Refugee Appeal Division (RAD) appeals

The Refugee Appeal Division (RAD) is the tribunal that reviews decisions of the Refugee Protection Division. It is not a second hearing. The RAD reads the record from the first proceeding, decides for itself whether the Refugee Protection Division reached the right result, and issues its own decision with reasons. Karb Law prepares and argues those appeals.

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 of practice. This page is general information about procedure and is not legal advice; reading it creates no paralegal-client relationship.

What the Refugee Appeal Division decides

The RAD asks whether the Refugee Protection Division made an error, and it answers that question by conducting its own analysis of the same record. It is not confined to asking whether the first panel's conclusion was one a reasonable decision-maker could have reached: on questions of fact, and on questions of mixed fact and law, the RAD is entitled to substitute its own view of the evidence. That is why an appeal turns on the written material rather than on retelling the account a second time.

What the RAD does not do is start again. Testimony given at the first hearing is not repeated. The transcript, the exhibits, the Basis of Claim narrative, the country-condition documents and the panel's reasons are the raw material, and the appeal is an argument built out of them.

Who may appeal, and who may not

Both sides may appeal. A claimant may appeal a rejection, and the Minister may appeal a decision that granted protection.

The legislation also removes the right of appeal for several categories of claim. Among them are claims found to have no credible basis or to be manifestly unfounded, claims decided as withdrawn or abandoned, claims of designated foreign nationals, and claims that entered the system through an exception to the Safe Third Country arrangement. Where the right of appeal has been removed, that is the end of the RAD route, though not necessarily of every route — an application for leave and judicial review at the Federal Court remains. Working out which situation applies is the first thing done with a set of written reasons, because it decides the deadline that is running.

The deadlines, and what the appeal record contains

The RAD timetable is short, and it is counted from the day the written reasons were received rather than from the day of the hearing.

• A notice of appeal is filed within 15 days of receiving the written reasons of the Refugee Protection Division.
• The appellant's record follows within 30 days of the same date. It holds the notice, the reasons under appeal, any transcript relied on, any new evidence together with an explanation of why it is admissible, and a memorandum setting out the errors alleged and the outcome sought.
• An extension of time may be requested where a deadline cannot realistically be met, and the Division decides whether to allow it.

The memorandum is the appeal. Paragraph references into the transcript and into the reasons are what make an error visible; a general complaint that the panel was wrong is not something the Division can act on. Most of the work sits in reading the transcript against the reasons and identifying, precisely, where a finding parted company with the evidence.

New evidence, and when the RAD holds an oral hearing

New evidence is admitted only in narrow circumstances. It has to have arisen after the rejection, or to have been unavailable at the time, or to be evidence the person could not reasonably have been expected to have presented at the hearing. Documents that existed and could have been filed at the first hearing are refused however helpful they appear, so part of the assessment is honest triage of what will actually get in.

Most appeals are decided on the papers. The Division may hold an oral hearing, but only where new evidence raises a serious issue about credibility, is central to the decision, and is of a kind that would justify allowing or rejecting the claim. Even then the hearing is confined to that evidence — it is not a re-run of the original proceeding, which is described on our page about refugee claims.

What the Division is able to order

• Confirm the determination of the Refugee Protection Division, leaving the decision in place.
• Set it aside and substitute the determination that should have been made — the RAD is able to decide the claim itself, without sending it anywhere.
• Refer the matter back for re-determination, with directions the next panel is required to follow.

Which of the three is asked for is a decision taken when the memorandum is drafted, and it is argued openly rather than left for the Division to infer. An appeal that shows an error but never says what should happen next has done half a job.

What representation involves

• Reading the reasons against the record — obtaining and working through the transcript, and matching every material finding to the evidence behind it.
• Identifying the errors — misapprehended evidence, credibility findings made without a stated basis, country-condition material overlooked, an internal flight alternative analysed on the wrong test, or a fairness problem in how the hearing itself was run.
• Assessing proposed new evidence against the statutory test and explaining, in the record, why it qualifies.
• Drafting the memorandum and assembling the appellant's record inside the deadline.
• Responding to the Minister where the Minister intervenes in the appeal or is the party bringing it.

Where removal steps are attached to the underlying decision, they run on their own clock rather than pausing for the appeal. What the different removal orders are, and how they differ from one another, is set out on our page about removal orders.

Who this service is for

Enquiries usually come from one of three situations: a person who has just received written reasons rejecting a claim and is holding an envelope with a date on it; someone whose appeal has been started and whose record is now due; or a family member trying to establish whether an appeal is available at all. What helps at a first call is short — the decision itself, the date the reasons were received, and whether the Minister took part at the hearing.

Where protection is ultimately granted, an application for permanent residence follows, and that is filed with the department rather than argued before a tribunal. Our legal team assists with the full range of your matter, including applications filed with IRCC.

What happens after a RAD decision

A decision of the Refugee Appeal Division may be challenged by an application for leave and judicial review at the Federal Court, filed within 15 days of the decision. That court does not rehear the claim. It reviews the decision for reasonableness and for procedural fairness, and where it intervenes the usual result is that the matter returns for a fresh decision by a differently constituted panel. Leave has to be granted before the application is argued at all, and most of the work again lands in the written material.

Separate proceedings may also exist depending on the circumstances, including a pre-removal risk assessment where the timing allows it and humanitarian and compassionate considerations where the facts support them. Each has its own test and its own decision-maker; none of them is a continuation of the appeal.

Speaking to us

Karb Law is in Richmond Hill and appears at Immigration and Refugee Board proceedings across the Greater Toronto Area. Because the appeal clock starts on the date written reasons are received, early sight of the decision changes what can be done with it. You can contact the office, request a free assessment, or read what the Refugee Appeal Division can and cannot do and what happens at a hearing before the Refugee Protection Division. Our other immigration work and the full list of practice areas are set out elsewhere on this site.