The Refugee Appeal Division (RAD) is a Division of the Immigration and Refugee Board (IRB) that became operational in 2012 after the coming into force of the Protecting Canada’s Immigration System Act (PCISA)^{Note 1} and the Balanced Refugee Reform Act (BRRA)^{Note 2} which amended the Immigration and Refugee Protection Act^{Note 3} (IRPA) and the Immigration and Refugee Protection Regulations (the Regulations).^{Note 4} The RAD hears appeals of decisions made by the Refugee Protection Division (RPD) to allow or reject claims for refugee protection. This chapter provides an introduction to and an overview of the RAD.

For a comprehensive discussion of issues related to claims for refugee protection (sections 96 and 97 of the IRPA), see the IRB Legal Services paper Interpretation of Convention Refugee and Person in Need of Protection in the Case Law.^{Note 5}

1.1. Immigration and Refugee Board's duty in proceedings before all divisions

A principal obligation owed by the IRB, in proceedings before all of its Divisions, is found in the IRPA. Each Division is to deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit.^{Note 6} This obligation is also reflected in the IRB’s mandate and mission statement.^{Note 7} For further discussion of common natural justice issues at the RAD, see Chapter 8.

1.2. Jurisdiction of the Refugee Appeal Division

Jurisdiction is defined as being, “…the type of case and the physical area over which the court [or administrative body] has legal authority.”^{Note 8} Administrative tribunals, “…must act within the scope of their powers delegated to them by their empowering legislation”.^{Note 9}

1.2.1. Subsection 110(1) of the Immigration and Refugee Protection Act

The RAD is a statutory tribunal that derives its jurisdiction from the IRPA. The RAD has jurisdiction to hear appeals of decisions of the RPD to allow or reject a person’s claim for refugee protection.^{Note 10} The RPD makes decisions on whether a person is a Convention refugee or a person in need of protection in accordance with section 96 and section 97 of the IRPA.^{Note 11} An appeal may be made by either a person or the Minister on a question of law, of fact or of mixed law and fact.^{Note 12}

1.2.2. Subsection 162(1) of the Immigration and Refugee Protection Act

Subsection 162(1) of the IRPA states that each Division of the Board has, in respect of proceedings brought before it, sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction.

1.2.3. Decisions that cannot be appealed to the Refugee Appeal Division

The RAD does not have the jurisdiction to decide appeals with respect to every RPD decision. There are some RPD decisions that cannot be appealed to the RAD. Subsection 110(2) of the IRPA states that no appeal may be made in the following:

a decision of the RPD allowing or rejecting the claim for refugee protection of a “designated foreign national” (DFN);^{Note 13}
a determination that a refugee protection claim has been withdrawn or abandoned;
a decision of the RPD rejecting a claim for refugee protection that states that the claim has “no credible basis”^{Note 14} or is “manifestly unfounded”^{Note 15} ;
the claim was made 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 (STCA);
a decision of the RPD allowing or rejecting an application by the Minister for a determination that refugee protection has ceased;
a decision of the RPD allowing or rejecting an application by the Minister to vacate a decision to allow a claim for refugee protection;
a decision regarding a “legacy claim”.^{Note 16}

While these decisions cannot be appealed to the RAD, an application for leave and judicial review of the RPD decision can be sought at the Federal Court. Unlike an appeal to the RAD judicial review is not as of right. Leave to be heard must first be sought from the Court.^{Note 17} For further discussion of judicial review at the Federal Court see section 1.5 Judicial Review and Appeals of this chapter.

1.2.3.1. Appeals from Persons who are from Designated Countries of Origin

Paragraph 110(2)(d.1) of the IRPA also restricted appeals to those who were nationals of countries that had been designated as a “Designated Country of Origin” (DCO) per subsection 109.1(1) of the IRPA. The Minister of Citizenship and Immigration (the Minister) created a list of countries that had been designated pursuant to IRPA. These countries generally included countries that do not normally produce refugees, that respect human rights, and that offer state protection.^{Note 18}

However, the Federal Court in Y.Z.^{Note 19} declared that paragraph 110(2)(d.1) of the IRPA was inconsistent with subsection 15(1) of the Canadian Charter of Rights and Freedoms (Charter)^{Note 20} and declared it to be of no force and effect per subsection 52(1) of the Constitution Act.^{Note 21} Being a national of a DCO no longer prevents a person from appealing to the RAD. On May 17, 2019, the Minister announced in a news release that it was removing all countries from the DCO list and stated that this “…effectively suspends the DCO policy, introduced in 2012, until it can be repealed through future legislative changes.”^{Note 22} Legislative amendments have not yet been made.

1.2.3.2. Appeals from Persons who are an Exception to the Safe Third Country Agreement

The restriction on appeals from those whose claim was made at a land border with the United States and was referred to the RPD as an exception to the Safe Third Country Agreement (STCA) has been challenged at the Federal Court and the Federal Court of Appeal. In Kreishan^{Note 23} a number of judicial review applications were consolidated and heard together. The applicants argued that the denial of a right of appeal infringed section 7 of the Charter. They argued that their section 7 interests were engaged by the risk of refoulement, the enhanced likelihood of refoulement for STCA-excepted claimants, and the psychological stress associated with the absence of a right of appeal. They further argued that this infringement is not saved by section 1 of the Charter. The Federal Court dismissed the judicial review and certified the following question, “Does s. 110(2)(d)of the IRPA infringe s. 7 of the Charter, and, if so, is this infringement justified by s. 1?”

The matter was appealed to the Federal Court of Appeal. It found that section 7 of the Charter was not engaged and dismissed the appeal. It answered the certified question as follows:

As the appellant’s argument fails at the engagement stage of the s.7 analysis it is unnecessary to answer whether the RAD bar deprives the appellants of their s. 7 rights in accordance with the principles of fundamental justice, and, if so, whether the infringement is justified under s.1. With this caveat, I would answer the question in the negative and dismiss the appeal..^{Note 24}

This provision was also challenged at the Federal Court in Dor^{Note 25} on the basis that it breached subsection 15(1) of the Charter. The Federal Court dismissed the application for judicial review. It found that the applicants had, “…not established that the distinctions that may be drawn under paragraph 110(2)(d) of the IRPA are discriminatory.”^{Note 26}

There is ongoing litigation at the Supreme Court of Canada that challenges not only the restriction on appeals but the entire STCA scheme. It challenges the constitutionality of the STCA and the ongoing designation of the United States as a safe third country. In Canadian Council for Refugees,^{Note 27} the Federal Court found that the STCA infringed the guarantees in section 7 of the Charter and were not justified under section 1 of the Charter. The Federal Court of Appeal allowed the appeal, set aside the Federal Court decision, and gave the judgment that the Federal Court ought to have made and dismissed the applications for judicial review.^{Note 28} Leave to be heard at the Supreme Court of Canada was then sought, leave was granted on December 16, 2021,^{Note 29} the matter was heard on October 6, 2022, and the Court reserved its decision.

1.3. Parties before the Refugee Appeal Division

1.3.1. Who is a party?

Subsection 110(1) of the IRPA states that a person or the Minister may appeal a decision of the RPD to the RAD. RAD Rule 1 of the Refugee Appeal Division Rules (RAD Rule(s))^{Note 30} defines who is a party in an appeal to the RAD. Where the appeal is being made by a person who is the subject of the appeal (person), a party is the person and the Minister where the Minister has intervened in the appeal. Where the appeal is being made by the Minister, a party is the person and the Minister.

1.3.2. Person who is the subject of the appeal

The person who is the subject of the appeal is the person who was the claimant before the RPD. The person is a party in either their own appeal or an appeal brought by the Minister.^{Note 31}

1.3.3. Minister

RAD Rule 1 states that in an appeal by the person, the Minister is a party only once they have intervened. Elsewhere in the Rules, the Minister is deemed to be a party regardless of whether they have intervened.^{Note 32} However, this definition appears to have been broadened by the Federal Court in Alazar^{Note 33} in those circumstances where procedural fairness is at issue.

In Alazar, the RPD found the claimants had not established their identities and rejected their claim for refugee protection. The Minister intervened in the claim before the RPD. The claimants appealed the RPD decision. At the RAD, the Minister did not intervene in the persons’ appeal. The RAD found that the RPD had erred in its assessment of the identities of the persons. The RAD allowed the appeal and found the persons to be Convention refugees because they would be at risk as returnees who have left their home country illegally and/or have made claims for asylum.

The Minister brought an application for judicial review of the RAD’s decision at the Federal Court. The Federal Court allowed the judicial review.

One of the issues before the Federal Court was whether the RAD had breached procedural fairness by failing to provide notice to the Minister of a new issue;^{Note 34} namely the sur place claim based on their fear as a failed refugee claimants. The persons (appellants at the RAD) argued that no notice was required as the Minister, according to RAD Rule 1, was not a party to the appeal as the Minister had not intervened in the RAD appeal.

While the Court acknowledged the definition of “party” in RAD Rule 1, the Court did not agree that for procedural fairness purposes, this is exhaustive of the Minister’s interest in appeals to the RAD by persons.^{Note 35} The Court held that for the purpose of notice “party to an appeal” should not be construed so narrowly. The Court reviewed other provisions of the RAD Rules and held that:

These provisions leave no room for doubt that the Minister has procedural fairness rights before the RAD even in cases where he has not (or has not yet) intervened. Central to these rights is the right to notice of material developments as they occur, from the commencement of an appeal through to its conclusion. Crucially, such notice allows the Minister to make informed and timely decisions about whether to intervene in a pending appeal and whether to pursue an application for leave and judicial review of a decision once it is made. Thus, I cannot agree with the respondents that, having opted not to intervene after receiving their Record, the Minister had no right to notice of a subsequent development affecting the determination of the appeal and the respondents’ claims for protection.^{Note 36}

The Alazar decision was followed by the Federal Court in its decision in Miller.^{Note 37} In Miller the RPD had rejected the person’s claim for protection. The person filed an appeal with the RAD. The person subsequently retained the services of new counsel. New counsel then submitted a new memorandum of argument and new evidence. The RAD sought further submissions from the person. The Minister was not notified at any point of these steps. The Court held that,

...the Minister was not notified that the RAD itself sought further submissions from the Respondents. Further the Minister was not notified of the change in the Respondents’ legal counsel. These failures to give the Minister “notice” meant that the Minister was also not apprised of the new submissions and the new evidence filed on behalf of the Respondents. In sum, the Minister was not given an opportunity to make an informed decision as to whether to intervene in the appeal. This is not the process outlined in the RAD Rules, and is not a process that satisfies the Baker factors…^{Note 38}

Generally, the Minister will not be a party where they has not intervened in an appeal as per RAD Rule 1. However, as the Court noted, the Minister needs to be given an opportunity to make an informed decision as to whether to intervene or not in the appeal. In situations where the Minister has procedural fairness rights, such as the right to notice of a new issue and an opportunity to provide submissions, the Minister will be treated as a party despite not having intervened.^{Note 39}

1.3.4. United Nations High Commissioner for Refugees (UNCHR) and Observers

The UNHCR is defined in the RAD Rules^{Note 40} as meaning the United Nations High Commissioner for Refugees and includes its representative or agent.

The UNHCR may attend and observe RAD oral hearings without bringing an application to the RAD do so.^{Note 41} The RAD must allow the UNHCR to attend unless that attendance will impede the proceeding.^{Note 42} The RAD can take any measures it considers necessary to ensure the confidentiality of the proceedings despite the presence of an observer.^{Note 43} Oral hearings are covered more fully in Chapter 6: Oral Hearings.

The UNHCR may also participate, with notice, in a three-member panel.^{Note 44} Three-member panels are discussed later in this chapter in section 1.4.4.13 Composition of panels and assignment of three-member panel.

The person can consent to or request the presence of an observer, other than a representative of the press or other media of communication, at the proceeding without submitting an application under RAD Rule 42. If a representative of the press or other media of communication wants to observe they must submit an application.^{Note 45}

The RAD must allow the attendance of an observer, unless in the opinion of the Division, the observer’s attendance is likely to impede the proceeding.^{Note 46} The RAD can take any measures it considers necessary to ensure the confidentiality of the proceeding.^{Note 47}

1.3.5. Interested parties

An interested party is defined as a person whose application to participate in an appeal under RAD Rule 46 has been granted.^{Note 48}

RAD Rule 46 allows persons to apply to participate in an appeal where the Chairperson has assigned a three-member panel. Again, see section 1.4.4.13 of this chapter for more on three-member panels.

