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 rejected by the Refugee Protection Division may appeal to the Refugee Appeal Division, but section 110(2) of the Immigration and Refugee Protection Act closes that route in specific cases. No appeal lies from a determination that a claim was withdrawn or abandoned, from a rejection that states the claim has no credible basis or is manifestly unfounded, from a decision on the claim of a designated foreign national, or from a decision on a Minister's application to cease or vacate protection. An eligibility decision is made by an officer, not by the Refugee Protection Division, so it is not appealable to the Refugee Appeal Division either. Where section 110(2) applies, the remaining route is an application for leave and judicial review at 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
Section 159.91 of the Immigration and Refugee Protection Regulations sets two different deadlines, and confusing them is the most common way an appeal is lost. The notice of appeal must be filed with the Refugee Appeal Division within 15 days after the day the written reasons for the Refugee Protection Division decision are received. The appeal must then be perfected within 30 days after that same day. The 30-day figure is the perfection deadline, not the filing deadline. Subsection 159.91(2) allows the Refugee Appeal Division to extend either limit for reasons of fairness and natural justice. A lawyer or a Regulated Canadian Immigration Consultant can advise on both deadlines.
Appeal Documents
Your appeal must include a notice of appeal that clearly states your grounds for appealing. The appeal is perfected by filing an appellant's record, which under the Refugee Appeal Division Rules includes a memorandum setting out the errors said to have been made by the Refugee Protection Division and the relief sought, with references to the evidence from the hearing.
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 the appeal is perfected, the Minister may choose to intervene by filing a notice of intervention and written submissions under the Refugee Appeal Division Rules. Where that happens, the appellant may reply. In many appeals the Minister does not intervene at all.
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
New evidence is limited by section 110(4) of the Act. The appellant may present only evidence that arose after the rejection of the claim, or that was not reasonably available, or that the appellant could not reasonably have been expected in the circumstances to have presented, at the time of the rejection.
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 Refugee Protection Division decision, the appellant's memorandum, any submissions from the Minister where the Minister intervenes, and any new evidence admitted under section 110(4). There is typically no oral hearing at the RAD, though in some cases, the RAD may schedule a hearing.
Role of Your Lawyer
A lawyer prepares the appellant's record and memorandum and files them with the Refugee Appeal Division, and responds to any intervention by the Minister. 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 appeal is decided by a member of the Refugee Appeal Division, an independent decision-maker 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 the memorandum is crucial. A memorandum 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
The filing deadline is 15 days from receipt of the written reasons, and the perfection deadline is 30 days from that same day. Section 231(1) of the Regulations stays removal automatically while an appeal to the Refugee Appeal Division or an application for leave and judicial review is pending, except for a designated foreign national, so a separate stay motion is not ordinarily required at this stage.
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. Under section 111(1)(b) of the Act the Refugee Appeal Division may substitute a determination granting refugee protection, which makes the person a protected person. Permanent residence is a separate application made after that.
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.