Appellant’s Guide

Refugee Appeal Division

Information for appellants

www.irb-cisr.gc.ca

This guide is also available in French.

Ce guide est également disponible en français.

Version 4

January 2017

REFUGEE APPEAL DIVISION Appellant’s Guide

January 2017

Table of Contents

About This Guide .......................................................................................................................... 1

Appealing to the RAD ................................................................................................................... 1

What is the RAD? .................................................................................................................................................. 1 What is an appeal to the RAD? .............................................................................................................................. 2 Which decisions can be appealed? ......................................................................................................................... 2 Who can appeal? .................................................................................................................................................... 2 Who cannot appeal? ............................................................................................................................................... 3 When and how do I appeal to the RAD? ............................................................................................................... 3 What are my responsibilities? ................................................................................................................................ 4 What are the time limits for an appeal? ................................................................................................................. 4 What happens if I miss a time limit? ..................................................................................................................... 4 Who will decide my appeal? .................................................................................................................................. 5 Will there be a hearing? ......................................................................................................................................... 5 Am I required to have counsel represent me in my appeal? .................................................................................. 5 Who can represent me? .......................................................................................................................................... 6 What is a designated representative? ..................................................................................................................... 6 Is my appeal confidential? ..................................................................................................................................... 7 What if I move before my appeal is finished? ....................................................................................................... 7 What language will be used in my appeal? ............................................................................................................ 7

Forms and Documents .................................................................................................................. 8

Filing an appeal: notice of appeal .......................................................................................................................... 8 Perfecting the appeal: appellant’s record ............................................................................................................... 9 The Minister is opposing my appeal. What do I do? ........................................................................................... 10 What documents do I need to give to the Minister? ............................................................................................ 12 What is the Minister’s address? ........................................................................................................................... 12

Understanding the RAD Appeal Process .................................................................................. 13

Decision process .................................................................................................................................................. 13 Decision to consider new evidence ...................................................................................................................... 13 Decision to have a hearing ................................................................................................................................... 13 How will I know that I have to go to a hearing? .................................................................................................. 14 What will happen at the hearing? ........................................................................................................................ 14 What types of decision can a RAD member make? ............................................................................................. 15

Definitions .................................................................................................................................... 16

Contact Information for RAD Registries ................................................................................. 19

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About This Guide

This guide is for people who are appealing decisions of the Refugee Protection Division (RPD)

to the Refugee Appeal Division (RAD) of the Immigration and Refugee Board of Canada (IRB).

It will give you basic information about:

what you need to do to appeal your RPD decision;

the documents you need for your appeal; and

what happens during an appeal to the RAD.

If you were granted refugee status and the Minister is appealing that decision to the RAD, please

refer to the Respondent’s Guide, which you can find on the IRB Web site at www.irb-cisr.gc.ca.

You can find definitions of important concepts at the end of this guide.

This guide provides general information about the refugee appeal process. For more precise legal

information, please see the Immigration and Refugee Protection Act (IRPA), the Immigration

and Refugee Protection Regulations (IRPR) and the Refugee Appeal Division Rules (RAD

Rules). You can find links to all of these documents on the IRB Web site at www.irb-cisr.gc.ca.

Appealing to the RAD

What is the RAD?

The RAD is the division of the IRB that decides whether to:

confirm the determination of the RPD;

set aside the determination and substitute a determination that, in its opinion, should have

been made; or

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refer the matter to the RPD for re-determination, giving the directions to the RPD that it

considers appropriate.

The RAD is separate and independent from the RPD.

What is an appeal to the RAD?

When you appeal to the RAD, you are asking a higher tribunal (the RAD) to review the decision

made by a lower tribunal (the RPD). You must show that the RPD made mistakes in its decision.

These mistakes can be about the law, the facts, or both. The RAD will decide whether to confirm

or change the RPD decision. It may also decide to send the case back to the RPD for

re-determination, giving the directions to the RPD that it considers appropriate.

