Respondent'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 a Minister's appeal to the RAD?

When the Minister appeals to the RAD, the Minister is asking a higher tribunal (the RAD) to review the decision made by a lower tribunal (the RPD). The Minister 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 you and the Minister. However, you or the Minister may also present new evidence that the RPD did not have when it made its decision. In certain circumstances, the RAD may order a hearing to consider this new evidence.

Which decisions can the Minister appeal to the RAD?

The Minister can appeal the RPD decision to accept your refugee protection claim unless:

• you are a designated foreign national;
• 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; or
• your claim was referred to the RPD before the relevant provisions of the new system came into force in December 2012.

When can the Minister appeal my case to the RAD, and how will I know that the Minister is appealing?

You will know that the Minister is appealing when the Minister completes the steps below. Each step requires the Minister to send you a document within a specific time limit.

1. Filing the appeal
   To file an appeal, the Minister must give you and the RAD a document called a notice of appeal. The time limit for this step is 15 days after the day on which the Minister received the written reasons for the RPD decision. Since the RPD sends its decision to you and the Minister at the same time, this means you should receive the notice of appeal within a couple of weeks of receiving the RPD decision.
2. Perfecting the appeal
   To perfect the appeal, the Minister must give you and the RAD any supporting documents the Minister wants to use as evidence. The Minister may also give you and the RAD a document called an appellant's record. The time limit for this step is 30 days after the day on which the Minister received the written reasons for the RPD decision. Since the RPD sends its decision to you and the Minister at the same time, this means you should receive the supporting documents within a month of receiving the RPD decision.
   
   As soon as you receive a supporting document (any document other than the notice of appeal) from the Minister, the appeal has been perfected and your time limit to respond to the appeal begins.

What language will be used in the Minister's appeal?

When the Minister files and perfects the appeal, the Minister will use the official language (English or French) that you chose to use in your RPD hearing. 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.

Who decides the appeal?

A decision-maker called a RAD member will decide the Minister's 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 the Minister believes that there should be a hearing, the Minister will have to ask for one in the appellant's record and explain why a hearing should be held. If you believe that a hearing should be held, you should ask for one in the statement you provide as part of your respondent's record. 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.

Who can respond to a Minister's appeal?

If you were granted refugee protection by the RPD and the Minister is appealing that decision, you have the right to respond to the appeal and to file documents. If you decide not to respond, the RAD will decide the Minister's appeal on the basis of the Minister's documents and the RPD record.

What do I have to do to respond to the Minister's appeal?

To make sure the RAD will review your response to the Minister's appeal, you must:

• submit a n​otice of intent to respond;
• prepare your respondent's record;
• provide a copy of your notice of intent to respond and your respondent's record to the Minister and then to the RAD no later than 15 days after the day on which you receive a supporting document from the Minister;
• give the RAD proof that you provided the notice of intent to respond and the respondent's record to the Minister;
• make sure that all of the documents you provide are in the right format; and
• provide your documents on time.

If you do not do all of these things, the RAD may not take your response to the Minister's appeal into consideration.

What is the time limit for responding to the Minister's appeal?

You must file your notice of intent to respond and your respondent's record no later than 15 days after the day on which you receive a supporting document from the Minister.

What happens if I miss the time limit?

If you miss the time limit for filing your notice of intent to respond and your respondent's record and you still want to respond to the Minister's appeal, you must file an application for an extension of time.

The application for an extension of time must follow rule 12 (Extension of time) and rule 37 (How to make an application) of the RAD Rules. You must provide a copy of the application to the Minister, and then send the application to the RAD along with proof that you gave a copy to the Minister. You must also provide an affidavit or solemn declaration that explains why you missed the time limit.

Am I required to have counsel represent me when I respond to the Minister's appeal?

You are not required to have counsel represent you when you respond to the Minister's 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 response to the Minister's appeal, including meeting the time limit. If you miss the time limit, the Minister's appeal may be decided based only on the documents provided by the Minister.

