Appeals to the Refugee Appeal Division
If you filed a refugee claim in Canada, and your case was rejected, you may be able to appeal the decision to the Refugee Appeal Division (RAD).
The RAD is an independent tribunal which will review the negative decision. The RAD can overturn the initial decision and refer it back to the Refugee Protection Division (RPD) to make a new decision, or the RAD can substitute its own decision for that of the initial RPD decision. While the RAD has the authority to conduct a hearing where necessary, usually, this type of appeal is made on paper only and no personal appearance is required.
Can I Appeal an RPD Decision?
To appeal your refugee decision, you must show that the RPD made a mistake in its decision. The mistake can be made on a question of fact, of law, or of mixed fact and law.
Who Cannot Appeal to the RAD?
- you are a designated foreign national;
- your refugee protection claim was withdrawn or abandoned;
- the RPD decision says that your claim has no credible basis or is manifestly unfounded;
- you made your claim at a land border with the United States and the claim was referred to the RPD as an exception to the Safe Third Country Agreement;
- the Minister made an application to cease (end) your refugee protection, and the RPD decision allowed or rejected that application;
- the Minister made an application to vacate (cancel) the decision to allow your refugee protection claim, and the RPD decision allowed or rejected that application;
- your claim was referred to the RPD before the relevant provisions of the new system came into force in December 2012;
- your claim for refugee protection was deemed to be rejected under Article 1F(b) of the Refugee Convention because of an order of surrender under the Extradition Act.
Who Can Appeal to the RAD?
A Negative RPD Decision:
- Anyone whose claim does not fall under one of the side categories* has the right to appeal to the RAD
A Positive RPD Decision:
- Additionally, the Minister of Immigration, Refugees and Citizenship can appeal a positive RPD decision
* If you do fall into one of the above categories, you can apply for judicial review of the decision at the Federal Court of Canada
How Do I Appeal an RPD Decision?
To appeal an RPD decision, you must file a Notice of Appeal with the RAD no later than 15 days after you have received the negative written reasons for the RPD decision.
You must then perfect your appeal by providing the Appellant’s record to the RAD Registry no later than 45 days after you have received the negative written reasons for the RPD decision.
New evidence cannot be submitted before the RAD unless it did not exist or was not reasonably available at the time of the RPD’s decision. In most cases, the RAD will make its decision solely based on the documents provided and will not hold an oral hearing. However, a hearing may be held in certain circumstances, such as where the appellant’s credibility is at issue.
What Will Be the Effect of the RPD Decision?
The RAD Member will decide to either:
- Dismiss the appeal
- Allow the appeal and remit the matter for redetermination by the RPD
- Allow the appeal and substitute new reasons for the decision
If the appeal is dismissed by the RAD, meaning you received a negative decision, it may be further appealed to the Federal Court of Canada within 15 days of receiving the decision.
Refugee appeal cases can be extremely difficult to navigate. While it is not required to have a lawyer or other counsel represent you in your appeal before the RAD, it is highly advisable. This is because appeals invariably entail complex issues of law and fact that cannot be fully or properly addressed without legal training.
The Law Office of Matthew Jeffery has over 20 years of expert experience assisting clients with complex refugee and appeal matters with high success rate. If you are considering appealing a refugee decision and would like legal representation, please contact us to see how we can assist you.