The RAD generally makes its decision without a hearing, on the basis of the submissions and the

evidence provided by the parties (you and the Minister, if the Minister intervenes). In certain

circumstances, which will be explained more fully later in this guide, the RAD may allow you to

present new evidence that the RPD did not have when it made its decision. If the RAD accepts

your new evidence, it will consider the evidence in its review of your appeal. It may also order

an oral hearing to consider this new evidence.

Which decisions can be appealed?

RPD decisions that allow or reject a claim for refugee protection can be appealed to the RAD.

Who can appeal?

Unless your claim falls into one of the categories in the next section, you have the right to appeal

to the RAD. If you appeal to the RAD, you are the appellant. If the Minister decides to

participate in your appeal, the Minister is the intervener.

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Who cannot appeal?

You cannot appeal the RPD decision to reject your refugee protection claim if:

you are a designated foreign national;

your refugee protection claim was withdrawn or abandoned;

the RPD decision says that your claim has no credible basis or is manifestly unfounded;

you made your claim at a land border with the United States and the claim was referred to

the RPD as an exception to the Safe Third Country Agreement;

the Minister made an application to cease (end) your refugee protection, and the RPD

decision allowed or rejected that application;

the Minister made an application to vacate (cancel) the decision to allow your refugee

protection claim, and the RPD decision allowed or rejected that application;

your claim was referred to the RPD before the relevant provisions of the new system

came into force in December 2012;

your claim for refugee protection was deemed to be rejected under Article 1F(b) of the

Refugee Convention because of an order of surrender under the Extradition Act.

When and how do I appeal to the RAD?

There are two steps involved in appealing to the RAD:

1. Filing your appeal

You must file your notice of appeal to the RAD no later than 15 days after the day on

which you received the written reasons for the RPD decision. You must provide

three copies of your notice of appeal to the RAD Registry in the regional office that sent

you your RPD decision.

2. Perfecting your appeal

You must perfect your appeal by providing your appellant’s record to the RAD no later

than 30 days after the day on which you received the written reasons for the RPD

decision. You must provide two copies of your appellant’s record to the RAD Registry in

the regional office that sent you your RPD decision.

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What are my responsibilities?

To make sure the RAD will review the substance of your appeal, you must:

provide three copies of the notice of appeal to the RAD no later than 15 days after the day

on which you received the written reasons for the RPD decision;

provide two copies of the appellant’s record to the RAD no later than 30 days after the

day on which you received the written reasons for the RPD decision;

make sure that all of the documents you provide are in the right format;

clearly explain the reasons why you are appealing; and

provide your documents on time.

If you do not do all of these things, the RAD may dismiss your appeal.

What are the time limits for an appeal?

The following time limits apply to your appeal:

no more than 15 days after the day on which you received the written reasons for the

RPD decision, you must file your notice of appeal.

no more than 30 days after the day on which you received the written reasons for the

RPD decision, you must file your appellant’s record.

Unless a hearing is ordered, the RAD will wait 15 days before making a decision on your

appeal.

The Minister may decide to intervene and submit documentary evidence at any time

before the RAD makes a final decision on the appeal.

If the Minister decides to intervene and to provide submissions or evidence to you, the

RAD will wait 15 days for you to reply to the Minister and the RAD.

Once you have replied to the Minister and the RAD, or if 15 days have passed and you

have not replied, the RAD will make a decision on your appeal.

What happens if I miss a time limit?

If you miss the time limit to file the notice of appeal or the appellant’s record and you still want

to continue with the appeal, you must file an application for an extension of time. The

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application form is part of the Appellant’s Kit, which includes this guide, and is available on the

IRB Web site and from the RAD registries.

The application for an extension of time must follow rule 6 (Application for extension of time to

file or perfect) and rule 37 (How to make an application) of the RAD Rules. You must provide

three copies of your notice of appeal and two copies of your appellant’s record with your

application. You must also provide an affidavit or solemn declaration that explains why you

missed the time limits.

Who will decide my appeal?

A decision-maker, called a RAD member, will decide your appeal.

Will there be a hearing?

In most cases, the RAD does not hold a hearing. The RAD usually makes its decision using the

information in the documents that you and the Minister provide, as well as the information that

was considered by the RPD decision-maker. If you believe that there should be a hearing for

your appeal, you should ask for a hearing in the statement you provide as part of your appellant’s

record and explain why you think a hearing should be held. The member may also decide that a

hearing is needed in specific circumstances. If so, you and the Minister will receive notices to

appear for a hearing.

