A Refugee Appeal in Canada is a process that allows individuals who have had their refugee claim rejected by the Refugee Protection Division (RPD) of the Immigration and Refugee Board of Canada (IRB) to challenge the decision. If you are seeking protection in Canada and your claim has been denied, you may be able to appeal the decision to the Refugee Appeal Division (RAD) of the IRB.

The Refugee Appeal Division (RAD) is responsible for reviewing the decisions made by the RPD and determining whether there were any legal errors or factual mistakes in the original decision. If the RAD finds that the decision was incorrect, it may overturn the denial, granting you refugee protection in Canada.

Eligibility for a Refugee Appeal

Not everyone is eligible to appeal a decision made by the Refugee Protection Division (RPD). You can only appeal a negative decision to the RAD under the following conditions:

1. You are in Canada: The appeal process is for people who are physically present in Canada. If you are outside the country, you cannot appeal to the RAD.
2. You are an eligible claimant: You must have had your refugee protection claim rejected by the RPD. The RAD can only hear appeals in cases where the RPD has denied your refugee claim.
3. Exclusions: You cannot appeal the decision if:
   • You are excluded from refugee protection (e.g., you are found to have committed war crimes or serious crimes, or you are a security risk to Canada).
   • Your claim was rejected under the safe third country agreement (if you are coming from a country where Canada has an agreement that another country will provide protection to refugees).
   • Your claim was rejected due to irregularities in your refugee process (e.g., if the RPD found that you were not cooperative during the process).
4. Time Limits: You must file the appeal within a set timeframe, typically 15 days from receiving the negative decision from the RPD.

Steps in the Refugee Appeal Process

1. Filing the Appeal:
   • After receiving a negative decision from the RPD, you must file an appeal to the RAD within 15 days (from the date on which you were notified of the decision).
   • You will need to complete the Refugee Appeal Division (RAD) Appeal Form, which is available on the IRB website.
   • The form requires you to provide personal details, the decision you are appealing, and the reasons why you believe the decision was incorrect.
   • There is no fee to file an appeal to the RAD.
2. Submitting Evidence:
   • You are allowed to submit new evidence that was not available or considered during your RPD hearing. This could include:
     • Updated documents or reports.
     • Personal testimony or new information about the situation in your home country.
     • Medical or psychological assessments that support your claim.
   • If you are submitting new evidence, you must do so before the RAD hearing and ensure the evidence is relevant to your case.
3. Review of the Appeal:
   • The RAD will review your case based on the written submissions you provide. The RAD will look at:
     • The evidence that was presented during the original RPD hearing.
     • Any new evidence or information you submit.
     • The legal and factual errors you claim the RPD made.
   • Unlike the RPD, the RAD does not hold hearings in person unless there are specific reasons for doing so (for example, if additional clarification is needed).
4. Decision by the Refugee Appeal Division:
   • After reviewing the case, the RAD will make one of the following decisions:
     • Allow the Appeal: The RAD may decide that the RPD made a mistake in its decision, and it will overturn the denial of your claim, granting you refugee protection.
     • Dismiss the Appeal: The RAD may agree with the RPD’s decision, meaning you will not be granted refugee protection.
     • Refer Back to the RPD: In some cases, the RAD may send the case back to the RPD for further consideration if there were significant errors in the original process.
5. Outcome of the Appeal:
   • If the appeal is allowed: You will be granted refugee protection in Canada, and you can apply for permanent residency.
   • If the appeal is dismissed: You may face removal from Canada unless you have other legal grounds to stay (for example, an application for humanitarian and compassionate grounds).
   • If the appeal is referred back to the RPD: The case will go back to the RPD for reconsideration, and another hearing will be scheduled.
6. Judicial Review:
   • If the RAD dismisses your appeal, you may be able to apply for a judicial review in the Federal Court of Canada. A judicial review challenges the fairness or legality of the RAD’s decision.
   • The Federal Court does not re-hear the case but looks at whether the RAD made an error in law, procedural fairness, or reasonableness.
   • You must apply for judicial review within 15 days after being notified of the RAD’s decision.

Important Considerations in the Refugee Appeal Process

1. Legal Representation:
   • It is strongly recommended to seek legal advice or representation when appealing a negative refugee decision. Immigration lawyers or consultants can help you prepare a strong case, gather new evidence, and ensure that you meet all deadlines and requirements.
2. New Evidence:
   • You can submit new evidence to the RAD that wasn’t available at the time of your original hearing, as long as the evidence is relevant to your claim. The RAD will consider this new evidence in its decision.
3. Deadline:
   • The 15-day deadline to file an appeal is strict. If you miss the deadline, your appeal may not be heard, and you may be removed from Canada.
4. Appeal Process Timeline:
   • The RAD generally takes several months to process appeals, but the timeline can vary depending on the complexity of the case, the volume of cases, and the specific circumstances involved.
5. Outcome:
   • The outcome of the appeal depends on whether the RAD finds that the RPD made errors in its decision or whether it agrees with the original assessment. If you lose your appeal, you may face removal from Canada, but you still have the option to pursue further legal avenues like judicial review.

Reasons for Appealing a Refugee Claim Decision

Some common reasons for appealing an RPD decision to the RAD include:

• Legal Errors: The RPD misapplied the law or made an incorrect interpretation of the facts related to the refugee claim.
• Errors in Fact: The RPD made factual errors (e.g., misunderstanding or misinterpreting key evidence or testimony).
• New Evidence: You have new information or evidence that was not available at the time of your RPD hearing, and this evidence could impact the outcome of your case.
• Procedural Fairness: You were not given a fair hearing by the RPD or the process was flawed in some way (e.g., language barriers, insufficient time to prepare your case, or failure to consider important evidence).

Conclusion

The Refugee Appeal process in Canada allows individuals whose refugee claims have been denied by the Refugee Protection Division (RPD) to have their case reviewed by the Refugee Appeal Division (RAD). The RAD will review the facts of the case, the evidence, and any new information submitted, and make a decision to either allow the appeal (granting refugee protection), dismiss the appeal, or refer the case back to the RPD for further consideration. If the appeal is unsuccessful, individuals may pursue a judicial review in the Federal Court.

If you are facing a refugee appeal, it is essential to act quickly, gather all relevant evidence, and, if necessary, seek legal advice to navigate the complex legal process.