Canada is a signatory to the 1951 Geneva Convention Relating to the Status of Refugees and its 1967 Protocol. Each year Canada grants permanent residence to approximately 30,000 refugees under an elaborate refugee protection process comprising of two main components, the Refugee and Humanitarian Resettlement Program administered outside Canada and the In-Canada Refugee Protection Process.
A convention refugee is a person who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside the country of his nationality and is unable to or, owing to such fear, is unwilling to avail himself of the protection of that country.
A person in need of protection is a person in Canada whose removal to their country of nationality or former habitual residence would subject them to the possibility of torture, risk of life, or risk of cruel and unusual treatment or punishment.
The majority of approved refugees are granted asylum status inside Canada and make their claim at a Canadian port of entry or at an inland Canada Immigration Centre office.
Once a CIC officer decides that a refugee protection claimant is eligible to be referred, the claim is sent to the Immigration and Refugee Board (IRB) where a hearing takes place before an independent tribunal comprised of Refugee Protection Division members who determine whether the claimant is a convention refugee or a person in need of protection.
The hearing although non adversarial in nature usually takes place in the presence of the applicant’s legal counsel and the government’s refugee claims officer. If approved the claimant may apply for permanent residence from within Canada. The process generally concludes in about 18 months.
Prior to the hearing claimants may be entitled under Canadian law to obtain employment authorization or student authorization.
Certain categories of individuals are not eligible to have their claim referred to the IRB.
Despite how compelling your claim, evidence, and witnesses may have been, refugee hearings do not always go as planned. The Member (decision-maker) hearing your case may not believe some of the facts you alleged, your evidence may not have appeared consistent, or there just may not have been enough there for your claim to succeed. Whatever the reason, if your refugee claim is refused by the Refugee Protection Division (RPD), you have an opportunity to challenge that refusal at the Refugee Appeal Division (RAD).
How Does A Refugee Appeal Division Work?
If your refugee claim before the Refugee Appeal Division is dismissed, you have the right to appeal at the Refugee Appeal Division.
To exercise this right, you must file a Notice of Appeal to the Refugee Appeal Division within 15 days of receiving your negative Refugee Appeal Division decision.
It is incredibly important to stick to the deadlines that the Refugee Appeal Division sets out in order to preserve all your rights to appeal.
After you have filed your notice of appeal, you then have 30 days to perfect your application.
To perfect your application, you must file an Appellant’s Record, which usually consists of an affidavit, any evidence you seek to rely on as part of your appeal, as well as a detailed memorandum of law which sets out your legal arguments.
When you appeal a decision at the Refugee Appeal Division, what you are arguing is that the decision made at the RPD was unreasonable or incorrect, for whatever reason.
For this reason, you must be careful with what evidence you seek to rely on for your appeal.
You are allowed to raise concerns with how any of the evidence that was already on the record was treated, but you must be very cautious, for example, with any new evidence that you seek to raise. There are strict guidelines for how to admit new evidence at the Refugee Appeal Division, and if you want to rely on that evidence to overturn a negative decision, you have to be sure it is properly tendered.
As part of the preparation of your RAD appeal, it also helps to have a recording of the original RPD hearing.
This can be requested from the Immigration and Refugee Board of Canada, but make sure you make that request well in advance of when your Appeal Record is due.
RAD appeals are more often than not started and concluded entirely in writing.
In some cases, a further hearing may be required to deal with credibility concerns or new evidence, but generally speaking, a RAD appeal is submitted in writing and dealt with by another decision-maker in writing.