1.4. Appealing to the Refugee Appeal Division - Requirements under the Act, Regulations, and Rules

The following section of this chapter is an overview of the legislation and jurisprudence that is applicable to appeals at the RAD.

1.4.1 Characteristics of an appeal at the Refugee Appeal Division

This section provides an overview of the different characteristics of a RAD appeal. Some of these characteristics are common to all Divisions of the Board whereas others are unique to the RAD.

1.4.1.1. Powers of a commissioner

The IRPA grants broad powers to the RPD, the RAD and the Immigration Division (ID). Members of each of those Divisions have the powers and authority of a commissioner appointed under Part I of the Inquiries Act^{Note 49} and may do any other thing they consider necessary to provide a full and proper hearing.^{Note 50}

1.4.1.2. Standard of review at the Refugee Appeal Division

While subsection 110(1) of the IRPA states that an appeal can be made on a question of law, of fact or of mixed law and fact, the Act is silent as to what standard of review is to be applied by the RAD when it decides an appeal.

The Federal Court of Appeal addressed this issue in its decision in Huruglica.^{Note 51} The Court held that the RAD is to do its own analysis of the record and a correctness review of the RPD decision.^{Note 52} The Court held that in some cases the RPD may enjoy a meaningful advantage over the RAD and in those cases, deference may be owed to the RPD.^{Note 53}

For a more detailed discussion on this see Chapter 2: The Refugee Appeal Division’s Standard of Review.

1.4.1.3. Evidence at the Refugee Appeal Division

Like the other Divisions of the IRB, the RAD is not bound by any legal or technical rules of evidence.^{Note 54} The RAD may receive and base a decision on evidence that is adduced in the proceedings and considered to be credible or trustworthy.^{Note 55}

Subsection 110(3) of the IRPA states that the RAD may accept documentary evidence by the Minister and the person.

However, there are restrictions on what evidence may be submitted by the person. Subsection 110(4) of the IRPA states that, on appeal, the personmay only submit evidence:

that arose after the rejection of the 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.

The Federal Court of Appeal in Singh,^{Note 56} following the reasoning in its decision in Raza,^{Note 57} held that if the evidence was found to be admissible per subsection 110(4) of the IRPA, there were additional criteria that the RAD must assess in order to determine whether the evidence is admissible. The RAD is to also assess the evidence’s credibility, relevance, and newness.

This topic is more fully discussed in Chapter 4: Admissibility of Evidence.

1.4.1.4. Oral hearings

The general rule under subsection 110(3) of the IRPA is that the RAD will proceed without a hearing. However, there is an exception to that general rule. Subsection 110(6) of the IRPA states that the RAD may hold a hearing if there is documentary evidence referred to in subsection 110(3) that:

raises a serious issue with respect to the credibility of the person;
that is central to the decision with respect to the refugee protection claim; and
that, if accepted, would justify allowing or rejecting the refugee protection claim.

This topic is more fully discussed in Chapter 6: Oral Hearings.

1.4.1.5. Remedies

Section 111 of the IRPA sets out the remedies that the RAD has the authority to render. The RAD can confirm the RPD decision, set aside and substitute the RPD decision with its own decision, or refer the matter back to the RPD for a re-determination.

Under subsection 110(2) of the IRPA the RAD may refer the matter back to the RPD only if:

the decision of the RPD is wrong; and
the RAD cannot otherwise confirm the decision or set aside and substitute its own decision without hearing evidence that was presented to the RPD.

This topic is more fully discussed in Chapter 7: Remedies.

1.4.2. Requirements applicable to appeals made by the person^{Note 58}

The following section covers the legislation and jurisprudence that relate to appeals that are made by the person.

1.4.2.1. Filing an appeal, perfecting an appeal, and content of person's appellant record

Paragraph 159.91(1)(a) of the Regulations state that the time limit for a person to file an appeal to the RAD is 15 days after the person receives the RPD written reasons for decision.

To commence an appeal, the person must file a notice of appeal and provide three copies of the notice to the RAD.^{Note 59} The RAD is to provide a copy of the notice of appeal to the Minister.^{Note 60} The notice of appeal must contain the following person’s information:

their name, telephone number, and address where documents can be provided to them;
if represented, counsel’s contact information and any limitations on counsel’s retainer;
the identification number given by the Department of Citizenship and Immigration to them;
the RPD file number, the date of the notice of the decision being appealed, and the date that they received the written reasons for the decision;
the language – English or French – chosen by them as the language of the appeal; and
if there is a representative that has been designated by the RPD, their contact information or any proposed change in the designated representative.^{Note 61}

Paragraph 159.91(1)(b) of the Regulations state that the time limit for the person to perfect their appeal is 30 days after the date which the person received the RPD written reasons for decision.

Note that the RAD issued a practice notice extending the time limit for perfection as of September 28, 2020, to 45 days after the date which the person received the reasons of the RPD.^{Note 62}

The term perfection is not defined in the definition sections of either the IRPA or the Regulations. However, RAD Rule 3(1) states that to perfect an appeal, the person must provide two copies of their appellant’s record to the RAD. The RAD is to provide a copy of the appellant’s record to the Minister without delay.^{Note 63} The person’s appeal record must contain the following:

the notice of decision and written reasons for the RPD’s decision that is being appealed.^{Note 64} However, note that the RAD has since issued a practice notice that eliminates this requirement.^{Note 65} Beginning on September 10, 2018, appellants’ records no longer need to include the RPD notice of decision and written reasons;
all or part of the transcript of the RPD hearing if the person wants to rely on the transcript in the appeal. This must be accompanied with a declaration, signed by the transcriber that includes their name and a statement that the transcript is accurate;^{Note 66}
any documents that the RPD refused to accept as evidence, during or after the hearing, if the person wants to rely on those documents in the appeal;^{Note 67}
a written statement indicating whether the person is relying on any evidence referred to in subsection 110(4) of the IRPA and whether the person is requesting that a hearing be held per subsection 110(6) of the IRPA and whether they are asking to change the location of the hearing.^{Note 68} The person must also indicate any language or dialect to be interpreted should the RAD decide to hold an hearing;^{Note 69}
any documentary evidence that the person wants to rely on in the appeal;^{Note 70}
any law, case law or other legal authority that the person wants to rely on in the appeal;^{Note 71} and
a memorandum^{Note 72} that includes full and detailed submissions^{Note 73} regarding:

the errors that are the grounds of the appeal;
where the errors are located in the RPD decision or in the transcript, audio recording or other electronic recording of the RPD hearing,^{Note 74}
how any documentary evidence meets the requirements under subsection 110(4) and how that evidence relates to the person;
the decision the person wants the RAD to make; and
why the RAD should hold a hearing under subsection 110(6) of the IRPA if one has been requested.

RAD Rule 3(3)(g) is discussed in more detail in the following chapters: Chapter 2: The RAD’s Standard of Review, Chapter 4: Admissibility of Evidence, Chapter 6: Oral Hearings, and Chapter 7: Remedies.

1.4.2.2. Intervention by the Minister

The Minister may intervene at any time by giving notice to the Division and the person.^{Note 75}

At any point, prior to the RAD making its decision, the Minister may submit evidence and provide written submissions in support of their intervention.^{Note 76}

The Minister must provide a written notice of intervention along with any evidence the Minister wishes to rely on in the appeal. The Minister is to provide the notice first to the person and then to the RAD.^{Note 77} The notice of intervention must contain the following information:

counsel’s contact information;
the Department of Citizenship and Immigration identification number given to the person;
the person’s name;
the RPD’s file number;
the date of the notice of the RPD decision being appealed;
the date the Minister received the RPD written reasons for the decision;
whether the Minister is relying on evidence under subsection 110(3) of the IRPA; and
whether the Minister is requesting that a hearing be held per subsection 110(6) of the IRPA, the reasons why the RAD should hold a hearing, and whether a change of location of the hearing is being requested.^{Note 78}

The RAD Rules also set out what may be contained in the Minister’s intervention record. However, unlike the person, this is at the Minister’s discretion. The RAD Rules specifically state that the Minister “may” provide an intervention record.

The Minister’s intervention record may include the following:^{Note 79}

all or part of the transcript of the RPD hearing that the Minister wants to rely on together with a declaration signed by a transcriber that includes their name and a statement that the transcript is accurate;
any law, case law or other legal authority that the Minister wants to rely on; and
a memorandum^{Note 80} that includes full and detailed submissions regarding the grounds of appeal and the decision the Minister wants the RAD to make.

The documents provided to the RAD must be accompanied by proof that the person has been provided with the documents.^{Note 81}

1.4.2.3. Reply by the person

RAD Rule 5 lays out the procedural requirements for the person to reply to a Minister’s intervention. The person must provide their reply record to the Minister and then to the RAD.^{Note 82}

The reply record must contain the following:^{Note 83}

all or part of the transcript of the RPD hearing that was not included in the person’s appellant’s record if the person wants to rely on it together with a declaration signed by the transcriber that includes their name and a statement that the transcript is accurate;
any documentary evidence that the person is relying on that was not provided with the appellant’s record or by the Minister;
any law, case law or other legal authority that the person wants to rely on that was not provided with the appellant’s record; and
a memorandum^{Note 84} that includes full and detailed submissions regarding

only the grounds raised by the Minister;
how the documentary evidence meets the requirements under subsection 110(4) or subsection 110(5) of the IRPA and how that evidence relates to the person; and
why the RAD should hold a hearing under subsection 110(6) of the IRPA if the person is requesting one that was not requested in their appellant’s record and whether they are requesting a change of location.

The reply record provided to the RAD must be accompanied by proof that it was provided to the Minister.^{Note 85}

The person must provide the reply record to the RAD no later than 15 days after the day on which the person received the Minister’s notice of intervention, the Minister’s intervention record, or any additional documents provided by the Minister.^{Note 86}

1.4.2.4. Extension of time to file, perfect, or reply

The Regulations provide for an extension of time if an appeal cannot be filed or perfected within the required time limits. Subsection 159.91(2) of the Regulations states that the RAD can extend these time limits, for reasons of fairness and natural justice, by the number of days that is necessary in the circumstances.

To make an application for an extension of time to file or perfect the person must do so in accordance with RAD Rule 37 except that the person must also provide the original and a copy of the application to the RAD.^{Note 87} The requirements under this rule are discussed below in section 1.4.4.10 Applications. The RAD must provide a copy of the application to the Minister.^{Note 88}

The person must include the following in their application:^{Note 89}

their name, telephone number, and address where documents can be provided to them;
if represented, counsel’s contact information and any limitations on counsel’s retainer;
the identification number given by the Department of Citizenship and Immigration to them; and
the RPD file number, the date of the notice of the decision being appealed and the date they received the written reasons for the decision.

An application for an extension of time to file an appeal must be accompanied by three copies of the notice of appeal.^{Note 90} According to the RAD Rules, an application for an extension of time to perfect an appeal must also be accompanied with two copies of the appellant’s record.^{Note 91} However, note that the RAD issued a practice notice in September 2020 that removes the requirement to include the appellant’s record in the application for an extension of time to perfect an appeal.^{Note 92}

An application for an extension of time to reply must be made in accordance with RAD Rule 37.^{Note 93} In deciding an application to extend the time to reply the RAD must consider any relevant factors including the following ones:

whether the application was made in a timely manner and the justification for the delay;
whether there is an arguable case;
whether there is a prejudice to the Minister if the application was granted; and
the nature and complexity of the appeal.^{Note 94}

The RAD must notify, in writing and without delay, both the person and the Minister of its decision with respect to an application for an extension of time to file, perfect, or reply.^{Note 95}

1.4.2.5. Disposition of an appeal

Per RAD Rule 7 the RAD may decide the appeal, provided no hearing is held, without notice to the person or the Minister based on the materials provided if:

a period of 15 days has passed since the day on which the Minister received the appellant’s record, or the time limit for perfecting the appeal set out in the Regulations has expired; or
if the reply record has been provided or the time limit for providing it has expired.

However, the Federal Court has found that notwithstanding RAD Rule 7 deciding an appeal on a new basis, without providing notice to the parties, can breach the requirements of procedural fairness.^{Note 96}

Decisions are further discussed in section 1.4.4.17 Decisions and reasons below, and in Chapter: 7 Remedies.

1.4.3. Requirements applicable to appeals made by the Minister

The following section covers the legislation and jurisprudence that relate to appeals that are made by the Minister.

1.4.3.1. Filing an appeal, perfecting an appeal and content of the appellant's record

Paragraph 159.91(1)(a) of the Regulations state that the time limit for the Minister to file an appeal to the RAD is 15 days after the Minister receives the RPD written reasons for decision.

