Applications for an extension of time must be received at least three working days before the expiry of the time limit for providing the form = As per Rule 8(2) the application for an extension of time to provide the BOC must be received by the Division no later than three working days before the expiry of the time limit set out in the Regulations. The 3 working day time period is counted backwards from the expiry date to provide the BOC. Day 1 is the first business day before the expiry date. The application must be received no later than the third business day before the expiry date to provide the BOC. This arises as a result of the definition of working day in RPD Rule 1. Applications received after that date will be dealt with under the BOC abandonment rule Rule 65(2) [[Canadian Refugee Procedure/Abandonmentule 65(2) When the BOC Abandonment hearing must be scheduled]]. The interaction between this rule and the abandonment rule was discussed in the Board s commentary to the previous version of the RPD Rules which remains instructive An application for an extension of time received after the [time limit] will be considered at a special hearing held under [presently subsection 65(2)] of the Rules. At that hearing the claimant will be given a chance to explain the delay in filing the [Form]. The claimant should make every effort to provide a completed [Form] to the Division before or at the special hearing. If there is no justifiable reason for the delay the Division may declare the claim to be abandoned ( Immigration and Refugee Protection Act subsection 168(1)). Immigration and Refugee Board of Canada Commentaries to the Refugee Protection Division Rules Date Modified 2009 05 22 https //web.archive.org/web/20100704062357/http //www.irb cisr.gc.ca/eng/brdcom/references/aclo/pages/rpdcomment.aspx (Accessed January 28 2020). Thus for example the Board has denied requests for an extension of time to file Basis of Claim forms where the claims had already been declared abandoned. X (Re) 2014 CanLII 98260 (CA IRB) par. 8 retrieved on 2020 03 15. As such the proper procedure in such cases is for the claimant to either participate in the abandonment process under Rule 65 or if that has been completed then to apply to reopen the claim pursuant to Rule 62. = Rule 9 Changes to BOC Form = Changes or additions to Basis of Claim Form 9 (1) To make changes or add any information to the Basis of Claim Form the claimant must (a) provide to the Division the original and a copy of each page of the form to which changes or additions have been made (b) sign and date each new page and underline the changes or additions made and (c) sign and date a declaration stating that (i) the information given by the claimant in the Basis of Claim Form together with the changes and additions is complete true and correct and (ii) the claimant understands that the declaration is of the same force and effect as if made under oath. Time limit (2) The documents referred to in subrule (1) must be provided to the Division without delay and must be received by it no later than 10 days before the date fixed for the hearing. = Claimants are under an ongoing obligation to amend their Basis of Claim form should additional information arise = Claimants are under an ongoing relationship to update their Basis of Claim form to ensure that it is complete. The process for making such changes is described by this rule Rule 9. The obligation to provide such updates arises from the fact that claimants swear or affirm at the beginning of their hearing that their Basis of Claim form is complete true and correct Community Legal Education Ontario (CLEO) Refugee Rights in Ontario Answering questions at the hearing Updated Jan 29 2014 Accessed January 5 2020 . the instruction on the BOC form that if your information changes or if you want to add information you must inform the IRB Immigration and Refugee Board of Canada Basis of Claim Form November 2012 version Accessed January 5 2020 . the statements in the IRB s Claimant s Guide that If you find a mistake on your BOC Form or realize that you forgot something important or receive additional information you must tell the RPD Immigration and Refugee Board of Canada Claimant s Guide Date modified 2018 08 29 Accessed January 5 2020 . and caselaw that all the important facts of a claim for refugee protection must appear in the BOC Form. X (Re) 2015 CanLII 56636 (CA IRB) para. 43 . As is summarized in the Irwin Law text Refugee Law the duty to provide a complete and accurate BOC Form has been interpreted as an ongoing one. A claimant must amend and update his BOC if circumstances change or new information comes to light in the absence of such amendments adverse inferences can be drawn. Martin David Jones and Sasha Baglay. Refugee Law (Second Edition) . Irwin Law 2017 page 293. = No explanation for BOC amendments necessary = It was previously the case that a draft of this rule required that an explanation of changes to the BOC form be provided. Following stakeholder feedback that requirement was eliminated. The Board commented on this feedback as follows in its RPD Rules Regulatory Impact Analysis Statement Respondents commented that the rule which addresses changes or additions to the BoC Form was overly complicated in its wording. Several respondents expressed confusion regarding how the requested explanations for any additions or deletions were to be provided. A respondent also suggested that the IRB ensure that claimants when providing amendments to their BoC Form be required to state that the changes are true to the best of the claimant s knowledge . In response to these comments the IRB has (1) simplified the language in this rule (2) removed the requirement for an explanation of changes and (3) included an additional requirement that claimants provide a declaration which states