Am I required to have counsel represent me in my appeal?

You are not required to have counsel represent you in your appeal. However, you may decide

that you want counsel to help you. If so, you must hire counsel and pay their fees yourself.

Whether or not you hire counsel, you are responsible for your appeal, including meeting the time

limits. If you miss a time limit, the RAD may decide your appeal without further notice.

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Who can represent me?

If your counsel is charging you a fee or receiving other payment, then they must be one of the

following:

a lawyer or a paralegal who is a member in good standing of a provincial law society;

a member in good standing of the Chambre des notaires du Québec; or

an immigration consultant who is a member in good standing of the Immigration

Consultants of Canada Regulatory Council.

If your counsel is not charging a fee or receiving other payment, that person can be anyone,

including a representative of a non-governmental organization, a friend, a relative or a

community member you trust. In this case, you must complete the form entitled “Notice of

Representation Without a Fee or Other Consideration”, which you can find in your Appellant’s

Kit, and give the form to the Minister and the RAD as soon as possible. If the Minister

intervened in your RPD hearing, you must send the form to the address of counsel for that

Minister. If the Minister did not intervene, then you must provide the form to the applicable

address, which you can find on page 12 of this guide.

What is a designated representative?

A designated representative is a person who is responsible for protecting the interests of a child

less than 18 years old or of an adult who is unable to understand what the appeal process is

about. The designated representative is also responsible for explaining the appeal process to that

person.

In the case of children less than 18 years old, the designated representative is usually the child’s

parent. However, another family member, a legal guardian, a friend or a worker from a social

services agency can also be the designated representative if they meet the requirements set out in

the RAD Rules.

If you or your children had a designated representative at the RPD, then that person will continue

to be the designated representative until your appeal is finished. However, you can ask the RAD

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to change your designated representative by sending a letter to the RAD. This letter should give

the name of the person you want to have as your new designated representative.

If you did not have a designated representative at the RPD but need one for RAD, you or your

counsel must notify the RAD in writing immediately. You must explain why you need a

designated representative and include any supporting evidence you have.

Is my appeal confidential?

Yes, the RAD will keep the details of your appeal confidential. This means that no information

about you or your appeal can be made public, including information about your identity, the

documents in your file and the decision on your appeal.

What if I move before my appeal is finished?

If you move, you must tell the Minister and the RAD immediately. To do so, send the RAD and

the Minister a letter with your name, your RAD file number and your new mailing address.

If you move without telling the Minister and the RAD, you may not receive important

documents. If the RAD and the Minister do not have your current address, this could affect your

appeal. For example, you may miss the opportunity to reply to documents that the Minister

provides, or you may miss providing documents that the RAD asks you for. If the RAD decides

to hold an oral hearing, you may miss receiving the notice to appear and your appeal may be

declared abandoned.

What language will be used in my appeal?

Canada has two official languages: English and French. In your notice of appeal, you can choose

which official language you would like the RAD to use. All of the documents you give to the

RAD must be in either English or French. If your documents are in another language, you must

have them translated into one of the official languages (English or French). You must provide the

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translations and a translator’s declaration with your documents. The translator’s declaration must

include:

the translator’s name;

the language the document was originally written in; and

a statement that the translation is accurate, signed by the translator.

If the RAD decides to hold an oral hearing and you need an interpreter for the hearing, the RAD

will provide one.

Forms and Documents

The notice of appeal and the appellant’s record are the main documents you must provide for

your appeal. If the Minister provides documents to the RAD, you will receive those documents

as well, and you will be given 15 days to reply to them.

Filing an appeal: notice of appeal

To start your appeal, you must complete a notice of appeal. You can find this form in your

Appellant’s Kit. In the notice of appeal, you must give the following information:

your name, your telephone number and an address where you can receive documents;

if you have counsel, your counsel’s name, their contact information and what they have

permission to do for you;

the unique client identifier (UCI) given to you by Immigration Refugees and Citizenship

Canada (IRCC) or the Canada Border Services Agency (CBSA);

your RPD file number;

the date of the RPD decision you are appealing;

the date you received the written reasons for the RPD decision;

the official language you would like to use in your appeal (English or French); and

if you had a designated representative at the RPD, their name and contact information.

