Chapter 6. Oral Hearings

6.1. Introduction

This chapter discusses the provisions of the Immigration and Refugee Protection Act (IRPA)^{Note 1} that stipulate when the Refugee Appeal Division (RAD) may hold an oral hearing, as well as the procedural rules that govern oral hearings under the Refugee Appeal Division Rules (RAD Rules).^{Note 2}

6.2. Statutory framework

Subsection 110(6) of the IRPA provides for the circumstances where the RAD may hold an oral hearing. The provision stipulates that the RAD may hold a hearing if in its opinion, there is documentary evidence referred to in subsection 110(3) of the IRPA that raises a serious issue with respect to the credibility of the person who is the subject of the appeal (person); that is central to the decision with respect to the refugee protection claim; and that, if accepted, would justify allowing or rejecting the refugee protection claim.^{Note 3}

Subsection 110(6) of the IRPA requires that, when considering whether to hold an oral hearing, the factors are to be assessed in relation to the “documentary evidence referred to in subsection (3)”.^{Note 4} The documentary evidence referred to in subsection 110(3) (new evidence) will potentially include:

• any new evidence submitted by the person and that meets the requirements of subsection 110(4);
• any documentary evidence submitted by the Minister, which does not have to meet the requirements of subsection 110(4); and
• any evidence submitted by the person in response to the Minister’s evidence, which does not have to meet the requirements of subsection 110(4).^{Note 5}

The Federal Court of Appeal in Singh^{Note 6} held that the general rule is that the RAD, according to subsection 110(3) of the IRPA, must proceed without a hearing, on the basis of the record of the proceedings of the Refugee Protection Division (RPD). A hearing at the RAD can only be held if the new evidence is admissible and fulfils the factors set out in subsection 110(6) of the IRPA.^{Note 7} The factors outlined in subsection 110(6) of the IRPA are conjunctive and therefore must all be met for a hearing to be held by the RAD.^{Note 8}

It has been argued in a number of cases at the Federal Court that not to hold an oral hearing at the RAD is a breach of common law procedural fairness. However, the Court held that statutory provisions governing a tribunal’s procedures take precedence over the common law.^{Note 9} The Court has been consistent in finding that there is no breach of procedural fairness when the RAD follows what the IRPA prescribes and decides not to hold an oral hearing when the requirements set out in subsection 110(6) of the IRPA are not met.^{Note 10} More particularly, the Court also held numerous times that in the absence of any admissible new evidence, an oral hearing is neither required nor possible in view of the statutory requirements.^{Note 11}

The Court has held that the RAD is not obliged to hold a hearing simply because a hearing was requested^{Note 12} nor because it admitted new evidence.^{Note 13} The new evidence must still meet the three factors set out in subsection 110(6) of the IRPA.

Finally, it is important to note that, the Court has repeatedly held that the RAD is not obliged to hold a hearing to determine whether a document presented as new evidence is credible.^{Note 14}

6.3. Discretionary nature of subsection 110(6)

Subsection 110(6) of the IRPA stipulates that the RAD “may” hold a hearing if, in its opinion, there is documentary evidence referred to in subsection (3) that meets the factors set out in subsection 110(6) of the IRPA.

In interpreting subsection 110(6) of the IRPA, the Court has held numerous times that the term “may” indicates the RAD has discretion to hold an oral hearing.^{Note 15} When the factors of subsection 110(6) are met, the RAD may or may not hold a hearing. However, when the factors of subsection 110(6) are not met, the RAD has no discretion, and it cannot hold an oral hearing.^{Note 16}

It is important to note that even though subsection 110(6) gives the RAD discretion, the Court held that where the conditions for holding an oral hearing are present, the RAD should generally be required to convene one.^{Note 17} In Zhuo,^{Note 18} the Court concluded that, after acknowledging that the factors for holding a hearing had been met, the RAD should have held an oral hearing before making adverse credibility findings.

