Refugee Appeal Division
Refugee Appeal Division
The RAD allows claimants to appeal the refugee decision. It does so by allowing most claimants the chance to prove that the decision made regarding refugee status was incorrect based on fact, law, or both. Also allows claimants the chance to prove that their refugee status decision was incorrect by introducing new evidence that was not reasonably available when the Refugee Protection Division process first took place.
The Refugee Appeal Division (RAD) is available to some claimants who were refused by the Refugee Protection Division (RPD) of the Immigration Refugee Board. RAD applicants benefit from an automatic stay (or pause) of removal from Canada while the RAD appeal is in progress. The RAD is not available to claimants who come to Canada via the United States (US) through an exception to the Canada‐US Safe Third Country Agreement (STCA), nor is it available to claimants whose applications for refugee protection have been declared to have no credible basis (NCB) or to be manifestly unfounded claims (MUC).
The RAD can assess whether the RPD’s assessment of the evidence or credibility was reasonable, and can order a hearing of the matter. However the ordering of a hearing is not a common occurrence. The time limit for filing a RAD appeal is within 15 days of the receipt of the negative Refugee Protection Division decision. An additional 15 days is allowed to complete the RAD record which consists of an affidavit and legal arguments. Extensions of time can be granted by a Member of the Immigration Refugee Board if a written request is made in the appropriate format.
A RAD appeal requires court-like written submissions, where an analysis of the RPD’s decision must be done in light of the powers given to the RAD.
The RAD is a relatively new tribunal and case law is not well settled. Given the potential life or death matters that concern RAD appeals, professional legal representation is highly recommended.
Who Is Eligible for Refugee Appeals?
Many people who have had hearings before the Refugee Protection Division are eligible to make refugee appeals to the Refugee Appeal Division.
There are also some reasons why someone may be ineligible to make an appeal to the RAD. A claimant cannot make an appeal if the Immigration Refugee Board finds a claim to be manifestly unfounded or to have no credible basis. A claimant also will not be eligible to make an appeal if they are under an exception of the Safe Third Country Agreement, if the claim was rejected due to an order to surrender under the Extradition Act, or if the RPD allowed the Minister to vacate or cease refugee status.
A claimant is not eligible to make an appeal if the refugee claim was abandoned or withdrawn. Finally, if a claimant made a Pre-Removal Risk Assessment Application and already received a decision, they are also not eligible for an appeal.
Refugee Appeal Process
The typical refugee appeal process begins after the Refugee Protection Division refuses a refugee claim. Then, the claimant may file an appeal to the Refugee Appeal Division. The Minister also has the right to file an appeal if they believe the RPD incorrectly granted refugee status to an individual. The Minister can file an appeal to a positive decision from the RPD after the RPD makes its initial decision.
Applicants who have their refugee claim rejected must adhere to a strict deadline in filing an appeal. The Refugee Appeal Division rules give only 15 days starting from the day that an applicant receives a decision rejecting the refugee claim. Applicants who miss that deadline may not be able to have an appeal heard at the Refugee Appeal Division.
If the case is eligible for an appeal, the claimant and/or Minister will then submit written documents and evidence (such as evidence that was not reasonably available for the RPD hearing) to the RAD to advocate for an alternate decision. The refugee appeal process takes place mostly on paper, generally not requiring an oral hearing. In some cases, however, the RAD may call for a hearing on specific grounds. A claimant may also request an oral hearing. However, the RAD is not obliged to fulfill that request.
If an oral hearing is not required, the RAD will review the evidence submitted. They will then render their decision.
What Happens Next?
Once an appeal has been submitted, the Refugee Appeal Division can either refuse the refugee appeal, allow the appeal and bring the issue back to the Refugee Protection Division to hear again, or allow the appeal and substitute their decision for the decision made by the RPD. If the RAD allows the appeal and grants the application, the claimant will receive protected person status. Then, that claimant can apply for permanent residence. If the appeal is refused, a removal order will be issued.
Refugee Appeal Process at Chaudhary Law
- Consulting with a refugee appeals lawyer to confirm legal grounds for an appeal and gather the necessary documents to reduce the risk of a refusal.
- drafting and submitting evidence for an appeal,
- receiving the response for admission or rejection for a hearing,
- completing hearing,
- receiving the refugee appeal decision.
The lawyers at Chaudhary Law have substantial experience in refugee appeal cases. Our lawyers offer services in English, French, Mandarin, Farsi, and Spanish. Please contact us if you need help making a refugee appeal.
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