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Perfecting the appeal: appellant’s record

You must provide two copies of the appellant’s record to the RAD no later than 30 days after the

day on which you received the written reasons for the RPD decision. As part of the appellant’s

record, you must include a statement saying whether you are submitting new evidence and

whether you are asking for an oral hearing.

The appellant’s record must have consecutively numbered pages (i.e. 1, 2, 3...) and contain the

following documents, in this order:

1. The notice of decision and the written reasons for the RPD decision that you are

appealing.

2. All or part of the transcript of the RPD hearing, if you want to use it in support of

your appeal. Note that you are not required to submit a transcript. However, if you want

to use one in support of your appeal, you must arrange to have it produced from the

recording that was provided to you with the RPD decision. You also need to provide a

statement that the transcript is accurate, signed by the person who made it.

3. The evidence the RPD refused: If you want to use these documents in support of your

appeal, include any documents the RPD refused to accept as evidence during or after the

hearing.

4. A written statement that states:

whether you are submitting new evidence that meets the requirements in

subsection 110(4) of the IRPA, that is, evidence that did not exist or was not

available to you when your refugee protection claim was rejected;

whether you are asking for an oral hearing to be held under subsection 110(6) of

the IRPA;

if you are asking for an oral hearing, whether you are also asking to change the

location of the hearing under rule 66 of the RAD Rules; and

if you need an interpreter, the language and dialect, if any, to be interpreted.

5. Any other documentary evidence that supports your appeal.

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6. Legal authorities: This means any law, case law or other legal authority that supports

your appeal. For legal cases that are publicly available, you can provide references and

links (for example, links from CanLII, which you can find at www.canlii.org) instead of

hard copies. If the case is not publicly available (for example, because it is from a foreign

jurisdiction or it is very recent), provide a hard copy with the relevant portions

highlighted.

7. A memorandum, which is a document that gives as many details as possible about:

the specific mistakes made by the RPD that you want the RAD to review;

where to find these mistakes in the RPD reasons or in the recording or transcript

of the hearing;

if your appeal is based on documents that the RPD member did not have when the

RPD decision was made, how this new evidence meets the requirements of

subsection 110(4) of the IRPA and how it is related to your situation;

if you are asking for an oral hearing, how the new evidence you are providing

meets the requirements of subsection 110(6) of the IRPA, which requires that it

raises a serious issue about your credibility, that it is central to the RPD decision,

and that, if accepted, would justify allowing your refugee protection claim; and

what decision you want the RAD to make.

Your memorandum must not be longer than 30 pages if single-sided or 15 pages if

double-sided.

All of the documents in your appellant’s record must be typed (not written by hand) in 12-point

or larger font, on letter-size paper (216 mm by 279 mm, or 8½ inches by 11 inches). All

photocopies should be clear and made on letter-size paper.

The Minister is opposing my appeal. What do I do?

If the Minister decides to oppose your appeal, you will receive a notice of intervention along

with any documents the Minister is providing as evidence. The Minister may also give you and

the RAD an intervention record that includes documents like the ones listed in the “Perfecting

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the appeal: appellant’s record” section above. The Minister can provide documents at any time

before the RAD makes a decision on your appeal. You have the right to reply to the Minister’s

documents.

If you decide to reply to the Minister’s documents, you must provide a reply record. The reply

record must have consecutively numbered pages (i.e. 1, 2, 3...) and contain the following

documents, in this order:

1. All or part of the transcript of the RPD hearing, if it supports your reply and you have

not already provided it. Note that you must arrange to have the transcript produced from

the recording that was provided to you with the RPD decision. You also need to provide a

statement that the transcript is accurate, signed by the person who made it.

2. Any additional documentary evidence that supports your reply and that you have not

already provided. This evidence does not have to meet the requirements of

subsection 110(4) of the IRPA.