As for the exercise of the discretion, the Court also held that the RAD’s discretion must be exercised reasonably in the circumstances,^{Note 19} and on the basis of the new evidence and of the record as a whole.^{Note 20}

6.4. Onus on RAD to consider and apply subsection 110(6)

When admissible new evidence is presented, the RAD has the obligation to consider and apply the factors of subsection 110(6) of the IRPA to determine if an oral hearing should be held. In Zhuo and Horvath, the Court held that the RAD Rules^{Note 21} allow a party to request a hearing, but there is no burden on the parties to ask for one. The onus rests with the RAD to evaluate and apply the statutory factors reasonably.^{Note 22}

In Tchangoue and Hundal, the Court held that the RAD committed a reviewable error by failing to do a proper analysis of whether the factors of subsection 110(6) of the IRPA were met and if so, evaluating whether to exercise its discretion and grant an oral hearing.^{Note 23}

6.5. Factors that must be met under subsection 110(6)

This section discusses the three factors, enumerated in subsection 110(6) of the IRPA, that must be met for the RAD to hold an oral hearing.

6.5.1. Evidence raises serious issue of credibility of the person

The first factor to be evaluated to decide if a hearing should by held at the RAD is to determine if the documentary evidence referred to in subsection 110(3) of the IRPA (the new evidence) raises a serious issue with respect to the credibility of the person.^{Note 24} This factor is composed of two elements: the new evidence must raise a serious issue and this serious issue must be in respect of the credibility of the person.

In Singh,^{Note 25} the Federal Court of Appeal held that it is not the credibility of the new evidence itself that must be weighed, but whether the new evidence raises a serious issue with respect to the general credibility of the person. The Federal Court of Appeal further specified that a hearing is only held where new evidence would justify a reassessment of the overall credibility of the person and their narrative. In Paz,^{Note 26} the Federal Court also held that even if the new evidence raises an important issue, if it is not about the credibility of the person, it is not a factor to consider when deciding whether or not to hold a hearing. In Nuri,^{Note 27} the Federal Court held that since the RAD accepted the credibility of the person’s testimony, there was no issue raised as to his credibility, a precondition to holding an oral hearing.

The credibility factor to be addressed in the admissibility of new evidence assessed under subsection 110(4) of the IRPA^{Note 28} and the credibility factor to be addressed in the oral hearing assessment under subsection 110(6) have often been misconstrued since the Federal Court of Appeal decision in Singh. The Court in A.B.^{Note 29} shed further light on this issue. First, it held that the RAD is not required to hold an oral hearing to assess the credibility of proposed new evidence.^{Note 30} Second, it held that a credibility assessment of the proposed new evidence under the Singh factors is not equivalent to a credibility assessment of the person under a subsection 110(6) oral hearing assessment.^{Note 31} Third, and most importantly for the purpose of this discussion, the Court reiterated that it is when credible and admitted evidence raises a serious issue with respect to the general credibility of the person that the determination of an oral hearing becomes relevant.^{Note 32}

In a number of decisions, the Court has dealt with the issue of determining whether the serious issue relates to the credibility of the person. For instance, in Tchangoue^{Note 33} and Horvath,^{Note 34} the Court held that it was unreasonable for the RAD not to hold a hearing. In Tchangoue, the Court found that the concern regarding the authenticity of the new documents was clearly a serious issue which undermined the person’s credibility and which was not before the RPD.^{Note 35} In Horvath, the Court found that the credibility issue related directly to the person and arose from evidence that was admitted by the RAD.^{Note 36}

On the other hand, in Galamb,^{Note 37}Idugboe,^{Note 38}Akinyemi-Oguntunde,^{Note 39} and Tahir,^{Note 40} the Court held that it was reasonable for the RAD not to hold a hearing.^{Note 41}In Galamb, the Court found that the new evidence was not specific to the persons’ experience and did not attack the fundamental credibility findings of the RPD. In Idugboe, the Court citing Ahmed^{Note 42} rendered in the PRRA context, held that "doubts about the veracity of evidence do not necessarily amount to concerns about an applicant’s credibility". It found that the new evidence from third parties recounting new incidents did not impact the person’s credibility. In Akinyemi-Oguntunde the Court found that the case concerned the sufficiency of evidence and not credibility. In Tahir, the Court found that the RAD’s authenticity concerns about the warrant and summons did not trigger a requirement to hold an oral hearing.

6.5.2. Evidence is central to the decision with respect to the refugee claim

The second factor to be evaluated to decide if a hearing should be held at the RAD is to determine if the documentary evidence referred to in subsection 110(3) of the IRPA (the new evidence) is central to the decision with respect to the refugee protection claim.^{Note 43} The Federal Court of Appeal in Singh,^{Note 44} in finding that it was reasonable for the RAD not to hold a hearing, indicated that it was "far from a given” that the new evidence in that case was essential in deciding the person’s refugee protection claim.

