COMMENTARIES
TO THE
REFUGEE PROTECTION DIVISION RULES
RULES 5 and 6
PERSONAL INFORMATION FORM
Commentary
The claimant will receive the Personal Information Form in one of two ways: it is either handed to the claimant or sent to the claimant by mail. If the Personal Information Form is handed to the claimant, it is considered to be received that same day. If it is sent by regular mail, it is considered to be received seven days after the date it was mailed. If the seventh day is not a working day (Saturday, Sunday, or statutory holiday), the Personal Information Form is considered to be received on the next working day (RPD Rules, subsection 35(2)).
Members of the same family will normally be treated as a unit and their claims joined and processed together (RPD Rules, subsection 49(1)). However, each claimant will have to complete a separate Personal Information Form.
The completed Personal Information Form may be delivered by hand or by courier or it may sent by mail to the Division office indicated at the bottom of the Notice to Appear. If the Personal Information Form is sent by regular mail, the claimant must still ensure that the Division actually receives it within 28 days. A Personal Information Form cannot be faxed to the Division or sent by e-mail.
Copies of identity, travel and other relevant documents must be provided in triplicate together with the Personal Information Form, or provided as soon afterwards as the claimant obtains them. These documents do not include: documents that are already provided by an officer under paragraph 3(2)(c) of the RPD Rules; and general documents relating to country conditions, which the Division must receive at least 20 days before the hearing (RPD Rules, subsection 29(4)).
The Division must receive any amendments to the Personal Information Form no later than 20 days before the hearing of the claim (RPD Rules, subsection 29(4)).
The Division must actually receive the Personal Information Form no later than 28 days after it was received by the claimant. The Personal Information Form must also be complete. If the Division does not receive the Personal Information Form within 28 days or if the Personal Information Form is not complete, a special hearing will be held under subsection 58(2) of the RPD Rules to decide whether the claim should be declared abandoned (Immigration and Refugee Protection Act, subsection 168(1)). The claimant will be given a chance to explain the delay or default and give reasons why the claim should not be declared abandoned.
An application for an extension of time for providing a Personal Information Form should normally be made within the 28 days within which the Division must receive the Personal Information Form. An extension will only be granted if there is a justifiable reason for the delay.
An application for an extension of time received after the 28-day time limit will be considered at a special hearing held under subsection 58(2) of the RPD Rules. At that hearing, the claimant will be given a chance to explain the delay in filing the Personal Information Form. The claimant should make every effort to provide a completed Personal Information 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)).
RULE 7
DOCUMENTS ESTABLISHING IDENTITY AND OTHER ELEMENTS OF THE CLAIM
Commentary
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. 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.
"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.
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. Subsection 170(d) requires the Division to provide the Minister, on request, with the documents and information referred to in subsection 100(4) of the Act.
The rules impose the following requirements for providing documents to the Division:
- The claimant must attach to the Personal Information Form three copies of all his or her travel and identity documents, whether or not they are genuine, and three copies of any other documents relevant to the claim (RPD Rules, subsection 6(3)). These documents include not only those that were used but also those intended to be used for travelling or supporting the claim.
- The claimant must provide to the Division without delay three copies of any additional documents obtained after the Personal Information Form was provided (RPD Rules, subsection 6(5)).
- The claimant must also comply with the disclosure requirements under rule 29 of the RPD Rules if the claimant wants to use any document at the hearing of the claim. Translations must be provided for all documents that are not in English or French (RPD Rules, subsection 28(1)).
- The claimant is to present the originals of his or her documents at the beginning of the hearing of the claim or at the interview in the expedited process held under rule 19 of the RPD Rules. The Division may require the claimant to provide the originals earlier by notice in writing (RPD Rules, rule 36).
The requirement to provide acceptable documents establishing identity and other elements of the claim is also set out in the instructions for completing the Personal Information Form. The claimant is further specifically instructed to make every effort to obtain the necessary identity documents immediately, if the claimant does not have them, and to identify other identity documents the claimant has or can obtain.
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.
The claimant should keep a record of the steps taken, such as copies of letters sent, to obtain identity and other necessary documents.
