Appellant's Guide

What is the RAD?

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

• confirm the determination of the RPD;
• set aside the determination and substitute a determination that, in its opinion, should have been made; or
• refer the matter to the RPD for re-determination, giving the directions to the RPD that it considers appropriate.

The RAD is separate and independent from the RPD.

What is an appeal to the RAD?

When you appeal to the RAD, you are asking a higher tribunal (the RAD) to review the decision made by a lower tribunal (the RPD). You must show that the RPD made mistakes in its decision. These mistakes can be about the law, the facts, or both. The RAD will decide whether to confirm or change the RPD decision. It may also decide to send the case back to the RPD for re-determination, giving the directions to the RPD that it considers appropriate.

The RAD generally makes its decision without a hearing, on the basis of the submissions and the evidence provided by the parties (you and the Minister, if the Minister intervenes). In certain circumstances, which will be explained more fully later in this guide, the RAD may allow you to present new evidence that the RPD did not have when it made its decision. If the RAD accepts your new evidence, it will consider the evidence in its review of your appeal. It may also order an oral hearing to consider this new evidence.

Which decisions can be appealed?

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

Who can appeal?

Unless your claim falls into one of the categories in the next section, you have the right to appeal to the RAD. If you appeal to the RAD, you are the appellant. If the Minister decides to participate in your appeal, the Minister is the intervener.

Who cannot appeal?

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

• you are a designated foreign national;
• your refugee protection claim was withdrawn or abandoned;
• the RPD decision says that your claim has no credible basis or is manifestly unfounded;
• you made your claim at a land border with the United States and the claim was referred to the RPD as an exception to the Safe Third Country Agreement;
• the Minister made an application to cease (end) your refugee protection, and the RPD decision allowed or rejected that application;
• the Minister made an application to vacate (cancel) the decision to allow your refugee protection claim, and the RPD decision allowed or rejected that application;
• your claim was referred to the RPD before the relevant provisions of the new system came into force in December 2012;
• your claim for refugee protection was deemed to be rejected under Article 1F(b) of the Refugee Convention because of an order of surrender under the Extradition Act.

When and how do I appeal to the RAD?

There are two steps involved in appealing to the RAD:

1. Filing your appeal

   You must file your notice of appeal to the RAD no later than 15 days after the day on which you received the written reasons for the RPD decision. You must provide three copies (or one copy only if submitted electronically)​ of your notice of appeal to the RAD Registry in the regional office that sent you your RPD decision.

2. Perfecting your appeal

   You must perfect your appeal by providing your appellant’s record to the RAD no later than 45 days after the day on which you received the written reasons for the RPD decision. You must provide two copies of your appellant’s record (or one copy only if submitted electronically)​ to the RAD Registry in the regional office that sent you your RPD decision.

What are my responsibilities?

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

• provide three copies (or one only if submitted electronically)​ of the notice of appeal to the RAD no later than 15 days after the day on which you received the written reasons for the RPD decision;
• provide two copies (or one only if submitted electronically) of the appellant’s record to the RAD​ no later than 45 days after the day on which you received the written reasons for the RPD decision;
• make sure that all of the documents you provide are in the right format;
• clearly explain the reasons why you are appealing; and
• provide your documents on time.

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

What are the time limits for an appeal?

The following time limits apply to your appeal:

• no more than 15 days after the day on which you received the written reasons for the RPD decision, you must file your notice of appeal.
• no more than 45 days after the day on which you received the written reasons for the RPD decision, you must file your appellant’s record.
• Unless a hearing is ordered, the RAD will wait 15 days before making a decision on your appeal.
• The Minister may decide to intervene and submit documentary evidence at any time before the RAD makes a final decision on the appeal.
• If the Minister decides to intervene and to provide submissions or evidence to you, the RAD will wait 15 days for you to reply to the Minister and the RAD.
• Once you have replied to the Minister and the RAD, or if 15 days have passed and you have not replied, the RAD will make a decision on your appeal.

What happens if I miss a time limit?

