An appeal to the Refugee Appeal Division is not a second hearing of a refugee claim. It is a review of a decision already made, conducted almost entirely on paper, against a record that is already closed. Most of what surprises people about it follows from that one fact: the deadlines are short, fresh documents are usually refused, and an appeal can succeed without anyone giving evidence again.
Angelina Shuster is a paralegal licensed by the Law Society of Ontario, and representation before Immigration and Refugee Board tribunals, including the Refugee Appeal Division, falls within a licensed paralegal's scope. What follows is general information about procedure in Canada and is not legal advice; reading it does not create a paralegal-client relationship, and every appeal turns on its own record.
What is the Refugee Appeal Division?
It is the tribunal within the Immigration and Refugee Board that reviews decisions of the Refugee Protection Division. Section 110(1) of the Immigration and Refugee Protection Act allows a person, or the Minister, to appeal a decision allowing or rejecting a refugee claim on a question of law, of fact, or of mixed law and fact. All three grounds matter. Unlike an application for judicial review in the Federal Court, which asks whether a decision was reasonable, an appeal here can be built on the argument that the Refugee Protection Division simply got the facts wrong.
It began deciding appeals on 15 December 2012, and it can substitute its own decision for the one under appeal. The question it revisits is unchanged — whether the person meets the definition of a Convention refugee or a person in need of protection, a definition unpacked in breaking down the definition of a Convention refugee.
Which decisions cannot be appealed to the RAD?
Six categories are excluded by section 110(2), and they are worded as an absolute bar rather than a discretion. A refusal falling into one of them is not appealable however strong the argument against it.
| Excluded by section 110(2) | What that covers |
|---|---|
| A decision on the claim of a designated foreign national | Claimants designated by the Minister as part of an irregular arrival |
| A determination that a claim was withdrawn or abandoned | The claim was never decided on its merits — see the abandoned refugee claim |
| A rejection stating that the claim has no credible basis or is manifestly unfounded | Those findings are made by the Refugee Protection Division in the decision itself |
| Certain claims referred through an exception to the Safe Third Country Agreement | Set out in paragraph 110(2)(d), and subject to the Regulations |
| A decision on a Minister's application to determine that protection has ceased | Cessation applications |
| A decision on a Minister's application to vacate refugee protection | Vacation applications |
A seventh paragraph, 110(2)(d.1), bars an appeal by a national of a designated country of origin. The Federal Court declared that bar contrary to section 15 of the Charter in 2015, but the paragraph remains printed in the Act, which is why it still appears when the section is read cold.
A decision that cannot be appealed can still be the subject of an application for leave and judicial review in the Federal Court — a different process with a different test.
What are the deadlines?
Two of them, and both run from the same starting point: the day the written reasons are received, not the day of the hearing and not the day of the notice of decision. They are set by section 159.91 of the Regulations.
| Step | Time limit | Runs from |
|---|---|---|
| File the notice of appeal | 15 days | The day written reasons are received |
| Perfect the appeal — provide the appellant's record | 30 days | The day written reasons are received |
| The Division decides | 90 days, unless a hearing is held | The day the appeal is perfected |
The two appellant deadlines overlap rather than run in sequence: the thirty days to perfect are not thirty days added to the fifteen. Where a limit cannot be met, section 159.91(2) allows the Division to extend either one for reasons of fairness and natural justice. The ninety-day limit on the Division itself is softer than it looks — section 159.92(2) provides that where a decision cannot be made in time, it must be made as soon as feasible afterwards.
What has to go into the appellant's record?
Rule 3 of the Refugee Appeal Division Rules lists the contents, in a fixed order, on consecutively numbered pages. Perfecting an appeal means filing that record, so an appeal that is filed on time but never perfected is not a live appeal.
- The notice of decision and the written reasons being appealed.
- All or part of the hearing transcript, where the appeal relies on it, with a signed declaration from the transcriber that it is accurate.
- Any documents the Refugee Protection Division refused to accept as evidence, where the appeal relies on them.
- A written statement saying whether new evidence is being relied on, whether a hearing is being requested, and what language and dialect would need interpretation if a hearing is held.
- The documentary evidence relied on, and the case law or other legal authority relied on.
- A memorandum of full and detailed submissions.
