Refugee Appeal

Overview

The Refugee Appeal Division (RAD) is an independent administrative tribunal within the Immigration and Refugee Board of Canada (IRB). Its primary function is to review decisions made by the Refugee Protection Division (RPD) regarding refugee protection claims. The RAD offers a crucial avenue for claimants to challenge RPD decisions where they believe an error of law, fact, or mixed law and fact was made, or where new evidence has become available that was not reasonably obtainable at the time of the RPD hearing.

How it works

When the RPD rejects a refugee claim, the claimant generally has 15 days from the date of receiving the RPD's written reasons to file an appeal with the RAD. The appeal process typically involves submitting a Notice of Appeal along with a detailed appellant's record, which includes arguments and supporting evidence. The RAD reviews the RPD's decision based on the record of the RPD hearing, the RPD's reasons, and the appellant's submissions. In some cases, the RAD may hold an oral hearing, but often decisions are made based on the written submissions. The RAD can allow the appeal, send the case back to the RPD for redetermination, or dismiss the appeal.

Who it's for

This appeal process is for individuals who have had their refugee protection claim refused by the Refugee Protection Division in Canada. It provides an opportunity for claimants to demonstrate that the RPD's decision was incorrect based on existing evidence, new evidence, or legal arguments. It is particularly relevant for those who believe that the RPD made an error in assessing their credibility, the facts of their claim, or the application of refugee law to their specific circumstances.

To be eligible to appeal to the Refugee Appeal Division (RAD), the following general criteria apply:

• Refusal by the Refugee Protection Division (RPD): The appellant must have had their refugee protection claim refused by the Refugee Protection Division of the Immigration and Refugee Board of Canada (IRB). Only negative decisions can be appealed to the RAD. If the RPD allowed the claim, there is no basis for the claimant to appeal.

• Timely Filing: A Notice of Appeal must be filed with the RAD within 15 days after the day on which the appealing claimant received the written reasons for the RPD decision. This deadline is strict, although extensions may be granted in exceptional circumstances with a compelling justification.

• Submission of an Appellant's Record: Within 30 days of filing the Notice of Appeal, the appellant must submit an appellant's record. This record must include:

  • A copy of the RPD's decision and reasons.
  • A memorandum (or factum) setting out the grounds of appeal, including legal arguments and references to evidence.
  • Any new evidence that was not reasonably available at the time of the RPD hearing and is relevant to the appeal.
  • An affidavit or solemn declaration explaining why any new evidence was not available at the RPD hearing.

• No Exclusion from RAD Appeal: Certain refugee claims are not eligible for an appeal to the RAD. These exceptions include:

  • Claims deemed to have no credible basis.
  • Claims made by individuals who arrived in Canada from a country designated as a safe third country (if applicable laws apply).
  • Claims where the Minister of Public Safety has made a certificate under section 77 of the Immigration and Refugee Protection Act (IRPA).
  • Claims that are withdrawn or abandoned.
  • Claims based solely on a decision finding that the claim was manifestly unfounded.

Meeting these eligibility requirements is crucial for the RAD to accept and review an appeal.

• Notice of Appeal: Form provided by the RAD, formally indicating the intention to appeal the RPD decision.
• Appellant's Record: This comprehensive document typically includes:
  • Reasons for Decision from the RPD: A copy of the written decision and reasons issued by the Refugee Protection Division for the refusal of the refugee claim.
  • Appellant's Memorandum/Factum: A detailed written submission outlining the legal and factual grounds for the appeal, referencing specific errors made by the RPD or new evidence.
  • Affidavit/Solemn Declaration for New Evidence: If new evidence is being submitted, a sworn statement explaining why this evidence was not available at the RPD hearing.
  • New Evidence: Any relevant documents, reports, or materials that were not reasonably obtainable at the time of the RPD hearing and are crucial to the appeal.
  • Relevant Case Law and Jurisprudence: Citations and, if necessary, copies of legal precedents supporting the arguments made in the appeal.
  • Identification Documents: Copies of identity documents of the appellant.

It is strongly advised to consult the RAD Rules of Practice to ensure all required documents are prepared and submitted correctly.