If you miss the time limit to file the notice of appeal or the appellant’s record and you still want to continue with the appeal, you must file an application for an extension of time. The application form is part of the Appellant’s Kit, which includes this guide, and is available on the IRB Web site and from the RAD registries.

The application for an extension of time must follow rule 6 (Application for extension of time to file or perfect) and rule 37 (How to make an application) of the RAD Rules. You must provide three copies (or one copy only if submitted electronically)​ of your notice of appeal and two copies of your appellant’s record with your application. You must also provide an affidavit or solemn declaration that explains why you missed the time limits.

Who will decide my appeal?

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

Will there be a hearing?

In most cases, the RAD does not hold a hearing. The RAD usually makes its decision using the information in the documents that you and the Minister provide, as well as the information that was considered by the RPD decision-maker. If you believe that there should be a hearing for your appeal, you should ask for a hearing in the statement you provide as part of your appellant’s record and explain why you think a hearing should be held. The member may also decide that a hearing is needed in specific circumstances. If so, you and the Minister will receive notices to appear for a hearing.

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

You are not required to have counsel represent you in your appeal. However, you may decide that you want counsel to help you. If so, you must hire counsel and pay their fees yourself. Whether or not you hire counsel, you are responsible for your appeal, including meeting the time limits. If you miss a time limit, the RAD may decide your appeal without further notice.

Who can represent me?

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

• a lawyer or a paralegal who is a member in good standing of a provincial law society;
• a member in good standing of the Chambre des notaires du Québec; or
• an immigration consultant who is a member in good standing of the College of Immigration and Citizenship Consultants​.

If your counsel is not charging a fee or receiving other payment, that person can be anyone, including a representative of a non-governmental organization, a friend, a relative or a community member you trust. In this case, you must complete the form entitled “Notice of Representation Without a Fee or Other Consideration”, which you can find in your Appellant’s Kit, and give the form to the Minister and the RAD as soon as possible. If the Minister intervened in your RPD hearing, you must send the form to the address of counsel for that Minister. If the Minister did not intervene, then you must provide the form to the applicable address.

What is a designated representative?

A designated representative is a person who is responsible for protecting the interests of a child less than 18 years old or of an adult who is unable to understand what the appeal process is about. The designated representative is also responsible for explaining the appeal process to that person.

In the case of children less than 18 years old, the designated representative is usually the child’s parent. However, another family member, a legal guardian, a friend or a worker from a social services agency can also be the designated representative if they meet the requirements set out in the RAD Rules.

If you or your children had a designated representative at the RPD, then that person will continue to be the designated representative until your appeal is finished. However, you can ask the RAD

to change your designated representative by sending a letter to the RAD. This letter should give the name of the person you want to have as your new designated representative.

If you did not have a designated representative at the RPD but need one for RAD, you or your counsel must notify the RAD in writing immediately. You must explain why you need a designated representative and include any supporting evidence you have.

Is my appeal confidential?

Yes, the RAD will keep the details of your appeal confidential. This means that no information about you or your appeal can be made public, including information about your identity, the documents in your file and the decision on your appeal.

What if I move before my appeal is finished?

If you move, you must tell the Minister and the RAD immediately. To do so, send the RAD and the Minister a letter with your name, your RAD file number and your new mailing address.

If you move without telling the Minister and the RAD, you may not receive important documents. If the RAD and the Minister do not have your current address, this could affect your appeal. For example, you may miss the opportunity to reply to documents that the Minister provides, or you may miss providing documents that the RAD asks you for. If the RAD decides to hold an oral hearing, you may miss receiving the notice to appear and your appeal may be declared abandoned.

What language will be used in my appeal?

Canada has two official languages: English and French. In your notice of appeal, you can choose which official language you would like the RAD to use. All of the documents you give to the RAD must be in either English or French. If your documents are in another language, you must have them translated into one of the official languages (English or French). You must provide the

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

• the translator’s name;
• the language the document was originally written in; and
• a statement that the translation is accurate, signed by the translator.

