All claims for refugee protection are heard before the Immigration and Refugee Board of Canada (IRB), specifically the Refugee Protection Division (RPD). The IRB is an independent administrative tribunal that makes decisions on immigration and refugee matters. A member of the RPD will hear your claim, assess the evidence provided and decide whether to accept or reject your claim for refugee protection. Refugee claimants may have the option to appeal a negative decision to the Refugee Appeal Division (RAD) or the Federal Court.
If your claim is rejected, the RPD will send you a written Notice of Decision and an explanation of the reasons why the claim was rejected. On this notice, the RAD will tell you whether you can appeal the decision to the RAD or file an application for leave and for judicial review with the Federal Court.
Refugee Appeal Division (RAD)
The RAD is separate and independent from the RPD. It hears and ultimately decides appeals of decisions made by the RPD. When you appeal to the RAD you must show that the RPD made a mistake in its decision. These mistakes can be about the law, the facts, or a mix of law and fact. The RAD has authority to decide whether to:
- confirm the decision of the RPD;
- set aside the decision, and substitute it with its own decision; or
- refer the matter back to the RPD for re-determination.
The appeal process before the RAD is primarily paper based. The RAD will make its decision based on the written submissions and evidence provided by you and the Minister (if the Minister intervenes). You do have the option do submit new evidence to the RAD, which the RAD may or may not accept. If the new evidence is accepted, the RAD will consider it in its review of your appeal. The RAD has the authority to order an oral hearing if it feels it is necessary.
Not everyone is eligible to appeal to the RAD. You cannot appeal to the RAD if:
- your claim for refugee protection with withdrawn or abandoned;
- the RPD concluded that your claim had no credible basis or is manifestly unfounded;
- your claim was sent to the RPD as an exception to the Safe Third Country Agreement;
- the Minister applied to stop, or cease, your claim for refugee protection and the RPD decision allows that application;
- the Minister applied to cancel, or vacate, the RPD decision to allow your claim for refugee protection, and the RPD decision allows that application;
If you wish to file an appeal with the RAD, it is imperative that you act quickly. You will have 15 days from the date you received written reasons for the RPD’s decision to complete and file a Notice of Appeal with the RAD. You must then complete an Appellant’s Record; this is the evidence and submissions you want the RAD to consider in reviewing your appeal.
In the event your appeal is dismissed by the RAD, you may still have the option of appealing to the Federal Court of Canada.
Federal Court
The first step in appealing to the Federal Court is to file an Application for Leave and for Judicial Review (“leave application”) with the Court. The leave application must be filed and served within 15 days after the day you were notified of the decision from either the RPD or RAD.
The second step is to serve and file your application record. An application record will include your leave application, the written reasons for the decision you are appealing, legal arguments and any supporting evidence. It is important to note that the Court is usually not able to consider new evidence; it is limited to the record that was presented to the RPD and/or RAD. The application record must be served and filed within 30 days of filing your leave application.
The Court must decide whether to grant leave, or permission, to pursue the application. The leave application will be considered by a Judge, without a need for you to have to come to Court in person. If leave is granted, the case will proceed to an oral hearing in Court. If leave is not granted, then the leave application (and application for judicial review) is dismissed. There is not right of appeal available once the Court decides not to grant leave.
We can help you decide what options are best for you. For a detailed assessment of your immigration options, contact us for a consultation by emailing us at [email protected] or by calling 416-847-3347.
