Appealing a refused claim (RAD)

Appealing to the Refugee Appeal Division

If the Refugee Protection Division (RPD) rejects your refugee claim, you may have the right to appeal that decision to the Refugee Appeal Division (RAD) of the Immigration and Refugee Board of Canada.

The right of appeal does not exist in every situation, however. It is therefore important to check quickly, as soon as the decision is received, whether it can be appealed to the RAD.

An appeal to the RAD is not simply another opportunity to present your refugee claim. You must show that the RPD made one or more errors in its analysis, whether an error of law, an error of fact, or an error of mixed fact and law.

Reviewing the written reasons for the decision, the evidence that was filed and, where relevant, the recording of the hearing makes it possible to identify the findings that can be challenged.

Applicable time limits

Where a right of appeal exists, the time limits are strict:

• the notice of appeal must generally be filed within 15 days of receiving the written reasons for the RPD decision
• the appellant's record, which includes the written submissions and the documents relied on, must generally be filed within 45 days of receiving the written reasons.

The date on which these time limits begin to run must be checked carefully. Where the decision is uploaded to the My Case portal, the date it was uploaded may govern the calculation of the time limit.

The two time limits are separate. If one of them has already expired, an application for an extension of time may be needed in order to continue the appeal.

The 45 day limit comes from the practice notice on extending the time to perfect an appeal; the regulations themselves provide for 30 days. The starting point of these time limits is decisive and must be confirmed with a lawyer: recent case law runs it from the moment the reasons are uploaded to the representatives' portal, rather than from the moment the person becomes aware of them. The federal Interpretation Act also extends to the next working day any deadline falling on a Saturday, a Sunday or a holiday.

How the appeal unfolds

In most cases the RAD decides the appeal on the written record, without holding a new hearing. It conducts its own analysis of the decision under appeal, taking into account the errors raised in the appellant's submissions.

The RAD may:

• confirm the RPD decision
• set the decision aside and substitute its own decision
• refer the file back to the RPD for a new decision

New evidence may sometimes be filed, but only where it meets the conditions set out in law. This may include evidence that arose after the claim was rejected, or documents that were not reasonably available or that could not reasonably have been expected to be presented at the time of the hearing.

Why careful preparation matters

An appeal must respond directly to the findings set out in the decision refusing the claim. It is not enough to disagree with the RPD or to repeat facts already presented.

The record must explain clearly the errors alleged against the RPD, their effect on the decision, and why they warrant the RAD's intervention. Insufficient preparation, an incomplete record, or a failure to meet the procedural requirements can compromise the chances of success on appeal.

How we can work with you

Our team can help you in particular to:

• check whether the decision can be appealed to the RAD
• review the reasons for the decision and the file as a whole
• identify errors of law, of fact or of analysis
• assess whether new evidence is admissible
• prepare the written submissions and the appellant's record
• meet the time limits, the formatting rules and the filing requirements
• respond to any intervention by the Minister
• stay with you through to the final decision

Every file rests on its own facts and its own legal issues. A prompt assessment of the refusal makes it possible to determine what remedies exist and what must be done before the time limits expire.

Appeals to the Immigration Appeal Division

This page is about appealing a refused refugee claim, before the Refugee Appeal Division. A refused family sponsorship is challenged elsewhere, before the Immigration Appeal Division, and it is neither the same tribunal nor the same rules. In everyday language the word « appeal » covers both, which is why we say so here.

Booking an appointment

If your refugee claim has been refused, we recommend that you obtain legal advice quickly. During a consultation we can review the decision, check whether an appeal to the RAD is possible, and explain the next steps to you.