The claimant is required to establish his or her identity and other elements of the claim. The claimant should therefore be prepared to present evidence on the issue of identity at the beginning of the hearing, unless the Division has notified the claimant or counsel otherwise.
The claimant who is unsuccessful in obtaining documents to establish his or her identity and other elements of the claim should be prepared to provide a reasonable explanation for the lack of documents and show that diligent efforts were made to obtain such documents and to present proof of the steps taken. The Division may instruct the claimant to make further efforts to obtain necessary documents.
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.
RULE 15
DESIGNATED REPRESENTATIVES
Commentary
A representative must be designated for any claimant or protected person who is under the age of 18 years (a "minor") or who is unable to appreciate the nature of the proceedings (an "incompetent person") (Immigration and Refugee Protection Act, subsection 167(2)).
means that the person cannot understand the reason for the hearing or why it is important or cannot give meaningful instructions to counsel about his or her case. An opinion regarding competency may be based on the person's own admission, the person's observable behaviour at the proceeding, or on expert opinion on the person's mental health or intellectual or physical faculties.
Counsel for a claimant is not required to notify the Division in the case of a minor whose claim is joined automatically with that of a family member under subsection 49(1) of the RPD Rules.
When notifying the Division, counsel should provide copies of all available supporting documents such as birth certificates and medical or psychological reports, as well as counsel's observations about the person's competency.
The designation of a representative applies to all the proceedings in respect of a refugee claim and not just to the hearing of the claim.
Generally, the member who presides at a proceeding designates the representative at the outset of the proceeding. If required, any member of the Division may designate a representative before a proceeding begins, for example, an interview in the expedited process under rule 19 of the RPD Rules.
The Division will decide whether to designate a representative and who that representative will be. The Division will usually, but not always, designate a parent, another relative, or legal guardian to be the representative, if that person meets the specified requirements.
The Division may end a designation if the Division decides that the representative is no longer suitable. A designation is ended automatically by operation of law when the claimant or protected person reaches 18 years of age. The Division will not delay a proceeding until the minor has reached 18 merely to avoid having to designate a representative.
The Division must designate a representative even when the minor or incompetent person has legal or other counsel. However, where appropriate, a designated representative may act as counsel.
Before designating a person as a representative, the Division will inform that person of, and will assess that person's ability to, fulfill his or her responsibilities, including:
- retaining and instructing counsel or assisting the minor or incompetent person in instructing counsel;
- making other decisions regarding the case or assisting the minor or incompetent person to make those decisions;
- informing the minor or incompetent person about the various stages and procedures in the processing of his or her case;
- assisting in gathering evidence to support the minor or incompetent person's case and providing evidence and being a witness at the hearing if necessary;
- generally protecting the interests of the minor or incompetent person and putting forward the best possible case to the Division.
As much as possible, the designated representative should inform and consult the minor or incompetent person when making decisions about the case. However, the role of the designated representative will vary, depending on the level of understanding of the minor or incompetent person. Minors will vary in their ability to participate in making decisions, depending on the type of decision that has to be made, their age and their maturity. Incompetent persons may also have some ability to participate in making decisions, depending on the type of decision that has to be made and the nature and severity of their disorder or disability.
The Chairperson's Guidelines on Child Refugee Claimants: Procedural and Evidentiary Issues, issued under paragraph 159(1)(h) of the Immigration and Refugee Protection Act, state that a representative designated for a minor should, at all times, act in the "best interests of the child". A representative will be designated as soon as possible after the claim of an "unaccompanied" minor is referred to the Division. A pre-hearing conference will be scheduled within 30 days of receipt of the Personal Information Form of an "unaccompanied" minor.
RULE 17
DISCLOSURE OF INFORMATION FROM ANOTHER CLAIM
Commentary
means a person who has provided information in another claim that the Division wants to use at the hearing of the claim of the receiving claimant.
"
means the claimant at whose hearing the Division wants to use, as evidence, information about the source claimant.
