Receiving Your Decision
The member of the Refugee Protection Division (RPD) must give the decision and reasons orally at the end of the hearing unless it is not practicable to do so (Refugee Protection Division Rules, rule 10(8)). If the member needs more time, the decision is sent later. In every case the RPD sends a written Notice of Decision and the reasons; if the claimant has counsel, it is sent to counsel. When a claim is rejected, written reasons must be provided to the claimant and the Minister (Immigration and Refugee Protection Act (IRPA), s. 169(1)(d)), and a copy goes to IRCC and the CBSA.
The Notice of Decision and reasons set out:
- Whether your claim was approved or rejected
- The Member's reasons for the decision
- Whether an appeal to the Refugee Appeal Division (RAD) or an application to the Federal Court is available
- The date of the decision, from which the deadlines run
A refugee claimant is issued a conditional removal order when the claim is referred; for most claimants it is a departure order (Immigration and Refugee Protection Regulations (IRPR), s. 228(3)). The order does not come into force while an appeal to the RAD is filed and perfected within the time limits. If there is no right of appeal, or no appeal is filed and perfected in time, the order comes into force 15 days after notice of the rejection is provided (IRPA s. 49(2)(c) and (d)). A departure order requires the person to leave Canada and confirm their departure within 30 days after it becomes enforceable, failing which it becomes a deportation order (IRPR s. 224(2)).
Understanding the Reasons for Rejection
The IRB decision will explain why your claim was rejected. Common reasons include:
Credibility Issues
The Member found inconsistencies in your testimony or evidence that raise doubts about your account of events. This might be due to conflicting statements, memory gaps, or explanations that do not align.
Insufficient Evidence
You did not provide enough evidence to support your claim. The Member may have found your testimony alone insufficient without corroborating documents or evidence.
Not Meeting Legal Definition
The member determined that the situation does not meet the definition of a Convention refugee, which requires a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion (IRPA s. 96), or of a person in need of protection, which covers a risk of torture, a risk to life or a risk of cruel and unusual treatment or punishment (s. 97).
Available State Protection
The member found that the authorities in the home country can protect the claimant from the harm feared. The Convention refugee definition applies to a person who is unable, or by reason of their fear unwilling, to avail themself of the protection of their country (IRPA s. 96).
Internal Relocation Alternative
The Member believed you could relocate to another part of your country where you would not face persecution.
Your Options After Rejection
After an RPD rejection the possible routes, each with its own conditions, are:
1. Appeal to the Refugee Appeal Division (RAD)
A notice of appeal must be filed within 15 days after the day the person receives the written reasons, and the appeal is perfected by filing the appellant's record within 30 days after receiving the written reasons (IRPR s. 159.91(1)); the RAD may extend both limits for reasons of fairness and natural justice (s. 159.91(2)), and an IRB practice notice in force since 28 September 2020 extends the perfection deadline to 45 days. No appeal is available where the claim was withdrawn or abandoned, was found to have no credible basis or to be manifestly unfounded, where the claimant is a designated foreign national, or in the other cases listed in IRPA s. 110(2).
2. Judicial Review
Judicial review by the Federal Court is started by applying for leave (IRPA s. 72(1)). The application may not be made until any right of appeal under IRPA has been exhausted, so a person who can appeal to the RAD goes there first (s. 72(2)(a)). For a matter arising in Canada the application must be filed within 15 days after the person is notified of the decision (s. 72(2)(b)); a judge may extend the time for special reasons (s. 72(2)(c)). The IRB explains that the Court does not decide the claim itself: it either upholds the decision or sends the matter back to be decided again.
3. Pre-Removal Risk Assessment (PRRA)
A PRRA is available only to a person who is subject to a removal order that is in force (IRPA s. 112(1)), and, in most cases, only once 12 months have passed since the claim was rejected, withdrawn or abandoned (s. 112(2)(b.1)). IRCC states that a person can apply only if a CBSA officer, when starting the removal process, tells them they are eligible. Once notified, the person has 15 days to apply (22 days if the form was mailed), and the removal order is stayed from notification until the application is decided or the deadline passes (IRPR ss. 162 and 232).
