Overview

The Protected Person Appeal process in Canada allows individuals who have received a negative decision on their refugee claim from the Immigration and Refugee Board of Canada (IRB) to challenge that decision. This appeal is heard by the Refugee Appeal Division (RAD) of the IRB.

The RAD is an independent administrative tribunal responsible for hearing appeals from decisions of the Refugee Protection Division (RPD) to grant or reject claims for refugee protection. Its primary role is to ensure fairness and correctness in refugee claim decisions, providing a crucial safeguard in Canada's asylum system.

How it works

If a refugee claim is denied by the RPD, the claimant generally has 15 days from the date they receive the written decision to file an appeal with the RAD. The appeal is usually based on errors of law, fact, or mixed law and fact made by the RPD. New evidence may be presented in limited circumstances, such as evidence that was not reasonably available at the time of the RPD hearing.

The RAD primarily conducts a

The ability to appeal a negative refugee claim largely depends on how the claim was processed and the claimant's country of origin.

Eligibility Criteria

• Negative decision from the Refugee Protection Division (RPD): The primary requirement is that your claim for refugee protection has been rejected by the RPD.
• Timeliness: An appeal must typically be filed within 15 days of receiving the RPD's written decision. Failure to meet this deadline can result in the loss of the right to appeal, though extensions may be granted in exceptional circumstances.
• Basis for appeal: The appeal must generally be based on an error made by the RPD in its decision. This can include:
  • Errors of law: Misinterpretation or misapplication of legal principles.
  • Errors of fact: Incorrect findings of fact based on the evidence presented.
  • Errors of mixed law and fact: A combination of both.
• Limited New Evidence: Generally, the RAD only reviews the evidence that was before the RPD. New evidence may be admitted only if it was not reasonably available to the claimant at the time of the RPD hearing and is relevant and credible.
• Exceptions for Designated Countries of Origin (DCOs): Claimants from Designated Countries of Origin generally do not have an automatic right to appeal to the RAD unless they can demonstrate

The specific documents required for a Protected Person Appeal largely depend on the grounds for the appeal and whether new evidence is being introduced. Key documents typically include:

• Notice of Appeal: The official form initiating the appeal process.
• A copy of the Refugee Protection Division (RPD) decision: The written reasons for the refusal of the refugee claim.
• Appellant's Record: This record will contain all documents the appellant relies on, including the basis of their appeal, legal arguments, and supporting evidence.
• Legal arguments/memorandum of argument: A written submission outlining the errors allegedly made by the RPD and the legal basis for overturning the decision.
• Affidavits or sworn statements: If new evidence is being presented, these may be required to explain why the evidence was not available at the RPD hearing.
• Documentary evidence: Any new documents, reports, or expert opinions that support the appellant's claim and meet the criteria for new evidence.
• Proof of service: Documentation proving that the Notice of Appeal and other required documents were properly served on all parties involved.
• Identification documents: While not directly part of the appeal filing, valid identification will be necessary for any potential hearings or interactions with the IRB.

It is crucial to follow the specific instructions and deadlines provided by the Refugee Appeal Division (RAD) for submitting documents. Failure to submit required documents correctly or on time can lead to the dismissal of the appeal.

The application process for a Protected Person Appeal is structured and must adhere to strict deadlines and procedural rules set by the Refugee Appeal Division (RAD) of the Immigration and Refugee Board (IRB).

1. Receive RPD Decision: The process begins when the Refugee Protection Division (RPD) denies a claim for refugee protection. The claimant will receive a written decision with reasons for the refusal.
2. File a Notice of Appeal: Generally, within 15 days of receiving the RPD's written decision, the claimant must file a Notice of Appeal with the RAD. This form indicates the intention to appeal and must specify the grounds for the appeal.
3. Submit Appellant's Record: Within 30 days of filing the Notice of Appeal (or another deadline set by the RAD), the appellant must submit a complete Appellant's Record. This record typically includes:
   • The RPD decision.
   • A memorandum of argument detailing the errors made by the RPD.
   • Any new evidence that meets the strict admissibility criteria (i.e., was not reasonably available at the RPD hearing and is relevant and credible).
   • Proof of service to all parties.
4. Respondent's Participation: The Minister's counsel (representing the government) may choose to participate in the appeal, filing a Respondent's Record in response to the appellant's arguments.
5. RAD Review and Decision: The RAD will review all submissions. Most appeals are decided

If a Protected Person Appeal is successful and the individual is granted protected person status, this can open pathways for family members to join them in Canada. The specific options depend on whether the family members are already in Canada or abroad.

