Filing an appeal with the Refugee Appeal Division (RAD) is a critical step after a claim is refused. However, many appellants misunderstand how this process works. Unlike the initial hearing, the RAD does not typically hold a new trial. It is primarily a “paper-based” review where a decision-maker looks at the documents and transcripts from the previous hearing to see if mistakes were made.

A common misconception is that the appeal is an opportunity to fix a case by adding documents that were missing the first time. This is often referred to as trying to “tune up” a case. The rules are clear: the appeal is not a chance to improve a claim with evidence that should have been provided earlier.

However, the law does allow for new evidence in very specific, limited situations. To have new documents accepted, an appellant must prove they meet a strict set of legal rules.

The First Test: The Three Legal Categories

Before the RAD will even look at the content of a new document, the appellant must prove that it fits into one of three specific categories defined in the Immigration and Refugee Protection Act. If the evidence does not fit, it is rejected immediately.

1. Evidence that arose after the rejection This category applies to information about events that happened after the first decision was made. It is important to note that the date on a document does not matter as much as the events it describes. A document created today that describes events from the past is generally not considered “new” under this rule. The evidence must relate to a change in circumstances or a new event that occurred after the claim was refused.

2. Evidence that was not reasonably available This rule covers documents that existed at the time of the first hearing but could not be obtained. The standard here is “reasonable diligence.” It is not enough to say the evidence was difficult to find. The appellant must show that they made every reasonable effort to get the documents before the initial decision but were still unable to do so. If the RAD believes the documents could have been found earlier with more effort, they will not be admitted.

3. Evidence that could not reasonably have been expected to be presented This category applies when an appellant had documents (or could have obtained them) but had no reason to believe they were relevant at the time. This often happens when the first decision is based on a surprising finding or a new issue that was not discussed during the hearing. In these cases, it would be unfair to penalize the appellant for not providing evidence to argue a point they did not know was being considered.

The Second Test: The “Singh” Factors

Even if the evidence fits into one of the three categories above, it must also pass a second test based on legal principles established by the courts (specifically the Singh decision). This test ensures the evidence is actually useful to the appeal.

Newness: The evidence must provide new information. It cannot simply repeat what is already in the file. It must prove a current situation, reveal a fact that was previously unknown to the appellant, or contradict a specific finding made in the previous decision.
Relevance: The evidence must be directly capable of proving or disproving a central issue in the appeal. General information that does not specifically address the reasons for the refusal is often considered irrelevant. The evidence must have the potential to affect the final outcome of the case.
Credibility: Because the RAD usually does not hold a hearing to question witnesses, the new documents must appear trustworthy on their own. The decision-maker will look at the source of the document and the circumstances of how it was obtained. If the timing of the document is suspicious or the source cannot be verified, it may be rejected as lacking credibility.

How to Submit the Evidence

The burden of proof is entirely on the appellant. It is not enough to simply attach new documents to the appeal file.

To succeed, the appellant must include detailed written explanations (submissions) arguing exactly how each document meets the tests described above. This is often done in the “Appellant’s Memorandum.” Additionally, an affidavit (a sworn statement) is frequently required to formally explain why the evidence was not available earlier or how it was obtained. Without these explanations, the RAD may reject the evidence for failing to meet the legal requirements.

Conclusion

The rules for admitting new evidence at the RAD are designed to ensure finality and fairness. The system expects all available evidence to be presented at the first hearing. While exceptions exist for genuine changes in circumstances or unavailable information, these exceptions are narrow. Understanding and strictly following these criteria is the only way to have new evidence considered in a refugee appeal.

https://www.irb-cisr.gc.ca/en/legal-policy/legal-concepts/rad-handbook/Pages/radhb-04.aspx