Refugee Appeal Divsion
Peter Edelmann
Pursuant to s.111(1) of IRPA, the RAD shall:
•(a) confirm the determination of the Refugee
Protection Division;
•(b) set aside the determination and substitute a
determination that, in its opinion, should have
been made; or
•(c) refer the matter to the Refugee Protection
Division for re-determination, giving the
directions to the Refugee Protection Division that
it considers appropriate.
Eligibility date
PCISA 36. (1) A decision made by the Refugee
Protection Division in respect of a claim for
refugee protection that was referred to that
Division before the day on which this section
comes into force is not subject to appeal to the
Refugee Appeal Division.
CIC Statement
Note: It was never the Government’s intention to
have the new Refugee Appeal Division (RAD)
come into effect before the new asylum system
started on December 15, 2012. As this remains the
intent, we are working to correct a drafting
error in the legislation that some have claimed
could be interpreted to inadvertently allow some
claimants, whose asylum claims were referred to
the Immigration and Refugee Board of Canada on
or after August 15, 2012, to appeal to the new RAD
following a decision on their asylum claim.
Ineligible claimants
• the claimant is a designated foreign
national [A110(2)(a)]
• there is a determination that the claim was
withdrawn or abandoned [A110(2)(b)]
• the claim is found to have no credible basis or
be manifestly unfounded [A110(2)(c)]
• the claim would have been ineligible but for an
exception to the Safe Third Country
Agreement [A110(2)(d)]
• on the day the decision was made, the claimant
was national of a designated country of
origin [A110(2)(d.1)]
• the decision is on a cessation or vacation
application [A110(2)(e) and (f)]
• the claim was referred prior to the new
provisions coming into force
• the claim is deemed rejected because an order
of surrender for extradition was issued
under the Extradition Act [A105(4)]
Notice of Appeal
• R159.91: notice to be filed 15 days from date of
written decision of RPD
• Does not need to be served on Minister (note
that reply does have to be served)
• Served in same registry as RPD decision being
appealed
Perfecting the Appeal
• 30 days to file appellant’s record (documents,
memorandum, etc.)
• Rule 3(3)(b): all or part of a transcript for any
portions of the hearing on which the Appellant
wishes to rely.
• Rule 3(3)(g)(ii) indicates that the memorandum
can refer either to a transcript or to “any audio
or other electronic recording”
Minister’s intervention
The Minister can file a notice, intervention record
and further documents at any time [IRPR
s.171(a.1) and (a.2)] [Rule 4(1)]
Appellant has 15 days to file reply
Minister’s appeal
Timelines established in regs for Minister – 15
days for notice, 30 days to perfect.
Unclear whether subject to general exception:
A110 (1.1) The Minister may satisfy any
requirement respecting the manner in which an
appeal is filed and perfected by submitting a
notice of appeal and any supporting documents.
Extensions of time
Extension for notice or appellant’s record:
•Can not be requested in advance, as the notice or
2 copies of the appellant’s record must be filed
with the application
Extension of time to respond to a Minister’s
appeal can be requested in advance - Rule
10(6)(b) starts 15 days from date of extension
decision.
Extensions of time - factors
(a) whether the application was made in a timely
manner and the justification for any delay;
(b) whether there is an arguable case;
(c) prejudice to the Minister, if the application was
granted; and
(d) the nature and complexity of the appeal.
Evidence
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.
Rule 3(3) The appellant’s record must contain […]
(c) any documents that the Refugee Protection
Division refused to accept as evidence, during or
after the hearing, if the appellant wants to rely on
the documents in the appeal;
Standard of Review
111(1) (b) set aside the determination and
substitute a determination that, in its opinion,
should have been made;
Hearings
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.
Three Member Panels
IRPA 171(c) a decision of a panel of three
members of the Refugee Appeal Division has, for
the Refugee Protection Division and for a panel of
one member of the Refugee Appeal Division, the
same precedential value as a decision of an appeal
court has for a trial court.
Judicial Review
• Must exhaust appeal rights before going to FC
• Minister may judicially review even if did not
intervene at RPD or RAD
• R231 stays would apply in majority of cases
Questions or comments
peter@edelmann.ca