• Family members in Canada: If eligible family members (spouse, common-law partner, dependent children) are already in Canada and were included in the original refugee claim, their status may be adjusted along with the principal applicant's status upon a successful appeal.
• Family members abroad: Once the principal applicant obtains protected person status, they may be able to sponsor eligible family members (spouse, common-law partner, dependent children) residing abroad through the Family Class immigration program. This is typically done after the protected person has obtained permanent residence.

It is important to note that the appeal process itself does not grant status to family members. It only determines the principal applicant's refugee status. The ability to reunite with family is a subsequent step, usually once the protected person has secured their own permanent resident status in Canada.

During the Protected Person Appeal process, work rights are typically tied to the status held by the individual prior to and during the appeal. If an individual had a valid work permit or was eligible for one while their refugee claim was pending (i.e., applied for a work permit after their refugee claim was found eligible), they might be able to maintain or renew it during the appeal.

However, if the refugee claim has been denied and an appeal is ongoing, the right to work may become more precarious. Generally, claimants who applied for a work permit while their refugee claim was pending may continue to hold that work permit until a final negative decision from the Refugee Appeal Division (RAD) and the Federal Court (if applicable). If the appeal is ultimately unsuccessful, the right to work will cease, and the individual would be expected to leave Canada unless they have other legal status.

Conversely, if the Protected Person Appeal is successful and the individual is recognized as a protected person, they will then be eligible to apply for a work permit and subsequently for permanent residence, granting them full work rights in Canada.

A successful Protected Person Appeal is a critical step towards obtaining permanent residence in Canada. If the Refugee Appeal Division (RAD) overturns the negative decision of the Refugee Protection Division (RPD) and recognizes the individual as a protected person, this effectively grants them protected person status.

Once granted protected person status, individuals become eligible to apply for permanent residence in Canada under the Protected Persons in Canada Class. This application is made to Immigration, Refugees and Citizenship Canada (IRCC) and requires the submission of various personal documents, medical examinations, and security checks.

It is important to understand that the RAD appeal itself does not grant permanent residence directly. It determines eligibility for protected person status. The subsequent application for permanent residence is a separate process with its own requirements and processing times. However, a positive decision from the RAD is the foundational step that unlocks the pathway to permanent residence for refugee claimants who were initially denied by the RPD.

Refusal of a Protected Person Appeal can occur for several reasons, often related to the failure to demonstrate a clear error in the RPD's original decision or the inability to meet the RAD's specific procedural requirements.

• Failure to establish an error of law or fact: The most common reason for refusal is that the appellant could not convince the RAD that the RPD made a legal or factual error in its initial decision.
• Failure to provide admissible new evidence: New evidence is only accepted under strict conditions (not reasonably available at the RPD hearing, relevant, credible). Appeals are refused if new evidence does not meet these criteria or is deemed insufficient to change the RPD's outcome.
• Lack of credibility: If the RAD finds the appellant's testimony or documentation lacks credibility, it can uphold the RPD's negative decision.
• Procedural errors: Failure to meet deadlines, improper filing of documents, or other procedural irregularities can lead to the dismissal of the appeal.
• Insufficient grounds: The appeal may be refused if the grounds presented are deemed frivolous or do not address a substantive error in the RPD's decision.
• Inadmissibility: If, during the appeal or subsequent to the RPD decision, new information emerges that renders the appellant inadmissible to Canada (e.g., serious criminality), the appeal could be refused, or even if successful, permanent residence may be denied on these grounds later.
• Safe Third Country Agreement: If the claim was deemed ineligible due to the Safe Third Country Agreement, the right to appeal to the RAD is restricted.