In general, the case law has interpreted “central to the decision with respect to the refugee protection claim” as central to the RPD’s decision.^{Note 45}

However, in Mofreh,^{Note 46} this criterion was interpreted as meaning central to the RAD’s decision, as the Court held that the RAD was correct in declining to conduct an oral hearing on the ground that the new evidence would not be determinative of the appeal.

6.5.2.1. Examples where new evidence is central

The Court dealt a number of times with the issue of determining if the new evidence was central to the decision with respect to the refugee claim. Here are some examples where the Court held that it was unreasonable for the RAD not to hold a hearing because the new evidence was central. In Tchangoue^{Note 47}, the Court found that the absence of the new evidence at the RPD was determinative of the RPD’s decision. In Ajaj,^{Note 48} the Court found that the new evidence was central to the decision regarding the person’s sur place claim because if it would have been accepted as authentic by the RAD, it would substantiate the person’s fear of the authorities of his country and his sur place claim could potentially succeed. In Horvath,^{Note 49} the Court found that the serious issues of credibility were central to the RPD decision given the credibility issues which arose from the RPD hearing and considering the new evidence accepted by the RAD.

6.5.2.2. Examples where new evidence is not central

The Court has also held in a number of cases that it was reasonable for the RAD not to hold a hearing because the new evidence was not central. Here are some examples of such cases. In Ketchen,^{Note 50} the Court found that the RAD was justified to accord low weight to the new evidence. Therefore, it stated that the new evidence could not meet the materiality requirements of subsection 110(6) of the IRPA. In Onyeme,^{Note 51} the Court found that the new evidence accepted, which was in the form of an affidavit, was simply confirming allegations of threats that were accepted by the RPD and that consequently, it was not central to the decision. In Ikheloa,^{Note 52} the Court found that the new evidence was not central because there were other credibility issues besides those regarding the new evidence that were determinative. In Idugboe,^{Note 53} the RPD and the RAD concluded that the persons had an internal flight alternative (IFA). Even though the new evidence spoke of the motivation of the agent to find the persons, the Court found that the new evidence was not central as the IFA determination was based on a variety of factors, including the agent’s means and ability to locate the persons which was not affected by the new evidence. In Ajaguna,^{Note 54} the RAD found that the new evidence was not material to the outcome because it was inherently unreliable and untrustworthy as it was based on hearsay and contained several inconsistencies and implausibilities. In Simone,^{Note 55} the RAD found that the new evidence would not be determinative of the claim as it would be insufficient to establish, on a balance of probabilities, the person’s identity. The new evidence offered insufficient detail to overcome the weight of the fraudulent evidence presented on identity. In Subedi,^{Note 56} the RAD found that the new evidence raised credibility issues that either did not relate to, or were not central to, the determinative issue, IFA, which focused more on country condition evidence.

6.5.3. Evidence would justify allowing or rejecting the refugee protection claim

The third factor to be evaluated to decide if a hearing should by held at the RAD is to determine if the documentary evidence referred to in subsection 110(3) of the IRPA (the new evidence), if accepted, would justify allowing or rejecting the refugee protection claim.^{Note 57}

6.5.3.1. Examples where new evidence would justify allowing or rejecting the refugee protection claim

In some cases, the Court has found that the evidence would justify allowing or rejecting the refugee protection claim. For example, in Tchangoue,^{Note 58} the Court considered that the decision of the RAD not to hold a hearing was unreasonable as the new evidence would have justified allowing the claim. While in obiter, the Court did mention in Denis^{Note 59} that the outcome could be affected since identity is a dispositive issue.

6.5.3.2. Examples where new evidence would not justify allowing or rejecting the refugee protection claim

However, in many decisions, the Court found that the evidence would not justify allowing or rejecting the claim. In cases where there are other determinative credibility issues than the one concerning the new evidence, the Court has been inclined to conclude that the new evidence would not justify allowing or rejecting the claim. For example, the Federal Court of Appeal in Singh^{Note 60} found that in light of the multiple credibility issues at the RPD, the new evidence in those cases would not warrant allowing the claim or rejecting the claim. In Saeed,^{Note 61} the Court found it was reasonable for the RAD to conclude that the new evidence was neither sufficient to establish identity nor to overcome other significant credibility concerns.  