4. Humanitarian and Compassionate Considerations
A request for permanent residence on humanitarian and compassionate grounds is made under IRPA s. 25(1). It cannot be made while a refugee claim is pending, or within 12 months after the claim was rejected, withdrawn or abandoned (s. 25(1.2)), unless the exceptions in s. 25(1.21) apply: a child under 18 who would be adversely affected by removal, or a life-threatening medical condition that cannot be treated in the home country. IRCC states that an H&C application does not prevent or delay removal.
5. Leave Canada Voluntarily
A person under a departure order who leaves Canada within 30 days after the order becomes enforceable, and confirms their departure with the CBSA, has the order enforced as a departure order and is exempt from needing authorization to return to Canada (IRPR s. 224(1)). If those requirements are not met within 30 days, the departure order becomes a deportation order (s. 224(2)), and a person whose deportation order has been enforced cannot return without written authorization (IRPA s. 52(1)).
Appealing to the Refugee Appeal Division
The Refugee Appeal Division (RAD) is a separate division of the IRB that reviews RPD decisions (IRPA s. 110(1)). The notice of appeal must be filed within 15 days after the day the person receives the written reasons (IRPR s. 159.91(1)(a)).
The IRB describes the steps as:
- File a notice of appeal with the RAD registry in the region where the case is being processed, within the 15-day limit
- Perfect the appeal by providing the appellant's record, which sets out the errors alleged in the RPD decision and the arguments in support
- Present new evidence only within the limits of IRPA s. 110(4): evidence that arose after the rejection, that was not reasonably available, or that the person could not reasonably have been expected to present at the hearing, with an explanation of how it meets those requirements
- Send documents to the RAD electronically, through the IRB's My Case portal once invited to register, or by email to the regional registry
The RAD must proceed without a hearing, on the basis of the RPD record and the documents the parties provide (IRPA s. 110(3)). It may hold a hearing only if there is documentary evidence that raises a serious issue about the person's credibility, is central to the decision, and, if accepted, would justify allowing or rejecting the claim (s. 110(6)). The IRB states that in most cases no hearing is held.
RAD Timeline and Process
The time limits that apply to a RAD appeal are set by regulation and by the IRB:
Notice of Appeal: 15 Days
The notice of appeal must be received by the RAD within 15 days after the day the person receives the written reasons for the RPD decision (IRPR s. 159.91(1)(a)). A person who misses the limit must apply for an extension of time, which the RAD may grant for reasons of fairness and natural justice (s. 159.91(2)).
Appellant's Record: 30 Days by Regulation, Extended to 45 Days
The regulation sets 30 days after receipt of the written reasons for perfecting the appeal (IRPR s. 159.91(1)(b)). An IRB practice notice in force since 28 September 2020, and in force until further notice, extends that limit to 45 days after receipt of the written reasons. The 15-day limit for the notice of appeal is unchanged.
Minister's Intervention and Reply
The Minister may intervene at any time before the RAD decides, by providing a notice of intervention and any documents relied on. The IRB states that the appellant then has 15 days to reply to the Minister's documents.
Decision
Where no hearing is held, the RAD's time limit for deciding is 90 days after the appeal is perfected; if that is not possible, the decision must be made as soon as feasible (IRPR s. 159.92). The RAD must do one of three things: confirm the RPD determination, set it aside and substitute the determination that in its opinion should have been made, or refer the matter back to the RPD for re-determination with directions (IRPA s. 111(1)). RAD decisions must be in writing (s. 169(1)(c)).