This rule does not apply as between claims that are joined under rules 49 or 50 of the RPD Rules or where the information is already a matter of public record. Information may become public when a claim is the subject of a judicial review application before the Federal Court, and the court does not make an order for confidentiality, or when the Division decides to have a proceeding conducted in public under rule 51 of the RPD Rules (Immigration and Refugee Protection Act, subsection 166(d)).
The Personal Information Form contains a notice that the information claimants provide in the Personal Information Form may be used as evidence in related or similar claims that are not joined to theirs. The Personal Information Form also instructs claimants to state any objection they may have to the disclosure of their information.
Where the Division is not satisfied that reasonable efforts were made to notify the source claimant, it will either require that additional attempts be made to contact the source claimant or decide that the source claimant's information will not be used.
Personal information concerning the receiving claimant, such as the claimant's identity, may not be disclosed to the source claimant, unless authorized by the Division. The Division will notify the receiving claimant of its intention to disclose that information and that the receiving claimant may object to this disclosure. The Division will disclose only such information about the receiving claimant as it considers necessary for the source claimant to make an informed decision whether or not to object to the disclosure of the source claimant's information.
Whether or not the source claimant objects, the Division will assess the risk to satisfy itself that the disclosure of the source claimant's information would not give rise to an unacceptable risk or injustice. The source claimant's information will be disclosed to the parties only after the Division has assessed the risk and authorized the use and disclosure of that information. The same considerations apply when information about the receiving claimant is provided to the source claimant.
Normally the information to be disclosed will include the source claimant's Personal Information Form in its entirety. However, specific information will be removed from the Personal Information Form where the Division decides that disclosure of that information would give rise to an unacceptable risk or injustice.
The decision to transfer information as potential evidence from one claim to another is not a decision as to the probative value of that information. The parties and the refugee protection officer will have an opportunity to address that issue at the hearing of the claim.
RULE 19
ALLOWING A CLAIM WITHOUT A HEARING (EXPEDITED PROCESS)
Commentary
Subsection 170(f) of the Immigration and Refugee Protection Act provides that the Division may allow (i.e., accept) a claim for refugee protection without a hearing, unless the Minister has notified the Division of the Minister's intention to intervene. The relevant time frames for intervention by the Minister are found in subsection 19(1) of the RPD Rules.
This rule is based on the Policy on the Expedited Process, policy no. 2002-04. The key procedures of the expedited process detailed in the policy are outlined below.
The purpose of the expedited process is to identify cases that appear to be manifestly well founded, based on the factors set out in subsection 19(4) of the RPD Rules. Counsel may suggest that a claim be dealt with under the expedited process, but the decision to select suitable claims rests solely with the Division.
Issues that are brought to the attention of the Minister, such as exclusion under section E or F of Article 1 of the Refugee Convention, will normally disqualify a claim from being considered under the expedited process (Immigration and Refugee Protection Act, section 98; RPD Rules, subsection 23(1)).
The claimant's inability to provide acceptable documents establishing identity or failure to take reasonable steps to obtain such documents may disqualify a claim from being considered under the expedited process (Immigration and Refugee Protection Act, section 106; RPD Rules, rule 7).
An expedited interview (or hearing of the claim) will not be scheduled where ineligibility, inadmissibility, or criminality issues relating to sections 101, 103 and 104 of the Immigration and Refugee Protection Act arise (RPD Rules, rule 24).
Members of the same family will normally be treated as a unit and their claims processed jointly (RPD Rules, subsection 49(1)).
In preparing for an interview, the refugee protection officer may, if the officer considers it appropriate, consult with a member of the Division to determine if there are any concerns that should be raised at the interview.
The purpose of the interview is to establish whether a recommendation that the claim be allowed without a hearing is warranted or whether the claim should proceed to a hearing. The purpose of the interview is not to gather evidence for a hearing. However, if the claim is not allowed without a hearing, the information gathered will be used at the hearing of the claim. (See "Setting down a claim for a heating", below.)
The interview will be recorded, and a copy of the recording will be made available to the counsel and claimant on request. A copy of the recording will also be made available to the Minister on request.
At the outset of the interview, the refugee protection officer will ensure that a representative has been designated, if one is required (Immigration and Refugee Protection Act, subsection 167(2); RPD Rules, rule 15).