that the information given by the claimant in the BoC Form together with the changes and additions is complete true and correct which is consistent with the declaration in the BoC Form that claimants must initially sign. Immigration and Refugee Board of Canada RPD Rules Regulatory Impact Analysis Statement Date modified 2018 07 04 Accessed January 3 2020 https //irb cisr.gc.ca/en/legal policy/act rules regulations/Pages/RiasReir.aspx . = Rule 10 Order of questioning in hearings oral representations oral decisions limiting questioning = Conduct of a Hearing Standard order of questioning 10 (1) In a hearing of a claim for refugee protection if the Minister is not a party any witness including the claimant will be questioned first by the Division and then by the claimant’s counsel. Order of questioning — Minister’s intervention on exclusion issue (2) In a hearing of a claim for refugee protection if the Minister is a party and has intervened on an issue of exclusion under subrule 29(3) any witness including the claimant will be questioned first by the Minister’s counsel then by the Division and then by the claimant’s counsel. Order of questioning — Minister’s intervention not on exclusion issue (3) In a hearing of a claim for refugee protection if the Minister is a party but has not intervened on an issue of exclusion under subrule 29(3) any witness including the claimant will be questioned first by the Division then by the Minister’s counsel and then by the claimant’s counsel. Order of questioning — application to vacate or cease refugee protection (4) In a hearing into an application to vacate or to cease refugee protection any witness including the protected person is to be questioned first by the Minister’s counsel then by the Division and then by the protected person’s counsel. Variation of order of questioning (5) The Division must not vary the order of questioning unless there are exceptional circumstances including that the variation is required to accommodate a vulnerable person. Limiting questioning of witnesses (6) The Division may limit the questioning of witnesses including a claimant or a protected person taking into account the nature and complexity of the issues and the relevance of the questions. Oral representations (7) Representations must be made orally at the end of a hearing unless the Division orders otherwise. Oral decision and reasons (8) A Division member must render an oral decision and reasons for the decision at the hearing unless it is not practicable to do so. = It is expected that counsel will provide oral submissions after the evidence has been heard = Rule 10(7) states that representations must be made orally at the end of a hearing unless the Division orders otherwise. The Chairperson’s Guidelines 7 Concerning Preparation and Conduct of a Hearing in the Refugee Protection Division ) state that “in general it is expected that counsel should be ready to give oral representations after the evidence has been heard.” Immigration and Refugee Board of Canada Chairperson Guidelines 7 Concerning Preparation and Conduct of a Hearing in the Refugee Protection Division (Accessed January 30 2020) section 5.8. However the Division has the discretion to order that written representations be provided instead of oral ones. Dong v. Canada (Minister of Employment Immigration) [1991] F.C.J. No. 364 14 Imm. L.R. (2d) 317 (F.C.T.D.). = A Member rendering an oral decision at the end of the hearing is not in and of itself indicative of bias = Rule 10(8) provides that a Division member must render an oral decision and reasons for the decision at the hearing unless it is not practicable to do so. In Pajarillo v. Canada the claimant argues that the RPD was biased against her because the member made up her mind to reject the Applicant’s claim prior to hearing. The sole basis for making this allegation against the member was that the member returned after a lunch break and proceeded to render a lengthy oral decision. The court rejected this argument noting that the claimant had failed to establish that the facts or issues in the case were so substantial or complex it was not reasonably practicable to comply with Rule 10(8) of the RPD Rules. The court stated The mere fact that the RPD was able to draft a decision and render it orally shortly 50 minutes after the conclusion of the hearing does not prove bias. A review of the transcript of the hearing discloses that the RPD member took into account the Applicant’s testimony and counsel’s arguments in reaching her decision. Pajarillo Donna Parcasio v. M.C.I. (F.C. no. IMM 3740 19) Lafreniere December 20 2019 2019 FC 1654. = Rule 11 Documents Establishing Identity and Other Elements of the Claim= Documents Establishing Identity and Other Elements of the Claim Documents 11 The claimant must provide acceptable documents establishing their identity and other elements of the claim. A claimant who does not provide acceptable documents must explain why they did not provide the documents and what steps they took to obtain them. = The meaning of identity is broader than a claimant s personal identity = The Board produced a public commentary to the previous version of the RPD Rules which commented on the meaning of identity as follows Identity most commonly refers to the name or names that a claimant uses or has used to identify himself or herself. Identity also includes indications of personal status such as country of nationality or former habitual residence citizenship race ethnicity linguistic background and political religious or social affiliation. Immigration and Refugee Board of Canada Assessment of Credibility in Claims for Refugee Protection January 31 2004 (Accessed January 27 2020) section 2.4.5.2. Some of the limits to the concept of identity as the term is used in the refugee claim process can be inferred from the following