RAD Rule 8(1) states that for the Minister to commence an appeal it must provide a notice of appeal to the person and then provide two copies of the notice of appeal to the RAD together with proof that the notice was provided to the person.^{Note 97}

The notice of appeal must contain the following information:

counsel’s contact information;
the name of the person and the identification number given to that person by the Department of Citizenship and Immigration; and
the RPD file number, the date of the notice of the RPD decision being appealed, and the date the Minister received the RPD written reasons for the decision.^{Note 98}

Paragraph 159.91(1)(b) of the Regulations state that the time limit for the Minister to perfect their appeal is 30 days after the date which the Minister received the RPD written reasons for decision.However, as noted earlier,the RAD issued a practice notice extending the time limit for perfection as of September 28, 2020, to 45 days after the date which the person or the Minister received the reasons of the RPD.^{Note 99}

To perfect an appeal as per subsection 110(1.1) of the IRPA and RAD Rule 9(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. In addition to this, the RAD rules set out what “may” be contained in the Minister’s appeal record:

the notice of decision and written reasons for the RPD’s decision that is being appealed. However, note again that the RAD has since issued a practice notice that eliminated this requirement.^{Note 100} Beginning on September 10, 2018, appellant’s records no longer need to include the RPD notice of decision and written reasons;
all or part of the transcript of the RPD hearing if the Minister wants to rely on the transcript in the appeal. This must be accompanied with a declaration signed by the transcriber that includes their name and a statement that the transcript is accurate;
any documents that the RPD refused to accept as evidence during or after the hearing, if the Minister wants to rely on those documents in the appeal;
a written statement indicating whether the Minister is relying on any evidence referred to in subsection 110(3) of the IRPA and the relevance of that evidence;
a written statement indicating whether the Minister is requesting that a hearing be held per subsection 110(6) of the IRPA and whether it is making an application to change the location of the hearing;
any law, case law or other legal authority that the Minister wants to rely on in the appeal; and
a memorandum^{Note 101} that includes full and detailed submissions regarding:

the errors that are the grounds of the appeal;
where the errors are located in the RPD decision or in the transcript, audio recording or other electronic recording of the RPD hearing; and
the decision the Minister wants the RAD to make.

Any supporting documents and the appellant’s record provided to the RAD must be sent first to the person and then to the RAD, accompanied by proof that they were provided to the person.^{Note 102}

1.4.3.2. Response by the person and reply by the Minister

Per RAD Rule 10(1), the person can respond to an appeal by providing a written notice of intent to respond together with its respondent’s record. These must be provided first to the Minister and then to the RAD.

The content of the notice of intent to respond must contain the following information:

their name, telephone number, and address where documents can be provided to them;
if represented, counsel’s contact information, and any limitations on counsel’s retainer;
the identification number given by the Department of Citizenship and Immigration;
the RPD file number and the date of the notice of the decision being appealed;
the language – English or French – chosen by them as the language of the appeal; and
if there is a representative that has been designated by the RPD, their contact information or any proposed change in the designated representative.^{Note 103}

The respondent’s record must contain the following documents, on consecutively numbered pages in the following order:^{Note 104}

all or part of the transcript of the RPD hearing if the respondent wants to rely on it and it was not included in the appellant’s record. This must be accompanied with a declaration signed by the transcriber that includes their name and a statement that the transcript is accurate;
a written statement indicating whether the respondent is requesting that a hearing be held per subsection 110(6) of the IRPA and whether they are asking to change the location of the hearing. The respondent must also indicate any language or dialect to be interpreted should the RAD decide to hold a hearing
any documentary evidence that the respondent wants to rely on in the appeal;
any law, case law or other legal authority that the respondent wants to rely on in the appeal; and
a memorandum^{Note 105} that includes submissions regarding:

the grounds on which the appeal is being contested;
the decision the respondent wants the RAD to make; and
why the RAD should hold a hearing under subsection 110(6) of the IRPA if the respondent is requesting one.

The respondent’s record must be provided to the RAD with proof of service on the Minister.^{Note 106}

The time limit for providing documents under RAD Rule 10 is no later than 15 days after;

the day on which the respondent receives any supporting documents; or
if the RAD allows an application for an extension of time to perfect the appeal under RAD Rule 12, the day on which the respondent is notified of the decision to allow the extension.^{Note 107}

The Minister can reply to the person’s response.^{Note 108} To reply, the Minister must provide the documentary evidence they wish to rely on to the person and then to the RAD. This evidence does not include evidence that was already provided in either the appeal record or the respondent’s record.^{Note 109}

The RAD Rules also set out what may be contained in the Minister’s reply record. This is at the Minister’s discretion. The RAD Rules specifically state that the Minister “may” provide a reply record.

In the Minister’s reply record, they may provide the following:^{Note 110}

all or part of the transcript of the RPD hearing if the Minister wants to rely on it and it was not included in the appellant’s record, or the respondent’s record. This must be accompanied with a declaration signed by a transcriber that includes their name and a statement that the transcript is accurate;
any law, case law or other legal authority that the Minister wants to rely on that was not included in the appellant’s record, or the respondent’s record; and
a memorandum^{Note 111} that includes full and detailed submissions regarding:

only the grounds raised by the respondent;
why the RAD should hold a hearing under subsection 110(6) of the IRPA if the Minister is requesting one and that was not requested in their appellant’s record; and
whether the Minister is requesting a change of location if a hearing is being requested.

The documentary evidence and the reply record must be provided to the RAD with proof of service on the respondent.^{Note 112} Note that there is no time limit for the Minister to reply because of subsection 171(a.5) of the IRPA.

1.4.3.3. Extension of time for Minister to file or perfect

If the Minister makes an application they must do so in accordance with RAD Rule 37. The application for an extension of time to file and appeal must be accompanied with two copies of a written notice of appeal.^{Note 113}

According to the RAD Rules, the application for an extension of time to perfect an appeal must be accompanied by any supporting documents, and the appellant’s record, if any.^{Note 114} However, note that the RAD issued a practice notice in September 2020 that removes the requirement to include the appellant’s record in the application for an extension of time to perfect an appeal.^{Note 115}

The RAD must notify, in writing and without delay, both the person and the Minister of its decision with respect to an application for an extension of time to respond.^{Note 116}

1.4.3.4. Extension of time for person to respond

The person can also make an application to the RAD for an extension of time to file a response to an appeal. This must also be done in accordance with RAD Rule 37.^{Note 117}

The person must include in their application for extension of time to respond to an appeal the following information:^{Note 118}

their name, telephone number, and address where documents can be provided to them;
if represented, their counsel’s contact information and any limitations on counsel’s retainer;
the identification number given to them by the Department of Citizenship and Immigration; and
the RPD file number, the date of the notice of the decision being appealed, and the date that they received the RPD written reasons for the decision.

In deciding an application, the RAD must consider any relevant factors including:

whether the application was made in a timely manner and the reason for that delay;
whether there is an arguable case;
whether there is any prejudice to the Minister if the application were to be granted; and
the nature and complexity of the appeal.^{Note 119}

The RAD must notify, in writing and without delay, both the person and the Minister of its decision on an application for an extension of time to respond.^{Note 120}

1.4.3.5. Disposition of an appeal

As per RAD Rule 13 the RAD may, without notice to the person or the Minister, provided no hearing has been held, decide an appeal on the basis of the materials provided if:

a period of 15 days has passed since the day on which the Minister received the respondent’s record, or the time limit for providing it set out in RAD Rule 10(6) has expired; or
if the Minister’s reply has been provided.

The Federal Court has held that the power in RAD Rule 13 must be exercised consistently with the requirements of procedural fairness.^{Note 121}

Decisions are further discussed in section 1 1.4.4.17 and in Chapter 7: Remedies.

1.4.4. Requirements applicable to all appeals including those with a hearing

The following section covers the legislation and jurisprudence that relate to appeals that are made by either the person or the Minister.

1.4.4.1. Communicating with the Division

All communications with the RAD must be directed to the registry office specified by the RAD. A person must immediately notify the RAD and the Minister of any change in their contact information.^{Note 122} For a discussion of practice notices allowing for the exchange of documents by electronic means, see section 1.4.4.9 below.

1.4.4.2. Counsel

Subsection 167(1) of the IRPA states that a person who is subject of proceedings before any Division of the Board and the Minister may, at their own expense, be represented by legal or other counsel.

The Courts have stated that the right to counsel, in the context of administrative proceedings, is not an absolute right. The Federal Court in Meshveliani stated, “the subsection in no way guarantees a right to counsel…”.^{Note 123} For further discussion of the right to representation, see Chapter 8: Common Natural Justice Issues at the RAD.

The RAD Rules outline procedural requirements that relate to the retention of counsel, becoming counsel of record, the limitation on counsel’s retainer, and removing counsel of record.^{Note 124}

Under the RAD Rules, if the person retains counsel after providing a notice of appeal or a notice of intent to respond, the person must provide counsel’s contact information in writing to the RAD and the Minister.^{Note 125} If this information subsequently changes, the person must advise the RAD and the Minister without delay.^{Note 126} The Minister must also, without delay, notify the RAD and the person of any change in the contact information of counsel.^{Note 127}

Subsections 91(2)(a) to (c) of the IRPA describes who may represent a person, for consideration, in a proceeding or application under the Act. Those who may appear before the RAD, for consideration, are as follows: (i) a lawyer who is in good standing of a law society of a province or a notary who is a member in good standing of the Chambre des notaires du Québec; (ii) any other member in good standing of a law society of a province or the Chambre des notaires du Québec, including a paralegal; or (iii) a member in good standing of the College, as defined in section 2 of the College of Immigration and Citizenship Consultants Act.^{Note 128} Counsel who is not representing or advising for consideration can represent or advise a person. However, if this is the case both the person and counsel must immediately provide the information and declarations as set out in the schedule to the RAD Rules.^{Note 129}

A counsel becomes counsel of record as soon as: (i) counsel files a notice of appeal or notice of intent to respond on behalf of the person; or (ii) the person provides notice that counsel is counsel of record.^{Note 130}

Counsel can cease to be counsel of record in the following ways:

If there is a limitation on counsel’s retainer and the RAD has been notified of this limitation, counsel ceases to be counsel of record as soon as the services in the limited retainer are completed.^{Note 131}
Counsel provides a written request to be removed as counsel of record to the person, the Minister and the RAD with proof of service. However, if a date for a proceeding has been fixed and three working days or less remain before that date, this request must be made orally at the proceedings. Counsel remains counsel of record unless the request to be removed has been granted.^{Note 132}
A person can provide written notice to counsel, the Minister, and the RAD with proof of service that counsel is no longer counsel for the person. Counsel ceases to be counsel of record when the RAD receives the notice.^{Note 133}

1.4.4.3. Refugee Protection Division record

Once an appeal has been perfected, the RAD must, without delay provide the RPD with a copy of the notice of appeal.^{Note 134} The RPD then must prepare a record and provide it to the RAD no later than 10 days after receiving the notice of appeal.^{Note 135}

The RPD record must contain the following: (i) the RPD notice of decision and the RPD written reasons; (ii) the Basis of Claim Form as defined in the Refugee Protection Division Rules and any changes or additions to it;^{Note 136} (iii) all documentary evidence that the RPD accepted as evidence both during and after the hearing; (iv) any written representations made during or after the hearing but before the RPD decision was made; and (v) any recording of the hearing.^{Note 137} If the Minister did not intervene at the RPD the RAD must provide the Minister with a copy of the RPD record.^{Note 138}

Note that the Federal Court in Gudu found that there was no requirement for the RAD to provide the RPD record to the person.^{Note 139}

1.4.4.4. Language of the appeal

A person must choose English or French as the language of the appeal. This is to be indicated in the notice of appeal. The person also chooses the language of the appeal in a Minister’s appeal by indicating its choice in the notice of intent to respond. If the appellant is the Minister, the language of the appeal is the language chosen by the person at the RPD. The language of the appeal may be changed by the person by written notice to the RAD and the Minister. If a date for a proceeding has been set, notice of a change must be received no later than 20 days prior to that date.^{Note 140}

1.4.4.5. Designated representative

In the case of those who appear before a Division of the IRB who are under the age of 18 or are unable, in the opinion of the Division, to appreciate the nature of the proceedings, the Division shall designate a person to represent the person who is the subject to the proceedings.^{Note 141} At the RAD, a person who has been designated a representative at the RPD, will continue that representation in the person’s appeal, unless the RAD orders otherwise.^{Note 142}

If the RPD did not designate a representative and counsel believes that one should be designated they must, without delay, notify the RAD that a designation is required. However, this does not apply in the case of a person under 18 years old who is joined with the appeal of their 18 years and older parent or legal guardian.^{Note 143} The notice must contain: (i) the contact information of a person in Canada who counsel is aware meets the requirements to be a designated representative; (ii) a copy of any available support documentation; and (iii) the reasons why counsel believes that a representative should be designated.^{Note 144}

The RAD Rules also sets out the requirements for being designated, how the designation is ended, and the responsibilities of a designated representative.^{Note 145}

Guidance on the subject of designated representatives is provided in Chairperson’s Guideline 3.^{Note 146}

1.4.4.6. Specialized knowledge and judicial notice

The RAD may take notice of any facts that may be judicially noticed and of any other generally recognized facts and any information or opinion that is within its specialized knowledge.^{Note 147} Under RAD Rule 24, where specialized knowledge is being used, notice to the parties must be given.

