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Appeals to the Refugee Appeal Division

Refugee Appeal Process

Refugee Appeals

People who made refugee claims in Canada and had their case rejected can in some instances appeal to the Refugee Appeal Division (RAD). The RAD is an independent tribunal which will review the negative decision and can overturn the decision and refer it back to the refugee protection division for re-decision, or the RAD can substitute its own decision for that of the RPD. While the RAD has the authority to conduct a hearing where necessary, generally speaking this type of appeal is made on paper only and no personal appearance is required.

Who Can Appeal?

  • Refugee claimants who made their original refugee claim after December 15, 2012, and were refused by the Refugee Protection Division (RPD)
  • The Minister of Citizenship and Immigration Canada (CIC) can appeal a positive RPD decision

What are the Exceptions to who can appeal (i.e., Who Can’t Appeal)?

  • The claimant is a designated foreign national (i.e., irregular arrival by boat, etc.)
  • The claimant’s refugee claim was withdrawn or abandoned
  • The RPD found that the claim had no credible basis or was manifestly unfounded
  • The claimant entered Canada via the USA as an exception to the Safe Third Country Agreement
  • The RPD has made a cessation or vacation order against the claimant

NOTE: those who fall into the exceptions can still apply for judicial review at the Federal Court.

What is the Procedure?

  • The Notice of Appeal must be filed with the RAD no later than 15 days after the negative written decision is received from the RPD – 3 copies
  • The Appellant’s record is due no later than 30 days after the negative written decision is received from the RPD – 2 copies
  • The Record should contain the decision, transcripts, evidence used at the hearing, authorities, and a memorandum
  • No new evidence may be submitted unless it didn’t exist or wasn’t reasonably available at the time of the refugee claim
  • If the Minister makes submissions, the appellant has 15 days to file a reply record
  • Applications for extensions of time may be made where deadlines have been missed
  • In most cases a decision will be made on the basis of the documents provided and without a hearing
  • A hearing may be held where the evidence raises a serious issue as to whether the claimant’s credibility should be reconsidered, the evidence is central to the decision, and if accepted would provide a basis to allow the appeal

What are the Grounds for an Appeal?

  • An appeal may be made on a question of fact, of law, or mixed fact and law

What if the Minister appeals?

  • The Minister will serve the refugee with the notice of appeal and the refugee can then file a notice of intent to respond
  • The Minister will then serve the refugee with their record and the refugee will have an opportunity to file their own record in reply

What will be the effect of the decision?

  • The RAD judge can either: (1) dismiss the appeal, (2) allow the appeal and substitute new reasons for decision, or (3) allow the appeal and remit the matter for redetermination by the RPD
  • If there was no hearing the decision will be in writing
  • If there was a hearing the decision may be made orally or in writing
  • A negative decision can be further appealed to the Federal Court within 15 days
While a refugee claimant does not need to be represented by a lawyer or other counsel in order to make an appeal to the RAD, in practice it would be highly unadvisable to attempt to make an appeal without legal representation. 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 years of experience assisting clients with refugee and appeal matters, and we can assist refugee claimants who require legal representation. Please contact us for further information.
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