Other Options After Rejection
Where there is no right of appeal, or the RAD dismisses the appeal, the remaining routes are:
Pre-Removal Risk Assessment (PRRA)
A PRRA assesses the risk of persecution, torture, risk to life or risk of cruel and unusual treatment or punishment on removal. It is available only to a person subject to a removal order that is in force (IRPA s. 112(1)), and, subject to limited exceptions, not until 12 months have passed since the refugee claim was last rejected, withdrawn or abandoned (s. 112(2)(b.1)). IRCC states that the CBSA checks eligibility when it starts the removal process and notifies the person, who then has 15 days to apply (22 days if the form was mailed). From notification, the removal order is stayed until the application is decided, withdrawn or not made in time (IRPR s. 232).
Judicial Review in Federal Court
An application for leave and judicial review of an RPD or RAD decision is filed with the Federal Court within 15 days after the person is notified of the decision (IRPA s. 72(2)(b)), and only after any right of appeal under IRPA has been exhausted (s. 72(2)(a)). A judge decides the leave application in writing, without a personal appearance unless directed (s. 72(2)(d)). A removal order is stayed while an application for leave from a RAD decision is pending, unless the person is a designated foreign national or is inadmissible for serious criminality (IRPR s. 231).
Humanitarian and Compassionate Application
A request under IRPA s. 25(1) asks the Minister to grant permanent residence on humanitarian and compassionate grounds, taking into account the best interests of a child directly affected. It is barred while a refugee claim is pending and for 12 months after a rejection, withdrawal or abandonment, subject to the exceptions in s. 25(1.21). IRCC states that applying does not prevent or delay removal.
Example Conversation with a Lawyer
This shows language such as what you might discuss with a lawyer after receiving a negative decision.
You:
"I received my IRB decision and it was rejected. What should I do?"
Language such as:
"I understand you are disappointed. Let me review the decision to see what the member's concerns were. The notice of appeal is due 15 days after you received the written reasons, and the appellant's record follows on a separate deadline. Let me look at the reasons and see whether the RPD made an error we can point to."
You:
"What are our chances of winning an appeal?"
Language such as:
"The Member found credibility issues with your account. If we can provide new evidence that addresses those concerns, or if there was an error in how the Member applied the law, we might have a reasonable chance. Let's meet next week to gather additional evidence and prepare your appeal."
You:
"What happens if the appeal is rejected too?"
Language such as:
"If the RAD also rejects your appeal, we would have 15 days to ask the Federal Court for leave for judicial review, and removal is stayed while that application is pending. A PRRA is normally only possible once 12 months have passed since the last refusal, and only when the CBSA offers it. A humanitarian and compassionate application has the same 12-month bar and does not stop removal."
Important Considerations
Act Quickly on Deadlines
The notice of appeal is due 15 days after the written reasons are received (IRPR s. 159.91(1)(a)). A late appeal requires an application for an extension of time, which the RAD may grant for reasons of fairness and natural justice (s. 159.91(2)). If no appeal is filed and perfected in time, the conditional removal order comes into force (IRPA s. 49(2)(d)).
Seek Legal Help Immediately
The IRB advises anyone who wants legal help to appeal or to apply for judicial review to seek it as soon as possible, and directs people who cannot pay to the legal aid office in their province. Counsel is at the person's own expense (IRPA s. 167(1)); a person who charges a fee must be a lawyer, paralegal, Quebec notary or CICC member.
Consider Removal Order Implications
While a RAD appeal is filed and perfected in time, the conditional removal order has not come into force (IRPA s. 49(2)). If the RAD rejects the claim, the order comes into force 15 days after the RAD's notice (s. 49(2)(e)), but it is stayed while an application for leave to the Federal Court is pending, except for a designated foreign national or a person inadmissible for serious criminality (IRPR s. 231). If no appeal is made, the order comes into force and the CBSA can enforce it; a PRRA is offered only when the CBSA starts the removal process and, in most cases, only after 12 months have passed.
Document Everything
Keep the original IRB decision, removal order, and all related documents. Make copies and store them safely. You will need these for any future applications or appeals.
Disclaimer: This information is provided for general informational purposes only and does not constitute legal advice. The appeal process is complex and individual circumstances vary significantly. For advice specific to your situation, consult with a qualified refugee lawyer or Regulated Canadian Immigration Consultant (RCIC).