For a more in-depth discussion of judicial notice and specialized knowledge see Chapter 10: Judicial Notice and Specialized Knowledge of the Legal Services paper entitled Weighing Evidence.

1.4.4.7. Notice of constitutional question

The Federal Court has found that the RAD has the power to decide Charter questions. In Al-Abbas the Court stated that:

Section 162(1) of the IRPA provides that each Division of the IRB “has, in respect of proceedings brought before it under this Act, sole and exclusive jurisdiction to hear and determine questions of law and fact, including questions of jurisdiction.” There can therefore be no questions that the RAD, a Division of the IRB, generally, has the power to decide questions of law. Further, there is no suggestion that Parliament intended to carve the Charter out of from this power. On the contrary, Rule 25 of the Refugee Appeal Division Rules, SOR/2012-257, sets out the procedure to follow when a party “wants to challenge the constitutional validity, applicability or operability of a legislative provision.” Indeed, looking at the matter even more broadly, paragraph 3(3)(d) of the IRPA provides that the Act is to be “construed and applied” in a manner that “ensures that decisions taken under this Act are consistent with the Canadian Charter of Rights and Freedoms.” Obviously, in the exercise of its appellate role the RAD is making decisions under the IRPA.^{Note 148}

Given this, the RAD Rules set out the procedures for raising a Charter challenge at the RAD. Under RAD Rule 25(1) a party who wants to challenge the constitutional validity, applicability, or operability of a legislative provision must complete a notice of constitutional question. The notice must be completed using Form 69 of the Federal Court Rules^{Note 149} or any other form.^{Note 150} The notice must include: (i) the party’s name; (ii) the RAD file number; (iii) the specific legislative provision that is being challenged; (iv) the material facts relied on to support the constitutional challenge; and (v) a summary of the legal argument to be made in support of the constitutional challenge.^{Note 151}

A copy of the notice must be provided to: (i) the Attorney General of Canada and to the attorney general of each province of Canada; (ii) the Minister; (iii) the UNHCR, if the UNHCR has provided notice of its intention to provide written submissions; and (iv) to any interested person. The original notice, along with proof of service, must be provided to the RAD.^{Note 152} The documents must be received by their recipients at the same time as the RAD receives the appellant’s record, respondent’s record, or the reply record, as the case may be.^{Note 153} The RAD cannot make a decision until at least 10 days after the day on which it received the notice of constitutional question.^{Note 154}

1.4.4.8. Conferences

Under RAD Rule 26 the RAD may require the parties to participate in a conference to discuss issues, relevant facts, and any other matter in order to make the appeal fairer and more efficient. The RAD may require the parties to give information or provide documents at or before the conference. The RAD is required to make a written record of any decisions or agreement that are made at the conference.

1.4.4.9. Documents

RAD Rules 27 to 35 set out the procedural requirements that relate to the documents that a party intends to submit to the RAD.

RAD Rule 27 sets out the format for documents and photocopies that are to be provided to the RAD. If there is more than one document, a party must provide a list of the documents. All pages are to be consecutively numbered.

Documents provided by the person must be in English or French or if in another language, be provided with a translation in English or French with a declaration signed by a translator. The Minister must provide documents in the language of the appeal or provide a translation in the language of the appeal along with a translator’s declaration. A translator’s declaration must include the name of the translator, the language translated and a statement that the translation is accurate.^{Note 155}

If the person wishes to submit documents or written submissions to the RAD after the appellant’s record, respondent’s record, or reply record, they must bring an application pursuant to RAD Rule 29 and in conformity with RAD Rule 37. RAD Rule 37 is discussed below in section 1.4.4.10 Applications.

Under RAD Rule 29(3), the person must provide an explanation as to how the documents meet the requirements of subsection 110(4) of the IRPA and how that evidence relates to the person unless the evidence is in response to the Minister’s evidence. The RAD in deciding the application must consider any relevant factors including:

the document’s relevance and probative value;
any new evidence the document brings to the appeal; and
whether the person, with reasonable effort, could have provided the document or written submissions with the appellant’s record, respondent’s record or reply record.^{Note 156}

Note that there is no equivalent provision for the Minister. As per subsection 171(a.5) of the IRPA, the Minister can submit documents or written submissions at any time before the RAD renders its decision. However, when the Minister does submit additional documents or written submissions, they must provide it first to the person and then to the RAD along with proof of service.^{Note 157}

The person may reply to the Minister’s additional documents or submissions in accordance with RAD Rule 5 with any changes that may be needed.

RAD Rule 29 is more fully discussed in Chapter 4: Admissibility of Evidence.

Under RAD Rule 31 documents are to be provided to the same registry office in the same region as the RPD’s registry office through which the notice of decision under appeal is provided. Documents to be provided to the Minister must be provided to Minister’s counsel. Documents to be provided to a party other than the Minister must be provided to that party’s counsel or directly to the party if they have no counsel.

Documents are to be provided by the following means:^{Note 158}

by hand;
by regular or registered mail;
by courier;
by fax (if no longer than twenty pages unless recipient consents to more pages); or
by e-mail or other electronic means if the RAD allows.

The RAD has since issued practice notices allowing for the exchange of documents by electronic means. Pursuant to the Practice Notice: Exchange of documents through Canada Post epost Connect™ to the Refugee Appeal Division, issued June 15, 2020, documents may be exchanged (sent or received) using the Canada Post’s e-post Connect. Additionally, on October 26, 2020, the IRB issued a further practice notice entitled, “Practice Notice - Electronic Exchange of Documents Using My Case which states that documents can also be exchanged via the IRB’s self-service web portal known as My Case.

If a document cannot be provided by one of these methods a party can make an application, in accordance with RAD Rule 33, to the RAD to provide the document using an alternative method or request to be excused from providing the document. The RAD will only allow the application if the party has made reasonable efforts to provide the document.^{Note 159}

RAD Rule 34 states that proof of service must be established by:

an acknowledgement of receipt signed by the recipient or a statement of service if the document was delivered by hand;
a confirmation of receipt if the document was provided by registered mail, courier, fax or email or other electronic means; or
a statement of service if the document was provided by regular mail.

A statement of service contains the name and signature of the person who provided the document and a statement of how and when the document was provided. If a party was unable to provide proof that a document was provided as above, they must provide a written and signed document explaining why they are unable to provide that proof.^{Note 160}

Under RAD Rule 35 a document is considered received by the RAD on the day on which the document is date-stamped by the RAD. A document received by a recipient other than the RAD is considered received seven days after the day on which it was mailed. If the seventh day falls on a non-working day, then the time limit is extended to the next working day.

1.4.4.10. Applications

Unless stated otherwise, if a party wants the RAD to make a decision on any matter they must make an application in accordance with RAD Rule 37.^{Note 161} The general rule is that an application must be made in writing and without delay.^{Note 162} The RAD must not allow a party to make an application orally at a hearing unless the party, with reasonable effort, could not have made a written application prior to the hearing. The application must:

state the decision the party wants the RAD to make;
give reasons why the RAD should make that decision; and
if there is another party and the views of that party are known, state whether the other party agrees to the application.^{Note 163}

Unless the RAD Rules provide otherwise, any evidence submitted with the application must be contained in an affidavit or a statutory declaration that accompanies the application.^{Note 164} A copy of the application and the affidavit or statutory declaration must be provided to any other party. The original application and affidavit or statutory declaration must be provided to the RAD together with proof of service.^{Note 165}

A response to the application must be in writing and state the decision the party wants the RAD to make and give reasons why the RAD should make that decision.^{Note 166} Normally any accompanying evidence must be in an affidavit or a statutory declaration. However, if the applicant was not required to do so neither will the respondent.^{Note 167} A copy of the response and the affidavit or statutory declaration must be provided to the other party and the original of these must be provided to the RAD along with proof of service.^{Note 168} The time limit to provide the response to the application is no later than seven days after the day on which the party receives the copy of the application.^{Note 169}

Under RAD Rule 39 an applicant can reply to the response to the application. Any evidence that accompanies the reply must be given in an affidavit or statutory declaration unless it was not required for the application. A copy of the reply and affidavit or statutory declaration must be provided to the other party and the original of these must be provided to the RAD along with proof of service. These documents must be received by their recipients no later than five days after the day on which the party received the copy of the response.

1.4.4.11. Joining or separating appeals

If claims were joined and heard together at the RPD, the appeals of these claims must be joined by the RAD.^{Note 170} However, a party can bring an application to separate these appeals pursuant to RAD Rule 41(2). In addition, a party can also bring an application to join appeals under RAD Rule 41(1).

A party who makes an application to join or separate must do so in accordance with RAD Rule 37 but the person is not required to give evidence in an affidavit or statutory declaration. A copy of the application must be provided to any person affected by the RAD’s decision and proof of service must be provided to the RAD.^{Note 171} If the person is the applicant, the application must be received by the recipients at the same time as the Division receives person’s notice of appeal, notice of intent to respond or reply record. If the Minister is the applicant, the application must be received by the recipients at the same time as the Division receives the Minister’s notice of appeal, notice of intervention or reply.^{Note 172}

In deciding the application to join or separate the RAD must consider any relevant factors including whether:

the appeals involve similar questions of fact or law;
allowing the application would promote the efficient administration of the RAD’s work; and
allowing the application would likely cause an injustice.^{Note 173}

1.4.4.12. Proceedings in public/absence of public

Generally, proceedings before the IRB are to be held in public.^{Note 174} However, there are exceptions to this. Proceedings in the RPD and the RAD are to be held in the absence of the public (in private).^{Note 175}

The RAD may on application or on its own initiative decide to conduct a proceeding in public or take any other measure that it considers necessary to ensure appropriate access to its proceedings. In making its determination, the RAD must take into consideration any alternative measures and the following factors:^{Note 176}

whether there is a serious possibility that the life, liberty, or security of a person will be endangered if the proceeding is held in public,
whether there is a real and substantial risk to the fairness of the proceeding such that the need to prevent disclosure outweighs the societal interest that the proceeding be conducted in public, or
whether there is a real and substantial risk that matters involving public security will be disclosed.

RAD Rule 42 outlines the procedural steps in bringing an application to have a proceeding conducted in public. Under this rule the Minister is a party even if they have not intervened in the appeal. An application to conduct the proceedings in public must be made in writing and in accordance with this rule rather than RAD Rule 37. The RAD must not allow an application to be made orally at a hearing unless the person, with reasonable effort, could not have made a written application before the hearing.^{Note 177}

In the application the person must:

state the decision they want the RAD to make;
give reasons why the RAD should make that decision;
state whether they want the RAD to consider the application in public or in the absence of the public and give reasons why the RAD should do so; and
include any evidence they want the RAD to consider.^{Note 178}

The original application and two copies must be provided to the RAD and the RAD must provide a copy of the application to the parties.^{Note 179}

A party can respond to the application. The response must:

state the decision they want the RAD to make;
give reasons why the RAD should make that decision;
state whether they want the RAD to consider the application in public or in the absence of the public and give reasons why the RAD should do so; and
include any evidence that they want the RAD to consider.^{Note 180}

If the Minister responds to an application, the response must be accompanied by a notice of intervention in accordance with RAD Rule 4(2) if it was not previously provided.^{Note 181}

A party must provide a copy of the response to the other party and the original and copy to the RAD together with proof of service.^{Note 182} The RAD must provide to the applicant either a copy of the response or a summary of the response under RAD Rule 42(13)(a) (discussed below).^{Note 183}

An applicant or party can make a reply to the response or summary of response.^{Note 184} They must provide the original reply and two copies to the RAD and the RAD must provide a copy to the parties.^{Note 185}

The applicant must provide their application to the RAD without delay. The RAD will subsequently specify the time limits for a response or reply if any.^{Note 186}

Under RAD Rule 42(13) the RAD can take any measures it deems necessary to ensure the confidentiality of the proceeding. The RAD can provide a summary of the response to the applicant instead of a copy. If an oral hearing is being held, the RAD can exclude the applicant or the applicant and counsel from the hearing while the party responding to the application provides evidence and makes submissions. The RAD may also allow the presence of the applicant’s counsel at the hearing while the party responding to the application provides evidence and makes submissions, on receipt of a written undertaking by counsel not to disclose any of the evidence or information adduced until the RAD makes a decision to hold the hearing in public.

