A Guide to the Canadian Refugee Appeal Process

How to Appeal a Refugee Decision in Canada

As a refugee who has come to Canada to seek a better life free of fear of violence and persecution, having your refugee claim denied can be your worst nightmare. Fortunately, these decisions are not final, and you can appeal them and potentially avoid being ordered to return to your home country.

To help you get a better understanding of your options for remaining in Canada, we have outlined the appeal process for refugee decisions along with other important information you will need to know.

Who Has the Right to File an Appeal?

In the event that your refugee claim has been denied by the Refugee Protection Division (RPD) of the Immigration and Refugee Board of Canada (IRBC), you can appeal to the Refugee Appeal Division (RAD) under specific conditions to potentially have the decision overturned.

However, if any of the following apply to your case, you will not be able to file an appeal:

  • You have been designated a foreign national
  • Your refugee claim was either withdrawn or abandoned
  • In the RPD’s decision, it stated that your claim had no credible basis or was “manifestly unfounded”
  • Your refugee claim was made at a land border with the United States and was referred to the RPD as an exception to the Safe Third Country Agreement
  • The Minister made an application to end your refugee protection, and the RPD decision either allowed or rejected that application
  • The Minister made an application to cancel the decision to allow your refugee protection claim, and the RPD either allowed or rejected the application
  • Your refugee claim was rejected under Article 1F(b) of the Refugee Convention because of an order of surrender under the Extradition Act

If you do not have the right to appeal to the Refugee Appeal Division, do not give up hope just yet, as you may still be able to challenge the decision by applying to the Federal Court for a judicial review. It’s highly recommended that you seek the assistance of an immigration and refugee lawyer if you plan to ask for a judicial review.

But if you do not fall under one of these exemptions, you can request that the RAD review its decision to reject your claim by filing an appeal.

As per the Federal Court of Appeal’s decision in Huruglica, the RAD’s role “is to intervene when the RPD is wrong in law, in fact, or in fact and law” through application of the correctness standard. The application of the correctness standard indicates no deference to either the outcome or reasoning of the RPD. As per the Supreme Court of Canada’s instructions, “[w]hen undertaking a correctness review, the court may undertake its own reasoning process to arrive at the result it judges correct.” [1]

In Canada (MCI) v Huruglica, the Federal Court of Appeal also stated that while the RPD is in many cases better positioned to make credibility assessments, “the RAD ought to determine whether the RPD truly benefited from an advantageous position, and if so, whether the RAD can nevertheless make a final decision in respect of the refugee claim.”

When credibility findings are in dispute upon appeal, such as in the present case, the RAD must either endorse or reject these findings. The Federal Court of Appeal outlined two scenarios where the RAD could find that the RPD erred in its credibility finding, while acknowledging that it is far from an exhaustive list:

  1. Where testimony was erroneously not found credible due to common sense.
  2. Where testimony was erroneously not found credible due to discrepancies that either did not exist or could not justify such a conclusion.

How to Start an Appeal

Once you have determined whether you are able to file an appeal, you can begin the actual process.

Your first step is to file a notice of appeal to the RAD no later than 15 days after you received the written reasons for why the RPD rejected your refugee claim. However, you should first consult with a refugee lawyer to discuss the merits of the appeal and determine if there is any “new” evidence that you should put forward.

You will need to make three copies of your notice of appeal to provide to the RAD Registry located in the regional office that sent you your RPD decision.

You can either mail, fax, or deliver your notice of appeal in person to the IRB regional office that sent the original refugee decision.

What is considered “New Evidence” before the RAD?

Section 110(4) of the Immigration and Refugee Protection Act states as follows:

Evidence that may be presented

110 (4) On appeal, the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection [2].

The Federal Court has determined that the test set out by the Court of Appeal in Raza v Canada (Citizenship and Immigration), applies in determining whether the RAD should admit new evidence.  In Raza, the Court of Appeal sets out the following 5 factors [3]:

[13]  As I read paragraph 113(a), it is based on the premise that a negative refugee determination by the RPD must be respected by the PRRA officer, unless there is new evidence of facts that might have affected the outcome of the RPD hearing if the evidence had been presented to the RPD. Paragraph 113(a) asks a number of questions, some expressly and some by necessary implication, about the proposed new evidence. I summarize those questions as follows:

1. Credibility: Is the evidence credible, considering its source and the circumstances in which it came into existence? If not, the evidence need not be considered

2. Relevance: Is the evidence relevant to the PRRA application, in the sense that it is capable of proving or disproving a fact that is relevant to the claim for protection? If not, the evidence need not be considered.