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 member in good standing of a provincial law society (a lawyer or a paralegal, in a province that allows paralegals to be members of the 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 called ​Notice of Representation Without a Fee or Other Consideration. You must provide a copy of the form to the Minister, and then provide the original to the RAD as soon as possible.

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 the Minister's appeal is finished. However, you can ask the RAD to change your designated representative. You must include the contact information for your current designated representative, and any proposed change of designated representative, in your notice of intent to respond. 

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

Can the Minister reply to my response?

Yes, the Minister can reply to your response. If the Minister decides to do so, the Minister must give the reply to you first and then to the RAD. The reply will include any documents that the Minister wants to use to support the reply and did not provide with the notice of appeal or the appellant's record.

Additional documents from the Minister

As mentioned above, the Minister has a 15-day time limit for filing the notice of appeal and a 30-day time limit for filing supporting documents to perfect the appeal. However, the Minister can file other documents or submissions at any time before the RAD decides the appeal. If the Minister does file additional documents, you will have 15 days to reply to those documents.

Notice of intent to respond

In the notice of intent to respond, 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 Citizenship and Immigration Canada (CIC);
• your RPD file number;
• the date of the RPD decision the Minister is appealing;
• the official language you would like to use (English or French); and
• if you had a designated representative at the RPD, their name and contact information, as well as information about any proposed change in representative.

Respondent's record

You must provide your respondent's record at the same time as your notice of intent to respond. The respondent'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 response. Note that you are not required to submit a transcript. However, if you want to use one in support of your response, you must first ask the RPD for a copy of the recording of your hearing. Then, you must arrange to have a transcript produced from the recording. You also need to provide a statement that the transcript is accurate, signed by the person who made it.
2. A written statement that states:
   • whether you are asking for an oral hearing to be held under subsection 110(6) of the IRPA;
   • whether you are 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.
3. Any other documentary evidence that you want to use in support of your response to the Minister's appeal.
4. Any law, case law or other legal authority that you want to use in support of your response to the Minister's 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 is very recent), you must provide a hard copy with the relevant portions highlighted.
5. A memorandum, which is a document that gives as many details as possible about:
   • the reasons why you do not agree with the Minister;
   • what decision you want the RAD to make; and
   • if you are asking for an oral hearing, how the evidence in your respondent's record meets the requirements of subsection 110(6) of the IRPA, which requires that the evidence raises a serious issue about your credibility, that it is central to the RPD decision on your refugee protection claim, and that, if accepted, would justify allowing your claim.
   Your memorandum must not be longer than 30 pages if single-sided or 15 pages if double-sided.

All of the documents in your respondent'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.

Where and when must I send the documents for my response?

After receiving a supporting document from the Minister, you must first send a copy of your notice of intent to respond and your respondent's record to the Minister. You must then provide both documents to the RAD Registry in the regional office that sent you your RPD decision, along with proof that you gave a copy of these documents to the Minister.

The RAD must receive your notice of intent to respond and your respondent's record no later than 15 days after the day on which you received a supporting document from the Minister. If the RAD granted the Minister an extension of time to perfect the appeal, the RAD must receive your documents no later than 15 days after the day on which you received the RAD's decision to extend the time.

What is the Minister's address?

You must use the address of Minister's counsel shown on the notice of appeal you received from the Minister.

Decision process

The RAD usually makes its decision based on the information in the documents that you and the Minister provided, as well as 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 have a hearing

A RAD hearing will be held only if you or the Minister provided evidence that meets the requirements of subsection 110(6) of the IRPA. In other words, a hearing may be held if there is evidence that:

• 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 not 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. 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.

When will I find out about the RAD decision?

The RAD is expected to make its decision no more than 90 days after the appeal was perfected, unless there is a hearing. If there is a hearing, the RAD will make a decision as soon as possible after the hearing.