FEDERAL COURT APPEALS
OF REFUSED IMMIGRATION APPLICATIONS
The Refugee Appeal Division
Foreign nationals who claim refugee status can appeal to the Refugee Appeal Division (RAD) if the Refugee Protection Division (RPD) rejects their claim. The Refugee Appeal Division will then make a decision to allow or deny the appeal. Most of the time, the appeal is paper-based and hearings are only done in exceptional cases. RAD gives claimants a chance to prove that the RPD was wrong in fact or law or both and even allows the claimant to introduce new evidence that wasn’t reasonably available at the time of the Refugee Protection Division process. The Governor in Council (GIC) appointees conduct the appeal process.
As a refugee claimant, you may not be eligible to file an appeal to the Refugee Appeal Division if:
- Your claim has been rejected because of an order of surrender under the Extradition Act
- You are a designated foreign national
- Your claim is considered to have no credible basis by the RPD
- The RPD states that your claim is manifestly unfounded
- You entered Canada from the USA through an exception to the Safe Third Country Agreement
- Your claim was withdrawn or denied because it was abandoned
- Your claim was referred to the IRB prior to the new refugee protection provisions
Talk to your lawyer to understand if you’re barred from pursuing an appeal before the RAD. Your immigration lawyer may advise you to seek a judicial review before the federal court instead.
Refugee appeal processing time
An experienced Canadian immigration lawyer can help you to prepare an effective and vigorous appeal and present it before the RAD and the Federal court. It’s important to work with knowledgeable lawyers who have years of experience in immigration appeal cases. When you receive the decision from the immigration authorities denying your refugee claim, the best course of action is to contact an immigration lawyer immediately.
You only have 15 days from the date you receive this decision to begin the appeal process. As soon as you initiate the appeal process, your removal order will be automatically stopped. Should you fail to start the process immediately after being denied refugee status, your removal order can become enforceable. Your lawyer will work hand in hand with the refugee board to get a transcript of your hearing which allows them to review the case and understand mistakes that could have led to your claim being denied and how they can appeal effectively.
Once you file the appeal, a decision is often expected within 90 days. This could take longer if an oral hearing will be required. However, it’s not uncommon for immigration appeal cases to take over one year before a decision is made.
Refugee appeal division process
When you file an appeal, the RAD will make a decision based on all the information you present as well as any information they have in their records. A decision can be made without holding an oral hearing. The RAD will mail the decision directly to your home address. The decision will be made by a RAD member.
Any new evidence that you would like to present to support your appeal must meet the following conditions:
- It did not exist at the time when the RPD was denying your claim
- It was not reasonably available when your claim was rejected by the RPD
- The RPD couldn’t have expected the claimant to provide the evidence at the time when they were rejecting the claim
Additionally, the RAD member must show that the new evidence highlights a serious issue about your credibility, is key to the decision of your claim and if accepted, it would provide strong grounds for allowing or rejecting your claim.
Should you be required to go to a hearing, the RAD member will send you and the minister a notice to appear. This notice will specify the time, date and location of the hearing as well as issues that will be addressed during the hearing.
The RAD member can decide to confirm the RPD decision, set aside the RPD decision or refer (send back) the case to the RPD to order a new hearing.
Refugee appeal federal court
To apply for a judicial review of an immigration matter that falls under the Immigration and Refugee Protection Act, you must apply for a leave from a judge of the federal court. An application for leave can be made within 15 days, for immigration matters within Canada, or 60 days for matters that arise outside of Canada, from the date the applicant receives the decision that needs to be reviewed.
If you have a special reason that resulted in the expiration of the stated time limit, you can request an extension of time in the application for leave. The case will only proceed if the court decides to grant leave. If the court doesn’t approve the leave application, the case is dismissed and the file is closed. You’ll need to work with an experienced lawyer who will guide you through the various steps of applying for leave and judicial review.
Refugee appeal division standard of review
Unlike judicial review where you are required to obtain leave, RAD allows decisions to be appealed as a right based on facts or a combination of fact and law. Oral hearings are rarely done when appeals are made to the RAD. They are often held when there is documentary evidence that raises serious concerns regarding the credibility of the claim.
Appeals to the RAD and judicial reviews require similar information. Most of the time, the decision is made by a single member (the RAD member) unless the chairperson of the IRB thinks that a 3-member panel is required. Appeals to the RAD are considered full appeals. This is because they are not only limited to issues of law. The standard of review at the RAD is often considered a high level of correctness where the court can give its own view. RAD can even substitute its own findings for that of the RPD. It can review the same questions which were put before the RPD since RAD members have the ability and expertise to decide on these immigration matters.