instruction in the BOC form Attach two copies of any documents you have to support your claim such as travel documents (including your passport) and identity medical psychological or police documents. As such identity documents are clearly distinguishable from medical psychological or police documents . Immigration and Refugee Board of Canada Basis of Claim Form November 2012 Version page 2. = A claimant is obliged to provide any relevant documents in their possession at the time that they provide their BOC form = As per Rule 7(3) the claimant must attach to the original and to the copy of the completed Basis of Claim Form a copy of their identity and travel documents genuine or not and a copy of any other relevant documents in their possession. This obligation is reproduced in the Basis of Claim form which instructs Attach two copies of any documents you have to support your claim such as travel documents (including your passport) and identity medical psychological or police documents. The Appendix to the BOC form discusses this in more detail Attach two copies of all documents (identity travel or other documents) that you have with you now to support your claim for refugee protection including documents that are not genuine documents that you got in an irregular or illegal way or by giving information that is not true and documents you used that do not really belong to you. Immigration and Refugee Board of Canada Basis of Claim Form November 2012 Version https //irb cisr.gc.ca/en/forms/Documents/RpdSpr0201 e.pdf Appendix page 1. The requirement to provide copies of non genuine identity documents is a reflection of the reality that roughly 60 percent of refugee claimants arrive either with false documents or without proper documentation. Department of Justice Immigration and Refugee Legal Aid Cost Drivers 2002 (Accessed August 23 2020) at 3.10. The Board s commentary to the previous version of the rules may provide some guidance about the scope of this obligation These documents include not only those that were used but also those intended to be used for travelling or supporting the claim. Rule 7(4) further provides that if the claimant obtains an identity or travel document after the Division has received the completed Basis of Claim Form they must provide two copies of the document to the Division without delay. = A claimant has an obligation to make reasonable efforts to establish their identity and to corroborate their claim = Rule 11 provides that a claimant must provide acceptable documents establishing their identity and other elements of the claim. Subsection 100(4) of the Immigration and Refugee Protection Act requires the claimant to produce all documents and information as required by the rules of the Board. This obligation tracks the following statement from the UNHCR Handbook The applicant should.make an effort to support his statements by any available evidence and give a satisfactory explanation for any lack of evidence. If necessary he must make an effort to procure additional evidence. The Basis of Claim form emphasizes a claimant s obligation to make efforts to obtain such documents as follows If you do not have [identification] documents like this with you you need to do everything you can to get them immediately. If you still cannot get these documents you will need to explain the reason for this at your hearing and show that you did everything you could to get them. As explained in the Board s commentary to the previous version of these rules the claimant should keep a record of the steps taken such as copies of letters sent to obtain identity and other necessary documents. In this way as explained in the Board s commentary to the previous version of the RPD Rules a claimant who is unsuccessful in obtaining documents to establish his or her identity and other elements of the claim should not only be prepared to provide a reasonable explanation for the lack of documents and describe the diligent efforts they made to obtain such documents but they should also be able to present proof of the steps that were taken. This said Canadian law on this point is that it would be an error to make a credibility finding based on the absence of corroborative evidence alone where there are no other reasons to doubt a claimant s credibility. Triana Aguirre v. Canada (Citizenship and Immigration ) 2008 FC 571 at paragraph 15. = The Division may instruct a claimant to provide specific documents = The Board s public comment to the previous version of the RPD Rules noted that the Division may instruct the claimant to provide specific documents that have been identified by the Division in the claim screening process as being necessary for considering the claim. Immigration and Refugee Board of Canada Commentaries to the Refugee Protection Division Rules Date Modified 2009 05 22 https //web.archive.org/web/20100704062357/http //www.irb cisr.gc.ca/eng/brdcom/references/aclo/pages/rpdcomment.aspx (Accessed January 28 2020). The Board retains the power to issue such instructions under its power to control its own process. Further the Board s powers under the Inquiries Act authorize members to compel testimony and the production of evidence [[Canadian Refugee Procedure/Powers of a Member]]. = A claimant must provide original documents at the hearing or beforehand on the request of the Division = As per Rule 42 a claimant is to present the originals of his or her documents at the beginning of the hearing of the claim. The Division may require the claimant to provide the originals earlier by notice in writing. See [[Canadian Refugee Procedure/Documentsule 42 Original documents]] for further details including the way that the Board has waived part of this rule during the Covid 19 period. = The types of documents a claimant should submit to establish their identity = Section 106 