Refused at the Refugee Board? Appealing to the RAD

What the RAD is, and why it matters

The Refugee Appeal Division hears appeals from Refugee Protection Division decisions that allow or reject a claim. Section 110(1) of the IRPA (Canada's main immigration statute) allows a claimant or the Minister to appeal on legal issues, factual issues, or a combination of the two. It differs from judicial review in several ways:

• It can substitute its own decision. Under s. 111(1) the RAD may confirm the RPD determination, set it aside and substitute the determination it considers should have been made, or refer the matter back to the RPD.
• It generally decides on paper. Section 110(3) says the RAD proceeds without a hearing, on the record of the RPD proceedings, and may take in documents and written arguments.
• A hearing is possible but limited. Under s. 110(6) the RAD may hold one if there is documentary evidence that raises a serious issue about the person's credibility, is central to the decision, and would justify allowing or rejecting the claim if accepted.

Because the RAD can substitute a decision, it is a different kind of remedy from a Federal Court judicial review, and a lawyer can explain how the two compare in a given case.

The deadlines

The 15 days runs from receipt of the written reasons, not from the hearing date. Section 159.91(2) allows the RAD to extend either time limit "for reasons of fairness and natural justice", and RAD Rule 6 sets out how to apply, but an extension is a request the RAD decides, not something a person can count on. What applies in a particular case should be confirmed with a lawyer immediately, because the periods are short.

Who cannot appeal to the RAD

Section 110(2) of the IRPA lists decisions that cannot be appealed to the RAD, including:

• an RPD decision on the claim of a designated foreign national;
• a determination that a claim was withdrawn or abandoned;
• a rejection where the RPD's reasons say the claim has no credible basis, or is manifestly unfounded;
• certain decisions, subject to the regulations, where the person came directly or indirectly from a country designated under the Safe Third Country provisions;
• a claim by a national of a country designated under s. 109.1(1);
• RPD decisions on the Minister's applications about cessation or vacation of refugee protection.

Where a decision cannot go to the RAD, the route is a leave application and then Federal Court review. Section 72(2)(b) of the IRPA sets the filing period at 15 days where the matter arose inside Canada. Which route is open should be checked first, because the two processes differ in time limits and requirements.

The new evidence rule

This is the most misunderstood part of a RAD appeal.

Under section 110(4), the person appealing is limited to evidence that:

• came into being after the RPD rejected the claim; or
• could not reasonably be obtained when the claim was rejected; or
• is something the person could not sensibly have been expected to put before the RPD, given the circumstances at the time of the rejection.

Section 110(5) says this limit does not apply to evidence presented in response to evidence the Minister presented. The RAD's Rules also require the appellant's record to state whether the person is relying on s. 110(4) evidence and to explain how that evidence meets the section (Rule 3(3)(d) and (g)). Whether a particular document clears the s. 110(4) test depends on the facts, and a lawyer can advise on it.

The practical point is that the RAD is built around the record already made before the RPD. Evidence that existed and was available earlier may not qualify.

What a RAD appeal has to set out

Section 110(1) allows appeals on questions of law, fact, or mixed law and fact. Under RAD Rule 3(3)(g), the appellant's memorandum must give full and detailed submissions on:

• what errors the appeal relies on;
• where those errors are found in the RPD's written reasons, the transcript or the hearing recording;
• how any new documentary evidence meets s. 110(4);
• the decision the appellant wants the RAD to make; and
• why a hearing should be held, if one is requested.

The memorandum has a page limit under Rule 3(4): 30 single-sided typed pages, or 15 if printed on both sides. Which errors can be argued in a given case depends on the RPD's reasons and the record, and a lawyer can assess them.

What the RAD can do

Under IRPR s. 159.92(1) the RAD's decision time limit is 90 days after the appeal is perfected, unless a hearing is held; s. 159.92(2) says that if it is not possible, the decision is made as soon as feasible afterward.

If the RAD dismisses

A RAD decision can be challenged through the leave stage and judicial review process in s. 72 of the IRPA, which has the same 15-day filing period for matters arising inside Canada (s. 72(2)(b)); a judge may extend that time for special reasons (s. 72(2)(c)). Judicial review is a different process from an appeal, and what the Court can do is narrower than what the RAD can do.

Removal can become a live risk once appeal rights end. IRPR s. 231(1) provides a stay of a removal order while an application for leave for judicial review of a RAD decision is pending, subject to the exceptions in that section (for example, s. 231(2) excludes designated foreign nationals). Depending on timing and eligibility, a stay motion, a PRRA or an H&C request may also be relevant; a lawyer can advise on which, if any, apply.