Where the determinative issue was different than the one raised by the new evidence, the Court has also concluded that the new evidence would not justify allowing or rejecting the claim. For example, in Idugboe,^{Note 62} the RPD and the RAD concluded that the persons had an IFA. Even though the new evidence spoke of the motivation of the agent to find the persons, the Court found that the new evidence, if accepted, would not justify allowing or rejecting the claim. The IFA determination was based on a variety of factors, including the agent’s means and ability to locate the persons, which was not affected by the new evidence.

6.6. Scope of a Refugee Appeal Division oral hearing

The scope of the oral hearing at the RAD is limited. RAD Rule 56(1) states that when the RAD is notifying the person and the Minister of an oral hearing, the notice must contain the issues that will be raised at the hearing. Furthermore, RAD Rule 57(1) describes the scope of an oral hearing. It states that a hearing is restricted to matters relating to the issues provided with the notice to appear unless the RAD considers that other issues have been raised by statements made by the person or by a witness during the hearing. The Court has held that when the RAD raises an issue in the hearing that was identified in the notice to appear, the parties are not taken by surprise and there is no breach of natural justice.^{Note 63}

Furthermore, under RAD Rule 57(3) the RAD may limit the questioning of witnesses, including the person. However, the RAD must take into account the nature and complexity of the issues and the relevance of the questions before deciding to limit the questioning. The RAD is also required under RAD Rule 57(5) to limit the representations that may be made, taking into account the complexity of the issues and the amount of relevant evidence heard. The RAD must also indicate what issues need to be addressed in the representations.

6.7. Holding a Refugee Appeal Division oral hearing - Procedural rules

Part 4 of the RAD Rules deals with the procedural requirements with respect to holding an oral hearing at the RAD.^{Note 64} The following sections outline these rules.

6.7.1. Rules on appellant’s record, reply record, notice of intervention respondent’s record

According to the RAD Rules in several situations the person must indicate whether they are requesting a hearing and why the RAD should hold a hearing: in their appellants’ record,^{Note 65} in their reply record,^{Note 66} and in their respondent’s record.^{Note 67}

Also, according to the RAD Rules, in several situations the Minister must indicate whether they are requesting a hearing and why the RAD should hold a hearing: in their appellant’s record,^{Note 68} in their notice of intervention,^{Note 69} and in their reply record.^{Note 70}

However, even though the RAD Rules instruct the person and the Minister to provide information related to a RAD oral hearing, the Court held that neither the IRPA nor the RAD Rules impose a burden on the parties either to request, or to satisfy the RAD that the circumstances merit an oral hearing. The onus rests with the RAD to consider and apply the statutory factors reasonably.^{Note 71}

6.7.2 Fixing a date for a hearing

RAD Rule 55 allows the RAD to require the parties to participate in a scheduling conference or otherwise give information to help the RAD fix a date for a hearing.

6.7.3 Notice to appear

According to paragraph 171(a) of the IRPA,^{Note 72} the RAD must give notice of any hearing to the Minister and to the person.

RAD Rule 56(1) indicates that the RAD gives notice to the person and to the Minister of any hearing. It is important to note that this is a situation where the RAD Rules indicate that the Minister must be given notice even though he is not a party to the appeal.^{Note 73} This subrule also indicates that the notice must be in writing and include the date, time and location fixed for the hearing, and the issues that will be raised at the hearing.

Pursuant to RAD Rule 56(2), the date of the hearing must not be earlier than 10 days after the day on which the person and the Minister received the notice to appear. However, on consent of the parties, this time may be shortened.

6.7.4 Conduct of a hearing

6.7.4.1. General rules

According to section 165 of the IRPA,^{Note 74} the RAD and each member of the division has the power and authority of a commissioner appointed under Part 1 of the Inquiries Act^{Note 75} and may do any other thing they consider necessary to provide a full and proper hearing.

According to paragraph 171(a.1) of the IRPA,^{Note 76} subject to subsection 110(4), if a hearing is held, the RAD must give the person and the Minister the opportunity to present evidence, question witnesses and make submissions.

The order of questioning during a RAD hearing is addressed in RAD Rule 57(2). Any witness, including the person, will be questioned in the following order: first by the person, second by any other party, third by the person in reply, and fourth by the RAD. However, according to RAD Rule 57(2), the RAD may order a different order of questioning.