If the RAD provides a summary of the response or excludes the applicant and their counsel from a hearing, the RAD must provide a summary of the submissions and evidence, if any, that is sufficient to allow the applicant to reply while ensuring the confidentiality of the proceedings have regards to the factors in subsection 166(b) of the IRPA.^{Note 187}

As per RAD Rule 42(15) the RAD must notify the applicant and parties of its decision and provide reasons for the decision.

1.4.4.13. Composition of panels and assignments of three-member panel

Generally, matters heard before a Division of the Board are to be conducted before a single member. However, the Chairperson, except for matters before the ID, may have the matter heard by a panel of three members if the Chairperson is of the opinion that such a panel should be constituted.^{Note 188}

The Act is silent as to what criteria are to be considered in the Chairperson’s decision to designate a thee-member panel. The Chairperson issued a policy^{Note 189} that enumerates the criteria required. They are as follows:

The appeal raises unusually complex or emerging legal issues.
The appeal raises an issue in an area in which there is significant divergence or inconsistency in decision-making at either the RAD or the RPD.
The appeal raises a serious question of general importance.
The appeal raises an issue that may have a significant impact on practice and procedure at either the RAD or the RPD.
Any other relevant circumstances exist that make it appropriate that a three-member panel be designated.

RAD Rules 43 to 46 provide the procedural steps involved once a three-member panel has been assigned. When the Chairperson orders a proceeding to be conducted by a three-member panel, notice of the order is provided by the RAD to the parties and the Minister, even if the Minister did not intervene, and the UNHCR.^{Note 190}

The RAD will provide the UNHCR with the RPD record and the documents filed in the appeal. If the UNHCR wants to provide submissions it will file a notice of intent to do so.^{Note 191} The RAD must provide the UNHCR’s notice to the person and the Minister without delay.^{Note 192}

The RAD can make a final decision once fifteen days has passed since the notice of the order of the assignment of the three-member panel has been received by the Minister and the UNHCR.^{Note 193}

The UNHCR’s written submissions are due ten days after the UNHCR provided its notice of intention to provide submissions. The UNHCR cannot raise any new issues in its submissions. The submissions cannot be longer than thirty pages one-sided or fifteen pages double sided. The RAD must without delay provide a copy of the UNHCR’s written submissions to the person and to the Minister.^{Note 194}

The person or the Minister can respond to the UNHCR’s submissions in writing but cannot raise any new issues. The response cannot be longer than thirty pages one-sided or fifteen pages double sided. The response must be provided to the person or the Minister, as the case may be, and then to the RAD with proof of service. The response is due no later than seven days after receipt of the UNHCR submissions.^{Note 195}

Any person, other than the UNHCR, may make an application to the RAD to be allowed to participate in a three-member panel appeal in accordance with RAD Rule 46.

The application must include the following:

the applicant’s name;
an explanation as to why they want to participate;
submissions they want to put forward and how they are relevant to the appeal;
an explanation of the differences between the applicant’s submissions and those of the person and the Minister;
an explanation of how the submissions will help the RAD decide the appeal; and
the contact information of the applicant and their counsel, if any.^{Note 196}

The RAD must provide a copy of the application to the person and the Minister.^{Note 197}

The person or the Minister can respond but is not to raise any new issues. The response can be no longer than thirty pages if typed on one side or fifteen pages if typed on both sides. The response is due no later than ten days after receipt of the application.^{Note 198}

Once the RAD has decided the application, it must notify the applicant, the person, and the Minister in writing.^{Note 199} If the application is allowed the RAD is to provide to the interested person the following documents: (i) the RPD record; (ii) the document submitted in support of the appeal; and (iii) the written submissions of other interested parties and the UNHCR.^{Note 200}

Once the application is allowed the interested person may provide submissions. Those submissions cannot raise new issues and must not be more than thirty pages if typed on one side or fifteen pages if typed on both sides. The submissions must be provided to the person, the Minister, and then to the RAD together with proof of service.^{Note 201}

The person or the Minister may respond to the interested parties’ submissions. Their response must not raise any new issues nor be longer than thirty pages if typed on one side or fifteen pages if typed on both sides. The response must be provided to the interested person, the person, or the Minister, as the case may be, and then to the RAD with proof of service. The response, together with proof of service, is to be received by their recipients no later than seven days after receipt of the interested person’s written submissions.^{Note 202}

A final decision in an appeal conducted by a three-member panel of the RAD has for the RPD and for a panel of one member of the RAD the same precedential effect as a decision of an appeal court has for a trial court.^{Note 203}

1.4.4.14. Requirements when holding an oral hearing

As discussed earlier in this chapter, proceedings before the RAD generally proceed without a hearing. However, if the requirements under subsection 110(6) of the IRPA are met the RAD may hold an oral hearing.

Section 162 of the IRPA states that where there is a hearing, it can be conducted in the presence of the person who is the subject of the proceedings either in person or by live teleconference.^{Note 204}

Part 4 of the RAD Rules outlines the procedural rules that are applicable to oral hearings at the RAD. RAD Rules 55 to 68 cover requirements relating to fixing the date of a hearing, providing a notice to appear, conduct of a hearing, persons who are in custody, interpreters, observers, witnesses, summons, arrest warrants, changing the location of the hearing, changing the date or time of a hearing, and abandonment.

The RAD issued a practice notice that as of November 2, 2020, all hearings would be held virtually. However, where the appellant does not have the technology or it is not suitable to hold a hearing by virtual means, the RAD will make accommodations by having either the appellant or all of the participants attend the hearing in person.^{Note 205}

The criteria for holding an oral hearing and the procedural requirements for when an oral hearing is held are discussed in detail in Chapter 6: Oral Hearings.

1.4.4.15. Withdrawing an appeal and reinstating a withdrawn appeal

An applicant can request to withdraw from a proceeding. The RAD may refuse to allow the application if it is of the opinion that the withdrawal would be an abuse of process under its rules.^{Note 206} RAD Rule 47 further states that a withdrawal of an appeal is an abuse of process if the withdrawal would likely have a negative effect on the RAD’s integrity. However, it is not an abuse of process if the requirements under RAD Rule 7 or RAD Rule 13, as the case may be, have not been met. In other words, if the time limits for deciding an appeal under either Rule have not expired, it will not be considered an abuse of process to withdraw an appeal.

If these requirements are not met, an appellant can withdraw an appeal by notifying the RAD in writing. However, if these requirements have been met, the appellant must make an application as per RAD Rule 37.^{Note 207}

An appellant may under RAD Rule 48 make an application to reinstate a withdrawn appeal. The application must be made in accordance with RAD Rule 37 and the original and a copy of the application must be provided to the RAD and include their contact information, and if represented, their counsel’s contact information and any limitations on counsel’s retainer.^{Note 208} The RAD will provide the application made by the person, without delay, to the Minister.^{Note 209} In deciding the application the RAD must not allow the application unless it has been established that there was a failure to observe a principle of natural justice or it is otherwise in the interest of justice to allow the application.^{Note 210} Further, when deciding the application, the RAD must consider any relevant factors including whether the application was made in a timely fashion and any explanation for any delay.^{Note 211} If this is the second application to reinstate a withdrawn appeal, the RAD must consider the reasons for the denial of the first application and not allow the subsequent application unless there are exceptional circumstances supported by new evidence.^{Note 212}

1.4.4.16. Abandonments

A Division may decide if a proceeding before it has been abandoned if it is of the opinion that the applicant is in default in the proceedings.^{Note 213} Default includes failing to appear for a hearing, to provide information to a Division as required, or to communicate with the Division on being requested to do so.

The Federal Court has, “…repeatedly held that the central consideration with respect to abandonment proceedings is whether the applicant’s conduct amounts to an expression of his or her intention to diligently prosecute his or her claim.”^{Note 214}

See Chapter 6: Oral Hearings for a discussion of abandonment after a hearing has been scheduled.

1.4.4.17. Decisions and reasons

As per subsection 159.92(1) of the Regulations the RAD is to render its decision 90 days after the appeal has been perfected except for those cases where a hearing is held. If it is not possible for the RAD to render its decision within the 90 days subsection 159.92(2) of the Regulations states that the RAD must do so as soon as feasible after that time limit.^{Note 215} The time limits for the RAD decision are also discussed in Chapter 7: Remedies.

Subsection 169(b) of the IRPA states that the Divisions of the IRB must provide reasons for their final decisions. Final decisions of the RAD must be rendered in writing.^{Note 216} The period in which the Minister or the person can apply for judicial review is calculated from the giving of notice of the decision or from the sending of written reasons, whichever is later.^{Note 217}

RAD Rule 50 also states that when the RAD makes a final decision it must provide written notice of the decision to the person, the Minister and the RPD. Notice will be sent also to the UNHCR and any interested person if they have provided written submissions in the appeal. Pursuant to RAD Rule 50(2) the RAD must also send written reasons for the decision together with the notice of decision if a hearing was held or not held under subsection 110(6) of the IRPA.

The decision takes effect in accordance with the rules.^{Note 218} RAD Rule 51(1)(a) states that a final decision made by a single RAD member takes effect when the member signs and dates the reasons for the decision.

RAD Rule 51(2)(a) states that a final decision of three-member panel takes effect when all the members sign and date their reasons for the decision. As noted earlier in section 1.4.5.13 (Composition of panels and assignment of three-member panel), a decision of a three-member panel has for the RPD and for a panel of one member of the RAD the same precedential effect as a decision of an appeal court has for a trial court.^{Note 219} RAD decisions are also covered in Chapter 7: Remedies.

1.4.4.18. Reopening an appeal

The RAD cannot reopen an appeal on any ground, including a breach of natural justice once the Federal Court has made a final determination with respect to the appeal.^{Note 220}

The Federal Court dealt with the issue of what constitutes a final determination in its decision in George.^{Note 221} In that case, the person argued that a dismissal by the Federal Court for the failure of the person to perfect their application for judicial review was not a final determination. The Court concluded that:

[16] While the merits of the matter have not been considered where an application is dismissed for lack of perfection, the dispute as between the parties has been resolved. The matter is settled. It is final. An ordinary, contextual reading of section 171.1 does not import a requirement for a consideration of the merits but rather a requirement that the matter be finally determined by this Court.

Under RAD Rule 49(1) an appellant, any time before the Federal Court makes a final determination in respect of an appeal that has been decided or declared abandoned, can make an application to the RAD to reopen the appeal. The application must be made in accordance with RAD Rule 37 and an original and a copy of the application must be provided to the RAD. The application must include contact information and, if represented, counsel’s contact information and any limitation on counsel’s retainer.^{Note 222} The RAD must provide a copy of the application to the Minister without delay.^{Note 223} If there is a pending application for leave and judicial review before the Federal Court a copy of the Federal Court documents must accompany the application to reopen.^{Note 224}

If the application includes allegations of inadequate representation by former counsel the appellant must first provide a copy of the application to former counsel and then the original and copy of the application together with proof of service on former counsel to the RAD.^{Note 225}

The RAD must not allow the application unless it has been established that there was a breach of natural justice.^{Note 226} In deciding the application, the RAD must consider any relevant factors including:

whether the application was made in a timely manner and the explanation for any delay; and
if the appellant did not make an application for leave and judicial review at the RAD why an application was not made.^{Note 227}

If there is a pending application for leave and judicial review at the Federal Court on the same or similar grounds, the RAD must make its decision as soon as practicable.^{Note 228}

If the appellant makes a subsequent application after a previous application has been denied, the RAD must consider the reasons for the refusal and not allow the subsequent application unless there are exceptional circumstances supported by new evidence.^{Note 229}

1.4.4.19. General provisions under the Refugee Appeal Division Rules

RAD Rules 52 to 54 are provisions that set out what the RAD can do when, among other things,: (i) there is no applicable rule; (ii) the RAD wishes to change the requirement of the rule; or (iii) there is a failure to follow a rule.

