Version 2 - April 2016
Refugee Appeal Division
Information for respondents
About This Guide
This guide provides information about what to do when the Minister appeals your Refugee Protection Division (RPD) decision to the Refugee Appeal Division (RAD) of the Immigration and Refugee Board of Canada (IRB). If you were granted refugee protection and receive a notice of appeal from the Minister, this guide is for you. It will give you basic information about:
- the process for Minister's appeals at the RAD;
- what you need to do to respond to a Minister's appeal; and
- the documents you need for your response.
In a Minister's appeal, the Minister is called "the appellant" and you are called "the respondent."
If the RPD rejected your claim and you want to appeal that decision to the RAD, please refer to the Appellant's Guide, which you can find on the IRB Web site at
You can find
definitions of important concepts at the end of this guide.
This guide provides general information about how to respond when the Minister appeals the decision that granted you refugee protection. For more precise legal information, please see the
Immigration and Refugee Protection Act (IRPA), the
Immigration and Refugee Protection Regulations (IRPR) and the
Refugee Appeal Division Rules (RAD Rules). You can find links to all of these documents on the IRB Web site at
Minister's Appeals to the RAD
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.
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.
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.
Responding to the Minister's Appeal to the RAD
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 "Notice of Intent to Respond" (see page 8);
- 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. You can find the application form in the Respondent's Kit.
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 Immigration Consultants of Canada Regulatory Council.
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," which you can find in your Respondent's Kit. 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
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.
Forms and Documents
The notice of intent to respond and the respondent's record are the main documents you must provide for your response to the Minister's appeal. You can provide these documents to the Minister and the RAD in person, by mail or by courier. If you have fewer than 20 pages in total, you can also provide them by fax.
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.
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:
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.
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.
Any other documentary evidence that you want to use in support of your response to the Minister's appeal.
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.
A memorandum, which is a document that gives as many details as possible about:
Your memorandum must not be longer than 30 pages if single-sided or 15 pages if double-sided.
- 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.
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.
Understanding the RAD Appeal 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?
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.
Witnesses will testify
If there are any witnesses, they will testify after you have testified.
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.
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.
appeal: The process of asking a higher tribunal (the RAD) to review a decision made by a lower tribunal (the RPD). This guide provides information about appeals made by the Minister.
appellant: The person who wants the RAD to review the RPD decision. In appeals made by the Minister, the Minister is the appellant.
appellant's record: In appeals made by the Minister, a document the Minister may file.
Canada Border Services Agency (CBSA): The department that provides integrated border services that support Canada's national security priorities. It refers refugee protection claims made at airports, seaports and Canada-United States border crossings to the
Citizenship and Immigration Canada (CIC): The department with overall responsibility for immigration and refugee policies in Canada. It refers refugee protection claims made inside Canada to the
designated foreign national: A person who is part of a group that the Minister identified as an "irregular arrival."
Immigration and Refugee Board of Canada (IRB): Canada's largest independent administrative tribunal. It is responsible for making well-reasoned decisions on immigration and refugee matters, efficiently, fairly and in accordance with the law.
Immigration and Refugee Protection Act (IRPA): Canada's law about immigration and refugee matters.
RAD decision-maker who decides the appeal.
Minister: The Minister is represented by an officer (Minister's counsel) from either the
notice of appeal: The document that starts the appeal process. In a Minister's appeal, this document will tell you that the Minister is appealing the decision made by the
notice of intent to respond: The document that you use to tell the RAD that you are responding to the Minister's appeal. You need to provide this notice and your respondent's record at the same time.
notice to appear: The document that tells you a hearing is going to be held. It shows the date and time of the hearing, as well as where the hearing will be held.
perfected appeal: An appeal by the Minister is considered perfected when the Minister files supporting documents to use in the appeal on time and in accordance with the
RAD Rules and the
Refugee Appeal Division (RAD): The division of the
IRB that decides appeals from decisions made by the
Refugee Appeal Division Rules (RAD Rules): A legal document that sets out the rules about how the
RAD works and what people presenting cases before it need to do.
Refugee Protection Division (RPD): The division of the
IRB that decides whether or not you are a refugee or a person in need of protection.
reply: The document in which the Minister explains why he or she does not agree with your response.
respondent: The person who is responding to the 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.
respondent's record: One of the two main documents the respondent must file at the same time (the other is the notice of intent to respond).
Rule 10 of the
RAD Rules explains what needs to be included in the respondent's record.
response: The process you use to tell the RAD that you do not agree with the Minister.
Safe Third Country Agreement: An agreement between Canada and the United States that requires people seeking refugee protection to make a claim in the country they arrive in first (Canada or the United States), unless they meet the requirements for an exception to the Agreement.
supporting document: Any document that the Minister sends to the respondent and the RAD, other than the notice of appeal.
Contact Information for RAD Registries
|REGISTRY||AREA OF RESPONSIBILITY|
200 René-Lévesque Boulevard West, East Tower, Room 102
Montréal, Quebec H2Z 1X4
Telephone: 514–283–7733 or 1–866–626–8719
- New Brunswick
- Nova Scotia
- Prince Edward Island
- Newfoundland and Labrador
- Ottawa, Ontario
74 Victoria Street, Suite 400
Toronto, Ontario M5C 3C7
Telephone: 416–954–1000 or 1–866–790–0581
300 West Georgia Street, Suite 1600
Vancouver, British Columbia V6B 6C9
Telephone: 604–666–5946 or 1–866–787–7472
- British Columbia
- Northwest Territories