The refugee protection officer will ensure that the claimant understands his or her duty to tell the truth. Statements made by the claimant during the interview may be used as evidence at a hearing if the claim is not found to be suitable for determination without a hearing. (See "Presenting the recording of the interview as evidence", at the end of this commentary.)
The refugee protection officer is in control of the interview and may ask questions to clarify any concerns. The refugee protection officer may, if the officer considers it appropriate, provide counsel with an opportunity to ask questions to clarify issues and make comments. The refugee protection officer may, in the course of the interview, seek instructions or clarification from a member.
The refugee protection officer will stop the interview when the officer forms the opinion that a hearing is required to determine the claim or when the officer is satisfied that the claim is suitable for a recommendation that it be allowed without a hearing. The claimant may also end the interview at any time.
Interviews will not normally exceed one hour, unless the refugee protection officer believes that additional time would likely lead to a recommendation that the claim is suitable for being allowed without a hearing. The claimant's consent is required to extend the interview.
The refugee protection officer's report will include a summary of the information gathered during the interview and a specific comment about whether the claimant's identity has been sufficiently established. The report will be accompanied by copies of any identity, travel or other relevant documents provided at the interview. Both the refugee protection officer and the member may add comments specific to the claim in the report.
If the member allows the claim without a hearing, the report, as completed and signed by the member, will be the record of the decision.
If the refugee protection officer does not recommend that the claim be allowed without a hearing or if a member decides not to allow the claim without a hearing, the claim will be remitted to a hearing for determination.
If the claim is set down for a hearing, the Division will disclose the refugee protection officer's report and any documents provided during the interview. The report and documents, if any, will be presented as evidence at the hearing. The hearing is not limited to the issues canvassed during the expedited process.
The same refugee protection officer who conducted the interview may be assigned to the hearing. Where the member and the officer have discussed the merits of the claim, the member will not participate in the hearing, unless consent is given by the claimant or by counsel on behalf of the claimant.
If the accuracy of the refugee protection officer's report is contested, the claimant must present the recording in evidence at the hearing and indicate where on the recording or in the transcript of the interview the report is inaccurate.
The Division may accept the recording of the interview into evidence in cases where the claimant makes a material statement at the hearing that is inconsistent with what was said at the interview. The prior inconsistent statement need not necessarily have been included in the refugee protection officer's report.
Commentary
The notice will set out:
- the reason for which the party is to appear (e.g., hearing, interview, conference);
- the right of any party to be represented by counsel at the party's own expense (Immigration and Refugee Protection Act, subsection 167(1));
- for a hearing, the requirement to disclose documents under rule 29 and to provide witness information under rule 38 of the RPD Rules;
- for an interview under subsection 19(2) of the RPD Rules or a hearing of a claim for refugee protection, a statement that if a claimant fails to appear for the interview or hearing, the Division may determine the claim to have been abandoned under rule 58 of the RPD Rules (Immigration and Refugee Protection Act, subsection 168(1));
- for a hearing of an Application to Vacate Refugee Protection or an Application to Cease Refugee Protection, a statement that if the Minister fails to appear for the hearing, the Division may determine the application to have been abandoned (Immigration and Refugee Protection Act, subsection 168(1)); and
- for a hearing to determine whether a claim should be declared abandoned, a statement that if, at the end of the hearing, the Division does not declare the claim to have been abandoned, the Division will start or continue the hearing into the claim without delay.
The Minister must be notified of the hearing of a claim for refugee protection even if the Minister has not intervened in the claim under rule 25 of the RPD Rules (Immigration and Refugee Protection Act, subsection 170(c)).
The Division may notify a party of a scheduled proceeding (e.g., a hearing or conference) by telephone or orally during another proceeding. The Division will then provide the party with a written notice to appear. Where during a hearing the parties agree to the continuation of the hearing on a date within a short time period, a notice to appear may not be provided.
RULES 29, 30 and 37
DISCLOSURE OF DOCUMENTS AND ADDITIONAL DOCUMENTS AFTER THE HEARING
Commentary
"Document" includes any correspondence, memorandum, book, plan, map, drawing, diagram, picture or graphic work, photograph, film, microform, sound recording, videotape, machine-readable record, and any other documentary material, regardless of physical form or characteristics, and any copy of those documents.