The memorandum carries the appeal, and the Rules cap it at 30 pages typewritten on one side, or 15 on both. Rule 3(3)(g) sets out what it must contain — the errors said to be the grounds of appeal, where each is located in the reasons, the transcript or the recording, how any new evidence meets the statutory test, the decision sought, and the reasons for requesting a hearing.
What new evidence can the RAD accept?
Very little, and the restriction is statutory rather than a matter of the panel's preference. Under section 110(4), the person who is the subject of the appeal may present only evidence that arose after the rejection of the claim, that was not reasonably available, or that they could not reasonably have been expected in the circumstances to have presented at the time of the rejection.
A document that existed and could have been obtained before the first hearing is therefore normally inadmissible, however persuasive it would have been. That is the most common misunderstanding about the Division: it corrects errors in a decision made on a record, and is not a second chance to build that record. Section 110(5) writes in one exception — the restriction does not apply to evidence presented in response to evidence presented by the Minister.
When does the RAD hold a hearing?
Rarely, and only where three conditions are met at once. Section 110(3) states the default: the Division must proceed without a hearing, on the basis of the record of the proceedings of the Refugee Protection Division, accepting documentary evidence and written submissions. Section 110(6) then allows a hearing where there is documentary evidence that raises a serious issue about the credibility of the person, that is central to the decision on the claim, and that, if accepted, would justify allowing or rejecting the claim.
All three limbs are required, and the evidence must already be properly before the Division, so the new-evidence test in section 110(4) is answered first. Where a hearing is held it is narrow, directed at the issue that justified holding it rather than at the claim as a whole.
What can the RAD actually decide?
Section 111(1) gives it three outcomes and no others. It may confirm the determination of the Refugee Protection Division; set that determination aside and substitute the decision that, in its opinion, should have been made; or refer the matter back to the Refugee Protection Division for re-determination, with directions.
The third is the most constrained. Section 111(2) permits a referral back only where the Division is of the opinion both that the decision below is wrong in law, in fact or in mixed law and fact, and that it cannot decide the matter itself without hearing the evidence presented to the Refugee Protection Division. Substituting its own decision is therefore the ordinary remedy, and sending the file back the exception. Section 111(3) adds that where the Division confirms a rejection, its own decision is itself a decision to reject the claim.
What the Refugee Appeal Division cannot do
The limits are as defined as the powers.
- It cannot rehear the claim. Oral testimony is the exception under section 110(6), not the norm, and there is no right to be heard in person.
- It cannot accept evidence that was available before. Section 110(4) is a condition, not a factor to be weighed.
- It cannot consider humanitarian and compassionate factors. Hardship, establishment in Canada and the best interests of a child are not part of its jurisdiction; those belong to a different process entirely.
- It cannot stay a removal. Only the Federal Court can order a stay.
- It cannot take an appeal barred by section 110(2) — including an abandonment finding or a no-credible-basis finding.
- It cannot reopen a decided appeal at large. Under Rule 49(6), an application to reopen must not be allowed unless it is established that there was a failure to observe a principle of natural justice.
The RAD and the Immigration Appeal Division are different tribunals
They are separate divisions of the same Board, and the names are close enough that the two are regularly confused. The Immigration Appeal Division hears sponsorship refusals, residency obligation appeals and appeals from removal orders against permanent residents; it takes oral evidence as a matter of course, and it has an equitable jurisdiction that lets it grant relief on humanitarian and compassionate grounds even where the decision under appeal was legally correct. Its procedure is described in a quick glance at the Immigration Appeal Division.
The Refugee Appeal Division has none of that. It reviews refugee determinations, on paper, on the record, with no discretionary power to grant relief on compassionate grounds. An argument that would win at one is often irrelevant at the other.
What follows a RAD decision?
An application for leave and judicial review in the Federal Court, filed within 15 days of the decision for a matter arising in Canada. Leave is a threshold step: the Court first decides whether the application may proceed at all, and only then considers the merits. The interaction between that step and enforcement is set out in stays of removal orders — a stay generally requires an active proceeding challenging a specific decision, which is why the fifteen days matter more than their length suggests.
Karb Law appears before Immigration and Refugee Board tribunals, and refugee claims and appeals are one of the firm's regular areas of work. Anyone holding a written decision with a deadline running can contact the office to discuss representation.
