What Is the Refugee Appeal Division?
The Refugee Appeal Division (RAD) is an independent body within the Immigration and Refugee Board that reviews decisions made by the Refugee Protection Division (RPD) at first instance. If your refugee claim was refused by the RPD, the RAD provides an appellate review of that decision.
Purpose of the RAD
The RAD exists to ensure that refugee claim decisions are reviewed fairly and that errors made by the RPD are corrected. The RAD can consider whether the RPD made an error in law or fact in its decision. If the RAD finds that an error was made, it may overturn the RPD decision and grant the appeal.
How the RAD Is Different From the RPD
At the RPD hearing, you had an opportunity to present all your evidence and testimony. At the RAD, the appeal is based on the record from the RPD proceedings plus any new evidence you wish to submit. The RAD does not typically hold a new hearing with new testimony. Instead, the RAD reviews written materials and the decision from the RPD to determine whether an error was made.
Eligibility for Appeal
Not all refused refugee claims are eligible for appeal to the RAD. Understanding whether your case is eligible is crucial before pursuing this option.
Who Can Appeal to the RAD?
A person whose refugee claim was refused by the RPD may appeal that decision to the RAD. This applies to claims that were dismissed at a hearing, claims that were deemed abandoned, and claims that were rejected at the eligibility stage. Not all refusals can be appealed to the RAD; some cases are referred directly to the Federal Court.
Cases That Cannot Be Appealed to the RAD
If you were declared to be a security risk, a danger to the public, or if you previously received refugee protection in another country and that protection was subsequently found to be invalid, your case may not be eligible for RAD appeal. Additionally, if you are subject to a deportation order based on serious criminality or security concerns, the RAD may not have jurisdiction. Consult with a lawyer to determine whether your specific case can be appealed.
Grounds for Appeal
The RAD can only overturn an RPD decision if there is an error in law or fact. Simply disagreeing with the decision is not enough to succeed on appeal.
Errors in Law
An error in law occurs when the panel member misapplied or misunderstood Canadian law. Examples include: the panel member applied the wrong legal test to your claim, the panel member failed to consider a relevant factor required by law, or the panel member made a legal conclusion that is not supported by the law.
Errors in Fact
An error in fact occurs when the panel member made findings about what happened that are clearly wrong and are based on the evidence. Examples include: the panel member misunderstood evidence you presented, the panel member made a finding about a key fact that is not supported by any evidence, or the panel member failed to consider important evidence.
Perverse Findings of Fact
A perverse finding of fact is one that is made without regard to the evidence or is so unreasonable that it cannot stand. This is a high bar, but if the RPD made a finding that is completely contradicted by the evidence you presented, this may constitute a perverse finding that can be appealed successfully.
Mixed Questions of Law and Fact
Some questions involve both law and fact. For example, determining whether you have a well-founded fear of persecution involves both applying the legal definition and assessing the facts of your case. The RAD can review these questions if it believes the RPD made an error.
Filing Your Appeal
Filing an appeal to the RAD involves specific procedures and deadlines that must be followed.
Deadline for Filing
There is a strict deadline of 30 days from the date the RPD decision letter is received to file an appeal to the RAD. This deadline cannot be extended in most cases. If an appeal is being considered, promptly contacting a lawyer or RCIC is advisable to ensure the deadline is not missed.
Appeal Documents
Your appeal must include a notice of appeal that clearly states your grounds for appealing. You should also submit a factum (a written legal document) that explains the errors you believe the RPD made and why your appeal should be allowed. The factum should cite to the evidence from the RPD hearing and explain how the RPD misinterpreted or misapplied that evidence.
Requesting a Stay of Removal
When filing an appeal, a request for a stay of removal may also be submitted, which temporarily prevents removal from Canada while an appeal is pending. This is important if imminent removal is anticipated. The stay request should be filed at the same time as the appeal. To obtain a stay, it must be demonstrated that there is a serious issue to be tried, that irreparable harm would result if removed, and that the balance of convenience favors granting the stay.
Appeal Timelines
The timeline for your appeal will depend on various factors. Understanding typical timelines can help you plan for the months ahead.
Filing and Response Phase
After you file your appeal, the Refugee Claimants Officer (RCO) has an opportunity to respond in writing to your appeal. This typically takes two to four weeks from the filing of your appeal. During this phase, you may also file a reply to the RCO's response.
Decision Timeline
After the written submissions are complete, the RAD panel will review the materials and make a decision. This can take anywhere from several weeks to several months. Complex appeals or those with significant new evidence may take longer.
New Evidence
If you have new evidence that was not available at the time of your RPD hearing, you may be able to introduce it in your appeal. The RAD will consider whether the evidence should be admitted based on whether it is relevant, not duplicative of evidence already presented, and sufficiently important to potentially change the outcome.
The Appeals Process
Understanding how the RAD reviews your case can help you prepare an effective appeal.
Paper Review
The RAD conducts its review based on the written record. This includes the RPD decision, your written submissions explaining the errors, the RCO's response, and any new evidence you submit. There is typically no oral hearing at the RAD, though in some cases, the RAD may schedule a hearing.
Role of Your Lawyer
If you have a lawyer, they will prepare your factum and written submissions and submit them to the RAD. Your lawyer will also monitor the RCO's response and potentially file a reply. It is strongly advisable to have legal representation for a RAD appeal, as the appeal requires sophisticated legal writing and argumentation.
RAD Panel Composition
The RAD is composed of three appellate decision-makers who review your case. They are independent adjudicators appointed by the federal government. They will apply Canadian refugee law to the facts of your case as found by the RPD and to any new evidence you present.
Factors That Affect Appeal Success
Not all appeals are successful. Understanding the factors that affect your chances can help you assess whether an appeal is worthwhile.
The Decision You're Appealing
If the RPD decision is based primarily on credibility findings (judging whether you told the truth), appeals are more difficult. The RAD gives significant deference to the RPD's credibility assessments. If, however, the RPD made an error in law or a perverse finding of fact, an appeal has a better chance of success.
Strength of Your Legal Arguments
The quality of your legal arguments in your factum is crucial. A well-written factum that clearly identifies errors in law and fact, with detailed references to evidence, increases your chances of success. Poorly written submissions make success unlikely.
New Evidence
If you have significant new evidence that demonstrates you meet the criteria for refugee protection and that was not available at the time of your RPD hearing, this can strengthen your appeal considerably. The RAD may overturn the RPD decision based on new evidence.
Timing Considerations
Do not delay in filing your appeal. The 30-day deadline is strict. Also consider whether you face imminent removal. If so, filing an appeal and requesting a stay of removal immediately is critical.
After Your Appeal Decision
The RAD will issue a written decision either allowing or dismissing your appeal. This decision has important implications.
If Your Appeal Is Allowed
If the RAD allows your appeal, it will typically overturn the RPD decision and grant your refugee claim. You will receive permanent resident status and can remain in Canada legally. From that point, you may apply for permanent resident travel documents and eventually Canadian citizenship.
If Your Appeal Is Dismissed
If the RAD dismisses your appeal, the original RPD refusal stands. You may face removal from Canada. At this point, you may consider other options such as a Pre-Removal Risk Assessment (PRRA) or a Humanitarian and Compassionate (H&C) application. You may also apply to the Federal Court for judicial review in limited circumstances.
Further Legal Options
After the RAD makes its decision, very limited further appeal options exist. You may apply to the Federal Court for judicial review only if there is a serious issue regarding the legality of the RAD decision. This is a complex process with strict rules and a low success rate. Consult with a lawyer immediately if you wish to pursue judicial review.