In deciding whether to allow the use of documents that are disclosed outside the time limits in subsection 29(4) of the RPD Rules or documents submitted after a hearing, the Division will consider the same factors listed in rule 30 and subsection 37(3). These considerations will also apply generally to documents provided by the Division.
The Division may also consider other relevant factors such as the personal circumstances of the claimant and when the documents were actually disclosed. Thus the parties should make every effort to disclose their documents as soon as possible. The Notice to Appear for a hearing refers to the disclosure requirement under rule 29 (RPD Rules, rule 22).
Where the Division allows the use of a document provided outside the time limit in the rules, it may impose conditions on its use that it considers appropriate. For example, the Division may decide that only certain relevant portions of a long document will be referred to.
The presiding member may agree, at the hearing, to a party's providing a document after the hearing. The Division must receive any such document within the time limit specified by the member. If the document is not received within that time limit, the member may proceed to determine the claim or Application to Vacate Refugee Protection or Application to Cease Refugee Protection. A party must make a written application if the party wants to provide a document after the specified time limit has passed (RPD Rules, rule 37).
The Division may provide a document to the claimant (and to the Minister if the Minister has intervened) after a hearing if the Division considers its use would assist in ensuring a full and proper determination of a claim for refugee protection. The claimant will be given an opportunity to make submissions on that document.
If a party wants the Division to reconvene a hearing to accept additional documents or evidence, the party must make a written application under rule 44 of the RPD Rules.
A panel may not accept evidence after it has rendered a final decision on a claim or an Application to Vacate Refugee Protection or to an Application to Cease Refugee Protection. Decisions take effect in accordance with the rules (Immigration and Refugee Protection Act, subsection 169(a)). A decision allowing a claim takes effect in accordance with subsection 63(1) of the RPD Rules. A decision rejecting a claim takes effect in accordance with subsection 63(2). A decision on an Application to Vacate Refugee Protection or an Application to Cease Protection takes effect in accordance with rule 64.
In a claim for refugee protection, the claimant must disclose documents to the Minister only if the Minister has intervened under rule 25 of the RPD Rules. (See also the definition of "party" in rule 1 of the RPD Rules.)
Documents may be provided at a pre-hearing conference held under rule 20 or during an interview in the expedited process under rule 19 of the RPD Rules.
Rules 32 and 33 of the RPD Rules set out the ways in which documents are to be provided. Rule 35 states when a document is considered to be received.
If a document is sent by regular mail, subsection 35(2) of the RPD Rules states that the document is considered to be received seven days after the day it was mailed. If the seventh day is not a working day, the document is considered received on the next working day. However, mailing the document does not relieve a party of ensuring that the Division actually receives the document within the specified time limit.
The maximum number of pages that may be faxed to the Division or to another party is 20 pages, including a cover sheet. The recipient's consent must be obtained before faxing a document or package of documents longer than 20 pages; otherwise, the documents will not be considered to have been received.
The Division must be provided with two copies of any document a party wants to use at a hearing, unless the rules provide otherwise (RPD Rules, subsection 29(1)). Rule 6 requires a claimant to provide three copies of identity, travel, and other relevant documents, together with the Personal Information Form, as well as any such additional documents obtained by the claimant after providing the form.
A document must be on one side only of letter-size paper and the pages must be numbered. If there is more than one document, a list of documents must be provided. An updated list must be made if additional documents are provided afterward (RPD Rules, rule 27).
Translations must be provided for all documents that are written in a language other than English or French (RPD Rules, rule 28).
If a party wants to call a witness, the party must provide the Division and the other parties with a written statement containing the information required by rule 39 of the RPD Rules. The Division and the parties must receive the statement no later than 20 days before the hearing.
