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14. WITHDRAWAL AND REINSTATEMENT

14. WITHDRAWAL AND REINSTATEMENT

14.1 INTRODUCTION

 

This chapter describes one way in which a Refugee Division proceeding may end without a determination of the merits of the case, namely, by way of withdrawal of a claim or application. The chapter also explains the consequences of withdrawal.

A claimant may withdraw a claim either orally during a hearing or by notice in writing filed at the registry [ CRDD Rule 33(1)].

Similarly, an application to the Refugee Division, such as an application by the Minister to have the Division reconsider a previous determination on the ground that it had been obtained by fraud, may be withdrawn, either orally during a hearing or by notice in writing filed at the registry [ CRDD Rule 33(1)].

The CRDD Rules also provide that where a party has withdrawn a claim or application, the party may apply to the Refugee Division for reinstatement of the claim or application [ CRDD Rule 34(1)].

The Refugee Division may grant the application for reinstatement if it is satisfied that there are sufficient reasons why the claim or application should be reinstated and that it is in the interests of justice to do so [ CRDD Rule 34(3)].

14.2 WITHDRAWAL OF A CLAIM

14.2.1 Procedure for Withdrawal of a Claim

A claimant may withdraw the claim:

• by making an oral statement at a hearing, or
• by filing a written notice of withdrawal at the registry [ CRDD Rule 33(1)].

The registrar will forthwith send written notice confirming that the claim has been withdrawn to the Minister [Rule 33(2)].

14.2.2 Consequences of Withdrawal of a Claim

A visitor or Minister's permit holder who made a Convention refugee claim [Immigration Act, s. 44(1)] and who withdraws that claim at the Refugee Division is not put at any immediate risk of removal from Canada as a direct consequence of withdrawing the claim. As a practical matter, Citizenship and Immigration Canada may be reluctant to extend the visitor status or the Minister's permit of that person, depending on the circumstances of the case.

The consequences of withdrawing a claim are more significant for a claimant who is subject to a conditional removal order. A conditional removal order becomes "effective", and thus may be carried out, when the claimant withdraws the claim [Immigration Act, ss. 28(2)(a) and 32.1(6)(a)]. The claimant who withdraws a claim may therefore be required to leave Canada at that point.

A claimant who has withdrawn a claim is not eligible for consideration under the special program in the Regulations called the "post-determination refugee claimants in Canada class" (PDRCC) [see Immigration Regulations, 1978, s. 2(1), definition "member of the post-determination refugee claimants in Canada class", paragraph (a)(i)]

14.3 REINSTATEMENT OF A CLAIM

14.3.1 Procedure for Reinstatement of a Claim

The term "reinstatement" is used to describe the continuation of a hearing into a claim that has earlier been withdrawn in accordance with CRDD Rule 33.

Where a claim has been withdrawn, the claimant may apply to the Refugee Division to have the claim reinstated [ CRDD Rule 34(1)]. The application is made by motion, pursuant to CRDD Rules 28(2) to (8). Therefore, under CRDD Rule 28(2), the motion shall consist of:

• a notice specifying the grounds on which the motion is made,
• an affidavit setting out the facts on which the motion is based, and
• a concise statement of the law and of the arguments that are relied on.

The motion is served on the other party to the proceeding and is filed in duplicate, together with proof of service, at the registry within five days after the date of service [ CRDD Rule 28(3)]. The application for reinstatement (i.e., the motion) is served on the Minister even where the Minister is not a party to the proceeding [ CRDD Rule 34(2)].

Evidence in support of the motion is introduced by affidavit, unless the Refugee Division decides that, in the interests of justice, the evidence should be introduced in some other manner [ CRDD Rule 28(4)].

The CRDD Rules also provide for a reply by the Minister, a summary of matters by the RCO, and a response by the claimant [ CRDD Rules 28(5), (6), and (7)]. A copy of those documents must be served on every party, as set out in CRDD Rule 28(8).

The Refugee Division, on being satisfied that no injustice is likely to be caused, may dispose of the motion without a hearing [ CRDD Rule 28(9)]. Therefore, the Refugee Division may decide, on a case-by-case basis, whether to hold an oral hearing into the motion.

14.3.2 Grounds for Reinstatement of a Claim

The Refugee Division may reinstate the claim where it is satisfied:

• that there are sufficient reasons why the claim should be reinstated and
• that it is in the interests of justice to do so [ CRDD Rule 34(3)].

The interpretation of this test is left to the discretion of the Refugee Division.