3. Newness: Is the evidence new in the sense that it is capable of:

  • (a)  proving the current state of affairs in the country of removal or an event that occurred or a circumstance that arose after the hearing in the RPD, or
  • (b)  proving a fact that was unknown to the refugee claimant at the time of the RPD hearing, or
  • (c) contradicting a finding of fact by the RPD (including a credibility finding)?

If not, the evidence need not be considered.

4. Materiality: Is the evidence material, in the sense that the refugee claim probably would have succeeded if the evidence had been made available to the RPD? If not, the evidence need not be considered.

5. Express statutory conditions:

  • (a) If the evidence is capable of proving only an event that occurred or circumstances that arose prior to the RPD hearing, then has the applicant established either that the evidence was not reasonably available to him or her for presentation at the RPD hearing, or that he or she could not reasonably have been expected in the circumstances to have presented the evidence at the RPD hearing? If not, the evidence need not be considered.
  • (b) If the evidence is capable of proving an event that occurred or circumstances that arose after the RPD hearing, then the evidence must be considered (unless it is rejected because it is not credible, not relevant, not new or not material).

How Much Time Do I Have to File an Appeal?

If filing an appeal, you must act fairly quickly as there are tight deadlines for filing.

Here are the various timelines throughout the appeal process:

Filing a Notice of Appeal

When filing your notice of appeal, you have up to 15 days after the day that your received the written reasons for the RPD’s decision to reject your refugee claim.

Appellant’s Record

You will have 30 days after you received the written reasons for the RPD decision to file your appellant’s record.  You must include a statement that says whether you are submitting new evidence, include all of your new evidence in this record and explain how the test for newness set out above is met with respect to the evidence.

You must also indicate whether you are asking for an oral hearing when filing your appellant’s record.

Receiving a Decision on Your Appeal

If there is no hearing, the RAD is supposed to make a decision to either allow or reject your appeal no more than 90 days after the appeal was perfected. However, due to the current RAD backlog, it can take approximately 1-2 years to receive a decision from the RAD.

If a hearing does take place, the RAD will make a decision as soon as possible after the hearing.

The Minister may decide to intervene and submit documentary evidence at any time before the RAD makes a final decision on the appeal.

If the Minister decides to intervene and to provide submissions or evidence to you, the RAD will wait 15 days for you to reply to the Minister and the RAD.

Once you have replied to the Minister and the RAD, or if 15 days have passed and you have not replied, the RAD will make a decision on your appeal.

What If I Miss the Deadline?

If you miss the time limit to file the notice of appeal or the appellant’s record, know that you still have options.

If you have missed one of these deadlines and you still want to proceed with your appeal, you must file an application for an extension of time.

The application must follow rule 6 and rule 37 of the RAD Rules.

You will also have to include three copies of your notice of appeal and two copies of your appellant’s record with your application. You must also provide an affidavit or solemn declaration that explains why you missed the deadlines.

Will There Be a Hearing?

Since the refugee appeal process is paper-based, typically, no hearing will take place.

However, oral hearings can be permitted in some cases if the RAD believes that one is needed on specific grounds before making a decision.

Section 110(6) of the Immigration Refugee Protection Act sets out the requirements that must be met before a hearing can be granted by the RAD:

110 (6) The Refugee Appeal Division may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection (3)

  • (a) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal
  • (b) that is central to the decision with respect to the refugee protection claim; and
  • (c) that, if accepted, would justify allowing or rejecting the refugee protection claim.

The Importance of Hiring an Immigration Lawyer

Refugee cases, especially during the appeal process, are incredibly serious and complex matters, so it’s important that you are not working alone during this time.

An immigration lawyer will be by your side throughout the process to advocate for you and your case while ensuring you meet the proper deadlines and exploring all possible options.

Most often, you will not get a second chance at an appeal, so working with an immigration lawyer experienced in refugee claims is highly recommended. Doing so will increase your chances of a successful appeal and take you one step closer towards starting your new life in Canada.

An immigration lawyer can also explain your options if your appeal is rejected, including whether there is an arguable case to present to the Federal Court in a Judicial Review Leave Application.

 

[1] Canada (Minister of Citizenship and Immigration) v Huruglica, 2016 FCA 93 at paras 67, 76-78, 96-98 [Huruglica]; Law Society of New Brunswick v Ryan, 2003 SCC 20 at para 50.

[2] Immigration and Refugee Protection Act, SC 2001, c 27, s 110(4) [IRPA].

[3] Canada (Minister of Citizenship and Immigration) v Huruglica, 2016 FCA 93 at paras 67, 76-78, 96-98 [Huruglica]; Law Society of New Brunswick v Ryan, 2003 SCC 20 at para 50.

[4] Immigration and Refugee Protection Act, SC 2001, c 27, s 110(4) [IRPA].