3. Legal authorities: This means any law, case law or other legal authority that supports

your reply. For legal cases that are publicly available, you can provide references and

links (for example, links from CanLII, which you can find at www.canlii.org) instead of

hard copies. If the case is not publicly available (for example, because it is from a foreign

jurisdiction or it is very recent), provide a hard copy with the relevant portions

highlighted.

4. A memorandum: You are allowed to reply only to what the Minister wrote in the

intervention documents. Your memorandum must not be longer than 30 pages if

single-sided or 15 pages if double-sided.

All of the documents in your reply must be typed (not written by hand) in 12-point or larger font,

on letter-size paper (216 mm by 279 mm, or 8½ inches by 11 inches). All photocopies should be

clear and made on letter-size paper.

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You must provide a copy of your reply to the Minister at the address shown in the notice of

intervention, and then provide the reply to the RAD along with proof that you gave a copy to the

Minister. Your reply must be received by the RAD no later than 15 days after the day on which

you received the Minister’s documents.

What documents do I need to give to the Minister?

The Minister must receive a copy of all the documents you provide to the RAD. However, the

RAD will give the Minister the following documents for you: the notice of appeal, the

appellant’s record, and the application for an extension of time to file the notice of appeal and

appellant’s record. You must send all other documents to the Minister yourself.

What is the Minister’s address?

The address you need to use for the Minister depends on whether the Minister has intervened in

your case:

If the Minister intervened at the RPD, you must send your documents to the address of

counsel for that Minister. This address was provided to you during the RPD proceedings.

If the Minister intervened at the RAD, you must send your documents to the address in

the notice of intervention.

If the Minister did not intervene at the RPD or at the RAD, then you must send your

documents to the following address:

Immigration, Refugees and Citizenship Canada

Reviews and Interventions Office

25 St. Clair Avenue East, Suite 200

Toronto, Ontario M4T 1M2

FAX: 416-952-2420

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Understanding the RAD Appeal Process

Decision process

The RAD usually makes its decision based on the information in the documents that you and the

Minister provided, as well as on the information from the RPD record, without holding a hearing.

The decision will be mailed to you soon after it is made. To make sure that you receive the

decision as soon as possible, it is important that you give the RAD and the Minister your correct

address and that you give them your new address if you move.

Decision to consider new evidence

If you state in your appellant’s record that you are presenting new evidence to support your

appeal, the RAD will decide if the new evidence meets the following test:

it did not exist when the RPD rejected your claim;

it was not reasonably available when the RPD rejected your claim; or

in the circumstances, the RPD could not reasonably have expected you to have provided

it when it rejected your claim.

If the RAD does not hold a hearing, its reasons for decision on your appeal will explain whether

the evidence you provided met this test.

Decision to have a hearing

A RAD hearing will only be held if you provided new evidence (as described above) and the

member agrees that the new evidence:

shows that there might be a serious issue about your credibility;

is central to the decision on your claim; and

if accepted, would provide a good reason to allow or reject your refugee protection claim.

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How will I know that I have to go to a hearing?

The RAD will send you and the Minister a notice to appear. This notice will tell you the date,

time and location of your hearing. It will also tell you what issues the RAD will consider at the

hearing.

What will happen at the hearing?

1. You will be called to testify

You will testify in the same way as you did at your RPD hearing. Generally, you will

only be able to testify about the issues in the list that was sent to you with the notice to

appear.

2. Witnesses will testify

If there are any witnesses, they will testify after you have testified.

3. Representations will be made about your case

After you and any witnesses have testified, the member will ask you or your counsel to

explain why you think your RPD decision should be changed, based on the hearing that

just took place. The member will tell you what issues you need to talk about and how

long you have to do so. If the Minister is intervening, the Minister’s counsel will also be

allowed to make representations on your case.

4. A decision will be made after the hearing

The member will not usually make a decision right away at the end of the hearing. You

will receive a written decision in the mail.

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What types of decision can a RAD member make?

The RAD member will make one of the following decisions:

confirm (agree with) the RPD decision;

set aside (disagree with) the RPD decision and replace it with a different decision; or

refer (send) the case back to the RPD and order a new hearing, giving the RPD the

directions that it considers appropriate.