of the IRPA states Claimant Without Identification Credibility 106 The Refugee Protection Division must take into account with respect to the credibility of a claimant whether the claimant possesses acceptable documentation establishing identity and if not whether they have provided a reasonable explanation for the lack of documentation or have taken reasonable steps to obtain the documentation. As stated in the Board s commentary to the previous version of the RPD Rules Section 106 of the Immigration and Refugee Protection Act imposes a duty on the claimant to provide acceptable documents establishing the claimant s identity including documents the claimant does not possess but can reasonably obtain. The commentary went on to state that In assessing the claimant s credibility the Division must consider the lack of such documents and any reasonable explanation given for not providing them as well as the steps taken to obtain them. Documents that are not genuine that have been altered or that are otherwise improper are generally not acceptable proof of identity. The Claimant s Kit from the Board highlights the claimant s responsibility to provide relevant documents and clarifies what type of documents might be considered acceptable You must show the RPD evidence of who you are by giving the RPD high quality copies of official documents with your name and date of birth on them (“identity documents”). For example you can give a passport national identity card birth certificate school certificate driver’s licence military document and professional or religious membership card. . If you do not provide identity documents or other documents in support of your claim you will have to explain at your hearing why you do not have them and show that you did everything to try to get them. The Board s commentary to the previous version of the rules also had the following commentary on the subject of Other independent evidence to establish identity which appears to continue to be of relevance The claimant who lacks documents or whose documents are not found acceptable should be prepared to present other independent evidence to establish his or her identity or other elements of the claim if such evidence is available. Such evidence may include testimony of friends relatives community elders or other witnesses and affidavits of individuals who have personal knowledge of the claimant s identity or other elements of the claim. An example of this in the caselaw is that Roma claimants may be expected to have approached NGO and governmental sources for identity documents. Somyk v. Canada (Citizenship and Immigration) 2016 FC 1338 (CanLII) . = The types of documents a claimant should submit to establish other elements of their claim = The scope of Rule 11 is not limited to documents establishing identity and also applies to other elements of the claim. Kitenga Lunda Zico c. M.C.I. (C.F. no. IMM 3727 19) Gascon 18 juin 2020 2020 CF 704. The Board has a document on its website entitled Important instructions for refugee claimants which states You should obtain and submit whatever documents you can to support your claim such as police reports medical records newspaper articles etc. Immigration and Refugee Board of Canada Important instructions for refugee claimants (Print version) Date modified on website 2018 12 11 (Accessed January 27 2020). The Claimant s Kit highlights the claimant s responsibility to provide relevant documents and clarifies what type of documents might be considered acceptable Along with identity documents you can submit other high quality copies of original documents that you feel are relevant to your claim including proof of membership in political organizations medical or psychological reports police documents business records news clippings visas and travel documents (airplane train or bus tickets). . If you do not provide identity documents or other documents in support of your claim you will have to explain at your hearing why you do not have them and show that you did everything to try to get them. = Rule 12 Supplying contact information after an Application to Vacate or to Cease Refugee Protection = Application to Vacate or to Cease Refugee Protection Contact information 12 If an application to vacate or to cease refugee protection is made the protected person must without delay notify the Division and the Minister in writing of (a) any change in their contact information and (b) their counsel’s contact information and any limitations on the counsel’s retainer if represented by counsel and any changes to that information. = Rule 13 Declaration where counsel not representing or advising for consideration = Declaration — counsel not representing or advising for consideration 13 If a protected person retains counsel who is not a person referred to in any of paragraphs 91(2)(a) to (c) of the Act both the protected person and their counsel must without delay provide the information and declarations set out in Schedule 3 to the Division in writing. = Commentary = In effect Rule 13 requires that a protected person who is being represented by someone who is not a lawyer paralegal or registered immigration consultant to complete a form certifying that their counsel is not being paid. What is a protected person? Section 95(2) of the IRPA provides that a protected person is a person on whom refugee protection is conferred [under subsection 95(1) of the Act] and whose claim or application has not subsequently been deemed to be rejected under subsection 108(3) 109(3) or 114(4). In this way Rule 13 is the analogue to RPD Rule 5 which imposes the same obligation on refugee claimants [[Canadian Refugee Procedure/Information and Documents to be Providedule 5 Declaration where counsel is not acting for consideration]]. = References =
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