RULE 36
ORIGINAL DOCUMENTS
Commentary
Copies of a claimant's travel, identity or other documents may be provided to the Division at various times:
- by an immigration officer at the time the claim is referred to the Division under paragraph 3(2)(c) of the RPD Rules;
- together with the Personal Information Form under subsection 6(3) and afterwards under subsection 6(5) of the RPD Rules;
- at an interview under subsection 19(2) or at a conference under subsection 20(2) of the RPD Rules; or
- as part of general disclosure under subsection 29(1) of the RPD Rules.
The original of any document in the claimant's possession must be presented at the beginning of the proceeding in which the document will be used, whether the proceeding is a hearing, conference, or interview in the expedited process. If the Division decides that an original document is required earlier for examination or authentication, the Division will notify the claimant, and the claimant must provide that document to the Division without delay.
It is the claimant's responsibility to provide a translation of the claimant's documents, including those provided by an officer under paragraph 3(2)(c) of the RPD Rules, that are in a language other than English or French (RPD Rules, rule 28).
RULE 48
CHANGING THE DATE OR TIME OF A PROCEEDING (POSTPONEMENTS AND ADJOURNMENTS)
Commentary
Subsection 162(2) of the Immigration and Refugee Protection Act requires the Division to deal with all proceedings before it "as informally and quickly as the circumstances and the considerations of fairness and natural justice permit".
An application to change the date or time of a proceeding should normally be made in writing and at the earliest opportunity before the proceeding (RPD Rules, subsection 44(2)). An application made two working days or less before the proceeding will require the attendance of the party and counsel requesting the change. This requirement is consistent with rule 10 of the RPD Rules, which requires the attendance of counsel who wants to be removed as counsel on short notice. Working days exclude Saturdays, Sundays, and statutory holidays.
A party who wants to make an application orally for a change of date or time of the proceeding should make every effort to notify the Division and any other party of his or her intention to apply and the reasons for that request. This should be done in writing and at the earliest opportunity before the proceeding.
A party applying for a change of date or time of a proceeding must give a minimum of six alternative dates within the following three months, or such other time period as the Division specifies, when the party is available to proceed.
The Division will consider the feasibility of any alternative to allowing an application to change the date or time of a proceeding. The Division will also consider whether the party making the application has demonstrated good faith and reasonable diligence.
The Division has discretion to allow or not to allow an application for a change of date or time of a proceeding. Consent of the parties is a factor, but it is not the only one that the Division will consider in exercising its discretion. Therefore, parties who consent to a change of date or time should not presume that the application will be allowed.
Where the Division allows an application for a change of date or time of a proceeding, it will minimize the length of the delay and may set a peremptory date, having regard to its statutory obligation to deal with its proceedings fairly and quickly (Immigration and Refugee Protection Act, subsection 162(2)).
Before scheduling a proceeding, the Division will make reasonable efforts to contact the parties to determine their availability and to set a date of hearing with their agreement. Where parties, whether represented by counsel or not, agree to a hearing date, the Division expects them to appear on that date, prepared to proceed. Therefore, exceptional circumstances must be shown to justify a change of time or date of a proceeding that was scheduled after the parties were consulted.
Where, for any reason, the Division is unable to obtain the agreement of the parties to a hearing date, it will schedule a hearing and normally give the parties at least three weeks' notice of the hearing. Where no application for a change of date or time of the proceeding is made at least two weeks before the date of hearing, the Division will assume that the parties have agreed to that date, and it will expect them to appear at the hearing, prepared to proceed.
Where counsel accepts a retainer in a case for which a hearing date has been set, the Division expects counsel to appear on that date, prepared to proceed. Where, for any reason, counsel is unable to appear at a proceeding, counsel is expected to make diligent efforts to arrange for a replacement. Counsel who applies for a change of date or time of a proceeding because counsel is unable to arrange for a replacement or considers the use of a replacement inappropriate is expected to provide particulars.
Where a party, whether represented by counsel or not, does not appear for a hearing or is not prepared to proceed, the Division may determine that the proceeding before it has been abandoned if the Division is of the opinion that the party is in default in the proceedings (Immigration and Refugee Protection Act, subsection 168(1)). Where the claimant is not present at a hearing of a claim for refugee protection, a special hearing will be held under paragraph 58(2)(b) of the RPD Rules to decide whether the claim should be declared abandoned.