The Refugee Appeal process generally follows these steps:

1. Receive RPD Decision: The claimant receives the written reasons for the Refugee Protection Division's (RPD) decision to refuse their refugee claim. This is the starting point for the appeal timeline.
2. File Notice of Appeal: Within 15 days of receiving the RPD's written reasons, the claimant must file a Notice of Appeal (Form IMM 5792) with the Refugee Appeal Division (RAD). This form formally notifies the RAD of the intention to appeal.
3. Prepare and Submit Appellant's Record: Within 30 days of filing the Notice of Appeal, the appellant must submit a comprehensive 'appellant's record' to the RAD. This record includes a detailed memorandum outlining the grounds of appeal, legal arguments, and any new evidence with an accompanying affidavit explaining its previous unavailability.
4. Minister's Intervention (Optional): In some cases, the Minister of Public Safety or the Minister of Immigration, Refugees and Citizenship Canada may choose to intervene in the appeal, submitting their own arguments and evidence.
5. RAD Review: The RAD reviews the submitted documents, including the RPD's decision, the appellant's record, and any ministerial submissions. The RAD's review is primarily based on the written documentation.
6. Oral Hearing (Rare): While most RAD appeals are decided on the written record, the RAD may decide to hold an oral hearing in specific circumstances, such as to clarify complex legal or factual issues or to assess new evidence requiring testimony.
7. RAD Decision: The RAD issues a decision. Possible outcomes include:
   • Allowing the appeal: The RPD's decision is overturned, and the claimant is granted refugee protection.
   • Sending the claim back to the RPD: The case is returned to the RPD for a new hearing with specific instructions from the RAD.
   • Dismissing the appeal: The RPD's decision is upheld, and the refugee claim remains refused.
8. Further Legal Recourse (Judicial Review): If the RAD dismisses the appeal, the claimant may be able to seek leave for judicial review at the Federal Court of Canada, which is a process to challenge the legality of the RAD's decision, not to re-hear the facts of the case.

When a principal applicant appeals to the Refugee Appeal Division (RAD), any family members who were included in their original refugee claim and covered by the RPD's negative decision are typically included in the scope of that appeal. If the RAD allows the principal applicant's appeal, all dependent family members included in the claim would also be granted refugee protection. Conversely, if the appeal is dismissed, the refusal stands for all family members. It's important to ensure that all family members are properly listed and accounted for in the appeal documentation.

Filing an appeal with the Refugee Appeal Division (RAD) does not automatically grant work rights. Individuals whose refugee claims have been refused by the RPD generally retain their implied status as refugee claimants during the appeal process. This allows them to apply for or maintain an open work permit, provided they meet the criteria, which usually includes having a valid temporary resident permit or maintaining their refugee claimant status and undergoing the necessary medical and security checks. Work permits for refugee claimants are typically open work permits, meaning they are not tied to a specific employer. However, eligibility and conditions can vary, and it is crucial to verify current regulations through official IRCC channels.

The Refugee Appeal Division (RAD) itself is not a direct pathway to Permanent Residence (PR). It is an administrative appeal process within the refugee protection system. If the RAD allows an appeal, the claimant (and their included family members) are granted refugee protection status in Canada. Once refugee protection is granted, individuals can then apply for permanent residence under the Protected Persons in Canada class. This involves a separate application process to Immigration, Refugees and Citizenship Canada (IRCC), which includes medical, criminal, and security checks. Therefore, the RAD appeal is a critical step towards achieving protected person status, which then enables an application for PR.

• Failure to Establish Credibility: The RAD may uphold the RPD's finding that the claimant's testimony or evidence lacked credibility, often due to inconsistencies, implausibility, or contradictions with known facts or country conditions information.
• Insufficient Evidence for Grounds of Appeal: The appellant fails to demonstrate that the RPD made a legal or factual error, or that the new evidence presented is material and would have affected the RPD's decision.
• Evidence Not 'New': New evidence submitted to the RAD is dismissed because it was reasonably available at the time of the RPD hearing and no adequate explanation was provided for its late submission.
• Lack of Nexus to Convention Grounds: The appellant fails to establish a well-founded fear of persecution based on a Convention ground (race, religion, nationality, membership in a particular social group, or political opinion).
• Failure to Meet Filing Deadlines: The appeal is filed outside the strict 15-day deadline for the Notice of Appeal or the 30-day deadline for the appellant's record, without a compelling justification for an extension.
• Inadmissibility: While the RAD focuses on the refugee claim, underlying issues of inadmissibility to Canada (e.g., criminality, security risks) can indirectly impact the appeal's overall context or subsequent PR application.