If the RAD decides to hold an oral hearing and you need an interpreter for the hearing, the RAD will provide one.

Filing an appeal: notice of appeal

To start your appeal, you must complete a notice of appeal. You can find this form in your Appellant’s Kit. In the notice of appeal, you must give the following information:

• your name, your telephone number and an address where you can receive documents;
• if you have counsel, your counsel’s name, their contact information and what they have permission to do for you;
• the unique client identifier (UCI) given to you by Immigration Refugees and Citizenship Canada (IRCC) or the Canada Border Services Agency (CBSA);
• your RPD file number;
• the date of the RPD decision you are appealing;
• the date you received the written reasons for the RPD decision;
• the official language you would like to use in your appeal (English or French); and
• if you had a designated representative at the RPD, their name and contact information.

Perfecting the appeal: appellant’s record

You must provide two copies (or one copy only if submitted electronically) of the appellant’s record to the RAD no later than 45​ days after the day on which you received the written reasons for the RPD decision. As part of the appellant’s record, you must include a statement saying whether you are submitting new evidence and whether you are asking for an oral hearing.

The appellant’s record must have consecutively numbered pages (i.e. 1, 2, 3...) and contain the following documents, in this order:

1. All or part of the transcript of the RPD hearing, if you want to use it in support of your appeal. Note that you are not required to submit a transcript. However, if you want to use one in support of your appeal, you must arrange to have it produced from the recording that was provided to you with the RPD decision. You also need to provide a statement that the transcript is accurate, signed by the person who made it.
2. The evidence the RPD refused: If you want to use these documents in support of your appeal, include any documents the RPD refused to accept as evidence during or after the hearing.
3. A written statement that states:
   • whether you are submitting new evidence that meets the requirements in subsection 110(4) of the IRPA, that is, evidence that did not exist or was not available to you when your refugee protection claim was rejected;
   • whether you are asking for an oral hearing to be held under subsection 110(6) of the IRPA;
   • if you are asking for an oral hearing, whether you are also asking to change the location of the hearing under rule 66 of the RAD Rules; and
   • if you need an interpreter, the language and dialect, if any, to be interpreted.
4. Any other documentary evidence that supports your appeal.
5. Legal authorities: This means any law, case law or other legal authority that supports your appeal. For legal cases that are publicly available, you can provide references and links (for example, links from CanLII) instead of hard copies. If the case is not publicly available (for example, because it is from a foreign jurisdiction or it is very recent), provide a hard copy with the relevant portions highlighted.
6. A memorandum, which is a document that gives as many details as possible about:
   • the specific mistakes made by the RPD that you want the RAD to review;
   • where to find these mistakes in the RPD reasons or in the recording or transcript of the hearing;
   • if your appeal is based on documents that the RPD member did not have when the RPD decision was made, how this new evidence meets the requirements of subsection 110(4) of the IRPA and how it is related to your situation;
   • if you are asking for an oral hearing, how the new evidence you are providing meets the requirements of subsection 110(6) of the IRPA, which requires that it raises a serious issue about your credibility, that it is central to the RPD decision, and that, if accepted, would justify allowing your refugee protection claim; and
   • what decision you want the RAD to make.

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

All of the documents in your appellant’s record must be typed (not written by hand) in 12-point or larger font, on letter-size paper (216 mm by 279 mm, or 8½ inches by 11 inches). All photocopies should be clear and made on letter-size paper.

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

If the Minister decides to oppose your appeal, you will receive a notice of intervention along with any documents the Minister is providing as evidence. The Minister may also give you and the RAD an intervention record that includes documents like the ones listed in the “Perfecting the appeal: appellant’s record” section above. The Minister can provide documents at any time before the RAD makes a decision on your appeal. You have the right to reply to the Minister’s documents.