If there is no rule dealing with a matter raised in the proceedings before the RAD, the RAD may do whatever is necessary to deal with the matter.^{Note 230} Further, if the RAD wants to act on its own initiative, change a requirement of a rule, excuse a person from a requirement of a rule or extend or shorten a time limit, it can do so by giving notice to the parties and an opportunity for them to object.^{Note 231} Finally, a failure to follow any requirement of the rules does not make the proceedings invalid unless they are declared invalid by the RAD.^{Note 232}

The Court in Ahmed noted that there is little jurisprudence on the interpretation of RAD Rules 52 to 54, however:

…the limited jurisprudence which comments on these rules suggests that their purpose is to give the board the flexibility to control their own processes by applying rules liberally to deal with proceedings in an informal and expeditious manner…^{Note 233}

1.5. Judicial Review and Appeals

1.5.1. Federal Court

Judicial review of a RAD decision by the Federal Court is commenced by making an application for leave to the Court.^{Note 234} The application cannot be made until all other rights of appeal under the IRPA have been exhausted.^{Note 235} The application for leave and judicial review is filed at the Federal Court, within 15 days for matters arising in Canada and 60 days for matters arising outside Canada, after the day which the applicant is notified or becomes aware of the decision.^{Note 236}

The IRB is not a party to the proceedings. The Minister who is responsible for the administration of the IRPA is party to the proceedings.^{Note 237} However, the IRB could intervene in a judicial review.^{Note 238} The IRB issued a policy providing criteria on when it is appropriate for the IRB to intervene in a higher court proceeding.^{Note 239}

Grounds for review at the Federal Court are found in the Federal Courts Act. Subsection 18.1 of that Act^{Note 240} states that the Federal Court can grant relief if it is satisfied that the federal board, commission, or other tribunal:

acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction;
failed to observe a principle of natural justice, procedural fairness, or other procedure that it was required by law to observe;
erred in law in making a decision or an order, whether or not the error appears on the face of the record;
based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it;
acted, or failed to act, by reason of fraud or perjured evidence; or
acted in any other way that was contrary to law.

If leave is granted the Judge will set the day and place for the hearing and that hearing shall be no sooner than 30 days and no later than 90 days after leave was granted.^{Note 241}

The IRB issued a Policy on court-ordered redeterminations that standardizes the selection of decision-makers when the Federal Court refers a matter back to the IRB for a redetermination and provides for a priority review by Legal Services to ensure that the evidence from such files is processed in accordance with the Court order and with the principles of natural justice.^{Note 242}

1.5.2. Federal Court of Appeal

An appeal to the Federal Court of Appeal can only be made if the Federal Court in rendering its judgment certifies that a serious question of general importance is involved and states the question.^{Note 243}

In discussing criteria for certifying a serious question of general importance, the Federal Court stated the following:

The criteria for certification are well established. The proposed question must be a serious question that is dispositive of the appeal. It must transcend the interests of the parties and raise an issue of broad significance or general importance. Furthermore, the question must have been dealt with by the Federal Court and must arise from the case itself, rather than from the way in which the Federal Court may have disposed of the case. A question in the nature of a reference or whose answer turns on the unique facts of the case cannot ground a properly certified question.^{Note 244}

1.5.3. Supreme Court of Canada

An appeal of a Federal Court of Appeal decision may be made to the Supreme Court of Canada with leave of the latter Court.^{Note 245}

Notes

Protecting Canada’s Immigration System Act, SC 2012, chapter 17.

Return to note 1 referrer

Balanced Refugee Reform Act, SC 2010, chapter 8.

Return to note 2 referrer

Immigration and Refugee Protection Act, SC 2001, chapter 27.

Return to note 3 referrer

Immigration and Refugee Protection Regulations, SOR/2002-227.

Return to note 4 referrer

Interpretation of Convention Refugee and Person in Need of Protection in the Case Law. Prepared by IRB Legal Services, December 2020.

Return to note 5 referrer

Immigration and Refugee Protection Act, SC 2001, chapter 27, subsection 162(2).

Return to note 6 referrer

IRB Mandate and Mission Statement.

Return to note 7 referrer

Department of Justice in Canada's Court System.

Return to note 8 referrer

J.G. Cowan, updated by Zach Thomas S. Kuttner & Andrew McIntosh Parrott, Administrative Law in Canada (February 1, 2012, last edited December 4, 2020), online The Canadian Encyclopedia https://www.thecanadianencyclopedia.ca/en/article/administrative-law.

Return to note 9 referrer

Immigration and Refugee Protection Act, SC 2001, chapter 27, section 110.

Return to note 10 referrer

Immigration and Refugee Protection Act, SC 2001, chapter 27, section 96 and Immigration and Refugee Protection Act, SC 2001, chapter 27, section 97. See also IRB Legal Services’ Paper entitled Interpretation of Convention Refugee and Person in Need of Protection in the Case Law Dec. 2020.

Return to note 11 referrer

Immigration and Refugee Protection Act, SC 2001, chapter 27, subsection 110(1).

Return to note 12 referrer

Under the Immigration and Refugee Protection Act, SC 2001, chapter 27, section 20.1 the Minister of Public Safety and Emergency Preparedness may designate as an irregular arrival, the arrival in Canada of a group of persons. The persons in that group become a DFN. The DFN provision in the IRPA, which concerns human smuggling or other irregular arrivals, is seldom used.

Return to note 13 referrer

Immigration and Refugee Protection Act, SC 2001, chapter 27, subsection 107(2). If the RPD is of the opinion, in rejecting a claim, that there was no credible or trustworthy evidence on which it could have made a favourable decision, it shall state in its reasons for the decision that there is no credible basis.

Return to note 14 referrer

Immigration and Refugee Protection Act, SC 2001, chapter 27, section 107.1. If the RPD rejects a claim for protection, it must state in its reasons for the decision that the claim is manifestly unfounded if it is of the opinion that the claim is clearly fraudulent.

Return to note 15 referrer

Balanced Refugee Reform Act, SC 2010, chapter 8, subsection 36(1), as amended by the PCISA. As of December 31, 2022, all legacy claims had been finalized. These include claims that have been returned by the Federal Court for re-determination, as well as other types of matters heard (such as applications to re-open). This does not include applications to vacate or cessate. For these statistics, see Refugee Protection Claims (Legacy) Statistics that is found on the IRB’s website.

Return to note 16 referrer

Immigration and Refugee Protection Act, SC 2001, chapter 27, subsection 72(1) states that judicial review by the Federal Court is commenced by making an application for leave to the Court.

Return to note 17 referrer

See Immigration and Refugee Protection Act, SC 2001, chapter 27, subsection 109.1(2) that outlines when a Minister may designate a country as a DCO.

Return to note 18 referrer

Y.Z. v. Canada (Minister of Citizenship and Immigration), 2015 FC 892, paragraph 173 (CanLII) The Federal Court certified two questions of general importance. The Minister appealed the decision to the Federal Court of Appeal (FCA). However, that appeal was discontinued on December 23, 2015 (A-338-15).

Return to note 19 referrer

Canadian Charter of Rights and Freedoms, subsection 15(1), Part 1of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, chapter 11.

Return to note 20 referrer

Constitution Act, 1982, subsection 52(1).

Return to note 21 referrer

News Release May 17, 2019: Canada removes all countries from the Designated Country of Origin list. Online: https://www.canada.ca/en/immigration-refugees-citizenship/news/2019/05/canada-ends-the-designated-country-of-origin-practice.html.

Return to note 22 referrer

Kreishan v. Canada (Minister of Citizenship and Immigration Canada), 2018 FC 481 (CanLII).

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Kreishan v. Canada (Minister of Citizenship and Immigration), 2019 FCA 223, paragraphs 143-144 (CanLII).

Return to note 24 referrer

Dor v. Canada (Minister of Citizenship and Immigration), 2021 FC 892 (CanLII).

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Dor v. Canada (Minister of Citizenship and Immigration), 2021 FC 892, paragraph 93 (CanLII).

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Canadian Council for Refugees v. Canada (Minister of Immigration, Refugees and Citizenship), 2020 FC 770, paragraphs 140, 159, 150 (CanLII).

Return to note 27 referrer

Canada (Minister of Citizenship and Immigration) v. Canadian Counsel for Refugees, 2021 FCA 72 (CanLII).

Return to note 28 referrer

Canadian Council for Refugees v. Canada (Minister of Citizenship and Immigration), Court file number 39749 (CanLII) Application for leave granted by the SCC on December 15, 2021.

Return to note 29 referrer

Refugee Appeal Division Rules, SOR 2012/257.

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Refugee Appeal Division Rules, SOR 2012/257, rule 1.

Return to note 31 referrer

See Rule 42(1), discussed below at section 1.4.4.12.

Return to note 32 referrer

Canada (Minister of Citizenship and Immigration) v. Alazar, 2021 FC 637 (CanLII).

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See Chapter 3: New Issues for a more in-depth discussion of new issues and procedural fairness at the RAD.

Return to note 34 referrer

Canada (Minister of Citizenship and Immigration) v. Alazar, 2021 FC 637, paragraph 81 (CanLII).

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Canada (Minister of Citizenship and Immigration) v. Alazar, 2021 FC 637, paragraph 83 (CanLII).

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Canada (Minister of Citizenship and Immigration) v. Miller, 2022 FC 1131 (CanLII).

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Canada (Minister of Citizenship and Immigration) v. Miller, 2022 FC 1131, paragraph 60 (CanLII).

Return to note 38 referrer

In order to balance the RAD’s duty to decide appeals informally and quickly with the Minister’s right to notice of material changes in appeals to which the Minister is not yet a party the RAD issued a practice notice. See Practice Notice: Providing post-perfection documents to the Minister when not a party to the appeal (February 27, 2023).

Return to note 39 referrer

Refugee Appeal Division Rules, SOR/2012-257, rule 1.

Return to note 40 referrer

Refugee Appeal Division Rules, SOR/2012-257, rule 60(1).

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Refugee Appeal Division Rules, SOR/2012-257, rule 60(2).

Return to note 42 referrer

Refugee Appeal Division Rules, SOR/2012-257, rule 60(1).

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Refugee Appeal Division Rules, SOR/2012-257, rule 43(3).

Return to note 44 referrer

Refugee Appeal Division Rules, SOR/2012-57, rule 60(1).

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Refugee Appeal Division Rules, SOR/2012-57, rule 60(2).

Return to note 46 referrer

Refugee Appeal Division Rules, SOR/2012-57, rule 60(3).

Return to note 47 referrer

Refugee Appeal Division Rules, SOR/2012-257, rule 1.

Return to note 48 referrer

Inquiries Act, RSC 1985, chapter 1-11, part 1.

Return to note 49 referrer

Immigration and Refugee Protection Act, SC 2001, chapter 27, section 165.

Return to note 50 referrer

Huruglica v. Canada (Minister of Citizenship and Immigration), 2016 FCA 93 (CanLII).

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Huruglica v. Canada (Minister of Citizenship and Immigration), 2016 FCA 93 (CanLII).

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Huruglica v. Canada (Minister of Citizenship and Immigration), 2016 FCA 93 (CanLII).

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Immigration and Refugee Protection Act, SC 2001, chapter 27, subsection 171(a.2). See for example Matthieu v. Canada (Minister of Citizenship and Immigration), 2021 FC 249, paragraph 28 (CanLII) where the Court held that as per s. 171(a.2) and (a.3) there was no requirement for evidence to be sworn and Magonza v. Canada (Minister of Citizenship and Immigration), 2019 FC 14, paragraph 12 (CanLII) where the Court confirmed that the law of evidence does not apply to proceedings before the RAD.

Return to note 54 referrer

Immigration and Refugee Protection Act, SC 2001, chapter 27, subsection 171(a.3). See Hassan v. Canada (Minister of Citizenship and Immigration), 2021 FC 383, paragraph 26 (CanLII) where the Court agreed that you cannot reject evidence solely on the basis that it is hearsay but must also look at whether it is credible or trustworthy. For an in-depth discussion on evidence and credibility, see IRB Legal Services’ Papers entitled, Weighing Evidence, December 2020 and Assessment of credibility in claims for refugee protection, December 2020.

Return to note 55 referrer

Singh v. Canada (Minister of Citizenship and Immigration), 2016 FCA 96 (CanLII).

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Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385, paragraphs 38, 49, 64 (CanLII).

