On December 15, 2012, the system for determining refugee claims made in Canada underwent significant changes as a result of the coming into force of the Balanced Refugee Reform Act and the Protecting Canada’s Immigration System Act, the latter of which amends both the Immigration and Refugee Protection Act and the Balanced Refugee Reform Act. The new law establishes a Refugee Appeal Division within the IRB.
About the Refugee Appeal Division (RAD)
Appeals at the RAD will be decided by Governor in Council appointees. It will provide an opportunity for most failed claimants to appeal a negative Refugee Protection Division (RPD) Decision. It will also be the venue for the Minister to appeal a positive RPD decision, in most cases.
All failed claimants and the minister continue to be able to ask the Federal Court to review a decision.
Overview of the changes
The RAD will primarily be a paper-based process. While oral hearings are possible, they will be held only under limited circumstances. Only in restricted circumstances will the RAD refer cases back to the RPD. All failed claimants with a right of appeal (see below for a list of which RPD decisions cannot be appealed), and the Minister, will be able to ask the Federal Court to review a RAD decision.
Typically, RAD appeals will be decided by a single member panel. The IRB Chairperson may, in some instances, direct that an appeal be decided by a three-member panel. Decisions by a three-member panel will be binding for the RPD and for RAD single member panels.
Access to appeals
- No appeal may be made with respect to any of the following RPD Decisions:
- It is expected that the regulations will set out that the time limit to file and perfect an appeal to the RAD is 15 working days after the day the claimant or the Minister receives the written reasons for the RPD decision.
Rights of the Minister
- The Minister can be an appellant at the RAD
- The Minister may file and perfect an appeal by submitting a notice of appeal and any supporting documents
- The Minister may, at any time before the RAD makes a decision, after giving notice to the Division and to the person who is the subject of the appeal, intervene in the appeal of a person who is the subject of an appeal
- The Minister may, at any time before the RAD makes a decision, submit documentary evidence and make written submissions in support of the Minister's appeal or intervention in the person's appeal
- The RAD must make a decision within the time limits set out in the regulations, unless the RAD holds an oral hearing.
- It is expected that the regulations will set out that in cases where no oral hearing is held at the RAD, the time limit for a RAD decision is 90 days after an appeal is perfected.
- The RAD does not have jurisdiction to reopen on any ground - including a failure to observe a principle of natural justice - an appeal in respect of which the Federal Court has made a final determination.
IRB preparations for Coming into Force (RAD)
The IRB has been working on a series of measures to meet the new time limits and requirements arising from the Acts.
These measures include:
- Revising the draft RAD rules
- Preparing to consult on the draft RAD rules
- Establishing appropriate registry and adjudicative support
- Planning for the implementation of the required IT systems and physical accommodations
- Developing and testing procedures including simulated appeals
- Working to ensure that information about the RAD and the appeal process is as accessible as possible to appellants
Frequently Asked Questions
When will the Refugee Appeal Division be available?
The Refugee Appeal Division will only be implemented at coming into force of the relevant provisions of the new legislation (the Balanced Refugee Reform Actand the Protecting Canada's Immigration System Act). There is currently no date set for coming into force.
How will appeals be made to the RAD?
Appeals to the RAD will only be possible at coming into force (no date for coming into force has yet been identified). Detailed instructions on the RAD appeal process will be available online at coming into force. In the meantime, applications for leave for judicial review of a Refugee Protection Division decision must be made to the Federal Court.
What is a designated country of origin?
CIC has stated that designated countries of origin (DCO) would be countries that do not normally produce refugees, but do respect human rights and offer state protection. The proposed changes would amend the criteria used to identify countries to be considered for designation, and remove the requirement to have an expert panel make a recommendation to designate. For more information on designated countries of origin, visit the CIC website.
What is the IRB doing to assist unrepresented claimants?
The IRB is making every effort to ensure that it will be ready to meet the new time limits and will also provide tools and information that are accessible and easily understood to help unrepresented claimants do the same. Considerable effort will also be taken to ensure that clear information on claimants' rights and obligations are made available in various formats at the earliest possible opportunity. The IRB has a very good history of working with unrepresented claimants.
How will you address the needs of vulnerable persons in the new system?
The IRB is keenly aware of and committed to addressing the important needs of vulnerable persons. We already have a number of different tools to help us do this, including the Chairperson's Guideline 8. The guideline encourages flexibility and sensitivity when dealing with vulnerable persons. With regards to scheduling, we currently ensure that vulnerable persons are prioritized to reduce the uncertainty and anxiety that delays may cause. The needs and concerns of vulnerable persons are also an important part of member training, which puts great emphasis on recognizing and identifying vulnerable persons early on.
While these existing tools have been very helpful, we are also taking great care to see how we can further address the needs of vulnerable persons in the new documents, forms, policies and procedures that we are developing for refugee reform. The new legislative framework mandates strict time limits for the convening of hearings as well as for filing of appeals. But they also allow for the ability to grant extensions and or postponements for reasons of fairness and natural justice.
The first and most important step in this proposed new system will be ensuring that claimants, particularly those who are unrepresented, are aware of the right to request an accommodation if their ability to present their case before the IRB is severely impaired. As always, the decision maker will then determine to what extent procedural accommodations are necessary on a case by case basis. To that end, we are exploring ways to provide information on vulnerable persons that is clear and readily available.