The case of Canada (Minister of Employment and Immigration) v. Clancy (1987), 2 Imm. L.R. (2d) 250 (F.C.T.D.), aff'd (1988), 5 Imm. L.R. (2d) 171 (F.C.A.) may provide some guidance. In Clancy, the Immigration Appeal Board reinstated the appellant's appeal following a formal discontinuance (withdrawal) because it was satisfied that the appellant had not discontinued the appeal "knowingly, willfully and intentionally". The Trial Division upheld the reinstatement, although it stated in obiter that the test should more properly be described as whether the appellant had expressed an "informed consent".

The question of whether a claimant has withdrawn a claim in an informed manner should be relevant to the Refugee Division in deciding whether reinstatement is warranted. This makes reinstatement possible for those who genuinely did not understand the implications of what they were doing when they withdrew their claim. However, persons who merely changed their mind about having their claims withdrawn are not generally entitled to reinstatement for that reason alone.

The list of factors that may be considered by the Refugee Division in applying the test for reinstatement should not be considered limited by Clancy. Other factors may come to mind as new case situations present themselves.

There is a two-pronged test for reinstatement: "sufficient reasons" and "in the interests of justice". The Refugee Division might choose to interpret "sufficient reasons" to the claimant's personal reasons for withdrawing the claim at the time, and the reasons for wanting to reinstate it now; "in the interests of justice" may refer to systemic problems with allowing reinstatement (unexplained or unreasonable delay in bringing the application), to the fact that there may be a reasonable alternative available (e.g., a special program for landing, under the regulations), or whether there is any other interest raised by the Minister (e.g., some aspect of public interest) with respect to reinstatement.

14.4 WITHDRAWAL AND REINSTATEMENT OF A MINISTER'S APPLICATION

14.4.1 Procedure for Withdrawal of a Minister's Application

Where the Minister has brought an application under subsection 69.2(1) of the Act for a determination that a person has ceased to be a Convention refugee or under subsection 69.2(2) of the Act to have the Refugee Division reconsider and vacate a previous determination on the ground that the determination was obtained by fraudulent means, the Minister may withdraw the application:

• by making an oral statement at a hearing, or
• by filing a written notice of withdrawal at the registry [ CRDD Rule 33(1)].

The registrar will forthwith send written notice confirming that the application has been withdrawn to the person who was the subject of the application [ CRDD Rule 33(2)].

14.4.2 Procedure for Reinstatement of a Minister's Application

Where the Minister has withdrawn an application, the Minister may apply to the Refugee Division to have the application reinstated. The Division may reinstate the application where it is satisfied:

• that there are sufficient reasons why the application should be reinstated and
• that it is in the interests of justice to do so [ CRDD Rule 34(3)].

The procedures for dealing with the withdrawal and reinstatement of an application are essentially the same as the procedures for withdrawal and reinstatement of a claim (see above).

Appendix 14A - Immigration Act, ss. 28(2) an 32.1(6)

Immigration Act, s. 28(2):

Immigration Act, s. 32.1(6):

Appendix 14B - CRDD Rules 28, 33, and 34

Appendix 14C - Selected Case Law

1. Canada (Minister of Employment and Immigration v. Clancy (1987), 2 Imm. L.R. (2d) 250 (F.C.T.D.), aff'd (1988), 5 Imm. L.R. (2d) 171 (F.C.A.) (Immigration Appeal Board was correct to reinstate a discontinue appeal; Court was of the view that the test was whether the appellant had expressed an "informed consent")
2. Juarez, Pablo Arnulfo Ruiz v. M.E.I. (F.C.T.D., no. T-1062-90), Collier, July 12, 1990 (Guatemalan citizen withdrew his refugee claim on advice of counsel and was deported to the U.S.A.; he contended that he would not have withdrawn his claim if he had known he would be removed so quickly. Court did not accept his argument that there was, in all the circumstances, a duty on the Minister and her officials to explain to him, and others, the consequences of withdrawing a claim for refuge status, including the consequences of a possible prompt removal to the country from whence the claimant came.)
3. Figueroa, Jose Fontanez v. M.E.I. (F.C.A., no. A-100-92), Marceau, Décary, Létourneau, December 3, 1992. Reported: Figuero v. Canada (Minister of Employment and Immigration) (1992), 151 N.R. 7 (F.C.A.) (A withdrawal of a claim at a first-level hearing should be treated with a certain degree of caution; a waiver at the first level cannot be accepted other than on the basis of a written notice by the claimant or a statement by him or her before the tribunal. In this case, the adjudicator should have exercised greater caution; nevertheless, the applicant was present throughout the inquiry, and was assisted by a competent interpreter, and he confirmed most of what his representative said. Therefore, the Court dismissed the application.)

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