Return to note 57 referrer

The RAD developed forms for the purpose of helping appellants prepare and perfect their appeal in accordance with the RAD Rules. Those forms include the following: the Appellant’s Record Form, the Notice of Appeal Form, the Checklist for the Appellant’s Record, the Notification of Withdrawal of an Appeal, the Affidavit Form, the Application for an Extension of Time to Respond to an Appeal, and the Application for an Extension of Time to File or Perfect an Appeal. All of these can be found online here: Forms - Immigration and Refugee Board of Canada (irb.gc.ca).

Return to note 58 referrer

Refugee Appeal Division Rules, SOR/2012-257, rule 2(1).

Return to note 59 referrer

Refugee Appeal Division Rules, SOR/2012-257, rule 2(2).

Return to note 60 referrer

Refugee Appeal Division Rules, SOR/2012-257, rule 2(3).

Return to note 61 referrer

Practice notice extending time limit for perfecting an appeal - Immigration and Refugee Board of Canada (September 16, 2020).

Return to note 62 referrer

Refugee Appeal Division Rules, SOR/2012-257, rule 3(2).

Return to note 63 referrer

Refugee Appeal Division Rules, SOR/2012-257, rule 3(3)(a).

Return to note 64 referrer

Practice notice: Elimination of duplicate Refugee Protection Division notice and reasons of decision effective September 2018.

Return to note 65 referrer

Refugee Appeal Division Rules, SOR/2012-257, rule 3(3)(b).

Return to note 66 referrer

Refugee Appeal Division Rules, SOR/2012-257, rule 3(3)(c).

Return to note 67 referrer

Refugee Appeal Division Rules, SOR/2012-257, rule 3(d)(i) and (ii).

Return to note 68 referrer

Refugee Appeal Division Rules, SOR/2012-257, rule 3(3)(d)(iii).

Return to note 69 referrer

Refugee Appeal Division Rules, SOR/2012-257, rule 3(3)(e).

Return to note 70 referrer

Refugee Appeal Division Rules, SOR/2012-257, rule 3(3)(f).

Return to note 71 referrer

The length of the memorandum must not be more than 30 pages if typed on one side of the page or 15 pages if typed on both sides as per Refugee Appeal Division Rules, SOR/2012-257, rule 3(4).

Return to note 72 referrer

Refugee Appeal Division Rules, SOR/2012-257, rule 3(3)(g)(i)-(v). The Federal Court has discussed RAD rule 3(3)(g) in a number of its decisions. The Court has discussed this Rule in the context of the role of the RAD and the need for it to do its own analysis. These decisions are discussed in Chapter 2: The RAD”s Standard of Review. In addition, there is also jurisprudence in relation to RAD Rule 3(3)(g)(iii) which is discussed in Chapter 4: Admissibility of Evidence.

Return to note 73 referrer

Note that the RAD issued a practice notice that provides a form that may be used to provide the particulars that are found in Refugee Appeal Division Rules, SOR/2012-257, rule 3(3)(g)(ii) in Practice Notice Number 1: Appellant's memorandum and requirements of rules 3(3)(g)(ii) and 9(2)(f)(ii) of the RAD Rules.

Return to note 74 referrer

Immigration and Refugee Protection Act, SC 2001, chapter 27, section 171(a.4).

Return to note 75 referrer

Immigration and Refugee Protection Act, SC 2001, chapter 27, section 171(a.5).

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Refugee Appeal Division Rules, SOR/2012-257, rule 4(1).

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Refugee Appeal Division Rules, SOR/2012-257, rule 4(2).

Return to note 78 referrer

Refugee Appeal Division Rules, SOR/2012-257, rule 4(3).

Return to note 79 referrer

The length of the memorandum must not be more than 30 pages if typed on one side of the page or 15 pages if typed on both sides as per Refugee Appeal Division Rules, SOR/2012-257, rule 4(4).

Return to note 80 referrer

Refugee Appeal Division Rules, SOR/2012-257, rule 4(5).

Return to note 81 referrer

Refugee Appeal Division Rules, SOR/2012-257, rule 5(1).

Return to note 82 referrer

Refugee Appeal Division Rules, SOR/2012-257, rule 5(2).

Return to note 83 referrer

The length of the memorandum must not be more than 30 pages if typed on one side of the page or 15 pages if typed on both sides as per Refugee Appeal Division Rules, SOR/2012-257, rule 5(3).

Return to note 84 referrer

Refugee Appeal Division Rules, SOR/2012-257, rule 5(4).

Return to note 85 referrer

Refugee Appeal Division Rules, SOR/2012-257, rule 5(5).

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Refugee Appeal Division Rules, SOR/2012-257, rule 6(1).

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Refugee Appeal Division Rules, SOR/2012-257, rule 6(2).

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Refugee Appeal Division Rules, SOR/2012-257, rule 6(3).

Return to note 89 referrer

Refugee Appeal Division Rules, SOR/2012-257, rule 6(4).

Return to note 90 referrer

Refugee Appeal Division Rules, SOR/2012-257, rule 6(5).

Return to note 91 referrer

Practice notice extending time limit for perfecting an appeal - Immigration and Refugee Board of Canada (September 16, 2020).

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Refugee Appeal Division Rules, SOR/2012-257, rule 6(6).

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Refugee Appeal Division Rules, SOR/2012-257, rule 6(7).

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Refugee Appeal Division Rules, SOR/2012-257, rule 6(8).

Return to note 95 referrer

Canada (Minister of Citizenship and Immigration) v. Alazar, 2021 FC 637, paragraph 75 (CanLII), Lopez Santos v. Canada (Minister of Citizenship and Immigration), 2021 FC 1281, paragraph 43 (CanLII). referring to Husian v. Canada (Minister of Citizenship and Immigration), 2015 FC 684, paragraph 10 (CanLII). See also Chapter 3: New Issues.

Return to note 96 referrer

Refugee Appeal Division Rules, SOR/2012-257, rule 8(3).

Return to note 97 referrer

Refugee Appeal Division Rules, SOR/2012-257, rule 8(2).

Return to note 98 referrer

Practice notice extending time limit for perfecting an appeal - Immigration and Refugee Board of Canada (September 16, 2020).

Return to note 99 referrer

Practice notice: Elimination of duplicate Refugee Protection Division notice and reasons of decision effective September 2018.

Return to note 100 referrer

The length of the memorandum must not be more than 30 pages if typed on one side of the page or 15 pages if typed on both sides as per Refugee Appeal Division Rules, SOR/2012-257, rule 9(3).

Return to note 101 referrer

Refugee Appeal Division Rules, SOR/2012-257, rule 9(2) and (4).

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Refugee Appeal Division Rules, SOR/2012-257, rule 10(2).

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Refugee Appeal Division Rules, SOR/2012-257, rule 10(3).

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The length of the memorandum must not be more than 30 pages if typed on one side of the page or 15 pages if typed on both sides and must be provided to the RPD with proof of service on the Minister as per Refugee Appeal Division Rules, SOR/2012-257, rule 10(4).

Return to note 105 referrer

Refugee Appeal Division Rules, SOR/2012-257, rule 10(5).

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Refugee Appeal Division Rules, SOR/2012-257, rule 10(6).

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Refugee Appeal Division Rules, SOR/2012-257, rule 10(6).

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Refugee Appeal Division Rules, SOR/2012-257, rule 11(1).

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Refugee Appeal Division Rules, SOR/2012-257, rule 11(2).

Return to note 110 referrer

The length of the memorandum must not be more than 30 pages if typed on one side of the page or 15 pages if typed on both sides as per Refugee Appeal Division Rules, SOR/2012-257, rule 10(4).

Return to note 111 referrer

Refugee Appeal Division Rules, SOR/2012-257, rule 11(4).

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Refugee Appeal Division Rules, SOR/2012-257, rule 12(2).

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Refugee Appeal Division Rules, SOR/2012-257, rule 12(3).

Return to note 114 referrer

Practice notice extending time limit for perfecting an appeal - Immigration and Refugee Board of Canada (irb.gc.ca).

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Refugee Appeal Division Rules, SOR/2012-257, rule 12(7).

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Refugee Appeal Division Rules, SOR/2012-257, rule 12(4).

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Refugee Appeal Division Rules, SOR/2012-257, rule 12(5).

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Refugee Appeal Division Rules, SOR/2012-257, rule 12(6).

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Refugee Appeal Division Rules, SOR/2012-257, rule 12(7).

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Siyaad v. Canada (Minister of Citizenship and Immigration), 2019 FC 761, paragraph 48 (CanLII).

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Refugee Appeal Division Rules, SOR/2012-257, rule 14 and Refugee Appeal Division Rules, SOR/2012-257, rule 15. The RAD has created a form that is to be completed and filed with the RAD when the contact information of a person changes. This form can be found here: Notification of Client Contact Information.

Return to note 122 referrer

Meshveliani v. Canada (Minister of Citizenship and Immigration), 2019 FC 1351, paragraph 16 (CanLII).

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Refugee Appeal Division Rules, SOR/2012-257, rule 16, Refugee Appeal Division Rules, SOR/2012-257, rule 17, Refugee Appeal Division Rules, SOR/2012-257, rule 18, Refugee Appeal Division Rules, SOR/2012/257, rule 19, and Refugee Appeal Division Rules, SOR/2012-257, rule 20.

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Refugee Appeal Division Rules, SOR/2012-257, rule 16(1). This information can be submitted to the RAD in the Counsel Contact Information form.

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Refugee Appeal Division Rules, SOR/2012-257, rule 16(2)

Return to note 126 referrer

Refugee Appeal Division Rules, SOR/2012-257, rule 16(3).

Return to note 127 referrer

College of Immigration and Citizenship Consultants Act, SC 2019, chapter 129, section 292 created the College of Immigration and Citizenship Consultants, a body that has been designated to oversee and regulate immigration consultants. The members of this body can represent persons, for consideration, before the RAD. As of July 1, 2023, the College, in accordance with the College Act and the College By-Laws, requires immigration consultants to obtain a special licence to be able to represent persons before the IRB: “Class L3 – RCIC-IRB”. This is called the “Specialization Program”. See the College website. Online: https://college-ic.ca/licensee-obligations/ongoing-education-for-rcics/specialization-program.

Return to note 128 referrer

Refugee Appeal Division Rules, SOR/2012-57, rule 17 and Refugee Appeal Division Rules, SOR/2012-57, Schedule (rule 17). A PDF fillable form can be found here: Notice of Representation Without a Fee or Other Consideration (irb.gc.ca).

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Refugee Appeal Division Rules, SOR/2012-257, rule 18(1). If providing the information by notice, the Counsel Contact Information form may be used.

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Refugee Appeal Division Rules, SOR/2012-257, rule 18(2).

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Refugee Appeal Division Rules, SOR/2012-257, rule 19.

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Refugee Appeal Division Rules, SOR/2012-257, rule 20.

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Refugee Appeal Division Rules, SOR/2012-257, rule 21(1).

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Refugee Appeal Division Rules, SOR/2012-257, rule 21(2).

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In Castellanos Penaranda v. Canada (Minister of Citizenship and Immigration), 2021 FC 608, paragraph 23 (CanLII) the Court found that the absence of the appellant’s Basis of Claim (BOC) form in the RPD record constituted a breach of procedural fairness.

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Refugee Appeal Division Rules, SOR/2012-257, rule 21(3).

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Refugee Appeal Division Rules, SOR/2012-257, rule 21(4).

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Gudu v. Canada (Minister of Citizenship and Immigration), 2018 FC 513, paragraph 13 (CanLII).

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Refugee Appeals Division Rules, SOR/2012-257, rule 22.

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Immigration and Refugee Protection Act, SC 2001, chapter 27, subsection 167(2).

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Refugee Appeal Division Rules, SOR/2012-257, rule 23(1).

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Refugee Appeal Division Rules, SOR/2012-257, rules 23(2) and 23(3).

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Refugee Appeal Division Rules, SOR/2012-257, rule 23(4).

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Refugee Appeal Division Rules, SOR/2012-257, rule 23(5), 23(6), 23(7), 23(8), 23(9), 23(10) and 23(11).

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Chairperson’s Guideline 3: Proceedings Involving Minors at the Immigration and Refugee Board - Immigration and Refugee Board of Canada (October 31, 2023).

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Immigration and Refugee Protection Act, SC 2001, chapter 27, subsection 171(b).

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Al-Abbas v. Canada (Minister of Citizenship and Immigration), 2019 FC 1000, paragraph 10 (CanLII).

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Federal Courts Rules, SOR/98-106, Form 69 (rule 69).

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Refugee Appeal Division Rules, SOR/2012-257, rule 25(1).