Oral representations are the norm in a RAD hearing. RAD Rule 57(4) states that unless the RAD orders otherwise, representations must be made orally at the end of a hearing.

6.7.4.2. Particular situations

According to RAD Rule 22(3), once a date for a hearing has been fixed, the person may change the language of the appeal by notifying the RAD and the Minister in writing without delay. The notice must be received no later than 20 days before the hearing date.^{Note 77}

According to RAD Rule 24, before using any information or opinion that is within its specialized knowledge, the RAD must notify the parties and give them an opportunity to make representations. If a date for a hearing has been fixed, the parties may make their representations orally or in writing on the reliability and use of the information or opinion and provide evidence in support of their representations.^{Note 78}

According to Rule 37(2) on general applications, even if an oral hearing is held, the RAD must not allow a party to make an application orally at the hearing unless the party, with reasonable effort, could not have made a written application before that date.^{Note 79}

According to RAD Rule 42(3), even if an oral hearing is held, the RAD must not allow a person to make an application to have a proceeding conducted in public orally at the hearing unless the person, with reasonable effort, could not have made a written application before that date.^{Note 80}

6.7.5 Person who is in custody

In some instances, the person may be in custody. In these cases, RAD Rule 58 allows the RAD to order the custodian to bring the person to a proceeding at a location specified by the RAD.

6.7.6 Interpreters

RAD Rule 59 covers the language of interpretation at a hearing at the RAD. If the person needs an interpreter for the hearing, they must indicate the language and dialect, if any to be interpreted. This must be indicated in the appellant’s record or in the respondent’s record, depending on whether the person is the appellant or the respondent.^{Note 81}

The person may change the chosen language and dialect, if any, to be interpreted. A person who initially did not indicate that an interpreter was needed, may decide an interpreter is required. This must be done by notifying the RAD in writing of the language and dialect, if any, to be interpreted. The notice must be received by the RAD no later than 20 days before the date of the hearing.^{Note 82}

If any party’s witness needs an interpreter for the hearing, the party must notify the RAD in writing and specify the language and dialect, if any, to be interpreted. This must be done by notifying the RAD in writing of the language and dialect, if any, to be interpreted. The notice must be received by the RAD no later than 20 days before the date of the hearing.^{Note 83}

The interpreter must take an oath or make a solemn affirmation to interpret accurately.^{Note 84}

6.7.7 Observers

The requirements regarding observers at a RAD hearing can be found in RAD Rule 60. If an observer at a RAD hearing is the United Nations High Commissioner for Refugees (UNHCR), a member of the staff of the Board or if the person consents to or requests the presence of an observer other than a representative of the press or of other media of communication, it is not necessary to present an application for proceedings to be conducted in public under RAD Rule 42.^{Note 85}

The RAD must allow the attendance of an observer unless it is of the opinion that the observer’s attendance is likely to impede the proceeding.^{Note 86}

The RAD Rules allow the RAD to take any measures it considers necessary to ensure the confidentiality of the proceeding despite the presence of an observer.^{Note 87}

6.7.8 Designated representatives

RAD Rule 23(11)(d) sets out the responsibilities of a designated representative which includes assisting in gathering evidence to support the represented person’s case and in providing evidence and, if necessary, being a witness at the hearing.^{Note 88}

6.7.9 Witnesses

RAD Rule 61 sets out the requirements for when a party wishes to call a witness at a RAD hearing. The party wishing to call a witness at a RAD hearing must provide the following witness information in writing to any other party and to the RAD:

• the witness’s contact information;
• a brief statement of the purpose and substance of the witness’s testimony or, in the case of an expert witness, the expert witness’s brief signed summary of the testimony to be given;
• the time needed for the witness’s testimony;
• the party’s relationship to the witness;
• in the case of an expert witness, a description of the expert witness’s qualifications; and
• whether the party wants the witness to testify by means of live telecommunication.^{Note 89}

This information must be provided to the RAD together with proof that it was provided to any other party.^{Note 90} Documents provided under RAD Rule 61 must be received by their recipients no later than 20 days before the date of the hearing.^{Note 91}

Should a party not provide the witness information, the witness must not testify at the hearing unless the RAD allows them to do so.^{Note 92} In these circumstances, the RAD must consider any relevant factors, including:

