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Refugee Appeals

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    Refugee Appeals in Canada

    Canada’s refugee system recognises that mistakes can occur during the refugee determination process. When the Refugee Protection Division (RPD) refuses a refugee claim, eligible claimants may challenge that decision through refugee appeals at the Refugee Appeal Division (RAD) of the Immigration and Refugee Board of Canada.
     
    The RAD provides an essential legal safeguard. It allows claimants to demonstrate that the RPD committed errors of law, fact, or mixed law-and-fact. In certain situations, the RAD also permits the admission of new evidence that was not reasonably available at the time of the original refugee hearing. A successful appeal may result in the RAD granting refugee protection or remitting the case for reconsideration.
     
    Because refugee appeals involve strict deadlines and complex legal standards, careful preparation and strong legal arguments are critical to the outcome.

    What Is the Refugee Appeal Division (RAD)?

    The Refugee Appeal Division is an independent tribunal within the Immigration and Refugee Board of Canada. Its role is to review negative refugee decisions made by the RPD and ensure that decision-makers applied the law correctly and assessed the evidence fairly.
     
    In most cases, the RAD conducts appeals as paper-based reviews, meaning the judge decides the case based on written submissions rather than an oral hearing. However, the RAD may hold a hearing if credibility issues arise or if new evidence is central to the decision.

    Who Can File a Refugee Appeal?

    You may be eligible to file a refugee appeal if:
     
    1) You submitted your refugee claim after December 15, 2012.
    2) The Refugee Protection Division refused your claim.
    3) You meet the legal requirements to appeal to the RAD.
     
    In addition, the Minister of Immigration, Refugees and Citizenship Canada may appeal a favourable RPD decision if the Minister believes the RPD made an error.

    Who Cannot Appeal to the RAD?

    Certain claimants are ineligible to access the RAD. These include cases where:
     
    1) The claimant is a designated foreign national (for example, an irregular arrival).
    2) The claimant withdrew or abandoned the refugee claim.
    3) The RPD found the claim lacked a credible basis or was manifestly unfounded.
    4) The claimant entered Canada through the United States under the Safe Third Country Agreement.
    5) The RPD issued a cessation or vacation order.
     
    Even if RAD access is unavailable, some claimants may still request judicial review at the Federal Court.

    Refugee Appeal Procedure and Timelines

    The refugee appeal process follows strict procedural rules and deadlines:
     
    1) You must file a Notice of Appeal within 15 days of receiving the written RPD decision.
    2) You must submit the Appellant’s Record within 30 days of receiving the decision.
    3) The record typically includes:
    a) The RPD decision
    b) Hearing transcripts
    c) Evidence presented at the hearing
    d) Legal authorities
    e) A written memorandum outlining legal arguments
     
    Claimants may only submit new evidence if it did not exist or was not reasonably available during the original refugee hearing. If the Minister files submissions, the appellant has 15 days to submit a reply record. Failure to meet deadlines or comply with formatting requirements may result in the RAD refusing to consider the appeal.

    Grounds for Refugee Appeals

    You may file a refugee appeal if you can show that the RPD made:
     
    1) An error of law
    2) An error of fact
    3) An error involving mixed fact and law
     
    Substantial documentary evidence and clear legal arguments significantly improve the chances of success.

    What Happens If the Minister Appeals?

    If the Minister appeals a favourable RPD decision:
     
    1) The Minister serves the claimant with a Notice of Appeal.
    2) The claimant must file a Notice of Intent to Respond.
    3) The Minister submits their appeal record.
    4) The claimant may then file a response record addressing the Minister’s arguments.
     
    Failing to respond allows the RAD to decide the case based solely on the Minister’s submissions and the RPD record.

    Possible Outcomes of a Refugee Appeal

    After reviewing the appeal, the RAD judge may:
     
    1) Dismiss the appeal.
    2) Allow the appeal and substitute a new decision.
    3) Allow the appeal and send the case back to the RPD for a new hearing.
     
    If the RAD does not hold a hearing, it issues the decision in writing. If a hearing occurs, the judge may deliver the decision orally or in writing. Claimants may seek judicial review at the Federal Court within 15 days of an adverse RAD decision.

    Why Legal Representation Matters

    Refugee appeals involve complex legal analysis, procedural rules, and evidentiary standards. While claimants may represent themselves, doing so often puts them at a serious disadvantage. Professional guidance, such as Canadian visa immigration consultancy, helps ensure that submissions are complete, deadlines are met, and legal arguments are presented effectively.
     
    Spike Immigration assists clients with preparing strong refugee appeals, organising evidence, meeting RAD requirements, and protecting their rights throughout the process.

    Frequently Asked Questions (FAQs)

    A refugee appeal allows eligible claimants to challenge an RPD refusal before the Refugee Appeal Division by showing legal or factual errors.
    You must file a Notice of Appeal within 15 days and submit the Appellant’s Record within 30 days of receiving the RPD decision.
    Yes, but only if the evidence did not exist or was not reasonably available during the original refugee hearing.
    No. Most appeals proceed on written submissions. The RAD holds hearings only in limited situations.
    You may apply for judicial review at the Federal Court within 15 days of the RAD’s decision.
    Yes. The Minister can appeal a favorable RPD decision, and the claimant has the right to respond.

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