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Refugee Appeal Division Rules, SOR/2012-257, rule 25(2).

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Refugee Appeal Division Rules, SOR/2012-257, rule 25(3).

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Refugee Appeal Division Rules, SOR/2012-257, rule 25(4).

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Refugee Appeal Division Rules, SOR/2012-257, rule 25(5).

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Refugee Appeal Division Rules, SOR/2012-257, rule 28.

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Refugee Appeal Division Rules, SOR/2012-257, rule 29(4).

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Refugee Appeal Division Rules, SOR/2012-257, rule 29(5) and (6).

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Refugee Appeal Division Rules, SOR/2012-257, rule 32.

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Refugee Appeal Division Rules, SOR/2012-257, rule 33.

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Refugee Appeal Division Rules, SOR/2012-257, rules 34(2) and 34(3).

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Refugee Appeal Division Rules, SOR/2012-257, rule 36(a).

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Refugee Appeal Division Rules, SOR/2012-257, rule 37.

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Refugee Appeal Division Rules, SOR/2012-257, rule 37(3).

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Refugee Appeal Division Rules, SOR/2012-257, rule 37(4).The RAD has developed an Affidavit Form for use by the parties.

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Refugee Appeal Division Rules, SOR/2012-257, rule 37(5).

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Refugee Appeal Division Rules, SOR/2012-257, rule 38(1).

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Refugee Appeal Division Rules, SOR/2012-257, rule 38(2).

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Refugee Appeal Division Rules, SOR/2012-257, rule 38(3).

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Refugee Appeal Division Rules, SOR/2012-257, rule 38(4).

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Refugee Appeal Division Rules, SOR/2012-257, rule 40.

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Refugee Appeal Division Rules, SOR/2012-257, rule 41(3).

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Refugee Appeal Division Rules, SOR/2012-257, rule 41(4).

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Refugee Appeal Division Rules, SOR/2012-257, rule 41(5).

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Immigration and Refugee Protection Act, SC 2001, chapter 27, subsection 166(a).

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Immigration and Refugee Protection Act, SC 2001, chapter 27, subsection 166(c).

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Immigration and Refugee Protection Act, SC 2001, chapter 27, subsection 166(b) and (d).

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Refugee Appeal Division Rules, SOR/2012-257, rule 42(3).

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Refugee Appeal Division Rules, SOR/2012-257, rule 42(4).

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Refugee Appeal Division Rules, SOR/2012-257, rule 42(5).

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Refugee Appeal Division Rules, SOR/2012-257, rule 42(6).

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Refugee Appeal Division Rules, SOR/2012-257, rule 42(7).

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Refugee Appeal Division Rules, SOR/2012-257, rule 42(8).

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Refugee Appeal Division Rules, SOR/2012-257, rule 42(9).

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Refugee Appeal Division Rules, SOR/2012-257, rule 42(10).

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Refugee Appeal Division Rules, SOR/2012-257, rule 42(11).

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Refugee Appeal Division Rules, SOR/2012-257, rule 42(12).

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Refugee Appeal Division Rules, SOR/2012-257, rule 42(14).

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Immigration and Refugee Protection Act, SC 2001, chapter 27, section 163.

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Designation of Three-Member Panels - Refugee Appeal Division (April 12, 2013).

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Refugee Appeal Division Rules, SOR/2012-257, rule 43(1).

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Refugee Appeal Division Rules, SOR/2012-257, rule 43(2) and 43(3), Refugee Appeal Division Rules, SOR/2012-257, rules 45(1) and 45(3).

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Refugee Appeal Division Rules, SOR/2012-257, rule 45(2).

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Refugee Appeal Division Rules, SOR/2012-257, rule 43(4).

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Refugee Appeal Division Rules, SOR/2012-257, rule 45(3), 45(4), 45(5), and 45(6).

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Refugee Appeal Division Rules, SOR/2012-257, rule 45(27), 45(8), 45(9) 45(10), 45(11) and 45(12).

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Refugee Appeal Division Rules, SOR/2012-257, rule 46(2).

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Refugee Appeal Division Rules, SOR/2012-257, rule 46(3).

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Refugee Appeal Division Rules, SOR/2012-257, rule 46(4) 46(5), 46(6), and 46(7).

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Refugee Appeal Division Rules, SOR/2012-257, rule 46(8).

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Refugee Appeal Division Rules, SOR/2012-257, rule 46(9).

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Refugee Appeal Division Rules, SOR/2012-257, rule 46(10), 46(11), 46(12), and 46(13).

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Refugee Appeal Division Rules, SOR/2012-257, rule 46(14), 46(15), 46(16), 46(17), 47(18), and 46(19).

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Immigration and Refugee Protection Act, SC 2001, chapter 27, subsection 171(c).

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Immigration and Refugee Protection Act, SC 2001, chapter 27, section 164. In Sundaram v. Canada (Minister of Citizenship and Immigration), 2006 FC 291, paragraph 15 (CanLII) the Court held that the RPD breached natural justice, “…when it did not consider its own discretion and jurisdiction to conduct its hearing elsewhere than in Toronto or otherwise than by personal appearance.”

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For hearings scheduled on or after September 5, 2023 see Practice Notice: Scheduling of virtual and in-person hearings at the IRB (Seprember 5, 2023). For hearings scheduled before September 5, 2023 see Practice Notice: Scheduling of virtual, hybrid, and in-person hearings at the IRB (June 13, 2023).

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Immigration and Refugee Protection Act, SC 2001, chapter 27, subsection 168(2).

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Refugee Appeal Division Rules, SOR/2012-257, rule 47(1) and 47(2).

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Refugee Appeal Division Rules, SOR/2012-257, rule 48(2).

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Refugee Appeal Division Rules, SOR/2012-257, rule 48(3).

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Refugee Appeal Division Rules, SOR/2012-257, rule 48(4).

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Refugee Appeal Division Rules, SOR/2012-257, rule 48(5).

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Refugee Appeal Division Rules, SOR/2012-257, rule 48(6).

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Immigration and Refugee Protection Act, SC 2001, chapter 27, subsection 168(1).

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Csikos v. Canada (Minister of Citizenship and Immigration), 2013 FC 632, paragraph 25 (CanLII). See also, Zhang v. Canada (Minister of Citizenship and Immigration), 2014 FC 882, paragraph 36 (CanLII).

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In Etik v. Canada (Minister of Citizenship and Immigration), 2019 FC 762, paragraph 9 (CanLII) the Federal Court stated that under subsection 159.92(2) of the Regulations the RAD has some discretion to exceed the 90-day decision limit.

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Immigration and Refugee Protection Act, SC 2001, chapter 27, subsection 169(c).

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Immigration and Refugee Protection Act, SC 2001, chapter 27, subsection 169(f).

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Immigration and Refugee Protection Act, SC 2001, chapter 27, subsection 169(a).

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Immigration and Refugee Protection Act, SC 2001, chapter 27, subsection 171(c).

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Immigration and Refugee Protection Act, SC 2001, chapter 27, section 171.1.

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George v. Canada (Minister of Citizenship and Immigration), 2016 FC 884 (CanLII).

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Refugee Appeal Division Rules, SOR/2012-257, rule 49(2).

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Refugee Appeal Division Rules, SOR/2012-257, rule 49(3).

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Refugee Appeal Division Rules, SOR/2012-257, rule 49(5).

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Refugee Appeal Division Rules, SOR/2012-257, rule 49(4).

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Refugee Appeal Division Rules, SOR/2012-257, rule 49(6).

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Refugee Appeal Division Rules, SOR/2012-257, rule 49(7).

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Refugee Appeal Division Rules, SOR/2012-257, rule 49(9).

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Refugee Appeal Division Rules, SOR/2012-257, rule 49(8).

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Refugee Appeal Division Rules, SOR/2012-257, rule 52.

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Refugee Appeal Division Rules, SOR/2012-257, rule 53.

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Refugee Appeal Division Rules, SOR/2012-257, rule 54.

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Ahmed v. Canada (Minister of Citizenship and Immigration), 2018 FC 1157, paragraph 42 (CanLII). See also Rodriguez Vieira v. Canada (Minister of Citizenship and Immigration), 2012 FC 838, paragraph 14 (CanLII) and Manalang v. Canada (Minister of Public Safety and Emergency Preparedness), 2007 FC 1368, paragraphs 92-95 (CanLII), [2008] 4 FCR 440.

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Immigration and Refugee Protection Act, SC 2001, chapter 27, subsection 72(1).

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Immigration and Refugee Protection Act, SC 2001, chapter 27, subsection 72(2).

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Immigration and Refugee Protection Act, SC 2001, chapter 27, subsection 72(2)(b).

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Federal Courts Citizenship, Immigration and Refugee Protection Rules, SOR/93-22, rule 5(2)(b).

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Federal Courts Rules, SOR98-106, section 109.

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Policy on Higher Court Interventions (March 21, 2003).

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Federal Courts Act, RSC 1985, chapter F-7, subsection 18.1(4).

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Immigration and Refugee Protection Act, SC 2001, chapter 27, subsections 74(a) and 74(b).

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Policy on Court-Ordered Redeterminations (December 10, 2013).

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Immigration and Refugee Protection Act, SC 2001, chapter 27, subsections 74(d).

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Hamami v. Canada (Minister of Citizenship and Immigration), 2022 FC 222, paragraph 71 (CanLII).

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Supreme Court Act, RSC 1985, chapter S-26, section 40.

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Chapter 1. Introduction to the Refugee Appeal Division

Table of contents

1. Introduction to the Refugee Appeal Division

1.1. Immigration and Refugee Board's duty in proceedings before all divisions

1.2. Jurisdiction of the Refugee Appeal Division

1.2.1. Subsection 110(1) of the Immigration and Refugee Protection Act

1.2.2. Subsection 162(1) of the Immigration and Refugee Protection Act

1.2.3. Decisions that cannot be appealed to the Refugee Appeal Division

1.2.3.1. Appeals from Persons who are from Designated Countries of Origin

1.2.3.2. Appeals from Persons who are an Exception to the Safe Third Country Agreement

1.3. Parties before the Refugee Appeal Division

1.3.1. Who is a party?

1.3.2. Person who is the subject of the appeal

1.3.3. Minister

1.3.4. United Nations High Commissioner for Refugees (UNCHR) and Observers

1.3.5. Interested parties

1.4. Appealing to the Refugee Appeal Division - Requirements under the Act, Regulations, and Rules

1.4.1 Characteristics of an appeal at the Refugee Appeal Division

1.4.1.1. Powers of a commissioner

1.4.1.2. Standard of review at the Refugee Appeal Division

1.4.1.3. Evidence at the Refugee Appeal Division

1.4.1.4. Oral hearings

1.4.1.5. Remedies

1.4.2. Requirements applicable to appeals made by the personNote 58

1.4.2.1. Filing an appeal, perfecting an appeal, and content of person's appellant record

1.4.2.2. Intervention by the Minister

1.4.2.3. Reply by the person

1.4.2.4. Extension of time to file, perfect, or reply

1.4.2.5. Disposition of an appeal

1.4.3. Requirements applicable to appeals made by the Minister

1.4.3.1. Filing an appeal, perfecting an appeal and content of the appellant's record

1.4.3.2. Response by the person and reply by the Minister

1.4.3.3. Extension of time for Minister to file or perfect

1.4.3.4. Extension of time for person to respond

1.4.3.5. Disposition of an appeal

1.4.4. Requirements applicable to all appeals including those with a hearing

1.4.4.1. Communicating with the Division

1.4.4.2. Counsel

1.4.4.3. Refugee Protection Division record

1.4.4.4. Language of the appeal

1.4.4.5. Designated representative

1.4.4.6. Specialized knowledge and judicial notice

1.4.4.7. Notice of constitutional question

1.4.4.8. Conferences

1.4.4.9. Documents

1.4.4.10. Applications

1.4.4.11. Joining or separating appeals

1.4.4.12. Proceedings in public/absence of public

1.4.4.13. Composition of panels and assignments of three-member panel

1.4.4.14. Requirements when holding an oral hearing

1.4.4.15. Withdrawing an appeal and reinstating a withdrawn appeal

1.4.4.16. Abandonments

1.4.4.17. Decisions and reasons

1.4.4.18. Reopening an appeal

1.4.4.19. General provisions under the Refugee Appeal Division Rules

1.5. Judicial Review and Appeals

1.5.1. Federal Court

1.5.2. Federal Court of Appeal

1.5.3. Supreme Court of Canada

Notes

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1.4.2. Requirements applicable to appeals made by the person^{Note 58}