Appeals and Judicial Review

Understanding the Role of the Refugee Appeal Division

The Refugee Appeal Division (RAD) is a crucial component of Canada’s immigration system, housed within the Immigration and Refugee Board of Canada (IRB). Established to ensure fairness and accuracy in refugee protection decisions, the RAD reviews appeals against decisions made by the Refugee Protection Division (RPD). Whether a refugee claimant has been denied protection or the Minister of Immigration, Refugees and Citizenship Canada is challenging a decision to grant protection, the RAD provides a venue to seek a second opinion and potentially overturn or uphold the original decision.

Jurisdiction of the Refugee Appeal Division

The RAD has specific jurisdiction over appeals concerning refugee protection claims. The types of appeals it handles include:

1. Refugee Claimant Appeals: Refugee claimants who have had their claims denied by the RPD can appeal to the RAD. The RAD reviews whether the RPD's decision was correct based on the evidence presented. In most cases, the RAD makes its decision by reviewing the record of the RPD and any new evidence that could not have been provided earlier, rather than holding a new hearing. This appeal is an essential safeguard, allowing claimants to challenge decisions that may have been made in error or without full consideration of their circumstances.
2. Minister’s Appeals: In some cases, the Minister may appeal to the RAD if the RPD grants refugee protection to an individual. The Minister might argue that the decision was incorrect based on legal or factual grounds. The RAD then reviews the case to determine whether the protection should be upheld or reversed, ensuring that Canada’s refugee protection system remains both fair and secure.

New Evidence on Appeal

The RAD allows for the submission of new evidence during the appeal process, but it is subject to strict criteria. New evidence can only be introduced if it was not reasonably available at the time of the RPD hearing and could have affected the outcome of the case. This evidence must be relevant and material to the issues being appealed, meaning it has the potential to change the original decision if it had been available.

The ability to present new evidence is crucial for claimants who, for various reasons, were unable to fully present their case during the initial hearing. However, the RAD will carefully assess whether the new evidence meets the legal criteria for admissibility and whether it genuinely impacts the case.

Paper-Based Process with Possibility of Hearings

The RAD primarily operates as a paper-based process, meaning that most decisions are made based on the written record, including the original decision from the RPD, any submissions by the appellant, and any new evidence that meets the criteria for consideration.

However, in certain circumstances, the RAD may decide to hold an oral hearing. This can occur if the RAD believes that the appeal raises serious issues of credibility that cannot be adequately resolved through written submissions alone. Additionally, a hearing may be granted if the evidence is central to the decision or if it would justify allowing or rejecting the refugee protection claim. The decision to hold a hearing is discretionary and depends on the specifics of the case.

Possible Outcomes of the Appeal

Once the RAD has reviewed the appeal, there are several possible outcomes:

1. Appeal Allowed: If the RAD finds that the RPD's decision was incorrect, it may allow the appeal, which typically means that the refugee protection claim is accepted, and the individual is granted refugee status in Canada.
2. Appeal Dismissed: If the RAD upholds the original decision of the RPD, the appeal is dismissed, meaning the negative decision stands, and the claimant may face removal from Canada.
3. Referral Back to RPD: In some cases, the RAD may decide to refer the case back to the RPD for a new hearing. This might happen if the RAD determines that the original hearing was flawed, for example, due to procedural errors or if new evidence requires reconsideration by the RPD.

Judicial Review at the Federal Court

Decisions made by the RAD are not necessarily final. Both refugee claimants and the Minister have the right to request a judicial review of the RAD’s decision by the Federal Court. A judicial review is not an appeal; rather, it is a legal process where the court examines whether the RAD made any legal or factual errors in its decision-making process. If the Federal Court finds that the RAD's decision was flawed, it may overturn the decision and refer the matter back to the RAD for reconsideration.

Why Legal Representation is Important

Navigating an appeal at the RAD can be complex and demanding. Legal representation is vital as it ensures that your appeal is meticulously prepared, with all necessary documents and arguments presented effectively. Our experienced immigration lawyers understand the nuances of refugee law and the RAD’s processes, making them well-equipped to craft strong appeals that address the specific legal and factual issues at hand.