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Definitions

abandoned appeal: An appeal may be declared abandoned if the appellant is in default of the

proceedings, for example because they did not attend the hearing, they failed to provide the RAD

with the information required by the RAD, or they failed to communicate with the RAD when

asked to do so.

appeal: The process of asking a higher tribunal (the RAD) to review a decision made by a lower

tribunal (the RPD).

appellant: The person who wants the RAD to review the RPD decision.

appellant’s record: The main document filed by the appellant. Rule 3 of the RAD Rules

explains what needs to be in the appellant’s record.

Canada Border Services Agency (CBSA): The department that provides integrated border

services that support Canada’s national security priorities. It refers refugee protection claims

made at airports, seaports and Canada-United States border crossings to the IRB.

Immigration, Refugees and Citizenship Canada (IRCC): The department with overall

responsibility for immigration and refugee policies in Canada. It refers refugee protection claims

made inside Canada to the IRB.

designated foreign national: A person who is part of a group that the Minister identified as an

“irregular arrival.”

Immigration and Refugee Board of Canada (IRB): Canada’s largest independent

administrative tribunal. It is responsible for making well-reasoned decisions on immigration and

refugee matters, efficiently, fairly and in accordance with the law.

intervention: When the Minister decides to intervene and becomes a party in the appeal. A

representative from CBSA or IRCC (Minister’s counsel) represents the Minister before the RAD.

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intervention record: Record that may contain one or more documents that the Minister wants to

use to show that the RPD decision should not be changed.

Immigration and Refugee Protection Act (IRPA): Canada’s law about immigration and refugee

matters.

member: The RAD decision-maker who decides your appeal.

Minister: The Minister is represented by an officer (Minister’s counsel) from either CBSA or

IRCC.

notice of appeal: The document that starts the appeal process.

notice to appear: The document that tells you that a hearing is going to be held. It shows the

date and time of the hearing, as well as where the hearing will be held.

notice of intervention: The document provided by the Minister that tells you the Minister is

participating in your appeal. This makes the Minister a party to your appeal.

party: The people participating in the appeal. If you file the appeal, you will be called the

appellant, and if the Minister intervenes, the Minister will be called the intervener. Both of you

will then be parties to the appeal.

perfected appeal: An appeal is considered perfected when the appellant’s record is filed on time

and in accordance with the RAD Rules and the IRPR.

person subject of the appeal: You, the person who claimed refugee status at the RPD.

Refugee Appeal Division (RAD): The division of the IRB that decides appeals from decisions

made by the RPD.

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Refugee Appeal Division Rules (RAD Rules): A legal document that sets out the rules about

how the RAD works and what people presenting cases before it need to do.

Refugee Protection Division (RPD): The division of the IRB that decides whether or not you

are a refugee or a person in need of protection.

Safe Third Country Agreement: An agreement between Canada and the United States that

requires people seeking refugee protection to make a claim in the country they arrive in first

(Canada or the United States), unless they meet the requirements for an exception to the

Agreement.

withdrawal: The process of asking the RAD to stop your appeal before it has made a decision.

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Contact Information for RAD Registries Web site: www.irb-cisr.gc.ca

REGISTRY

AREA OF RESPONSIBILITY

Eastern Region

Montréal

Guy-Favreau Complex

200 René-Lévesque Boulevard West,

East Tower, Room 102

Montréal, Quebec H2Z 1X4

Telephone: 514-283-7733 or 1-866-626-8719

Fax: 514-496-6629

Quebec

New Brunswick

Nova Scotia

Prince Edward Island

Newfoundland and Labrador

Nunavut

Ottawa, Ontario

Central Region

Toronto

74 Victoria Street, Suite 400

Toronto, Ontario M5C 3C7

Telephone: 416-954-1000 or 1-866-790-0581

Fax: 416-954-1511

Ontario (except Ottawa)

Western Region

Vancouver

300 West Georgia Street, Suite 1600

Vancouver, British Columbia V6B 6C9

Telephone: 604-666-5946 or 1-866-787-7472

Fax: 604-666-9870

British Columbia

Alberta

Saskatchewan

Manitoba

Yukon

Northwest Territories