If you decide to reply to the Minister’s documents, you must provide a reply record. The reply record must have consecutively numbered pages (i.e. 1, 2, 3...) and contain the following documents, in this order:

1. All or part of the transcript of the RPD hearing, if it supports your reply and you have not already provided it. Note that you must arrange to have the transcript produced from the recording that was provided to you with the RPD decision. You also need to provide a statement that the transcript is accurate, signed by the person who made it.
2. Any additional documentary evidence that supports your reply and that you have not already provided. This evidence does not have to meet the requirements of subsection 110(4) of the IRPA.
3. Legal authorities: This means any law, case law or other legal authority that supports your reply. For legal cases that are publicly available, you can provide references and links (for example, links from CanLII) instead of hard copies. If the case is not publicly available (for example, because it is from a foreign jurisdiction or it is very recent), provide a hard copy with the relevant portions highlighted.
4. A memorandum: You are allowed to reply only to what the Minister wrote in the intervention documents. Your memorandum must not be longer than 30 pages if single-sided or 15 pages if double-sided.

All of the documents in your reply must be typed (not written by hand) in 12-point or larger font, on letter-size paper (216 mm by 279 mm, or 8½ inches by 11 inches). All photocopies should be clear and made on letter-size paper.

You must provide a copy of your reply to the Minister at the address shown in the notice of intervention, and then provide the reply to the RAD along with proof that you gave a copy to the Minister. Your reply must be received by the RAD no later than 15 days after the day on which you received the Minister’s documents.

What documents do I need to give to the Minister?

The Minister must receive a copy of all the documents you provide to the RAD. However, the RAD will give the Minister the following documents for you: the notice of appeal, the appellant’s record, and the application for an extension of time to file the notice of appeal and appellant’s record. You must send all other documents to the Minister yourself.

What is the Minister’s address?

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

• If the Minister intervened at the RPD, you must send your documents to the address of counsel for that Minister. This address was provided to you during the RPD proceedings.
• If the Minister intervened at the RAD, you must send your documents to the address in the notice of intervention.
• If the Minister did not intervene at the RPD or at the RAD, then you must send your documents to the following address:

  Immigration, Refugees and Citizenship Canada
  Reviews and Interventions Office
  25 St. Clair Avenue East, Suite 200
  Toronto, Ontario M4T 1M2

  Fax: 416-952-2420

Decision process

The RAD usually makes its decision based on the information in the documents that you and the Minister provided, as well as on the information from the RPD record, without holding a hearing. The decision will be mailed to you soon after it is made. To make sure that you receive the decision as soon as possible, it is important that you give the RAD and the Minister your correct address and that you give them your new address if you move.

Decision to consider new evidence

If you state in your appellant’s record that you are presenting new evidence to support your appeal, the RAD will decide if the new evidence meets the following test:

• it did not exist when the RPD rejected your claim;
• it was not reasonably available when the RPD rejected your claim; or
• in the circumstances, the RPD could not reasonably have expected you to have provided it when it rejected your claim.

If the RAD does not hold a hearing, its reasons for decision on your appeal will explain whether the evidence you provided met this test.

Decision to have a hearing

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

• shows that there might be a serious issue about your credibility;
• is central to the decision on your claim; and
• if accepted, would provide a good reason to allow or reject your refugee protection claim.

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

The RAD will send you and the Minister a notice to appear. This notice will tell you the date, time and location of your hearing. It will also tell you what issues the RAD will consider at the hearing.

What will happen at the hearing?

1. You will be called to testify

   You will testify in the same way as you did at your RPD hearing. Generally, you will only be able to testify about the issues in the list that was sent to you with the notice to appear.

2. Witnesses will testify

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

3. Representations will be made about your case

   After you and any witnesses have testified, the member will ask you or your counsel to explain why you think your RPD decision should be changed, based on the hearing that just took place. The member will tell you what issues you need to talk about and how long you have to do so. If the Minister is intervening, the Minister’s counsel will also be allowed to make representations on your case.

4. A decision will be made after the hearing

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

What types of decision can a RAD member make?

The RAD member will make one of the following decisions:

• confirm (agree with) the RPD decision;
• set aside (disagree with) the RPD decision and replace it with a different decision; or
• refer (send) the case back to the RPD and order a new hearing, giving the RPD the directions that it considers appropriate.