• the relevance and probative value of the proposed testimony; and
• the reason why the witness information was not provided.^{Note 93}

RAD Rules 62 and 63 cover the use of a summons in connection with a RAD hearing. A party who wants the RAD to order a person to testify at a hearing must make a request to the RAD for a summons, either orally at a proceeding or in writing.^{Note 94} In deciding whether to issue a summons, the RAD must consider any relevant factors, including:

• the necessity of the testimony to a full and proper hearing;
• the person’s ability to give that testimony; and
• whether the person has agreed to be summoned as a witness.^{Note 95}

Once a summons has been issued by the RAD, the party who wants to use the summons must provide the summons to the person by hand and then provide a copy of the summons to the RAD, together with proof that it was provided to the person by hand. The party who uses the summons must pay, or offer to pay, the person who is summoned the applicable witness fees and travel expenses set out in Tariff A of the Federal Courts Rules.^{Note 96}

If a person who is summoned to appear as a witness wants the summons cancelled, they must make an application in writing to the RAD in accordance with RAD Rule 37. However, there is no requirement to give evidence in an affidavit or statutory declaration.^{Note 97}

RAD Rule 64 covers the use of arrest warrants in connection with a RAD hearing. There are consequences if a person who is summoned does not obey the summons and fails to appear as a witness. The party who requested the summons may make a request to the RAD orally at the hearing, or in writing, to issue a warrant for the person’s arrest.^{Note 98} The party who makes a written request for a warrant must provide supporting evidence by affidavit or statutory declaration.^{Note 99}

The RAD must not issue an arrest warrant unless:

• the person was provided the summons by hand or the person is avoiding being provided the summons;
• the person was paid or offered the applicable witness fees and travel expenses set out in Tariff A of the Federal Courts Rules;
• the person did not appear at the hearing as required by the summons; and
• the person’s testimony is still needed for a full and proper hearing.^{Note 100}

The arrest warrant issued by the RAD must include directions concerning detention or release.^{Note 101}

RAD Rule 65 covers the exclusion of witnesses at a RAD hearing. If the RAD excludes a witness from a hearing room, no person may communicate to the witness any evidence given while the witness was excluded unless allowed to do so by the RAD or until the witness has finished testifying.

6.7.10 Changing the location of a hearing

Under RAD Rule 66, a party may make an application to the RAD to change the location of a RAD hearing.^{Note 102} The application must be made in accordance with RAD Rule 37. However, the party is not required to give evidence in an affidavit or statutory declaration.^{Note 103} Documents provided under RAD Rule 66 must be received by their recipients no later than 20 days before the date of the hearing.^{Note 104}

In deciding the application, the RAD must consider any relevant factors, including:

• whether the party is residing in the location where the party wants the hearing to be held;
• whether a change of location would allow the hearing to be full and proper;
• whether a change of location would likely delay the hearing;
• how a change of location would affect the RAD’s operation;
• how a change of location would affect the parties;
• whether a change of location is necessary in order to accommodate a vulnerable person; and
• whether a hearing may be conducted by means of live telecommunication with the person.^{Note 105}

Unless a party receives a decision from the RAD allowing the application, the party must appear for the hearing at the location fixed and be ready to start or continue the hearing.^{Note 106}

6.7.11 Changing the date or time of a hearing

RAD Rule 67 deals with the procedural requirements with respect to changing the date or time of a hearing.^{Note 107}

Under RAD Rule 67, a party may make an application to the RAD to change the date or time of a RAD hearing.^{Note 108} The application must be made in accordance with RAD Rule 37. However, the party is not required to give evidence in an affidavit or statutory declaration.^{Note 109} The party must give at least six dates and times, within the period specified by the RAD, on which the party is available to start or continue the hearing.^{Note 110} Notice of the period specified by the RAD must be made available in such a manner that is publicly accessible.^{Note 111}

If the party wants to make an application two working days or less before the date fixed for the hearing, the party must make the application orally on the date fixed for the hearing.^{Note 112}

In deciding the application, the RAD must consider any relevant factors, including:

• in the case of a date and time that was fixed after the RAD consulted or tried to consult the party, any exceptional circumstances for allowing the application;
• when the party made the application;
• the time the party has had to prepare for the hearing;
• the efforts made by the party to be ready to start or continue the hearing;
• in the case of a party who requests more time to obtain information in support of their arguments, the RAD’s ability to proceed in the absence of that information without causing an injustice;
• whether the party has counsel;
• the knowledge and experience of any counsel who represents the party;
• any previous delays and the reasons for them;
• whether the date and time fixed were peremptory;
• whether the change is required to accommodate a vulnerable person;
• whether allowing the application would unreasonably delay the hearing or likely cause an injustice; and
• the nature and complexity of the matter to be heard.^{Note 113}

It is important to note that if the party made a previous application that was denied, the RAD must consider the reasons for the denial and must not allow the subsequent application unless there are exceptional circumstances supported by new evidence.^{Note 114}

If a person makes the application for personal medical reasons 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. The person who has provided a copy of the certificate to the RAD must provide the original document to the RAD without delay.^{Note 115}

The medical certificate must set out the following:

• the particulars of the medical condition, without specifying the diagnosis, that prevent the person from participating in the hearing on the date fixed for the hearing; and
• the date on which the person is expected to be able to participate in the hearing.^{Note 116}

If the person fails to provide a medical certificate in accordance with the RAD Rules, the person must include in their application the following:

• particulars of any efforts they made to obtain the required medical certificate, supported by corroborating evidence;
• particulars of the medical reasons for the application, supported by corroborating evidence; and
• an explanation of how the medical condition prevents them from participating in the hearing on the date fixed for the hearing.^{Note 117}

Unless a party receives a decision from the RAD allowing the application, the party must appear for the hearing at the date and time fixed and be ready to start or continue the hearing.^{Note 118}

6.7.12 Abandonment

RAD Rule 68 and subsection 168(1) of the IRPA provide for the process of abandonment when there is a default in the proceedings, including by failing to appear for a scheduled hearing.^{Note 119}

In determining whether an appeal has been abandoned after a hearing has been scheduled, the RAD must give the appellant an opportunity to explain why the appeal should not be declared abandoned. The RAD can give the appellant this opportunity immediately, if the appellant is present at the hearing and the RAD considers that it is fair to do so, or in any other case, by way of a special hearing, after notifying the appellant in writing.^{Note 120}

In deciding if the appeal should be declared abandoned, the RAD must consider the explanation given by the appellant and any other relevant factors, including the fact that the appellant is ready to start or continue the proceedings.^{Note 121}

If the appellant is the person and the explanation includes their personal medical reasons, they must provide, together with the explanation, the original of a legible, recently dated medical certificate signed by a qualified medical practitioner whose name and address are printed or stamped on the certificate.^{Note 122}

The medical certificate must set out the following:

• the particulars of the medical condition, without specifying the diagnosis, that prevented the person from pursuing their appeal; and
• the date on which the person is expected to be able to pursue their appeal.^{Note 123}

If the person fails to provide a medical certificate in accordance with the RAD Rules, the person must include in their explanation the following:

• particulars of any efforts they made to obtain the required medical certificate, supported by corroborating evidence;
• particulars of the medical reasons included in the explanation, supported by corroborating evidence; and
• an explanation of how the medical condition prevented them from pursuing their appeal.^{Note 124}

If the RAD decides not to declare the appeal abandoned, it must start or continue the proceedings without delay.^{Note 125}

6.7.13 Refugee Appeal Division decision after hearing

A RAD decision, other than an interlocutory decision, must be rendered in writing, even if a RAD hearing has been held.^{Note 126}

Although some RAD Rules^{Note 127} do mention the possibility of a decision given orally at a RAD hearing, paragraph 169(c) of the IRPA states clearly that a RAD decision must be rendered in writing.^{Note 128}

6.7.14 Virtual hearings

The Practice Notice on Scheduling of virtual and in-person hearings at the IRB^{Note 129} sets out that the RAD schedules virtual hearings by default for all appeals. The Practice Notice explains when and how a party can make a request for the use of IRB premises and equipment for a virtual hearing. The Practice Notice also explains when and how a party can make a request for an in-person hearing if they have specific concerns with holding the hearing virtually. The RAD will grant a request for an in-person hearing if it is necessary for reasons of fairness and natural justice. The RAD may also, subject to operational considerations, grant a request for an in-person hearing for other compelling reasons (such as where the complexity, duration or other circumstances of the proceeding so warrant).^{Note 130}