The Refugee Protection Division (RPD) of the Immigration and Refugee Board (IRB) is empowered to determine the refugee claims of those foreign nationals who claim refugee status from within Canada.

If the RPD rejects a claim, an appeal may be made to the Refugee Appeal Division (RAD) where a decision will be made whether to allow or deny the appeal. This is a paper appeal and most cases are decided without a hearing.

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• The claimant’s refugee claim was withdrawn or abandoned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 consultant 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. We can help.

Presenting an appeal to the RAD

Appellants need to present the right documentation to the RAD in order to enhance the chances of a successful appeal process. To help refugee appellants understand the process of appealing the RPD’s decision, IRCC has provided information sessions in three of their regional offices. Refugee appellants can attend the information sessions to understand how to maintain an efficient appeal process.

You cannot appeal to the RAD if:

• You are a designated foreign national (DFN)
• Your claim is considered to have no credible basis by the RPD
• Your claim is manifestly unfounded according to the RPD
• Your claim was either withdrawn or denied because it was abandoned
• Your claim was referred to the IRB before the new refugee protection provisions were put in place

Responding to the Minister’s appeal

There are cases where a claimant is granted refugee protection by the RPD but the Minister of Immigration seeks to appeal that decision. You have a right to respond to such an appeal. Failure to respond will lead to a decision being made by the RAD based on the Minister’s documents as well as the RPD record. It is important to respond and make sure that the RAD will review your response.

Follow these simple steps to respond to the Minister’s appeal:

• Submit a “Notice of Intent to Respond”
• Prepare your respondent’s record
• Provide the two documents above (The notice of intent to respond and respondent’s record) to the Minister and RAD. These items should be submitted not more than 15 days after receiving the Minister’s appeal letter.
• RAD will require evidence of having provided the notice to respond and respondent’s record to the Minister.
• Any documents that you will be forwarding to any of the respective parties should be in the right format
• Make sure all documents are submitted on time

Failure to follow the RAD’s guidelines, your response to the Minister’s appeal will not be considered.

How to win your appeal

To win any kind of immigration appeal, you need to show that the decision made by the Refugee Protection Division is wrong in law or in fact. Providing adequate documentary evidence is critical in helping you to win your appeal. Always provide copies to the Minister’s counsel as well as the RAD. All documents must be received at the stipulated dates. Understand your rights during the appeal process and have proper legal counsel by your side to provide the best advice.