When a refugee claim is denied, the “claimant” (the person who made the refugee claim) receives a document called a Notice of Decision, issued by the Refugee Protection Division (RPD), which officially informs them of the outcome of their claim. This notice is accompanied by the Reasons for Decision, in which the Board Member or Panel who made the decision explain why they decided to deny the claim. It is the Reasons for Decision that will allow a lawyer to assess whether there were errors of fact or law in the decision, and to determine the merits of an appeal to the Refugee Appeal Division (RAD), or whether the decision should be challenged through another legal processes, called “judicial review”, which requires an application to the Federal Court of Canada.
After a denial, it is necessary to be aware that a challenge to the denial must be initiated within 15 days! If this deadline is missed, the removal order that all refugee claimants receive when they first make their claims will become enforceable!
The RAD considers appeals against a decision of the RPD decisions to allow or reject a claim for refugee protection.
However, not ever denied claimant has this right. Claimants cannot appeal if they are considered a “designated foreign national,” or if the RPD decision declared that their claim was of “no credible basis” or “manifestly unfounded.” An appeal will also not be available to a claimant who withdrew or abandoned their refugee claim, because, in such situations, the RPD did not “allow or reject” their claim. It is essential to review the Notice of Decision to determine whether an appeal is permitted. If you are not eligible to appeal to the RAD, you may be able to apply for Judicial Review in the Federal Court of Canada.
If a claimant is not entitled to appeal to the RAD, or if the appeal is rejected, there are other potential options to try to remain in Canada, such as “Judicial Review” in the Federal Court, or a “Pre-Removal Risk Assessment” (PRRA) Application. It may also be possible to apply for permanent residence on Humanitarian and Compassionate (H&C) grounds, depending on the circumstances.
If a denied claimant is eligible, the first step in the appeal process is to submit a “Notice of Appeal” to the RAD. The deadline is 15 days from the date the applicant received the written reasons for the RPD’s decision. It is extremely important not to miss this deadline! If this deadline is missed, the claimant may request an extension, but must prove why the deadline was missed and attach a statement explaining the delay. This strict deadline means that any failure to follow up on the case or to communicate with the lawyer may completely compromise the right to appeal.
After submitting the Notice of Appeal, an “appellant” (what a denied claimant is referred to as in an appeal) will receive an acknowledgment letter, which will state the deadline by which they must file their Appellant’s Record.
An “Appellant’s Record” is used to provide the RAD with all of the documents, evidence, and arguments to try to convince the RAD to change the RPD’s decision. This document must be submitted within 45 days of the date of the RPD’s negative decision.
Most significantly, an Appellant’s Record should include any new evidence (when justified), and a written memorandum which should contain legal arguments addressing the RPD’s decision. The quality, organization, and relevance of the new evidence and arguments will decide the success or failure of an appeal. However, the RAD is only permitted to accept new evidence if that evidence arose after the rejection of the claim, if it was not reasonably available, or if the appellant could not reasonably have been expected to have presented the new evidence to the RPD, before the RPD rejected their claim.
Typically, most appeals before the RAD do not qualify for a new hearing, and the appeal is decided on the basis of the Appellant’s Record. However, the RAD may be persuaded to conduct a hearing, or may decide to hold a hearing of its own initiative, in some special circumstances.
After the Appellant’s Record is filed, it will take some time for a Member of the RAD to review and come to a decision on the appeal. When a decision has been made, the appellant will receive a “Notice of Decision” from the RAD, which will indicate whether the RAD has decided to 1) grant the appellant protection, 2) reject the appeal and confirm the denial of their claim, or 3) send the claim back to the RPD for a do-over.
If the appeal is-granted along with protection, the appellant is immediately granted “protected person” status, which will entitle them to apply for permanent residence in Canada. If the appeal is-rejected, that rejection can be challenged by making an application for judicial review to the Federal Court of Canada, asking the Court to quash the rejection. That process is technical and also comes with a strict 15-day deadline for initiating the application. The assistance of qualified lawyer is imperative to determining whether mistakes were made in a decision to deny a refugee claim, and to ensuring that an appeal has the best chance of success.